Filed 7/15/20




                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIFTH APPELLATE DISTRICT


 GERAWAN FARMING, INC.,
                                                                 F077033
          Petitioner,
                                                              (44 ALRB No. 1,
                  v.                                         2012-CE-041-VIS,
                                                             2013-CE-007-VIS
 AGRICULTURAL LABOR RELATIONS                               & 2013-CE-010-VIS)
 BOARD,

          Respondent;                                          OPINION
 UNITED FARM WORKERS OF
 AMERICA,

          Real Party in Interest.



        ORIGINAL PROCEEDINGS; petition for writ of review.
        Irell & Manella, David A. Schwarz; Barsamian & Moody, Ronald H. Barsamian
and Patrick S. Moody; Michael P. Mallery, for Petitioner.
        Santiago Avila-Gomez, Todd M. Ratshin and Laura F. Heyck for Respondent.
        Martinez Aguilasocho & Lynch and Mario Martinez for Real Party in Interest.
                                        -ooOoo-
       This writ proceeding addresses a decision by the Agricultural Labor Relations
Board (ALRB or Board) that agricultural employer Gerawan Farming, Inc. (Gerawan)
committed unfair labor practices by (1) engaging in bad faith “surface bargaining,” and
(2) insisting on the exclusion of workers employed by farm labor contractors (FLC
workers) from the core benefits of any collective bargaining agreement (CBA) reached
between Gerawan and the United Farm Workers of America (UFW or Union). The
Board’s findings were based on Gerawan’s bargaining conduct both before and after the
Board ordered the parties to “mandatory mediation and conciliation” (MMC) under the
MMC statutory scheme, Labor Code section 1164 et seq.1 To remedy these violations,
the Board awarded make-whole relief for the period January 18, 2013, to June 30, 2013.
       Gerawan contends (1) the MMC statute does not authorize the Board to impose
unfair labor practice liability for its bargaining conduct within the MMC process, (2) the
Board lacks the power to impose make-whole relief when a party is engaged in MMC,
and (3) the Board’s unfair labor practice findings are erroneous, arbitrary, and
unsupported by substantial evidence. Gerawan also contends the Board erred when it
denied its prehearing motion to disqualify one of the Board members who participated in
this proceeding. Finding no merit to Gerawan’s arguments, we affirm the Board’s
decision.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Gerawan, a family owned farming business, is the largest tree fruit grower in
California. In addition to growing and harvesting tree fruit such as peaches, nectarines,
plums and apricots, Gerawan grows and harvests table and wine grapes. Gerawan’s
extensive farming operations are conducted on thousands of acres of farmland in two




1     The MMC statute is part of the Alatorre-Zenovich-Dunlap-Berman Agricultural
Labor Relations Act of 1975 (Lab. Code, §§ 1140‒1166.3) (the ALRA or the Act).
Undesignated statutory references are to the Labor Code.

                                             2.
main locations: the west side ranches in the Kerman area, and the east side ranches in the
Reedley/Sanger area.
       Gerawan classifies its direct-hire employees as either “cultural” or “crew” labor.
Cultural labor, which generally works year round, includes jobs such as water truck and
tractor drivers, mechanics, irrigators, and nursery workers, while crew labor performs
seasonal work such as harvesting and pruning. When Gerawan needs more workers, it
often obtains them through farm labor contractors, whose employees perform the same
work as crew labor. In 2013, Gerawan employed about 5,000 workers annually in both
seasonal crew and year-round cultural jobs, and hired between 800 and 1,500 agricultural
employees through farm labor contractors.
       The UFW is a labor organization within the meaning of section 1140.4,
subdivision (f). In 1992, following a contested runoff election, the Board certified the
UFW as the exclusive bargaining representative of Gerawan’s agricultural employees. It
appears the parties held one in-person negotiating session in February 1995, but they
never entered into a CBA.
The Union Reappears and Negotiations Begin
       No further bargaining occurred for the next 17 years until UFW National Vice
President Armando Elenes sent Gerawan a letter on October 12, 2012, asking to
recommence negotiations. Elenes asked Gerawan to provide 10 categories of information
for Gerawan’s agricultural employees, which included: (1) employee lists for all direct-
hire and FLC workers for the 2011 and 2012 seasons, indicating, among other things,
their hire dates, wage rates, and physical and mailing addresses; (2) names, addresses and
license numbers of any farm labor contractors Gerawan used; (3) a detailed summary of
any benefits, vacation pay, bonuses, holidays, piece rates and wages provided to
employees for 2010 through 2012; and (4) copies of any current employee manuals or
policies. Elenes proposed to start negotiations at the beginning of December. After
receiving no response, Elenes sent a second letter on October 30, 2012, which repeated


                                             3.
the Union’s request to begin negotiations and for the information. Elenes threatened to
file an unfair labor practice (ULP) charge with the ALRB if he failed to receive a
response within five days.
       Gerawan responded on November 2, 2012, by a letter signed by Gerawan’s
owners Ray, Mike and Dan Gerawan. They stated they were putting the requested
information together, but after not hearing anything from the Union for over 20 years,
they needed time to review the renewed demand to bargain and determine Gerawan’s
bargaining obligation, if any. They questioned how to explain to their employees, most
of whom did not participate in the election, that they would “now have a contract and
dues thrust upon them by a union they never voted for and who abandoned them 20 years
ago.” Nevertheless, Gerawan stated it would send information in the “next week or so”
and have an attorney contact Elenes to schedule negotiations. Gerawan produced some
of the requested information in December 2012.
Pre-MMC Negotiations
       Gerawan and the UFW met for their first negotiation session on January 17, 2013.
Eight more sessions were held over the next two months.2 Throughout the negotiations,
the lead negotiators were attorney Ronald Barsamian for Gerawan and Elenes for the
UFW. The UFW provided its initial contract proposal at the first session, while Gerawan
presented its initial contract proposal at the second session on January 18, 2013. Before
March 29, 2013, Gerawan and the UFW each made four other contract proposals. The
UFW did not make any economic proposals during this time.
       In March 2013, Gerawan announced hourly pay raises through a series of flyers,
which indicated the decisions to grant pay raises were from “Ray, Mike, and Dan
Gerawan,” and claimed Gerawan consistently paid higher wages than other companies in
the industry. The flyers did not credit the UFW for these pay raises; rather, they

2     Sessions were held on January 18, 2013; February 12, 13, 27, and 28, 2013; and
March 19, 21 and 28, 2013.

                                            4.
expressed the raises were solely Gerawan’s decision and noted the Union was informed
of the “proposed plan, and we assume they will not cause any unnecessary delay.” The
UFW accepted the proposed wage increases. At that point, the Union had not made a
wage proposal, as it was waiting for some outstanding items it had requested.
Negotiations During MMC
       On March 29, 2013, the UFW asked the ALRB to direct the parties into MMC,
which the Board did on April 16, 2013. (Gerawan Farming, Inc. (2013) 39 ALRB
No. 5.) On April 2, 2013, while the UFW’s request was pending before the Board,
Gerawan and the UFW engaged in a negotiation session. After being ordered into MMC,
the parties selected a mediator, Matthew Goldberg, who was appointed in May 2013.
Goldberg provided available dates for the mediation and the parties agreed to meet with
him on June 6 and 11, 2013, when off-the-record MMC sessions were held.
       At the mediator’s request, Gerawan and the UFW continued to negotiate outside
the mediator’s presence while the MMC process was ongoing. The parties met on June
3, 2013, before the first MMC session. Gerawan presented a revised proposal to the
UFW, while the UFW prepared a matrix which compared the parties’ positions.
Thereafter, the parties held bargaining sessions on July 1, 24 and 29, 2013, outside the
mediator’s presence. The UFW made its first economic proposal on July 21, 2013. The
parties subsequently exchanged matrixes which set out the parties’ proposals and
supporting arguments on those terms they had not reached an agreement.
On-The-Record MMC Proceedings and Resulting CBA
       The mediator conducted two days of on-the-record MMC proceedings on
August 8 and 19, 2013. As the parties were unable to voluntarily agree to all terms of a
CBA, Goldberg issued a report to the Board on September 28, 2013, which fixed the
CBA’s terms.3 (Gerawan Farming, Inc. (2013) 39 ALRB No. 16, p. 1.) Gerawan

3      Gerawan has asked us to take judicial notice of the mediator’s September 28, 2013
report in ALRB Case No. 2013-MMC-003, as well as the following documents filed in
other judicial proceedings: (1) the UFW’s opposition to ex parte application for stay of

                                            5.
petitioned for review of Goldberg’s report, which the Board granted as to several terms.
The Board remanded the matter to Goldberg in accordance with section 1164.3,
subdivision (c). The parties met with Goldberg and reached agreement on the remanded
terms, which Goldberg incorporated into a second report dated November 6, 2013.
(Gerawan Farming, Inc. (2013) 39 ALRB No. 17, p. 2.) No party requested review of
the second report and the Board ordered it to take effect as a final order of the Board.
       Gerawan petitioned for review of the Board’s order, contending, among other
things, that the MMC statutory scheme was unconstitutional. While this court agreed the
MMC statute was unconstitutional, the California Supreme Court held “the MMC statute
neither violates equal protection nor unconstitutionally delegates legislative power.”
(Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1118, 1130
(Gerawan Farming I.).) The court also held “that employers may not refuse to bargain
with unions—whether during the ordinary bargaining process or during MMC—on the
basis that the union has abandoned its representative status.” (Id. at p. 1131.) The court
remanded the matter to us with instructions to conduct further proceedings consistent
with its opinion. (Id. at p. 1160.)


administrative order pending review and the declarations of Giev Kashkooli and
Armando Elenes, filed on May 24, 2013, in Gerawan Farming, Inc. v. Agricultural Labor
Relations Board, Fresno County Superior Court case No. 13CECG01408; (2) complaint
for defamation, filed on February 15, 2013, in Gerawan Farming, Inc. v. United Farm
Workers of America, Fresno County Superior Court case No. 13CECG00495; and
(3) petition for writ of review of order of Agricultural Labor Relations Board, filed on
December 16, 2013, in Gerawan Farming, Inc. v. Agricultural Labor Relations Board,
Fifth District Court of Appeal case No. F068526.
        We take judicial notice of the mediator’s report, as it was before the Board and
considered by it in rendering its decision on review in this case. With respect to the court
documents, we take judicial notice of these documents as “[r]ecords of … any court of
this state.” (Evid. Code, § 452, subd. (d)(1).) We do not, however, take judicial notice of
the truth of any factual assertions appearing in the documents. (Arce v. Kaiser
Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483; see Espinoza v. Calva
(2008) 169 Cal.App.4th 1393, 1396 [“We can take judicial notice of the fact the
pleadings were filed, but not of the truth of the statements contained in them.”].)

                                             6.
The Underlying ULP Charges and Administrative Hearing
       During the course of negotiations, the UFW filed a number of ULP charges
against Gerawan. As pertinent here, the Board’s general counsel issued complaints that
encompassed three of those charges the UFW filed in 2012 and 2013. The charges were
later consolidated into a third amended complaint (complaint), which became the
operative pleading. The complaint alleged, as relevant here, that Gerawan violated
section 1153, subdivision (e) by (1) engaging in bad faith surface bargaining, and
(2) “proposing and insisting” on the exclusion of FLC workers from the terms of any
CBA reached between the UFW and Gerawan. The parties stipulated the complaint was
limited to bargaining conduct up to August 31, 2013.
       An administrative law judge (ALJ) held a two-day hearing on the complaint in
November 2016, at which Elenes and Barsamian testified. The parties entered into a
written joint stipulation by which the parties stipulated to certain facts, as well as the
authenticity and admissibility of 62 joint exhibits, which the ALJ received into evidence.
The joint exhibits included Gerawan’s and the UFW’s correspondence, bargaining notes,
and contract proposals, as well as several matrices summarizing their positions on various
proposals. The ALJ issued a decision and recommended order on April 14, 2017,
sustaining both allegations and ordering, among other things, make-whole relief from
January 18, 2013, to June 6, 2013, the date of the first MMC session.
       Gerawan, the UFW and the Board’s general counsel all filed exceptions to the
ALJ’s decision. On January 22, 2018, the Board issued its decision and order, in which it
affirmed the ALJ’s factual findings and legal conclusions. The Board found the
imposition of make-whole relief was appropriate, but extended the make-whole relief to
June 30, 2013, the day before the effective date of the MMC contract.
The Decertification Election and Subsequent Proceedings
       Meanwhile, the Board conducted a decertification election at Gerawan on
November 5, 2013, after a majority of Gerawan workers petitioned the Board to hold an


                                              7.
election to decide whether the UFW would remain their certified bargaining
representative. The Board impounded the ballots, subject to postelection proceedings to
determine whether to set aside the election based on the UFW’s objections. (Gerawan
Farming, Inc. (2013) 39 ALRB No. 20, pp. 1, 47‒48.) In April 2016, the Board nullified
the decertification election as a remedy for Gerawan’s purported unfair labor practices
related to the election. (Gerawan Farming, Inc. v. Agricultural Labor Relations Bd.
(2018) 23 Cal.App.5th 1129, 1141 (Gerawan Farming II); Gerawan Farming, Inc.
(2016) 42 ALRB No. 1.)
       Gerawan petitioned for review of the Board’s decision, challenging the Board’s
unfair labor practice findings and the remedy of setting aside the election. (Gerawan
Farming II, supra, 23 Cal.App.5th at p. 1141.) In Gerawan Farming II, which was filed
on May 30, 2018, we concluded the Board erred in several of its unfair labor practice
findings as well as in the legal standard applied in reaching its remedial conclusions.
Accordingly, we partially set aside 42 ALRB No. 1 and remanded the matter to the Board
to reconsider its election decision under the appropriate standard. (Gerawan Farming II,
supra, 23 Cal.App.5th at p. 1141.)
       On September 27, 2018, the Board certified the results of the decertification
election, in which a majority of valid ballots were cast for “No Union,” in Gerawan
Farming, Inc. (2018) 44 ALRB No. 10, pages 11-12. Under established Board precedent,
the UFW’s decertification dates back to November 5, 2013, the date of the election.
(Gerawan Farming, Inc. (2018) 44 ALRB No. 11, p. 13.) In light of the Union’s
decertification, we concluded the remaining issues raised in Gerawan’s petition for
review of the Board’s order approving the terms of the MMC contract, which included
additional constitutional challenges to the MMC statute and the retroactive wage
increases the Board’s order imposed, were moot and we dismissed that proceeding.




                                             8.
                                        DISCUSSION
I.     Standard of Review
       We set forth the standard of review in Gerawan Farming II: “When reviewing
questions of fact, we uphold the Board’s findings if supported by substantial evidence on
the record considered as a whole. [Citations.] Under this standard: ‘[W]e do not
reweigh the evidence. If there is a plausible basis for the Board’s factual decisions, we
are not concerned that contrary findings may seem to us equally reasonable, or even more
so.’ [Citation.] ‘Furthermore, those findings and conclusions that are within the Board’s
realm of expertise are entitled to special deference. [Citation.] And, because the
evaluation of witnesses’ credibility is a matter particularly for the trier of fact, the
Board’s findings based on the credibility of witnesses will not be disturbed unless the
testimony is “incredible or inherently improbable.” ’ ” (Gerawan Farming II, supra, 23
Cal.App.5th at p. 1162.)
       This does not mean we take a “rubber stamp approach to our review of the
Board’s factual findings.” (Gerawan Farming II, supra, 23 Cal.App.5th at p. 1162.) We
measure the test of substantiality based on the “ ‘ “entire record, rather than by simply
isolating evidence which supports the board and ignoring other relevant facts of record
which rebut or explain that evidence.” ’ ” (Ibid.) “ ‘ “Substantial evidence” is not
established by just “any evidence” [citation] and is not shown by mere suspicions of
unlawful motivation [citation]. The burden of proving unlawful conduct is on the ALRB
[citation], and such conduct will not lightly be inferred [citation]. The standard of review
is met, however, if there is relevant evidence in the record which a reasonable mind
might accept in support of the findings.’ ” (Ibid.)
       Where, as here, “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.” (William Dal Porto & Sons, Inc. v. Agricultural Labor Relations Bd.
(1984) 163 Cal.App.3d 541, 548 (Dal Porto).) As the Ninth Circuit Court of Appeals


                                               9.
explained in Penasquitos Village, Inc. v. NLRB (9th Cir. 1977) 565 F.2d 1074:4
“Deference is accorded the [National Labor Relation] Board’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.’ ” (Id. at p. 1079.)
          We review questions of law, such as whether an error of law was made or the
decision was procedurally sound, de novo. (Gerawan Farming II, supra, 23 Cal.App.5th
at p. 1163.) “Board decisions that rest on ‘erroneous legal foundations’ will be set aside.”
(Ibid.)
          As for statutory construction, generally the Board’s interpretation of the Act is
given deference because the Board is the administrative agency entrusted with
enforcement of the statute; therefore, courts will follow the Board’s interpretation unless
it is clearly erroneous. (Arnaudo Brothers, L.P. v. Agricultural Labor Relations Bd.
(2018) 22 Cal.App.5th 1213, 1226 (Arnaudo Brothers).) Nevertheless, it is the court’s
fundamental responsibility in construing a statute to ascertain the Legislature’s intent so
as to effectuate the law’s purpose. Thus, the Board cannot alter or amend the Act, or
enlarge or impair its scope. (Ibid.; J.R. Norton Co. v. Agricultural Labor Relations Board
(1979) 26 Cal.3d 1, 29.)
          As for our review of the Board’s remedies, “because the Board has broad
discretion to fashion remedies to effectuate the purposes of the ALRA, courts take a


4      The ALRA directs that we rely on applicable precedents of the National Labor
Relations Act. (§ 1148; Highland Ranch v. Agricultural Labor Relations Bd. (1981)
29 Cal.3d 848, 855‒856.)

                                               10.
cautious approach and will interfere only where the remedy is patently unreasonable
under the statute [citation], or where the remedy seeks to achieve ends other than those
which can fairly be said to effectuate the policies of the ALRA.” (Gerawan Farming II,
supra, 23 Cal.App.5th at pp. 1163‒1164.) The Board’s discretion must be exercised
reasonably, not punitively. (Id. at p. 1164.)
II.    MMC and the Duty to Bargain in Good Faith
       We begin with Gerawan’s challenge to the Board’s ability to make an unfair labor
practice finding. Gerawan contends that because it was compelled into MMC, it may not
be found liable for bad faith bargaining based on positions it took during the MMC
process. An evaluation of this claim requires us first to review the ALRA and MMC
statute, and then discuss the interplay between the two as it applies here.
       A.      The ALRA
       The Legislature enacted the ALRA in 1975 “to provide for collective-bargaining
rights for agricultural employees” (§ 1140.2) by putting into place a system of laws
generally patterned after the National Labor Relations Act (29 U.S.C. § 151; the NLRA).
(J.R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at p. 8, see § 1148
[implementing the ALRA, the Board follows applicable NLRA precedents].) “The
ALRA established an elaborate framework governing the right of agricultural workers to
organize themselves into unions to engage in collective bargaining with their employers.”
(Gerawan Farming I, supra, 3 Cal.5th at p. 1129.) The ALRA also created the Board
and “granted it ‘specific powers and responsibilities of administration, particularly in
conducting and certifying elections and in investigating and preventing unfair labor
practices.’ ” (Gerawan Farming I, at p. 1130.) “[T]he ALRA identifies a number of
unfair labor practices and other unlawful acts (§§ 1153, 1154, 1154.5, 1155.4, 1155.5),
and empowers the Board to investigate, prevent, and remedy such practices (§ 1160).”
(Id. at p. 1131.)




                                             11.
         When a labor organization becomes the employees’ bargaining representative as a
result of an election, a duty to bargain is created, which requires the employer and labor
representative to “bargain collectively in good faith” in order to reach an agreement “with
respect to wages, hours, and other terms and conditions of employment,” although “such
obligation does not compel either party to agree to a proposal or require the making of a
concession.” (§ 1155.2, subd. (a).)5 The duty to bargain “has no time limit”—the duty
continues until the union is replaced or decertified through a subsequent election.
(Gerawan Farming I, supra, 3 Cal.5th at pp 1153‒1154.) It is an unfair labor practice for
an employer “[t]o refuse to bargain collectively in good faith” with a certified labor
organization. (§ 1153, subd. (e); see Dal Porto, supra, 163 Cal.App.3d at p. 548.)
         B.     The MMC Statute
         In 2002, the Legislature determined “additional legislation was necessary to fulfill
the goals of the ALRA because it had proven ineffective at facilitating the negotiation
and completion of [CBAs].” (Gerawan Farming I, supra, 3 Cal.5th at p. 1130.) The
Legislature concluded a mediation procedure would “ ‘more fully attain the purposes of
the [ALRA], ameliorate the working conditions and economic standing of agricultural
employees, create stability in the agricultural labor force, and promote California’s
economic well-being by ensuring stability in its most vital industry.’ ” (Id. at pp. 1132‒
1133.)
         “The Legislature therefore enacted the ALRA’s ‘mandatory mediation and
conciliation’ (MMC) provisions to ‘ensure a more effective collective bargaining process


5      Section 1155.2, subdivision (a) provides: “For purposes of this part, 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.”

                                              12.
between agricultural employers and agricultural employees.’ ” (Gerawan Farming I,
supra, 3 Cal.5th at p. 1130.) “The MMC statute sets forth a process, known as
compulsory interest arbitration, ‘in which the terms and conditions of employment are
established by a final and binding decision of an arbitrator.’ [Citation.] Unlike
‘grievance arbitration,’ which focuses on ‘construing the terms of an existing agreement
and applying them to a particular set of facts,’ interest arbitration ‘focuses on what the
terms of a new agreement should be.’ [Citation.] The MMC process results in ‘quasi-
legislative action’ by which ‘[t]he terms of the “agreement” determined by the arbitrator
[are] imposed upon [the employer] by force of law.’ ” (Id. at p. 1133.)
       “Either an agricultural employer or a union representative may invoke the MMC
process by filing with the Board ‘a declaration that the parties have failed to reach a
collective bargaining agreement and a request that the board issue an order directing the
parties to mandatory mediation and conciliation of their issues.’ (§ 1164, subd. (a).)”
(Gerawan Farming I, supra, 3 Cal.5th at p. 1133.) If the declaration satisfies the
statutory requirements, “the board shall immediately issue an order directing the parties
to [MMC] of their issues.” (§ 1164, subd. (b); Cal. Code Regs., tit. 8, § 20402.6)7
       “Mediation” proceeds for 30 days; when that period expires, “if the parties do not
resolve the issues to their mutual satisfaction, the mediator shall certify that the mediation
process has been exhausted.” (§ 1164, subd. (c).) The mediation period may be extended
an additional 30 days “[u]pon mutual agreement of the parties.” (§ 1164, subd. (c); Cal.
Code Regs., § 20407, subd. (a).) The 30-day period commences “on the date of the first
scheduled mediation session.” (Cal. Code Regs., § 20407, subd. (a).)


6     Further references to regulations are to title 8 of the California Code of
Regulations.
7       To invoke MMC, “[t]he parties must have never had a contract, they must have
‘failed to reach agreement for at least one year’ after the initial request to bargain, and the
employer must have committed an unfair labor practice.” (Gerawan Farming I, supra,
3 Cal.5th at p. 1142, citing § 1164.11.)

                                              13.
       “The Board’s implementing regulations specify how the mediation is to be
conducted.” (Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2019)
40 Cal.App.5th 241, 247 (Gerawan Farming III).) “[T]he parties are required to serve on
each other, and on the mediator upon his or her selection, a document which identifies the
disputed and undisputed issues, as well as the standards by which they propose to resolve
the disputed issues, and provides agreed-upon contract language for the issues not in
dispute. (Cal. Code Regs., § 20407, subd. (a)(1).)” (Id. at p. 248.) The parties may
engage in discovery and “[t]he mediator may enforce discovery duties by drawing
adverse inferences, or imposing terms, conditions, or sanctions upon a party.” (Ibid.)
The mediator presides at the mediation, ruling on the admission and exclusion of
evidence, and retains “discretion to go off the record at any time to clarify or resolve
issues informally,” although off-the-record communications “shall not be the basis for
any findings and conclusions in the mediator’s report.” (Cal. Code Regs., § 20407,
subd. (a)(2).)
       Within 21 days after the mediation period expires, the mediator files “a report with
the board that resolves all of the issues between the parties and establishes the final terms
of a [CBA], including all issues subject to mediation and all issues resolved by the parties
prior to the certification of the exhaustion of the mediation process. With respect to any
issues in dispute between the parties, the report shall include the basis for the mediator’s
determination. The mediator’s determination shall be supported by the record.” (§ 1164,
subd. (d); Cal. Code Regs., § 20407, subd. (c).)
       Either party may petition the Board for review of, or to set aside, the mediator’s
report on grounds set forth in section 1164.3, subdivisions (a) and (e). If a prima facie
case for review is not shown or no petition is filed, the report becomes the Board’s final
order. (§ 1164.3, subd. (b).) If the Board finds grounds to grant review, it issues a
decision on the petition and, if it finds a provision of the mediator’s report to be unlawful,
it requires the mediator to modify the CBA’s terms, meet with the parties for further


                                             14.
mediation, and submit a second report. (Id., subd. (c).) As before, the parties may
petition the Board for review of the second report. (Id., subd. (d).) If no petition is filed
or the petition fails to state a prima facie case of a violation of subdivision (a), the second
report takes effect as the Board’s order. (Ibid.) If the petition is subject to review under
subdivision (a), the Board determines the issues and issues a final order. (Ibid.)
       In Gerawan Farming I, our Supreme Court, in holding that an employer may not
refuse to bargain with a union on the basis that it abandoned its representative status,
rejected the contention that “the MMC process falls ‘outside the ordinary bargaining
context’ ” as “the text and structure of the statute indicate that the MMC process is a
continuation of the ordinary bargaining process.” (Gerawan Farming I, supra, 3 Cal.5th
at p. 1156.) The court noted that “[i]n many cases, the parties may reach a voluntary
agreement on all or most of the disputed terms before the mediator writes a final report or
before the ALRB issues its final order.” (Ibid.) The court explained that MMC “is not
wholly distinct from ‘normal’ bargaining because it imposes contract terms on the
parties” since “[t]he availability of interest arbitration, as an ultimate recourse, is itself a
bargaining tool that the Legislature believed would facilitate resolution of disputes and
consummation of first agreements.” (Id. at p. 1157.) The court further explained that
while the state of the law before the enactment of the MMC statute imposed on
employers a continuing duty to bargain, but did not compel them to agree to a proposal or
require them to make a concession, “[w]hen the Legislature later enacted the MMC
statute, it expanded the ‘duty to bargain’ to include the MMC process.” (Gerawan
Farming I, at p. 1157.)
       C.      MMC and Unfair Labor Practice Liability
       Here, the parties held nine negotiation sessions from January 17 to March 28,
2013. The Union asked the Board to order MMC on March 29, which it did on April 16.
The mediator was appointed in May and the parties met with him in off-the-record
sessions on June 6 and 11. At some point, the mediator asked the parties to negotiate


                                               15.
outside his presence while the MMC process was ongoing. The parties met four times
outside the mediator’s presence—on June 3 and July 1, 24, and 29—to see if they could
reach a voluntary agreement on disputed terms. Thereafter, on-the-record MMC sessions
were held on August 8 and 19, and the mediator issued his report on September 28.
       In his decision, the ALJ noted the complaint charged Gerawan with engaging in
“overall bad faith surface bargaining during the 2013 voluntary negotiations,” with the
term “voluntary” referring to negotiations “that occurred outside those mandated by the
MMC process.” The ALJ further noted that with the exception of “a few overlapping
exhibits, little, if any, evidence was adduced concerning the bargaining that occurred
under the auspices of the mediator.” In addressing this charge, the ALJ concluded the
parties’ progress toward an agreement could be measured best by comparing their
positions reflected in their initial January proposals against their arguments prepared in
late July and early August for submission to the mediator, as well as a late August matrix
that set forth their positions.
       In its exceptions to the ALJ’s decision, Gerawan contended that because MMC
“supplants mutual, good faith bargaining,” good faith bargaining is not required once the
parties are ordered into MMC. In addressing this contention, the Board stated it
previously found, and the California Supreme Court confirmed in Gerawan Farming I,
that MMC is not a substitute for bargaining but rather an extension of the bargaining
process. The Board rejected Gerawan’s suggestion the statutory good faith bargaining
obligation does not apply where referral to MMC is possible or after MMC is requested:
“The possibility a party may request referral to MMC, or the fact that a party has done so,
does not privilege the other party to disregard its bargaining obligation or to otherwise
engage in a campaign of bad faith tactics to frustrate bargaining and the prospect of
reaching agreement.”
       The Board also rejected Gerawan’s argument that the ALJ erred in relying on
evidence from the MMC proceedings to support his bad faith finding. Since Gerawan


                                            16.
failed to identify any testimony or exhibits it claimed the ALJ improperly relied on, the
Board found Gerawan failed to satisfy the requirement of California Code of Regulations
section 20282, subdivision (a)(1)8 to cite to the record. In addition, the Board noted the
ALJ recognized the ULP allegations pertained to voluntary negotiations, which were
“those negotiations that took place outside of the context of MMC and without the
presence of a mediator,” and little evidence was adduced concerning bargaining that
occurred under the mediator. The Board further noted the parties’ joint stipulation of
facts and exhibits established the admissibility of the contract proposals the ALJ
referenced.
       While it is not entirely accurate that the parties’ negotiating sessions took place
outside the context of MMC, as it was the mediator who asked the parties to continue
negotiating, the sessions were held outside the mediator’s presence to see if the parties
could voluntarily reach agreement on disputed terms.9 The question is whether Gerawan
had a duty to bargain in good faith during these sessions such that unfair labor practice
liability may be imposed if Gerawan refused to bargain in good faith.
       As we have stated, once a union is certified, it remains the employees’ exclusive
collective-bargaining representative until it is decertified or a rival union is certified, and
the employer has a duty to bargain with that union until either of those events occur.

8      California Code of Regulations section 20282, subdivision (a)(1), provides: “The
exceptions shall state the ground for each exception, identify by page number that part of
the administrative law judge’s decision to which exception is taken, and cite to those
portions of the record which support the exception.”
9       Gerawan claims California Code of Regulations section 20407, subdivision (a)(1)
also required it to meet with the Union outside the mediator’s presence. That regulation
provides that within seven days of receipt of the Board’s order directing the parties to
MMC, the parties are required to serve on each other, and the mediator upon his or her
selection, a document which identifies the disputed and undisputed issues, and provides
agreed upon contract language for the issues not in dispute. (Cal. Code Regs., § 20407,
subd. (a)(1).) While the regulation requires the parties to exchange documents that set
forth their positions and agreed upon contract language for undisputed issues, it does not
require them to negotiate further.

                                              17.
(Nish Noroian Farms (1982) 8 ALRB No. 25, p. 14.) Thus, as Gerawan recognizes, its
“bargaining obligations continued until the date the UFW was decertified” on
November 5, 2013.10 Those obligations included a duty to bargain in good faith.
(§§ 1153, subd. (e), 1155.2; Kaplan’s Fruit & Produce Co., Inc. (1977) 3 ALRB No. 28,
pp. 2‒3, 7.) “When the Legislature enacted the MMC statute, it expanded the scope of
the ‘duty to bargain’ to include the MMC process.” (Gerawan Farming I, supra,
3 Cal.5th at p. 1157.)11
       Thus, the good faith bargaining duty extends, at a minimum, to negotiation
sessions held outside the mediator’s presence during the MMC process. Gerawan asserts
the MMC statute replaced consensual bargaining with a one-time exception to the
ALRA’s prohibition on compelled concessions and forced agreements. We disagree.
       As stated above, “[t]he ALRA established an elaborate framework governing”
agricultural workers’ right to organize into unions and collectively bargain with their
employers. (Gerawan Farming I, supra, 3 Cal.5th at p. 1129.) That “elaborate
framework” includes granting the Board the power to investigate and prevent unfair labor


10     We asked the parties to address in supplemental briefing the effect, if any, of the
Union’s decertification on the issues or arguments raised in this proceeding. The parties
agree the decertification rendered the contract imposed pursuant to the MMC process null
and void, but does not render the unfair labor practice charges in this proceeding null and
void because the charges relate to bargaining conduct between January and August 2013,
before the November 2013 decertification election. Gerawan, however, asserts the
decertification, and our decision in Gerawan II, supra, 23 Cal.App.5th 1129, have some
bearing on the outcome of this proceeding. We will discuss Gerawan’s supplemental
arguments where appropriate.
11     We acknowledge that in making this statement, the court was not deciding
whether a party compelled into MMC remains subject to a good faith duty to bargain.
Nevertheless, as we have recognized, MMC proceedings formalize the usual give and
take of contractual negotiations with a mediator, throughout that process the parties
remain free to resolve the disputed issues, and “on-the-record MMC proceedings are part
and parcel of the negotiating process.” (Gerawan Farming III, supra, 40 Cal.App.5th at
pp. 270‒271.) Since negotiation does not end when MMC is invoked, an employer has a
continuing duty to bargain during MMC.

                                            18.
practices. (Id. at p. 1130.) The Legislature added the MMC statute to this “elaborate
framework” for one purpose—to facilitate the negotiation and completion of CBAs, as
the Act had proven ineffective at facilitating the negotiation and completion of CBAs.
(Id. at p. 1130.) Throughout the MMC process, “the parties are free to resolve the
disputed issues.” (Gerawan Farming III, supra, 40 Cal.App.5th at p. 271.) It is only if
the parties fail to reach voluntary agreement on those terms that a contract will be
imposed on them by force of law. Thus, “the MMC process is a continuation of the
ordinary bargaining process,” not a replacement for consensual bargaining. (Gerawan
Farming I, at p. 1156.)
       Gerawan contends that because the MMC statute does not incorporate or reference
the statutory duty to bargain, the Legislature did not intend to extend the duty to bargain
to MMC. According to Gerawan, it is “implausible” to suggest the Board may impose
liability for bad faith bargaining within MMC when the Legislature made clear its view
that existing bargaining obligations and the Board’s ability to enforce good faith
bargaining had failed to achieve contracts. (See Gerawan Farming I, supra, 3 Cal.5th at
p. 1141 [“the Legislature reasonably could have concluded that a mediation process
followed by binding arbitration in the event of a bargaining impasse would ‘correct’ the
ALRA’s failure and facilitate the adoption of first contracts”].)
       That the Legislature enacted the MMC process because the Board had been unable
to enforce good faith bargaining, however, does not mean the Legislature intended to
eliminate the Board’s enforcement authority with respect to the parties’ negotiations
outside the mediator’s presence. Although the MMC statute does not address the
statutory duty to bargain, the MMC statute is part of the ALRA, which makes the refusal
to bargain in good faith an unfair labor practice and empowers the Board to prevent such




                                            19.
conduct. (§§ 1153, 1155.2, subd. (a), 1160.)12 Contrary to Gerawan’s assertion, there is
no conflict between the MMC statute or its implementing regulations13 and the statutory
duty to bargain that requires us to construe MMC as not including a good faith bargaining
duty with respect to the parties’ negotiations outside the mediator’s presence. (See
Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 420 [citing the
axiom of statutory construction that a particular or specific provision takes precedence
over a conflicting general provision]; Code Civ. Proc., § 1859].)
       Gerawan questions how the statutory definition of good faith bargaining in
section 1155.2, subdivision (a), which expressly does not compel a party to agree to a
proposal, can possibly apply in MMC, which imposes an agreement by force of law. But
in MMC, when negotiating outside the mediator’s presence, the parties are not compelled
to agree to a proposal or required to make a concession. Rather, if the parties cannot
reach agreement, they present their positions on disputed terms to the mediator with
supporting evidence. If done in good faith, the parties have satisfied their good faith
bargaining duty. Contrary to Gerawan’s assertion, imposing unfair practice liability does
not punish an employer for exercising a choice between making concessions to avoid the
mediator from imposing a term or standing on its objections to the union’s proposed
terms. Whatever choice the employer makes, unfair practice liability may not be
imposed if the employer’s position is taken in good faith.
       Gerawan asserts the MMC statute does not grant the Board jurisdiction to
adjudicate the parties’ bad faith conduct during MMC. But it did not need to do so, as the

12    Section 1160 provides: “The board is empowered, as provided in this chapter, to
prevent any person from engaging in any unfair labor practice, as set forth in Chapter 4
(commencing with Section 1153) of this part.”
13      Gerawan contends imposing a good faith bargaining duty rewrites the MMC
regulations because the regulations are silent about imposing such a duty. The
regulations, however, simply set out the procedure for conducting MMC proceedings and
for the Board’s review of the mediator’s report. They do not address bargaining conduct
within MMC or in negotiating sessions held outside the mediator’s presence.

                                            20.
Board has jurisdiction to adjudicate unfair labor practice charges under another section of
the ALRA, namely, section 1160, which empowers the Board “to prevent any person
from engaging in any unfair labor practice” as set forth in the ALRA. For this reason,
Gerawan’s claim that the Board lacks implied statutory authority to police bargaining
within MMC fails, as it has been granted express authority to do so.14
       Adjudicating an unfair labor practice charge arising from the parties’ negotiations
outside the mediator’s presence does not undermine the finality of the Board’s order
enforcing the mediator’s report, as Gerawan suggests. This is because, unlike the case
Gerawan cites, Rios v. Allstate Ins. Co. (1977) 68 Cal.App.3d 811, 818, in which the
plaintiff who sued his insurer for bad faith based on the insurer’s conduct during an
arbitration proceeding had the ability to challenge that conduct by moving to vacate the
arbitration award, the Board did not have the ability to challenge Gerawan’s purported
bad faith bargaining in the MMC proceedings, as those proceedings concerned only
setting the terms of a CBA.
       Gerawan asserts the UFW’s election to pursue MMC rather than avail itself of
remedies for bad faith bargaining outside MMC raises due process concerns, since
allowing the UFW to pursue both MMC and unfair labor practice remedies would result
in double recovery for the same alleged harm. We disagree. This is not a situation where
there is a possibility for multiple damage awards for the same conduct, as in State Farm
Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 423, or where Gerawan would be
required to pay a single debt more than once, as in Western Union Telegraph Co. v.


14      In making this argument, Gerawan relies on the interpretative principle that where
“ ‘ “Congress includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.” ’ ” (INS v. Cardoza-Fonseca
(1987) 480 U.S. 421, 432.) This principle does not apply here, however, as the present
issue is not the interpretation of particular language within the Act, but rather whether the
Board’s authority granted it in section 1160 extends to bargaining conduct during the
course of MMC proceedings.

                                             21.
Pennsylvania (1961) 368 U.S. 71, 77. MMC is not a process by which one party recovers
damages from the other; rather, MMC is “intended to be factfinding proceedings that
create a record from which the mediator determines those terms the parties are unable to
resolve by the end of the MMC process.” (Gerawan Farming III, supra, 40 Cal.App.5th
at pp. 270‒271.) Although the end result of MMC is a contract which is imposed on the
employer by force of law (Gerawan Farming I, supra, 3 Cal.5th at p. 1133), it does not
punish an employer for conduct during negotiating sessions held outside the mediator’s
presence. Instead, that is addressed through the Board’s authority under section 1160 to
prevent employers from engaging in unfair labor practices.
       Gerawan next contends the ALJ and Board improperly relied on exhibits that
reflected proposals the parties exchanged during MMC and were submitted to the
mediator. Gerawan argues off-the-record communications are inadmissible under the
mediation privilege of Evidence Code section 1119, while on-the-record proceedings are
subject to the litigation privilege of Civil Code section 47.
       With respect to the mediation privilege, Gerawan asserts the regulations expressly
state off-the-record communications are inadmissible. California Code of Regulations
section 20407, subdivision (a)(2), states that the mediator presides at the mediation, all
evidence upon which the mediator relies in writing his or her report must be preserved in
an official record, and the mediator “retain[s] the discretion to go off the record at any
time to clarify or resolve issues informally.” The regulation further provides: “All
communications taking place off the record shall be subject to the limitations on
admissibility and disclosure provided by Evidence Code section 1119, subdivisions (a)
and (c), and shall not be the basis for any findings and conclusions in the mediator’s
report.” (Cal. Code Regs., § 20407, subd. (a)(2).)15 The proposals the ALJ and Board

15     Evidence Code section 1119, which states the fundamental rule regarding
confidentiality of mediation communications, provides: “(a) No evidence of anything
said or any admission made for the purpose of, in the course of, or pursuant to, a
mediation or a mediation consultation is admissible or subject to discovery, and

                                             22.
relied on, however, were prepared for the mediator in conducting the on-the-record
sessions, not for the off-the-record discussions.16 As such, they were not subject to the
mediation privilege.
       As for Gerawan’s contention the litigation privilege of Civil Code section 47,
subdivision (b) bars admission of the proposals, the privilege immunizes participants
from tort liability arising from communications made during judicial proceedings.
(Silberg v. Anderson (1990) 50 Cal.3d 205, 214.) While Gerawan asserts on-the-record
MMC proceedings are equivalent to a court proceeding, it does not explain how unfair
labor practice proceedings are equivalent to tort proceedings or why the privilege should
apply here. Moreover, the privilege does not bar the evidentiary use of Gerawan’s
proposals. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000)
78 Cal.App.4th 847, 914‒915 [“ ‘when allegations of misconduct properly put an
individual’s intent at issue in a civil action, statements made during the course of a
judicial proceeding may be used for evidentiary purposes in determining whether the


disclosure of the evidence shall not be compelled, in any arbitration, [or] administrative
adjudication, … in which, pursuant to law, testimony can be compelled to be given. [¶]
… [¶] (c) All communications, negotiations, or settlement discussions by and between
participants in the course of a mediation or a mediation consultation shall remain
confidential.” The regulation excludes Evidence Code section 1119, subdivision (b),
which provides: “No writing … that is prepared for the purpose of, in the course of, or
pursuant to, a mediation or a mediation consultation, is admissible or subject to
discovery, and disclosure of the writing shall not be compelled, in any arbitration,
administrative adjudication, civil action, or other noncriminal proceeding in which,
pursuant to law, testimony can be compelled to be given.”

16     The ALJ compared the parties’ January proposals to (1) the Union’s July 26, 2013
“Proposal with [S]upporting Arguments” (Joint Exhibit 57); (2) Gerawan’s August 2,
2013 “Current Proposals of the Parties[,] Company’s Supporting Arguments” (Joint
Exhibit 59); and (3) the August 30, 2013 “Updated Matrix (Gerawan Farming and UFW-
Stipulated).” The MMC regulations require the parties to “provide the mediator with a
detailed rationale for each of its contract proposals on issues that are in dispute” and
“provide on the record supporting evidence to justify those proposals.” (Cal. Code Regs.,
§ 20407, subd. (a)(1).)

                                             23.
individual acted with the requisite intent’ ”; therefore, statements made during a judicial
proceeding may be used to prove the existence of bad faith in an action against an
insurer].) Since the ALJ and Board used Gerawan’s proposals to determine Gerawan’s
intent to reach an agreement to establish whether it engaged in bad faith bargaining, the
litigation privilege does not apply.
       Finally, Gerawan claims the Board’s adjudication of unfair labor practice charges
based on conduct within MMC violated the United States Constitution in two ways:
(1) the retroactive imposition of bargaining liability violates the First Amendment; and
(2) imposing liability for conduct within a quasi-legislative process violates due process.
       Gerawan asserts the Board’s post hoc review of the bargaining process violated
the First Amendment’s prohibition against “inquisitorial investigations of protected
expressive activity.” Gerawan claims the Board forced it to choose between “refraining
from core political speech” or “engaging in that speech and risking costly Board
proceedings, monetary penalties and enforcement orders.” In support, Gerawan cites
cases addressing: (1) a federal court’s ability to enjoin Congress’s issuance of a
subpoena directed to a bank claiming a First Amendment privilege for the records sought
on the ground they were equivalent to confidential membership lists (Eastland v. United
State Servicemen’s Fund (1975) 421 U.S. 491); (2) the conflict between individual rights
of free speech and association and the government’s interest in conducting legislative
investigations (Gibson v. Florida Legislative Investigation Committee (1963) 372 U.S.
539, 543); (3) whether liquor license holders have a First Amendment right to protest the
granting or transfer of a similar license for the sole purpose of preventing or limiting
competition (Matossian v. Fahmie (1980) 101 Cal.App.3d 128, 132); and (4) whether an
attorney fees award for frivolous conduct based on the prosecution of a colorable claim
for an improper purpose violates the First Amendment’s petition clause (Gordon v.
Marrone (N.Y. 1992) 590 N.Y.S.2d 649, 650-651). None of these situations are at issue
here. While Gerawan claims it is being punished for exercising its First Amendment


                                             24.
right to speak during the MMC proceedings, Gerawan’s conduct during MMC
proceedings before the mediator was not at issue here.
       With respect to Gerawan’s due process claim, Gerawan does not cite any authority
to support its argument that a due process violation exists because the Board both
reviewed Gerawan’s objections to the mediator’s initial report (with the second report
becoming the Board’s final order after no party objected) and adjudicated whether
Gerawan engaged in good faith bargaining. The sole case Gerawan cites, BE&K Constr.
Co. v. NLRB (2002) 536 U.S. 516 (BE&K Constr.), addressed the issue of whether the
National Labor Relations Board (NLRB) may impose unfair labor practice liability for an
employer’s retaliatory lawsuit that was unsuccessful but not objectively baseless. (Id. at
p. 526.) While the court recognized the question raised concerns regarding the First
Amendment right to petition, ultimately it did not decide that issue. (BE&K Constr., at
pp. 529‒533, 535‒536.) Instead, the court held the NLRB incorrectly interpreted the
National Labor Relations Act to allow for punishment of unsuccessful suits as
“retaliatory” even though they may have been reasonably based. (BE&K Constr., at
pp. 536‒537.) As the court did not even decide the constitutional issue, the case has no
bearing here.
       In sum, there is no conflict between the MMC statute and ALRA with respect to
imposing unfair practice liability for acts arising from the parties’ negotiation sessions
held outside the mediator’s presence.
III.   Unfair Labor Practice Findings
       Gerawan challenges both unfair labor practice findings—that it engaged in bad
faith surface bargaining and insisted on the exclusion of workers employed by farm labor
contractors. Gerawan contends the Board’s findings are erroneous, arbitrary and not
supported by the record considered as a whole.




                                             25.
       A.     Hearing Evidence
       The Union presented its first proposal at the first negotiation session on
January 17, 2013, which contained 28 articles, but did not include an economic proposal.
The Union finally submitted an economic proposal in July 2013. According to Union
negotiator Elenes, the Union did not present an economic proposal earlier because it was
waiting for Gerawan to provide information the Union had been requesting for some
time. Elenes recalled the Union was missing information on health care, which he
thought was something like participation rates or how many people were actually in the
plans, as well as some other items he could not remember. The Union received the
information sometime in July, when it was able to finalize the economic proposal. The
Union had requested information such as Gerawan’s vacation policy, bonuses and
holidays; some information was provided in December 2012 and June 2013, but not all of
it, and the Union did not receive the additional information until sometime in July 2013.
       According to Gerawan’s negotiator Barsamian, Gerawan produced the information
the Union requested in its October 2012 letters over the following two months and
everything was produced by the end of 2012. After the MMC process began, the Union
subpoenaed documents and information from Gerawan, some of which it produced at the
June 11, 2013 mediation session. Gerawan provided other information in a June 22, 2013
email. Barsamian testified that Gerawan provided some of the subpoenaed information
to the Union in the MMC process. Gerawan rejected the Union’s economic proposal.
       Gerawan presented its opening proposal on January 18, 2013. It contained
17 articles and called for a one-year agreement with an automatic renewal clause.
Gerawan refused to alter its position on the agreement’s term. Near the end of
negotiations, Gerawan justified its position based on its firm belief “that given the
situation giving rise to this mediation, a one-year agreement is the most logical beginning
for any relationship between these parties.” The remaining articles addressed only non-




                                             26.
economic matters. Elenes, recalling his initial reaction to Gerawan’s proposals, said he
was “taken aback,” as he “had never seen a proposal like this.”
       The cover page of Gerawan’s proposal contained a statement that it was being
“made without, in any way, wa[i]ving any argument or position that Gerawan has taken
or may take regarding whether the UFW is entitled to represent the agricultural
employees of Gerawan due to the UFW’s abandonment of its representation of the
agricultural employees and failure to meet its obligations to bargain in good faith with
Gerawan.” Barsamian explained the statement was made “just to protect their rights.”
       We review the evidence as to each proposal at issue below.
              1. Union Recognition
       The Union’s first article, entitled “Recognition,” contained what Elenes called
“very standard language,” which stated that Gerawan recognized the Union as the
exclusive representative of its agricultural employees and described the unit. In addition,
the Union sought Gerawan’s commitment, among other things, that it would not make
individual agreements with unit employees and would encourage employees to “give
u[t]most consideration to supporting and participating in collective bargaining and
contract administration functions.”
       Gerawan’s initial proposal named the parties to the agreement and contained a unit
description, but did not contain a direct statement that it recognized the Union as the
agricultural employees’ exclusive representative. None of Gerawan’s subsequent
proposals contained language recognizing the Union as the exclusive bargaining
representative. Gerawan eventually agreed to include language barring individual
agreements, although it sought to carve out an exception for “cultural employees who
have traditionally had their wages set based on past practice of individual evaluation of
their performance, skills and experience.” The parties tentatively agreed on two aspects
of the first article, namely, parties’ names and a prohibition against assignability.




                                             27.
                2. Agency Shop/Checkoff
       The Union’s initial proposal entitled “Union Security,” would establish an agency
shop, which would require unit employees to either become members of the Union or pay
an agency fee to the Union. Gerawan would be required to terminate or suspend
employees who did not meet the membership/agency fee obligation on written notice
from the Union. The proposal described the terms for establishing and operating a dues
checkoff system, whereby Gerawan would deduct the employees’ dues or agency fees
from their paychecks and submit the amount collected to the Union to fund the Union’s
activities.
       Gerawan’s comparable proposal, entitled “Right to Work,” provided for an open
shop: “Neither membership in good standing in the Union, nor the payment of Union
dues to non-member fees shall be a condition of employment with the Company.”
Neither party moved from their positions throughout the negotiations.
       Gerawan’s counsel stated in his opening statement that Gerawan “had very good
reasons” for “proposing an open shop, what we call right to work.” He explained that
“after two decades of not being here, it literally should be up to the employees to decide
whether they wished to pay money for the jobs they already had.”
       When Elenes saw the “Right to Work” heading during negotiations, he told
Barsamian California is not a right to work state and he did not know “where you’re
coming from on this.” Barsamian responded to the effect that Gerawan “believed in
freedom of choice, employee free choice,” meaning “the employees had the right to
decide whether they want to pay dues or not pay dues, be a member of the UFW or not.”
According to Elenes, Gerawan was “adamant on that.” Elenes said Gerawan did not want
to be involved with deducting Union dues and fees, and the Union would need to deal
with it. According to Elenes, this issue was a repeated point of contention throughout the
negotiations.




                                            28.
       Barsamian testified throughout the negotiations, Gerawan “wanted an open shop
and not having it as a condition of employment.” This was due in part to the cost relating
to deducting dues and fees, but “a large part of it was the company’s deeply-held belief
that an employee should have a free choice and not have their jobs depend on whether or
not they joined a union.” Barsamian, an experienced negotiator, did not know of any
open shop UFW contract in California. Barsamian did not calculate the cost of deducting
dues and fees, although the parties discussed deductions. When Elenes talked about how
difficult it would be for the Union to collect dues, Barsamian brought up the fact that at
another grower, “union reps used to have to go up and down the hillside” to collect union
dues, as an example of a company that did not collect union dues.
       Gerawan justified its position in its August 2013 argument in support of its right to
work proposal by explaining that its employees “were (and still are) already being paid
the highest wages in the industry before the Union made any effort to represent them, and
thus the questionable concept of ‘fair share’ or ‘free rider’ simply does not apply here.
The employees should not be forced to pay to keep their jobs, nor is there any
justification to try to put those costs on the Company in the form of higher rates to cover
the dues/fees…. The employees deserve to become acquainted with the Union and be
provided with some semblance of service in the form of representation before being
asked to pay money to it.” Gerawan further stated that requiring it to “do the Union’s
bidding by furnishing dues check-off authorization forms” did not “foster any labor peace
given the situation,” and it was “just as logical, if not preferable, to have the Union not
collect any dues or fees for the one-year period given its failure to fairly represent the
employees for so long.”
       Elenes provided the following rationale for the Union’s security proposal: “Well,
obviously … we have an obligation to represent all employees …. And again, all our
contracts have some type of union security language that indicates that the employees are
either going to pay agency fees or going to pay dues, membership dues. And obviously


                                             29.
we need that to be able to collect dues, be able to collect agency fees so that we can fund
the work that we’re going to have to do to administer the contract and continue
improving the conditions of other farm workers.”
              3. Seniority
       The Union proposed to establish a seniority system that would apply as a factor in
layoffs, recalls, promotions, transfers, and overtime. Seniority was defined as “the length
of continuous service of an employee beginning with their date of hire,” and the proposal
identified when an employee began to acquire seniority, provided a means for breaking
seniority ties, and identified the recordkeeping and information sharing required to
administer the seniority system.
       Gerawan’s initial proposal did not contain a reference to seniority. Instead, it
provided, with respect to hiring, work assignments and layoffs, that the Union recognized
“the Company and the employees have worked together under a policy whereby the
Company has the sole and exclusive authority to decide which employees shall be hired
or laid off.” It also provided that Gerawan would have “sole and exclusive authority” to
decide work assignments, transfers and promotions.
       Elenes argued to Gerawan that a seniority system was needed because employees
were complaining that they were either not being recalled or not being recalled in order,
which was a huge issue of contention for the employees. To try to reach agreement, the
Union proposed changing “seniority” to “length of service,” as Gerawan did not like the
word “seniority” and Barsamian started using the “length of service” term. The parties,
however, started arguing about the definition of “length of service,” as the Union wanted
length of service to be used in recalling or laying off employees, while Gerawan wanted
to retain the right to recall and lay off employees based on the company’s judgment.
       Barsamian testified that because the Union had not dealt with Gerawan for a long
time and negotiations were taking place when employees were not working, “quite a bit
of discussion” involved trying to explain to Elenes how things worked at the company.


                                            30.
Barsamian explained the Union’s seniority proposal was “a rather strict seniority type of
provision” that would have prevented movement between crews for purposes other than
seniority, which would interfere with Gerawan’s practice of allowing employees to move
from crew to crew due to things such as carpooling or family relationships.
       While the Union changed the term “seniority” to “length of service” in its later
proposals, the rest of the provision remained the same. Gerawan continued to reject any
limitation on its exclusive control over layoffs, recalls, work assignments, promotions
and transfers, including any application of seniority as a controlling factor in any
employment decision, regardless of what it is called. Gerawan’s later proposal set forth
its current method of considering an employee’s length of service, which was to include
all of the employee’s past service, regardless of whether it was continuous, although it
included length of service as one factor to be considered when recalling or laying off
employees, or filling job vacancies.
              4. Grievance-Arbitration
       The Union proposed a grievance and arbitration procedure as the “exclusive
means” for resolving all disputes concerning the interpretation or application of the
agreement. The procedure involved a three-step process preceding arbitration to allow
for a negotiated resolution, but if that failed, an arbitration would be conducted using
arbitrators from the American Arbitration Association.
       Gerawan’s initial proposal for resolving employee concerns provided: “The
Union recognizes that the Company and the employees have resolved employee concerns
through the Company’s internal procedures and agrees that any grievances employees
may have are best handled as per past practice. In the event an issue remains unresolved,
the Company and the Union may confer on what approach or venue might be utilized to
resolve the issue. A designated Union representative may be present during a meeting
between an employee and a Company representative when requested by the employer, as
provided by law.”


                                             31.
       By the end of August 2013, the parties had made considerable progress toward
establishing a standard grievance-arbitration system. The August matrix reflected
tentative agreements on eight separate provisions of the procedure and other areas of near
agreement. For example, the parties had a tentative agreement on the use of arbitration if
efforts through the initial three steps failed to produce a resolution. The only issues that
remained for resolution were whether a union steward would be compensated for time
involved in processing grievances and which arbitration service would be used.
                5. No Strike-No Lockout
       The Union proposed to “agree that there will be no strikes, boycotts or slowdowns
by the Union against the Company during the life of this Agreement.” The proposal
would prohibit the use of unit employees as strike breakers and required Gerawan to
agree there would be no lockouts during the agreement’s term. According to Elenes, this
was a very standard language in most UFW contracts.
       Gerawan proposed that “[t]he Company, Union and the employees shall be free to
take whatever lawful economic action they deem necessary during the term of this
Agreement.” According to Barsamian, Gerawan had a long history of allowing
employees to engage in work stoppages and it did not want to restrict that right.
       The parties remained committed to their original positions throughout their
negotiations.
                6. Just Cause
       The Union proposed limiting Gerawan’s right to discipline and discharge
employees based on “just cause” standard, while Gerawan wanted to retain its at-will
employment policy. Barsamian testified that throughout the seven months of
negotiations, the parties discussed how the disciplining and discharge of employees
should be done and Gerawan never rejected just cause. Instead, Gerawan “kept asking
for a definition of just cause” to include in the contract. Barsamian explained Gerawan
had a problem using the term—just cause was a new concept to Gerawan because it was


                                             32.
an at-will company, so it “wanted a definition of what just cause meant.” Barsamian
admitted “just cause” was not a new term to him, but he had “struggled with it for
decades in arbitrations, in administrative proceedings, employment litigation in court.
It’s one of those terms that comes up and everybody thinks they know what it is and
everything else—it’s like three blind men describing an elephant.” The Union made no
attempt to satisfy Gerawan’s demand for a precise definition of just cause.
              7. Management Rights
       The Union’s initial proposal included a management rights provision which
provided: “The Company will retain all its rights of management except as expressly and
explicitly modified by this Agreement.”
       Gerawan’s initial proposal addressing “Management Rights,” provided, in part:
“All of the rights, powers, prerogatives, and authorities that the Company has historically
exercised are retained except those specifically abridged or modified by this Agreement;
including, but not limited to: the right to hire, promote, discharge or discipline, and to
maintain discipline and efficiency of employees. The Company maintains the specific
right to review the performance and production capabilities of each employee as part of
its disciplinary procedure.” The proposal further provided that Gerawan would have the
exclusive responsibility to determine the products grown, harvested or sold, and the
schedule and manner of production, and it retained the right to make all business
operation decisions. It was also Gerawan’s responsibility to “direct and supervise all
employees, to assign and transfer and layoff employees,” and determine when overtime
would be worked.
       By the end of August, the Union had slightly altered its proposal on this subject to
provide that the parties agreed it was Gerawan’s duty and right “to manage and direct its
operations and employees”; therefore, Gerawan reserved “all rights, powers, and
authority in connection therewith, except as specifically limited by” the agreement’s
express provisions. Gerawan, however, did not alter its proposal at all.


                                             33.
              8. Farm Labor Contractors
       The Union proposal regarding farm labor contractors reflected the objectives of
limiting the use of farm labor contractors and when it was necessary to utilize them,
protecting direct hires and FLC workers. The proposal required Gerawan to use its direct
hire employees for all bargaining unit work and prohibited the use of FLC workers “if
doing so would cause the layoff or loss of hours worked by direct hire employees.” In
addition, FLC workers would be part of the bargaining unit and farm labor contractors
hired to perform work covered by the agreement would “be required to provide equal
wages, terms and conditions of employment” to FLC workers as those required under the
agreement. Finally, Gerawan would be required to terminate its contractual relationship
with any farm labor contractor “documented to be in repeated violation of any federal or
state law or regulation concerning employee terms and conditions of employment,
employee health, or employee safety,” with “documented to be in violation” defined as
“reasonable evidence” presented to company management of repeated violations of state
or federal laws or regulations.
       Gerawan’s initial proposal on farm labor contractors excluded FLC workers from
the contract: “The Union agrees and understands that the Company retains the use of
services provided by farm labor contractors. The Union agrees that no provision of this
Agreement shall apply to farm labor contractors or to the employees provided by farm
labor contractors.”
       Elenes recalled telling Gerawan the proposal to exclude FLC workers from the
agreement was illegal; Gerawan responded they were not Gerawan’s employees. Elenes
conceded the Union had previously agreed to exclude FLC workers from other contracts,
but he explained there was no enforcement of that issue in the past and the Union had
been fixing that issue when renegotiating those contracts. According to Elenes, the
Union was always pushing to treat FLC workers the same as direct hires, but it was a
constant battle.


                                            34.
       Barsamian denied that Elenes told him Gerawan’s proposal was illegal.17
Barsamian testified he explained to Elenes that Gerawan proposed excluding FLC
workers from the contract because they were not used regularly. To address this, the
Union proposed amending its proposal to read: “The Company will make best efforts to
utilize its own direct hire employees for all bargaining unit work but in no case will FLC
employees be utilized, if doing so, would cause the layoff or loss of hours worked by
direct hire employees.” Gerawan rejected the modification at that time. Barsamian
testified it was his position that everything under the contract, other than the economics,
would apply to FLC workers.
       In its June 3, 2013 proposal, Gerawan eliminated the sentence of its initial
proposal that stated the agreement did not apply to farm labor contractors. Gerawan
added sections providing that farm labor contractors would set their employees’ “wage
rates paid and benefits provided,” and utilize discipline and discharge procedures, in
compliance with federal and state law, and any union grievances arising from
employment of FLC workers would be served on the farm labor contractor and
Gerawan’s human resources office. In addition, Gerawan proposed to “continue its past
practice of making its best efforts to form and employ its direct-hire crews before
utilizing farm labor contractor crews,” but that was not a guarantee that all direct-hire
crews would be employed before, or laid off after, all FLC workers.
       By July 21, 2013, the Union had dropped its proposal requiring Gerawan to
terminate farm labor contractors who repeatedly violated labor laws. In arguments to the
mediator, Gerawan asserted there was nothing illegal about its proposal, pointing to other



17      Even if Elenes did not raise the legality of Gerawan’s proposal during
negotiations, the Union’s position the proposal “would illegally exclude” FLC workers
“from contract coverage regarding wages, benefits, discharge and discipline” was made
clear in its July 26, 2013 arguments to the mediator. Barsamian testified he heard the
assertion of illegality from another Union person during the formal MMC proceedings.

                                             35.
UFW contracts that either wholly or partially excluded FLC workers, and its proposal
rationally distinguished between direct-hire and FLC workers.
              9. Union Obligations
       Gerawan proposed to include an article entitled “Union Obligations,” which had
three sections. The first was a wide-ranging “hold harmless and indemnification”
provision by which the Union agreed “to indemnify and hold the Company harmless
from any and all claims, losses, damages, costs or expenses whatsoever including
reasonable attorneys’ fees that it may incur directly or indirectly as a result of the
Company performing under this Agreement, or due to the acts or omissions, breach of
any provisions of this Agreement or violation of any federal, state, local statute,
regulation or ordinance by the Union or its officers, director, employees, agent or
volunteers under its control. The Union agrees to protect, defend, indemnify and hold the
Company and its employees free and harmless from and against any and all losses,
claims, liens, demands and causes of action of every kind and character including the
amount of judgment, penalties, interests, court costs and legal fees incurred by the
Company in defense of the same, arising in favor of any party including governmental
agencies.”
       The second section required the Union to purchase and maintain insurance from a
provider approved by Gerawan in an amount that would protect it from claims which may
arise from the performance of its duties under the agreement, the Union’s presence on
Gerawan’s property, and any actions or activities that concerned or affected Gerawan.
The Union would be required to obtain the following insurance: (1) to cover workers
compensation and disability claims, as well as claims under similar employee benefit
acts, in amounts required by law; (2) $50 million in comprehensive general liability
coverage; (3) $100 million in directors’ and officers’ errors and omissions coverage; and
(4) $100 million to cover the Union’s indemnification requirements in the first section. !




                                              36.
       The last section required the Union to cooperate with workers compensation fraud
investigations initiated by Gerawan or its insurers, and to waive any claims of unlawful
surveillance as a part of this commitment.
       The Union had no comparable proposal. According to Barsamian, this proposal
was included because Gerawan’s general counsel made it clear they had always required
this kind of provision for any vendors, companies or associates that came onto the
property, as Gerawan was very concerned about liability and being a target of liability
lawsuits. Gerawan wanted the same provision to apply to the Union because the Union
would have personnel on the property.
       In its August 30, 2013 proposal, Gerawan lowered the insurance coverage limits to
$1 million, except the general liability insurance coverage would be $1 million per person
or $2 million per incident. In its argument regarding this proposal, Gerawan explained it
took “into account the government-imposed nature of any agreement resulting from this
mediation, which was invoked upon the application made by the Union.” Gerawan was
concerned about being held responsible for the Union’s conduct given that after a 20-year
absence, the Union had “attack[ed] the Company without having attempted to gain any
experience about its operations or the employees within the bargaining unit.” Gerawan
cited examples of employees complaining about Union organizers visiting them at their
homes and engaging in threatening and intimidating conduct. In addition, Gerawan was
concerned the Union was in a “distressing economic situation” that would affect its
ability to address any liability that may be imposed on the Union. Gerawan asserted it
had a right to be informed as to proper workers’ compensation coverage, since Union
representatives would be coming onto Gerawan’s property.
       The Union’s notes of the March 21, 2013 bargaining session reflect that Elenes
told Barsamian the indemnification/insurance proposal was “junk.”




                                             37.
       B.     The ALJ’s Findings
       The ALJ found Gerawan engaged in surface bargaining based on the totality of the
circumstances. First, the ALJ found that “[c]ritical delays marked the bargaining process
that followed the UFW’s reemergence in October 2012.” The ALJ noted there was a
three-week delay in answering the Union’s request to bargain and when Gerawan finally
replied, it did not mention the requested information and lectured about the Union’s
potential to invoke the MMC process. The ALJ found that while Gerawan provided
some of the Union’s requested information in December 2012, it “delayed furnishing
critical economic information” until late June or early July 2013, thereby preventing the
Union from formulating a “complete economic proposal through most of the voluntary
bargaining period.” The ALJ rejected Gerawan’s claim that the Union’s failure to submit
an economic proposal prior to the July 21, 2013 bargaining session inhibited the parties’
progress toward an agreement.
       Despite Gerawan’s assertion in its November 2012 letter that it would work with
the Union in good faith to reach an agreement, the ALJ found Gerawan’s bargaining
conduct established no such thing. First, Gerawan ignored the Act’s “rudimentary
bargaining obligations when granting the interim wage increases during the 2013
season.” The ALJ determined Gerawan’s conduct with respect to the March 2013 wage
increases was “compelling evidence of its extreme bad faith approach to its bargaining
efforts in 2013.”
       As for the parties’ conduct at the bargaining table, the ALJ found Gerawan
advanced proposals it obviously knew the Union would never accept, including the right
to work, economic action and union obligation/insurance proposals, which was a
significant indicium of bad faith bargaining. Gerawan insisted on the first two proposals
“into the final stages of the MMC process and, save for the lowered insurance demands it
negotiated with itself because the Union refused to even consider this proposal from the
outset, all three remained unchanged throughout the bargaining process.” Moreover,


                                           38.
these proposals were “clearly grounded on [Gerawan’s] own personal and very self-
serving philosophy of freedom of choice,” and sought to impose special qualifications on
the Union to satisfactorily qualify as a proper representative of Gerawan’s employees, in
violation of the ALRA and NLRA. Gerawan’s “rigid adherence” to these proposals was
further evidence of its bad faith surface bargaining.
       The ALJ also noted Gerawan’s union obligation proposal, as well as its proposal
to exclude FLC workers from coverage under the agreement, were not mandatory
subjects of bargaining. While the ALJ recognized Gerawan agreed to include FLC
workers under the grievance/arbitration provision, he found that amounted to a “hollow
concession” since it would be up to the farm labor contractor to determine the other terms
and conditions of employment. Since those contractors have no duty to bargain with the
Union, the effect of Gerawan’s proposal was to exclude FLC workers from the terms of
any agreement reached. In addition, it was difficult to perceive how the Union could
compel a farm labor contractor to arbitrate violations of the terms of employment. The
ALJ concluded that by insisting on resolution of these nonmandatory subjects of
bargaining, Gerawan was using these proposals as a “device to prevent an agreement.”
       The ALJ rejected as meritless Gerawan’s assertion that it insists on all vendors
providing proof of insurance in order to enter its property. The ALJ explained the Union
is the employees’ representative, not a vendor, and all of its “ ‘rights’ flow from the legal
protection accorded to those agricultural workers who freely selected that labor
organization by a majority vote in a lawful election.” Since the workers could not be
required to buy liability insurance from an approved provider in order to enter Gerawan’s
property, it followed their representative need not do so. Accordingly, the ALJ found
Gerawan violated its duty to bargain in good faith by its insistence on an indemnification/
insurance proposal and the exclusion of FLC workers from the core benefits of a
collective bargaining agreement.




                                             39.
       In sum, the ALJ found the record supported the conclusion Gerawan engaged in
bargaining with no intention of ever reaching an agreement with the Union and by
persistently refusing to bargain concerning the employment status concerning the
employment terms of FLC workers.
       C.     The Board’s Order
       The Board affirmed the ALJ’s factual findings and legal conclusions. With
respect to the right to work proposal, the Board concluded Gerawan opposed the Union’s
proposal, and maintained its rigid adherence to its own proposal, “based solely on its
philosophical opinions as to its employees’ free choice rights and its fervent opposition to
the UFW’s status as its employees’ exclusive bargaining representative.” The Board
noted Gerawan never truly considered the Union’s proposal and made no effort to assess
the costs of implementing a check-off system.
       With respect to Gerawan’s economic action proposal, the Board found the Union
“reasonably perceived Gerawan’s highly unorthodox proposal as an attempt to undermine
its status as the employees’ bargaining representative.” The Board concluded this
proposal was “inimical to labor peace and the underlying policies and purposes of the
ALRA” and NLRA, and undermined any argument the proposal was advanced in good
faith with a genuine intent to reach agreement.
       The Board agreed with the ALJ that Gerawan’s union obligations proposal was not
a mandatory subject of bargaining, and therefore insisting on the proposal to impasse was
a violation of the duty to bargain in good faith and properly considered in a totality of the
circumstances analysis. The Board found Gerawan’s stated rationale for the proposal
was further evidence of its bad faith in insisting on it, as Gerawan’s fear that the Union
might cause damage to its property was “entirely speculative” and Gerawan was
attributing “nefarious intentions” to the Union. The Board explained the record
supported the ALJ’s finding that Gerawan exhibited several of the hallmark indicia of
bad faith, including its delay in providing information, making unreasonable bargaining


                                             40.
demands, making unilateral changes in mandatory subjects of bargaining, and engaging
in efforts to bypass the Union.
       The Board considered Gerawan’s other bargaining proposals and positions. The
Board found unconvincing Gerawan’s rationale for resisting the Union’s just cause
proposal, as Barsamian surely must have been familiar with the term and instead of
attempting to provide its own definition of the term, Gerawan feigned ignorance. The
Board further found Gerawan’s position on the just cause proposal provided further
evidence that it was not open to agreement or true give-and-take required by the good
faith bargaining duty.
       The Board found unconvincing Gerawan’s argument that the ALJ failed to
consider concessions it made. The Board recognized Gerawan offered concessions on
seniority by being willing to consider “length of service” in the context of layoffs and
recalls, as well as filling positions due to vacancy or promotional opportunity. These
“limited concessions,” however, did not defeat the surface bargaining allegations in the
context of totality of the circumstances. With respect to the grievance-arbitration
provision, the Board explained that while Gerawan may have made more movement on
the issue than the Union, Gerawan’s starting point, namely, that Gerawan determined all
employee grievances itself, allowed for the most movement. The Board concluded on the
record before it these concessions were not sufficient to detract from Gerawan’s positions
on the other provisions, “which we find demonstrate a strategy by Gerawan to frustrate
the possibility of reaching agreement.”
       The Board also considered Gerawan’s conduct away from the bargaining table.
The Board upheld the ALJ’s findings that Gerawan’s unreasonable delay in furnishing
economic information the Union requested and its conduct surrounding the March 2013
wage increases were further evidence of Gerawan’s lack of good faith.
       With respect to the FLC workers, the Board affirmed the ALJ’s conclusion that
Gerawan’s insistence on removing them from the scope of any collective bargaining


                                            41.
agreement and its persistent refusal to bargain over their wages, hours, and terms and
conditions of employment, violated section 1153, subdivision (e).
       D.     Surface Bargaining
       The duty to bargain means more than merely demonstrating a willingness to meet
and talk; rather, it requires a party “to enter discussions with an ‘open and fair mind, and
a sincere purpose to find a basis of agreement.’ ” (NLRB v. Big Three Industries, Inc.
(5th Cir. 1974) 497 F.2d 43, 46; J.P. Stevens & Co., Inc. (1978) 239 NLRB 738, 749,
762‒763.) A party, however, may engage in “ ‘hard bargaining to achieve a contract that
it considers desirable[,]’ ” and thus “is entitled to stand firm on a position if he
reasonably believes that it is fair and proper or that he has sufficient bargaining strength
to force the other party to agree.” (Atlanta Hilton & Tower (1984) 271 NLRB 1600,
1603; NLRB v. Advanced Business Forms Corp. (2nd Cir. 1973) 474 F.2d 457, 467.)
       There is a difference 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.’ [Citation.] ‘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. [Citations.] … ‘[G]ood 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.” ’ ” (Dal Porto, supra, 163 Cal.App.3d at p. 549.)
       The Board and NLRB consider the totality of the circumstances to determine
whether a party’s conduct, as a whole, both at and away from the bargaining table,
demonstrates a violation of the duty to bargain in good faith. (Regency Service Carts,
Inc. (2005) 345 NLRB 671; McFarland Rose Production, Inc. (1980) 6 ALRB No. 18,
p. 4.) Thus, the Board looks to the entire course of bargaining rather than examining
individual negotiating sessions or proposals in isolation. (Altorfer Machinery Co. (2000)


                                              42.
332 NLRB 130, 160 [“negotiations must be viewed in their totality, so that isolated
events, proposals and counterproposals are not accorded undue weight, which is not truly
reflective of the entirety of the process” (Altorfer Machinery)]; McFarland Rose
Production, Inc., at p. 23 [“Surface bargaining is a violation which occurs over an
extended period of time and it cannot be analyzed by examining individual bargaining
sessions or positions in isolation from the totality of the parties’ conduct.”].)
       In evaluating the totality of the circumstances, the NLRB “has enumerated specific
areas to which it looks: delaying tactics, unreasonable bargaining demands, unilateral
employment changes, efforts to bypass employees’ bargaining representative, failure to
designate an agent with sufficient bargaining authority, withdrawal of agreed-upon
proposals, and arbitrary scheduling of meetings, as well as conduct occurring away from
the bargaining table.” (Altorfer Machinery, supra, 332 NLRB at p. 148, citing Atlanta
Hilton & Tower, supra, 271 NLRB at p. 1603.) The totality of the circumstances
“includes a consideration of the union’s conduct.” (Carl Joseph Maggio, Inc. v.
Agricultural Labor Relations Bd. (1984) 154 Cal.App.3d 40, 71.)
       “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.’
[Citation.] State of mind is a question not of law but of fact, and is most often established
by circumstantial evidence. [Citations.] Absent evidence of specific conduct which
constitutes a per se violation of a duty to bargain in good faith, ‘the determination of
intent must be founded upon the party’s overall conduct and the totality of the
circumstances ….’ [Citation.] As was said in Labor Board v. Truitt Mfg. Co. (1956) 351
U.S. 149, 155: ‘A determination of good faith or of want of good faith normally can rest
only on an inference based upon more or less persuasive manifestations of another’s state
of mind. The previous relations of the parties, antecedent events explaining behavior at
the bargaining table, and the course of negotiations constitute the raw facts for reaching




                                              43.
such a determination.’ (Frankfurter, J. conc./dis. opn.)” (Dal Porto, supra, 163
Cal.App.3d at p. 549.)
       “Although individual actions standing alone may be insufficient to demonstrate
bad-faith bargaining, these actions must be considered a part of the totality of
circumstances in determining whether a [party] has engaged in surface bargaining.”
(Altorfer Machinery, supra, 332 NLRB at p. 130, fn. 2.) While a negotiating party is not
required to accept a particular proposal or make a particular concession, “a party’s
consistent refusal to make an informed assessment of the other party’s proposal, coupled
with a consistent rejection of the other party’s efforts to make its proposal more
acceptable to the party, may give rise to an inference that the party is not interested in
reaching agreement but is merely ‘going through the motions of negotiating.’ ” (Dal
Porto, supra, 163 Cal.App.3d at p. 551.) Although the Board is prohibited from drawing
an inference of bad faith bargaining from an employer’s mere act of rejecting a union
proposal, an employer who refuses to evaluate that proposal has rejected its duty to
participate in the bargaining process. (Id. at p. 552.)
       In challenging the Board’s order, Gerawan contends the Board failed to consider
the Union’s nearly 17-year absence in its totality of the circumstances analysis, which
sheds light on the basis for Gerawan’s contract proposals. Gerawan asserts that even if
an employer’s proposal is evidence of bad faith in the context of an on-going union
relationship, the same proposal made after a union’s long disappearance, where the
union’s demands upset longstanding business practices, and raised serious questions and
concerns among the workers, is not.
       As we recognized in Gerawan II, the Union’s sudden reappearance, claiming to be
the workers’ rightful bargaining representative, seeking a contract, and ultimately
pursuing MMC, was a “major change of circumstances” and constituted a “dramatic shift
from the long-term status quo” that “profoundly affected” Gerawan and its workers.
(Gerawan II, supra, 23 Cal.App.5th at p. 1207.) But as the Board noted in its decision,


                                             44.
by indicating its willingness to enter into negotiations with the Union and respond to its
information requests, and proceeding to do both, Gerawan conceded the Union’s status as
its employees’ certified bargaining representative, and therefore waived any argument the
Union no longer retained its certified status. (See Technicolor Government Services, Inc.
v. NLRB (8th Cir. 1984) 739 F.2d 323, 327 [when “employer honors a certification and
recognizes a union by entering into negotiations with it, the employer has waived the
objection that the certification is invalid”]; Brown & Connolly, Inc. (1978) 237 NLRB
271, 275 [employer demonstrates its acceptance of a union’s representational status by
commencing negotiations]; § 1153, subd. (f).)
       Thus, while the Union’s absence may be considered when weighing the
reasonableness of Gerawan’s proposals, Gerawan cannot defend its bargaining positions
and proposals based on its belief it was able to represent its employees’ interests better
than the Union. (See Summer Peck Ranch, Inc. (1984) 10 ALRB No. 24, pp. 9‒10
[“resisting union proposals ‘in the interest’ of the employees and in order to preserve a
‘family-like’ relationship between employer and employee displays a basic lack of
acceptance” of the union’s role and is “incompatible with good faith bargaining”];
Montebello Rose Co., Inc. (1979) 5 ALRB No. 64, p. 24 [employer’s desire to protect
their employees from the union’s arbitrary action demonstrates a failure to accept a basic
principle of the ALRA—that the certified collective bargaining representative is the
employees’ exclusive representative, which is a role the employer may not assume]; As-
H-Ne Farms, Inc. (1980) 6 ALRB No. 9, p. 5 [employer may not justify refusal to
provide employee addresses to the union on the ground it was protecting employees’
privacy rights]; J.R. Norton Company (1982) 8 ALRB No. 89, p. 25 [in light of
employer’s overall bargaining conduct, its objection to union security clause based on
fear of potential for abuse in giving union sole discretion for determining a worker’s good
standing, indicated bad faith, because it demonstrated a failure to accept the union as the
employees’ exclusive representative].)


                                             45.
       Gerawan also asserts the Board’s order improperly rests on the substance of
Gerawan’s proposals. It is true that the Board “ ‘may not, either directly or indirectly,
compel concessions or otherwise sit in judgment upon the substantive terms of collective
bargaining agreements.’ ” (H.K. Porter Co. v. NLRB (1970) 397 U.S. 99, 106.)
       The Board, however, is not prohibited from examining the contents of the parties’
proposals, as it “must take some cognizance of the reasonableness of the position taken
by an employer in the course of bargaining negotiations” if it is not to be “blinded by
empty talk and by the mere surface motions of collective bargaining ….” (NLRB v. Reed
& Prince Mfg. Co. (1st Cir. 1953) 205 F.2d 131, 134‒135; see NLRB v. F. Strauss & Son,
Inc. (5th Cir. 1976) 536 F.2d 60, 64; NLRB v. Holmes Tuttle Broadway Ford, Inc. (9th
Cir. 1972) 465 F.2d 717, 719.) Inferences drawn from the proposals are not alone
sufficient to support a violation of the obligation to bargain in good faith; the Board also
“ ‘must show “substantial evidence that the company’s attitude was inconsistent with its
duty to seek an agreement.” ’ ” (Seattle-First Nat’l Bank v. NLRB (9th Cir. 1981)
638 F.2d 1221, 1226.)
       With these principles in mind, we consider Gerawan’s arguments with respect to
the Board’s consideration of the parties’ bargaining positions to determine whether the
Board’s findings are supported by substantial evidence and deference should be given to
the inferences it drew.
              1.     Right to Work
       The Union’s initial proposal included a union security provision establishing an
agency shop, which required employees to become Union members or pay an agency fee,
and provided for a check-off system for collecting dues and fees. As the Board asserts,
these are common provisions in collective bargaining agreements to facilitate the
collection of due and fees, and generally are intended to alleviate the concern posed by
“free riders.” (See NLRB v. General Motors Corp. (1963) 373 U.S. 734, 741, 744.)




                                             46.
       Gerawan countered with its “Right to Work” proposal, which provided for an open
shop in which Union membership was not required. While Gerawan asserts this was not
an “unorthodox” proposal, given Barsamian’s many years of labor law experience, it was
reasonable for the Board to infer that Gerawan would have been aware the term was
“commonly regarded as anathema to labor organizations.”18
       Gerawan adhered to its proposal throughout the course of negotiations based on its
philosophical opinions about its employees’ free choice rights and its opposition to the
Union’s status as its employees’ collective bargaining representative. The Board
reasonably found Gerawan’s stated rationale and unwillingness to move on even the
name of its proposal evidenced its lack of intent to reach agreement on this issue.
“Where, as here, the employer adamantly opposes union security and checkoff on vague
or generalized ‘philosophical’ grounds or questionable assertions of policy, the inference
is warranted that the Employer entered negotiations with a fixed intention not to consider
or agree to any form of union security or checkoff,” in violation of its duty to bargain in
good faith. (Chester County Hospital (1995) 320 NLRB 604, 622; see Universal Fuel,
Inc. (2012) 358 NLRB 1504, 1521 [“opposition to union security and dues checkoff
based on philosophical grounds without business justification has been held to constitute
evidence of bad-faith bargaining”].)
       While, as Gerawan asserts, there is nothing in the ALRA that compels the use of
union security agreements, leaving the parties free to accept or reject them (Pasillas v.
Agricultural Labor Relations Bd. (1984) 156 Cal.App.3d 312, 344), Barsamian admitted
he was not aware of any open shop UFW contract in California.19 Gerawan asserts it was
within its rights to resist a proposal that would allow the Union to be the “sole judge” of

18    As the Board noted, the mediator who presided over the MMC proceedings
recognized “[t]he very title to this Article suggested by [Gerawan] and its invidious
connotation is predictably unacceptable to the Union.”
19     The mediator found that union security clauses were the rule rather than the
exception in agricultural labor contracts.

                                            47.
who it could hire or fire, and it had a legitimate business justification for its position,
namely, that it was concerned employees who were “forced to pay dues to a union they
knew nothing about might quit rather than do so.” But Gerawan never presented these
arguments during negotiations or raised them before the Board. Belated and shifting
“justifications” may demonstrate the pretextual nature of an employer’s bargaining
conduct. (Giannini Packing Corp. (1993) 19 ALRB No. 16, p. 17 [presenting shifting
and inconsistent explanations for decisions constitutes “strong circumstantial evidence of
the existence of an undisclosed and forbidden motive”]; Peter Scalamandre & Sons, Inc.
(2000) 330 NLRB 1191, 1197 [the NLRB “has long held that unlawful motivation may
be found where an employer provides false or shifting reasons for its actions”].)
       Gerawan cites several cases as examples of the NLRB declining to infer bad faith
when an employer opposes a union security provision as a matter of principle. Those
cases, however, are distinguishable. In WCUE Radio, Inc. (1974) 209 NLRB 181, 188‒
189, the NLRB declined to infer bad faith where, in rejecting the union’s request for a
union or agency shop, the employer explained to the union it was opposed to union-
security agreements as a matter of principle and believed such a provision would hamper
its ability to recruit new talent, although it might be willing to grant a checkoff of union
dues. In contrast here, Gerawan never gave the Union a business justification for
opposing the agency shop proposal and opposed any form of checkoff. In the other cases
Gerawan cites, although the employers firmly opposed union or agency shop clauses,
they made concessions on other terms or the parties reached agreement on many terms.
(See Pacific Mushroom Farm (1981) 7 ALRB No. 28, ALJD at pp. 18‒19; Church Point
Wholesale Grocery Co. (1974) 215 NLRB 501‒502.)
       Gerawan’s failure to offer a business justification for its opposition to the Union’s
proposal and to make any effort to assess the costs of implementing a checkoff system is




                                              48.
indicative of bad faith bargaining.20 (See Dal Porto, supra, 163 Cal.App.3d at pp. 551‒
552.) Gerawan points to the mediator’s discussion of this issue in his report as
supporting its opposition to an agency shop. While the mediator recognized the Union’s
absence had raised a thorny issue, as “[a]ll other things being equal, the imposition of
membership fees to support an organization that most of the Employer’s employees have
had little if anything to do with would appear to be a bit of an overreach,” the mediator
determined all things were not equal. Instead, the mediator, in adopting the Union’s
proposal in its entirety, found Gerawan’s perspective on union dues and fees “is cast in
dark tones and ascribes to the Union some nefarious, self-serving purpose in collecting
them”; Gerawan presumed to speak on the employees’ behalf, “which in itself is a
conflict of interest, claiming that the Union’s bargaining efforts are ‘unwanted’ ”; and in
the face of directly contradictory statutory language in sections 1153, subdivision (c) and
1154, subdivision (b), Gerawan asserted the “imposition of agency fees was inconsistent
with the ALRA’s protections of freedom of association and self-organization.”
       In sum, substantial evidence on the record considered as a whole supports the
Board’s finding that “Gerawan opposed the UFW’s request and maintained its own rigid
adherence to its ‘Right to Work’ proposal based solely on its philosophical opinions as to
its employees’ free choice rights and its fervent opposition to the UFW’s status as its
employees’ exclusive bargaining representative. It never truly considered the UFW’s
proposal, and admittedly took no effort to assess what the costs, if any, of implementing a
check-off system would be.” The Board’s inference that Gerawan’s conduct with respect
to this provision evidenced an effort to frustrate the parties’ ability to reach a voluntary
collective bargaining agreement was neither “irrational,” “tenuous,” nor “unwarranted.”
(Penasquitos Village, supra, 565 F.2d at p. 1079.)

20     Gerawan asserts its opposition to the agency shop provision was not based
primarily on how the fees would be deducted, but rather “whether compulsory agency
fees could be compelled by the state.” That was not the justification it gave the Union for
opposing the fees, however.

                                             49.
              2.     Economic Action
       The Board found Gerawan did not advance its economic action proposal, which
would have allowed its employees to take any “lawful economic action,” in good faith
because: (1) its rationale for the proposal was rooted in its “freedom of choice”
philosophy; (2) the Union reasonably perceived the proposal as an attempt to undermine
its status as the employees’ bargaining representative; and (3) the proposal was directly
contrary to the purpose of a collective bargaining agreement, namely, to ensure labor
peace and minimize or eliminate disruptions caused by labor disputes.
       Gerawan asserts the Board failed to consider the effect of the Union’s “no-strike/
no-lockout clause on the employees’ right to choose their bargaining representative.”
Gerawan argues the Union’s no strike provision was self-serving and conflicted with the
employees’ freedom of choice because it would have prevented employees from
protesting against the Union or supporting a decertification effort. Gerawan maintains it
sought to protect its employees’ statutory right to strike through its economic action
provision. As discussed above, Gerawan’s attempt to cast itself as the employees’
representative is incompatible with good faith bargaining, and supports an inference that
its proffered justification for its provision was made in bad faith.
       A union may waive the right to strike as the quid pro quo for the employer’s
acceptance of the grievance and arbitration procedure. (NLRB v. Magnavox Co. (1974)
415 U.S. 322, 325.) That is what the Union was attempting to do here. Gerawan appears
to argue the Union did not have the right to bargain away the statutory rights of its
workers because the current employees did not select it, citing selective language from
Mastro Plastics Corp. v. NLRB (1956) 350 U.S. 270, 280.21 As we have discussed,



21     In that case, the United States Supreme Court, in deciding whether the parties’
collective bargaining agreement waived the employees’ right to strike against the
employers’ unfair labor practices, observed that waivers of employees’ right to strike
generally contribute to the normal flow of commerce and the maintenance of regular

                                             50.
however, the Union was the employees’ elected representative, despite its long absence
and regardless of whether the current employees voted for it; as the exclusive bargaining
representative, the Union had the right to propose a waiver of the employees’ right to
strike in exchange for a grievance and arbitration procedure.
       Moreover, the Board reasonably found Gerawan’s economic action proposal was
contrary to the purpose of a collective bargaining agreement, thereby undercutting
Gerawan’s position that it advanced this proposal in good faith. (H.J. Heinz Co. v. NLRB
(1941) 311 U.S. 514, 524 [collective bargaining agreement is “regarded as the effective
instrument of stabilizing labor relations and preventing, through collective bargaining,
strikes and industrial strife”].) In enacting the ALRA, the Legislature “specifically
declared the collective bargaining process is the preferred method for attempting to bring
peace and stability to California’s agricultural fields.” (Ruline Nursery Co. v.
Agricultural Labor Relations Bd. (1985) 169 Cal.App.3d 247, 253, citing Agricultural
Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at p. 403.) Similarly, labor
peace is the overriding goal of the NLRA, which “is promoted when the parties to a labor
dispute avoid a test of strength involving a strike or a lockout by negotiating a collective
bargaining agreement, which will standardly include a no-strike clause, thus assuring
labor peace during the term of the agreement ….” (Duffy Tool & Stamping, L.L.C. v.
NLRB (7th Cir. 2000) 233 F.3d 995, 997.)
       As the NLRB has explained, one of the NLRA’s primary objectives “is to utilize
collective-bargaining contracts as a means for minimizing, if not eliminating, disruptions
to the free flow of commerce caused by labor disputes. Obviously, strikes are one such
disruption[].” (Altorfer Machinery, supra, 332 NLRB at p. 165.) In Altorfer Machinery,
the NLRB criticized an employer’s strike proposal, finding it “contemplates the very type
of conduct which is inherently disruptive of the free flow of commerce” and “presents the


production schedules, “[p]rovided the selection of the bargaining representative remains
free.” (Mastro Plastics Corp. v. NLRB, supra, 350 U.S. at p. 280, italics omitted.)

                                             51.
prospect of ongoing labor dispute and incident disruption.” (Ibid.) Similarly, here, as the
Board reasonably found, Gerawan’s proposal “was so far contrary to the fundamental
purposes of the ALRA as to undermine any argument that the proposal was advanced in
good faith with a genuine intent to reach agreement.”22
              3.     Union Obligations
       Gerawan’s union obligations proposal would have required the Union to
indemnify Gerawan from any claims, losses or damages it may incur when performing
under the agreement, and to carry certain forms of insurance. As the Board found, and
Gerawan concedes, this was not a mandatory subject of bargaining because it did not
relate to the employees’ wages, hours, or terms and conditions of employment.
(§ 1155.2, subd. (a); Arlington Asphalt Co. (1962) 136 NLRB 742, 745, enfd. sub nom.
NLRB v. Davison (4th Cir. 1963) 318 F.2d 550, 557.) The NLRB and courts “have
consistently treated a contract requirement of a performance bond or financial indemnity
agreement proposed by either employer or union for the other, as a nonmandatory subject
of bargaining, and have held that employer or union insistence to impasse on such a
requirement was a violation of the obligation to bargain in good faith.” (Covington
Furniture Mfg. Corp. (1974) 212 NLRB 214, 217‒218, enfd. (6th Cir. 1975) 514 F.2d
995; see NLRB v. Wooster Div. of Borg-Warner (1958) 356 U.S. 342, 349 [employer’s
refusal to enter into an agreement on the ground it does not include a nonmandatory
bargaining subject, “is, in substance, a refusal to bargain about the subjects that are
within the scope of mandatory bargaining”].)
       Gerawan asserts there is no evidence it refused to agree to any mandatory subject
of bargaining until the Union accepted the nonmandatory union obligations proposal.
Gerawan further asserts that because this proposal was outside the scope of the issues the

22      The mediator similarly noted, when considering Gerawan’s economic action
proposal, “[n]othing could be more antithetical to the preservation of peace and stability
in labor relations than to allow the parties to resort to economic warfare during the term
of their collective bargaining agreement.”

                                             52.
mediator was permitted to include in his report, the proposal could not have stymied
negotiations and cannot serve as evidence of an intent to avoid an agreement, particularly
since the Union rejected the proposal and the mediator excluded it from the terms
imposed.
       The evidence shows, however, that the parties discussed this proposal throughout
the negotiations and Gerawan insisted on its inclusion, even arguing to the mediator that
the proposal should be included in the parties’ contract. The mediator did not exclude the
proposal from the contract because he was not permitted to do so; instead, he rejected the
proposal on the merits. The mediator found there was no evidence to support Gerawan’s
assertions that the Union’s conduct or economic situation justified inclusion of the
proposed term. Noting that the parties had agreed not to interfere with each other’s
internal business, the mediator determined Gerawan’s suggestion that the Union obtain
various types of insurance directly contravened this language. The mediator further
determined the hold harmless provision was overbroad and incomprehensible and, as the
Union pointed out, the proposal was highly unusual and not found in any of its labor
agreements.
       The Board found the ALJ properly considered Gerawan’s conduct with respect to
this proposal in his totality of the circumstances analysis. That conduct included seeking
to impose on the Union “the equivalent of a pay-to-play requirement,” contrary to the
ALRA, which does not require a certified labor organization to post security in favor of
an employer as a condition of exercising its rights under the ALRA, including the right of
access to the employer’s premises. (See Cal. Code Regs., § 20900.) The NLRB found
“convincing evidence” of an employer’s “inclination to engage in no more than nominal
bargaining” where the employer “treated the Union as an intruder, one which required
some watching after, rather than as a statutorily invited guest on the premises.” (J.P.
Stevens & Co., Inc., supra, 239 NLRB at p. 769.) The Board reasonably found
Gerawan’s proposal reflected a similar disposition.


                                            53.
       In addition, the ALJ found Gerawan sought to impose special qualifications on the
Union before it could qualify as the employees’ proper representative, which was a status
the Union had already attained by virtue of its prior certification. As the ALJ stated,
“[n]othing in any labor relations statute authorizes an employer to impose its own
qualification standards on the employee representative. Indeed, Section 1153(b) of the
ALRA and [29 United States Code section 158(a)(2)] of the NLR[A] prohibit employers
from doing just that in order to protect the right of employees to independent
representation.”
       An employer’s “insistence on extreme or unreasonable proposals can be part of the
evidence in determining whether demands made by a particular party was designed to
frustrate agreement in the collective-bargaining process.” (McDaniel Ford, Inc. (1997)
322 NLRB 956, 965.) The Board reasonably found Gerawan’s insistence on this unusual
proposal, when considered in combination with Gerawan’s other conduct, supported a
finding of overall bad faith bargaining.
              4.     Just Cause
       The Board found Gerawan’s position with respect to the Union’s just cause
proposal was “further evidence of a mindset not open to agreement or true give-and-take”
required by the duty to bargain in good faith. Gerawan contends it never rejected the
proposal, but rather was merely asking for clarification of the “just cause” standard
which, if left undefined, would give an arbitrator the power to define the term. (See
Conoco, Inc. v. Oil, Chemical & Atomic Workers Int’l Union (N.D. Okla. 1998)
26 F.Supp.2d 1310, 1317.)
       The Board found Gerawan’s rationale for resisting the just cause proposal was
unconvincing, given that the term is not foreign to practitioners in the field of labor law
and labor relations, or to labor arbitrators who often are called upon to apply it. (See
Show Industries, Inc. (1993) 312 NLRB 447, 455 [just cause standard for disciplinary
action is a common feature of a typical collective-bargaining agreement]; Prentice-Hall,


                                             54.
Inc. (1988) 290 NLRB 646, 669 [noting that just cause is a “well-recognized and well-
defined standard”]; see also Landry v. The Cooper/T. Smith Stevedoring Co., Inc. (1989)
880 F.2d 846, 848, fn. 1 [“As is the usual circumstance in collective bargaining
agreements, the contract did not define ‘just cause’ ”].) The Board also found by not
attempting to provide its own definition of just cause, and instead feigning ignorance of
its meaning and insisting the Union define it, Gerawan reflected “shadow boxing” or
“giving the Union a runaround” that has been found to constitute a refusal to bargain.
(See NLRB v. Herman Sausage Co. (5th Cir. 1960) 275 F.2d 229, 232 (Herman
Sausage).)
       The evidence supports the Board’s findings. While Barsamian testified Gerawan
never rejected the just cause standard and merely asked for a definition of it, Gerawan
proposed an at-will standard throughout the negotiations, a position it never moved from.
Initially Gerawan proposed it had “the right to hire, promote, discharge or discipline”
pursuant to its historical practice of at-will employment. Eventually Gerawan made the
following counterproposal to the Union’s discipline and discharge proposal: “The
company retains the right to discipline or discharge employees pursuant to federal and
state law and the terms of this Agreement.” Gerawan asserts it provided “numerous
modifications” to this counterproposal, but the record shows the counterproposal
remained the same throughout the negotiations. Barsamian’s claim that he was uncertain
of the meaning of just cause is undermined by the inclusion of just cause or for cause
limitations in Gerawan’s management rights proposals at the beginning and end of
negotiations, which Gerawan claimed were included in error.23



23      Gerawan asserts it “proposed various formulations of the just cause standard.”
Gerawan points to Barsamian’s testimony, in which he confirmed he was aware there
were legal treatises that would provide some guidance on the meaning of just cause and
said that after he talked about the standard with Elenes, he quoted a couple of those
treatises in letters to the general counsel’s partner and asked if that was what he meant,
but never received a response. It is unclear, however, when this communication

                                            55.
       The Board reasonably found Gerawan’s position with respect to the Union’s just
cause proposal provided further evidence it was not making real efforts to enter into an
agreement. (A-1 King Size Sandwiches, Inc. (1982) 265 NLRB 850, 859 [employer’s
efforts “to retain exclusive and unbridled control over discipline and discharge and both
layoff and recall” factored into finding of bad faith bargaining], enfd. sub nom. NLRB v.
A-1 King Size Sandwiches, Inc. (11th Cir. 1984) 732 F.2d 872, 876 [describing union’s
just cause proposal as “a common non-controversial clause”].)
              5.     Gerawan’s Concessions
       Gerawan contends the Board ignored concessions and modifications it made to its
seniority and grievance and arbitration proposals, and failed to consider the significance
of them.
       With respect to the seniority proposal, the Board explained that while Gerawan
made some concessions by offering to consider length of service in the context of layoffs,
recalls, and filling job vacancies, its limited concessions did not defeat the surface
bargaining allegations based on the totality of the circumstances. The Board viewed
these concessions as creating the impression of serious bargaining while making no real
effort to conclude an agreement. (McFarland Rose Production, Inc., supra, 6 ALRB
No. 18, p. 28; Herman Sausage, supra, 275 F.2d at p. 232 [“to sit at a bargaining table …
or to make concessions here or there, could be the very means by which to conceal a
purposeful strategy to make bargaining futile or fail”].)
       With respect to the grievance and arbitration provision, the Board was not
persuaded Gerawan’s concessions were as noteworthy as it portrayed them. Noting that
grievance-arbitration is a common feature in collective bargaining agreements and serves
as “[a] major factor in achieving industrial peace” (United Steelworkers of America v.
Warrior & Gulf Navigation Co. (1960) 363 U.S. 574, 578), the Board found that while


occurred; Barsamian testified it occurred when “the new set of negotiations [] started up”
in 2015.

                                             56.
Gerawan may have made more movement on this issue than the Union, its starting point,
namely, that Gerawan would determine employee grievances itself, allowed for the most
movement.
       While Gerawan ultimately adopted nearly all of the Union’s proposed language, it
was reasonable for the Board to conclude this was not notable since Gerawan’s initial
proposal was so far removed from a standard grievance provision. The Board also
reasonably could find that Gerawan’s concessions were not sufficient to detract from its
rigid positions on the right to work, economic action, and union obligations proposals, as
well as its resistance to the Union’s basic just cause proposal, which evidenced a strategy
to frustrate the possibility of reaching a voluntary collective bargaining agreement. (See
Altorfer Machinery, supra, 332 NLRB at p. 150, citing NLRB v. Big Three Industries,
Inc., supra, 497 F.2d at p. 46.)
              6.      Conduct Away from the Bargaining Table
       The Board determined Gerawan’s delay in providing information to the Union and
its March 2013 interim wage increases, as well as the flyers informing employees of the
increases, provided further evidence of bad faith bargaining. Gerawan challenges only
the Board’s finding with respect to the interim wage increases, namely, that Gerawan did
not give the Union a meaningful opportunity to bargain over them, arguing it did not have
such an obligation.
       An employer violates its duty to bargain when it implements unilateral changes in
the terms and conditions of employment. (NLRB v. Katz (1962) 369 U.S. 736, 743.)
“[W]hen, as here, the parties are engaged in negotiations, an employer’s obligation to
refrain from unilateral changes extends beyond the mere duty to give notice and an
opportunity to bargain; it encompasses a duty to refrain from implementation at all,
unless and until an overall impasse has been reached on bargaining for the agreement as a
whole.” (Bottom Line Enterprises (1991) 302 NLRB 373, 374, emphasis omitted.)
Unilateral changes in mandatory subjects of bargaining are among the conduct that is


                                            57.
indicative of a lack of good faith. (Atlanta Hilton & Tower, supra, 271 NLRB at
p. 1603.)
       Gerawan announced hourly pay raises through flyers that informed employees the
decisions to grant pay raises were from “Ray, Mike, and Dan Gerawan,” who “made the
decision to give cultural labor employees a raise just as they always have,” and “informed
the union of our proposed plan, and we assume they will not cause any unnecessary
delay.” The Board agreed “with the ALJ that Gerawan gave the UFW notice of a fait
accompli, not a meaningful opportunity to bargain, that presented the union the Hobson’s
choice to quickly accept Gerawan’s terms or face further disparagement by it.” (See
Champion International Corp. (2003) 339 NLRB 672, 678‒688; S & I Transportation,
Inc. (1993) 311 NLRB 1388, fn. 1; J.P. Stevens & Co., supra, 239 NLRB 738 [employer
presented the union with a “ ‘Hobson’s choice’—either accept or reject unilaterally
predetermined modifications in benefit programs”; “this tactic was a most effective
means of undermining the collective-bargaining process and denigrating the Union’s
status as collective-bargaining agent”].)
       Gerawan contends this conclusion was erroneous because “[w]age changes that
merely reflect continuations of past company policy are not considered changes in
existing work conditions, and thus fall outside the Katz rule.” (Aaron Brothers Co. v.
NLRB (9th Cir. 1981) 661 F.2d 750, 753; see NLRB v. Southern Coach & Body Co. (5th
Cir. 1964) 336 F.2d 214, 217‒218 [promotions necessitated by a strike, which did not
involve discretionary pay raises, did not violate Katz rule; the NLRA does not prohibit
an employer from making necessary work force adjustments in the absence of evidence
of deviation from established company policy or refusal to bargain with respect to the
standards to be used for promotion].)
       Gerawan claims the wage increases were made pursuant to its “established
practice of providing competitive wage increases and the business necessity underlying
its wage increases.” It cites no evidence, however, to show a past practice of providing


                                            58.
automatic wage increases on a regular basis as part of an established company policy.
Elenes testified Gerawan told him, when discussing the wage proposal, that they were
raising wage rates because “some of their competitors were raising rates and they wanted
to stay above the competition.” This testimony, however, does not establish that
Gerawan had an established policy of raising wages to stay ahead of the competition.
The Board reasonably could find, based on the flyers, that the raises were made, not to
stay above the competition, but rather as part of “a strategy to undermine the union in the
eyes of the employees” by depicting the Union “as an obstacle to Gerawan’s ability to
bestow its good will on the employees,” and portray itself “as the benefactor of its
employees.”24
       The mediator’s report, which Gerawan cites, also does not establish there was a set
policy of wage increases; instead, it shows the discretionary nature of the raises. When
discussing wages, the mediator noted the minimum wage was the driving force for wage
levels in California agriculture absent union representation, and Gerawan’s 10-year wage
history demonstrated that in certain instances, but not all, Gerawan paid more than the
minimum wage. The mediator noted the two March 2013 increases implemented within
a week of each other occurred in the context of renewed bargaining with the Union, and
“[t]he rationale for raising wages so dramatically at that time cannot simply be explained
as a desire to remain in ‘the forefront’ of agricultural labor compensation providers or by
a need to attract the best workers.” Thus, the mediator actually found the raises at issue
were not linked to any policy, and instead were discretionary.




24     In Gerawan II, we concluded there was substantial evidence to support an unfair
labor practice charge based on direct dealing relating to the flyers announcing the March
2013 pay raise, as “[r]easonably implicit in this message to its employees was that
Gerawan was granting the pay raises entirely on its own, apart from the union, and that it
was hoped that the union would not delay or get in the way of what Gerawan alone was
doing for them.” (Gerawan II, supra, 23 Cal.App.5th at p. 1211.)

                                            59.
      Based on the record as a whole, the Board reasonably could find Gerawan’s
conduct surrounding the March 2013 wage increases further evidenced Gerawan’s lack of
good faith in bargaining towards a collective bargaining agreement. (Montebello Rose
Co., Inc. (1979) 5 ALRB No. 64, p. 25 [“ ‘Conduct reflecting … an underlying purpose
to bypass or undermine the union … manifests the absences of a genuine desire to
compromise differences and to reach agreement in the manner the Act commands.’ ”];
Akron Novelty Mfg. Co. (1976) 224 NLRB 998, 1001.)25
             7.     Conclusion
      In sum, the Board’s findings are supported by substantial evidence on the record
considered as a whole. While the Union’s sudden reappearance after a 17-year absence
created a “dramatic shift from the long-term status quo” that “profoundly affected both
Gerawan and its workers” (Gerawan II, supra, 23 Cal.App.5th at p. 1207), Gerawan had


25     The Board also addressed Gerawan’s contention that the ALJ erred in citing to the
Board’s findings in Gerawan Farming, supra, 42 ALRB No. 1, in which the Board found
Gerawan committed unfair labor practices related to the decertification election, because
an appeal of that decision was pending in this court. In rejecting the argument, the Board
noted that while the ALJ did not specifically rely on the Board’s findings of unlawful
support and assistance to the decertification effort, solicitation of grievances, and
employee direct dealing it made in its prior decision, it “would find nothing improper in
doing so,” as it was “not required to ignore this history.” Gerawan contends in its
supplemental brief that because we rejected many of those findings and conclusions in
Gerawan II, the factual basis and context the Board relied on in reaching its decision in
this case is undermined. The Board, however, specifically stated: “[W]hile the record of
Gerawan’s bargaining conduct in this case fully supports our findings that it simply
engaged in the surface motions of bargaining without any real intention of reaching
agreement with the union, we consider such unlawful conduct as found in our prior
decision as providing additional context to the parties’ labor relations.” The Board,
however, clearly stated its “findings and affirmance of the ALJ’s surface bargaining
findings are based on the record in this case,” and its “ultimate disposition of Gerawan’s
petition for review in the other case has no bearing on our disposition of this case.” As
the Board points out in its supplemental brief, neither the Board’s preceding discussions
on the surface bargaining question concerning the contract proposals at issue, nor
Gerawan’s delay in responding to the Union’s information request, rely on any findings
made on the Board’s earlier decision in 42 ALRB No. 1.

                                           60.
a duty to bargain in good faith with the Union and could not “unilaterally declare” that it
would “refuse to engage with the union” because it believed the Union had abandoned its
employees (Gerawan I, supra, 3 Cal.5th at p. 1159). In its bargaining, Gerawan was
permitted to stand firm on its positions if it reasonably believed them to be fair, but it
could not merely go through the motions without any real intent to reach an agreement.
       Here, the Board found Gerawan was going through the motions without any real
intent of reaching an agreement based on its proposals and positions taken on the right to
work, economic action, and union obligations proposals, as well as the Union’s just cause
provision, which centered only on its philosophical opinions of its employees’ right to
choose and failure to truly consider the Union’s proposals. As we have explained, there
is substantial evidence to support these findings. Our function is not to decide what
inference we would draw from the facts presented, but rather whether reasonable minds
could draw the one the Board did. (Stonewall Cotton Mills, Inc. v. NLRB (5th Cir. 1942)
129 F.2d 629, 631.) The Board’s findings are neither “irrational,” “tenuous,” nor
“unwarranted.” (Penasquitos Village, Inc. v. NLRB, supra, 565 F.2d at p. 1079.) These
findings are “supported by substantial evidence on the record considered as a whole, and
will not be disturbed.” (Dal Porto, supra, 163 Cal.App.3d at p. 553.)
       E.     Farm Labor Contractor Workers
       The Board found that Gerawan violated section 1153, subdivision (e) by
(1) refusing to bargain over the wages, hours and terms and conditions of employment of
FLC workers, which is a per se violation of the duty to bargain, and (2) insisting on
removing the FLC workers from the scope of any collective bargaining agreement.
       Farm labor contractors are not employers under the Act; instead, the employer
engaging the farm labor contractor is “deemed the employer for all purposes under [the
Act].” (§ 1140.4, subd. (c); Cardinal Distributing Co. v. Agricultural Labor Relations
Bd. (1984) 159 Cal.App.3d 758, 768.) FLC workers therefore are part of the bargaining
unit represented by the Union and Gerawan is deemed their employer for purposes of


                                             61.
collective bargaining. (§§ 1140.4, subd. (c), 1156.2; Bud Antle, Inc. (2013) 39 ALRB
No. 12, p. 9; TMY Farms (1976) 2 ALRB No. 58, pp. 4‒5.) An employer’s refusal to
bargain over the wages, hours and other terms and conditions of employment of FLC
workers constitutes a per se violation of the duty to bargain. (Paul W. Bertuccio (1984)
10 ALRB No. 16, ALJ Dec. pp. 21, 27, enfd. in relevant part sub nom. Bertuccio v
Agricultural Labor Relations Bd. (1988) 202 Cal.App.3d 1369, 1377.)
       A proposal to modify the scope of a bargaining unit or remove employees from it
is not a mandatory subject of bargaining. (Hess Oil & Chemical Corp. v. NLRB (1969)
415 F.2d 440, 445 [holding “an issue concerning the construction of an appropriate unit
so as to exclude certain members from that unit is not a subject for bargaining and an
insistence upon it constitutes a violation” of the NLRA].) Likewise, an employer’s
insistence that bargaining be restricted to less than all employees in the bargaining unit
constitutes a refusal to bargain. (Paul W. Bertuccio, supra, 10 ALRB No. 16, ALJ Dec.
p. 20, citing Beyerl Chevrolet, Inc. (1975) 221 NLRB 710 [employer’s “inclusion of
language which arbitrarily limits the scope of the unit in any of its bargaining proposals
shows a reluctance on its part to attempt to reach a collective-bargaining agreement” and
constitutes bad faith bargaining].)
       Gerawan’s initial proposal was to exclude FLC workers from the terms of any
agreement. Gerawan adhered to this proposal as written until its June 3, 2013 proposal.26
While Gerawan agreed to include FLC workers under the grievance/arbitration provision,
it continued to propose leaving all of the other terms and conditions of employment of

26      Gerawan claims it dropped the proposal to wholly exclude FLC workers from the
agreement by March 21, 2013. In making this statement, however, Gerawan cites to the
Union’s March 21, 2013 proposal. On March 19, 2013, Gerawan proposed adding a
sentence to its original proposal excluding FLC workers, which stated it would “continue
its past practice of making its best efforts” to employ direct-hire crews before FLC crews,
but it would not guarantee direct-hire crew employees would be hired before or laid off
after all FLC workers. The Union’s March 21, 2013 response was to propose striking the
exclusion of FLC workers and modify the added sentence to state only that Gerawan
would use its best efforts to employ direct-hire crews before farm labor contractor crews.

                                             62.
such workers for the farm labor contractors to determine. At the hearing, Gerawan’s
counsel conceded the FLC workers were part of the bargaining unit, explaining that
Gerawan’s position was that it could treat them differently than other bargaining unit
members.
       The Board found Gerawan’s proposals “effectively removed determinations
concerning FLC workers’ terms and conditions of employment from the scope of any
contract.” Gerawan contends this is not a fair characterization of its position. But that is
precisely what Gerawan’s proposals did—FLC workers’ wages and benefits, as well as
the discipline and discharge procedures applicable to them, would be set by the farm
labor contractors rather than the contract. The Board reasonably could find that by
insisting the FLC workers remain outside the majority of the contract’s terms, Gerawan
in effect was refusing to bargain over the terms and conditions of employment, which is a
per se violation of the duty to bargain.27
       Gerawan contends the Board’s reliance on Paul R. Bertuccio, supra, 10 ALRB
No. 16 is misplaced, as there the grower refused to consider any proposals regarding FLC
workers for three years and the Board expressly found the employer’s position prevented
the parties from reaching agreement. Even so, the principle remains that an employer
may not insist on excluding employees who are part of the bargaining unit or restrict

27     Gerawan contends the Board improperly considered positions it took after May 17,
2013, the date the original complaint was filed, which alleged conduct during bargaining
sessions from January to April 2013. Gerawan argues the Board exceeded the scope of
the charged conduct, as the Board may not find an unfair labor practice based on conduct
that was “not charged nor otherwise properly placed in issue” and where the employer
“was not placed on notice it was required to defend against those charges.” (George
Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1986) 186 Cal.App.3d 94,
103.) Gerawan, however, was placed on notice that the charged conduct extended past
May 17, 2013, through allegations made in the third amended consolidated complaint
filed on September 9, 2016. There it was alleged that “[t]hroughout the negotiations with
the UFW over a CBA, Gerawan proposed and insisted that the terms of any collective
bargaining agreement would not apply to its FLC employees,” and cited as evidence
Gerawan’s June 3, 2013 proposal, and 11 bargaining sessions in which Gerawan never
offered a proposal to extend the contract to FLC employees.

                                             63.
bargaining to less than all members of the unit. (Beyerl Chevrolet, Inc., supra, 221
NLRB at p. 720.) Gerawan asserts it never refused to bargain over the FLC workers, but
as we have discussed, the Board reasonably found that it effectively did.28
       Finally, Gerawan contends the Board ignored the mediator’s findings regarding
farm labor contractor issues. In setting out the parties’ positions, the mediator noted the
Union sought to preserve the work of direct-hire employees by prohibiting the use of
farm labor contractors when it would cause a lay-off of direct hires, and to bind the
contractor to the wages, and terms and conditions of employment, applicable to direct
hires under the agreement. Gerawan asserts the Union therefore proposed preferential
treatment of one group of employees over another in violation of its duty of fair
representation. Gerawan further asserts even the mediator noted other collective
bargaining agreements “reveal that agricultural employers apply a wide range of
exceptions to the CBA’s provisions when applied to FLC workers.” From this, Gerawan
claims there is nothing that “prevents giving preferential treatment to hiring/recalling
direct-hires outside of a contract.”
       The mediator, however, also noted that farm labor contractors’ exclusions are
commonly found in the subcontracting clause, and even contracts Gerawan cited
contained limitations on the use of subcontractors, namely, that they will not be used to
the detriment of direct hires, must have skills or equipment the bargaining unit employees
do not, or are needed for demands dictated by time and weather. The mediator then
found the wages, hours and other terms and conditions of employment of the collective


28     Gerawan claims its later proposals were closer to the Union’s proposal than its
original one, citing to a statement in the Union’s negotiator’s February 13, 2013 notes
that “FLC language is a lot closer.” It is apparent from the note, however, that this
statement was made by a Gerawan negotiation team member, “MM,” in response to a
review of the Union’s February 12, 2013 proposal, in which the Union proposed to
amend the first section of its original proposal to provide that Gerawan would “make best
efforts” to use direct-hire employees. Gerawan did not propose any changes to the farm
labor contractor proposal in its February 12, 2013 proposal.

                                            64.
bargaining agreement should apply to FLC workers, as they are deemed employees of
Gerawan, and because they have the right to sign certification or decertification petitions
and vote in representation elections, they have an impact on whether they, as well as
direct-hire employees, are represented when engaged at an employer’s operations.
       The mediator in fact found that it was reasonable for the Union to give preference
to direct hires over FLC workers with respect to hiring and layoffs, but when FLC
workers were used, their wages, hours and terms and conditions of employment must be
equivalent to those given direct-hire employees under the contract. Thus, the mediator’s
findings actually support the Board’s conclusion that Gerawan’s insistence on removing
the FLC workers from the scope of any collective bargaining agreement, and its
persistent refusal to bargain over their wages and terms and conditions of employment,
constituted a refusal to bargain in good faith in violation of section 1153, subdivision (e).
       F.     Separation of Powers
       After the Board adopted the mediator’s report setting the terms of the MMC
contract, Gerawan petitioned this court for review of that order, raising constitutional
challenges to the MMC statute, which encompassed some of the terms that were part of
the Board’s bad faith finding in this case. During the pendency of that proceeding, the
hearing on the unfair labor practice charges at issue here was held, the ALJ issued his
decision, and the Board addressed the parties’ exceptions and issued its order affirming
the ALJ’s factual findings and legal conclusions, which Gerawan petitioned this court to
review. After briefing was completed in this case, we dismissed Gerawan’s petition from
the Board’s order adopting the MMC contract as moot in light of the Union’s
decertification.
       In Gerawan’s opening and reply briefs, Gerawan pointed out the Board’s bad faith
bargaining finding was based on terms the mediator imposed as part of the MMC
contract, notwithstanding the fact this court had yet to decide whether these (and other)
terms of the contract were arbitrary, unconstitutional or imposed unlawfully in Gerawan’s


                                             65.
petition from the Board’s order adopting the MMC contract. Gerawan argued this
usurped this court’s exclusive jurisdiction to decide whether the disputed contract terms
were lawful before the Board passed judgment on Gerawan’s bargaining positions on
those terms. Gerawan asserted the Board assumed the MMC contract was valid,
notwithstanding the fact the decertification election took place before the contract was
imposed.
       The Board argued in its brief that the then pending judicial review of the Board’s
earlier decision had “no impact” on its ability to examine whether Gerawan engaged in
bad faith bargaining in the negotiations that preceded that order. The Board explained
that this case concerns Gerawan’s bargaining conduct leading up to August 2013, four
months before the Board’s order adopting the MMC contract, when Gerawan’s violation
of the Act was complete. The Board asserts the fact that later events produced a contract
does not retroactively convert Gerawan’s unlawful conduct into lawful conduct or
preclude the Board from remedying the effects of the violation.
       In supplemental briefing on the effect of the Union’s decertification on the parties’
arguments, Gerawan contends the election’s nullification of the MMC contract not only
calls into question the validity of the contracting process imposed on Gerawan and its
workers, but also undermines the Board’s holding that Gerawan’s objections to terms the
mediator imposed, which are now void, were improper.
       The Board responds in its supplemental brief that this case is not about MMC or
the contract eventually ordered into effect at the conclusion of MMC, but rather
Gerawan’s conduct both before MMC and outside the mediator’s presence after the
parties were ordered to MMC. The Board argues the disposition of the earlier MMC
litigation has no bearing on Gerawan’s bad faith conduct during its negotiations with the
Union outside the context of MMC, noting Gerawan concedes its good faith bargaining
obligation continued until the Union was decertified.




                                            66.
       We agree with the Board that the earlier case has no bearing on this one. In this
case, the Board was judging conduct leading up to the formal MMC proceedings that
concluded before any MMC contract was adopted. The primary issue before the Board
was whether Gerawan engaged in good faith bargaining by entering into negotiations
with an intent to reach an agreement. The examination of this issue does not call into
question the validity or legality of the terms the mediator ultimately adopted. Rather, it
requires an analysis of Gerawan’s state of mind, as shown by its conduct at and away
from the bargaining table.
IV.    The Make-Whole Remedy
       “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 had reached a timely agreement.’ ” (Tri-Fanucchi
Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1161, 1167‒1168, citing
George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d
1279, 1286, fn. 3.)29
       The ALRB has broad discretion in applying this remedial make-whole power.
(Holtville Farms, Inc. v. Agricultural Labor Relations Bd. (1985) 168 Cal.App.3d 388,
390.) “ ‘Because the relation of remedy to policy is peculiarly a matter for administrative
competence, courts must not enter the allowable area of the [ALRB’s] discretion and


29     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.)

                                            67.
must guard against the dangers of sliding unconsciously from the narrow confines of law
into the more spacious domains of policy.’ ” (Carian v. Agricultural Labor Relations Bd.
(1984) 36 Cal.3d 654, 674.) Accordingly, the ALRB’s remedial order should not be
disturbed “ ‘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.)
       The Board concluded the make-whole remedy was appropriate under the
circumstance presented in this case. In considering make-whole relief, the ALJ and the
Board applied the test stated in William Dal Porto & Sons, Inc. v. Agricultural Labor
Relations Bd. (1987) 191 Cal.App.3d 1195. Under that test, once the Board produces
evidence showing the employer unlawfully refused to bargain, a presumption is created
that the parties would have consummated a collective bargaining agreement providing for
higher employee pay had the employer bargained in good faith. (Id. at pp. 1208‒1209.)
The burden of persuasion then shifts to the employer to rebut the presumption and if the
employer cannot do so, “the Board is entitled to find an agreement providing for higher
pay would have been concluded.” (Ibid.) To rebut the presumption, the employer must
produce “evidence of some alternative, legitimate cause for the parties’ failure to agree”
that shows “the parties would not have agreed even if the employer had not refused to
bargain.” (United Farm Workers v. Agricultural Labor Relations Bd. (1993)
16 Cal.App.4th 1629, 1640.)
       Applying this test, the Board explained that since it found Gerawan unlawfully
engaged in surface bargaining in violation of the Act, it presumed an agreement
providing for higher employer wages would have been reached in the absence of
Gerawan’s unlawful conduct. The Board affirmed the ALJ’s conclusion that Gerawan
failed to meet its burden to show a contract providing for higher wages would not have
been reached had Gerawan bargained in good faith.
       The Board also found make-whole relief was appropriate under the F & P
Growers standard, in which the Board “consider[s] on a case-by-case basis the extent to


                                             68.
which the public interest in the employer’s position weighs against the harm done to the
employees by its refusal 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.” (F & P Growers Assn.
v. Agricultural Labor Relations Bd. (1985) 168 Cal.App.3d 667, 682.) The Board found
Gerawan’s conduct did not further the policies and purposes of the Act, as its decision to
engage in a “ ‘time-consuming bargaining charade,’ part of which ‘included an
unrelenting effort to discredit’ its employees’ representative” was inimical to the
purposes of the Act, and “was destructive of the core right of employees ‘to negotiate the
terms and conditions of their employment’ through their bargaining representative.”
       The Board rejected Gerawan’s argument that a make-whole award was not
appropriate when MMC has been invoked. The Board noted there was nothing in the
MMC statute that precluded a make-whole award for an unfair labor practice violation.
Moreover, the mediator’s authority in the MMC process was limited to resolving the final
terms of a collective bargaining agreement regarding the mandatory subjects of
bargaining; the mediator did not have authority under the MMC process to order unfair
labor practice remedies. Finally, the parties continued to bargain without the mediator’s
assistance after MMC was invoked.
       Gerawan does not challenge the Board’s application of the Dal Porto test and its
decision to impose the make-whole remedy based on Gerawan’s conduct. Instead,
Gerawan challenges the Board’s authority to award make-whole relief when a party is
engaged in MMC. Gerawan contends the Board does not have the statutory authority to
impose make-whole relief and make-whole remedies violate its due process rights.
       As we explained in discussing a party’s good faith bargaining duty, section 1160
empowers the Board to adjudicate unfair labor practice charges that arise from
negotiations outside the mediator’s presence during the MMC process. This necessarily
includes the power, should the Board find that a party has engaged in an unfair labor


                                            69.
practice, to, among other things, make employees whole “for the loss of pay resulting
from the employer’s refusal to bargain.” (§ 1160.3.)
       Gerawan argues there can be no refusal to bargain once the parties enter MMC
because MMC will result in the imposition of a contract whether or not the employer
participates. While this may be true if we were examining an employer’s conduct during
MMC proceedings before the mediator, here we are addressing an employer’s conduct in
bargaining sessions held outside the mediator’s presence. Given that the parties have a
duty to bargain in good faith during those sessions, an employer in fact may be found to
have refused to bargain in those sessions despite the mediator’s ultimate ability to
establish the final terms of a collective bargaining agreement. Contrary to Gerawan’s
contention, the Board did not “vest itself with power beyond authority under its enabling
statute, or invent a new remedy out of whole cloth” when it found the make-whole
remedy was appropriate, as it was authorized to impose such a remedy under
section 1160.3.
       Gerawan asserts “[t]he Board does not explain why it may second-guess the
mediator’s decision not to sanction Gerawan for what it deems unlawful conduct, let
alone why it may pile on top of retroactive wage increases already imposed by the
mediator.” As we have explained, the purpose of the MMC statute is to facilitate the
negotiation and completion of collective bargaining agreements, with the parties retaining
the right to reach voluntary agreement on disputed issues. (Gerawan Farming I, supra,
3 Cal.5th at p. 1130; Gerawan Farming III, supra, 40 Cal.App.5th at p. 271.) The
mediator’s authority in the MMC process is limited to resolving the final terms of a
collective bargaining agreement. The MMC statute “does not give a mediator the
authority to find unfair labor practices, or to remedy them.” (Arnaudo Brothers (2015)
41 ALRB No. 6, ALJ Dec. p. 13, enfd. sub nom. Arnaudo Brothers, supra,
22 Cal.App.5th 1213.) The authority to order unfair labor practice remedies remains
exclusively with the Board. (§§ 1160.3, 1160.9.)


                                            70.
       Gerawan complains that imposing unfair labor practice liability “on top of the
contract terms fixed by the mediator (or the sanctions he may impose) creates a serious
risk of contradictory and double punishment.” Gerawan asserts that if the Board has the
power to adjudicate unfair labor practice charges within MMC, the Board could punish as
an unfair labor practice a party’s failure to comply with its discovery obligations, even if
the mediator chose not to do so,30 or an employer who declines to participate in MMC
may be subject to both a contract based solely on the Union’s proposals and monetary
sanctions for failure to bargain.31 The distinction here, however, is that the Board did not
punish Gerawan’s conduct in the MMC process, but rather its conduct during
negotiations held outside the mediator’s presence. Our conclusions in this case are
limited to that situation.
       Gerawan contends its due process rights were violated because the Board imposed
a new policy, not found in the MMC statute, that an employer is required to bargain in
good faith during MMC, and retroactively fined it for failing to comply with that policy.
       Generally, an agency “is not precluded from announcing new principles in an
adjudicative proceeding and … the choice between rulemaking and adjudication lies in
the first instance within the [agency’s] discretion.” (NLRB v. Bell Aerospace Co. (1974)
416 U.S. 267, 294.) In a “narrow class of cases,” however, an agency may abuse its

30     The parties have the ability to conduct discovery in MMC and the mediator is
empowered to “draw adverse inferences or impose terms, conditions, or sanctions” for
the purpose of enforcing the duty to make discovery. (Cal. Code Regs., § 20406,
subd. (d).)
31      Gerawan contends this is especially egregious since the Board’s regulations
contemplate that a party may refuse to participate in the MMC process without threat of
sanctions. The regulations provide that “[t]he failure of any party to participate or
cooperate in the mediation and conciliation process shall not prevent the mediator from
filing a report with the Board that resolves all issues and establishes the final terms of a
collective bargaining agreement, based on the presentation of the other party.” (Cal.
Code Regs., § 20407, subd. (a)(1).) While the mediator may impose a contract if a party
refuses to participate or cooperate, the regulations are silent on whether that party may
also be subject to unfair practice liability.

                                             71.
discretion by announcing new rules through adjudication rather than through rulemaking,
such as where the new rule “departs radically from the agency’s previous interpretation
of the law, where the public has relied substantially and in good faith on the previous
interpretation, where fines or damages are involved, and where the new standard is very
broad and general in scope and prospective in application.” (Pfaff v. U.S. Dept. of
Housing (9th Cir. 1996) 88 F.3d 739, 748.)
       Gerawan asserts this case fits within this narrow class of cases because as a result
of the Board’s new policy of requiring good faith bargaining during MMC, the Board
retroactively fined Gerawan for failing to comply with that policy. However, as we have
explained, the Board did not make policy “in contradiction to its own regulations and the
role assigned to it under the [MMC] statute,” as Gerawan contends. Instead, the Board
was acting within the authority granted it by section 1160 and its decision did not conflict
with the MMC statute or its implementing regulations. As such, no due process violation
has been shown.
       In its supplemental brief, Gerawan asserts its bargaining conduct was based on a
genuine and reasonable belief the contract terms at issue were both unconstitutional and
at odds with the wishes of its workers. Gerawan argues this belief bears on the
legitimacy of the make-whole remedies the Board would impose, citing Nish Noroian
Farms, supra, 8 ALRB No. 25, pages 14‒15, in which the Board stated it determines
whether make-whole relief is warranted for a refusal to bargain while the results of a
decertification election are pending “based on such factors as whether the employer
withdrew recognition and refused to bargain because of an honestly-held and reasonable
good-faith belief that the Board would ultimately certify that the incumbent lost the
election.”
       During the bargaining conduct at issue in this case, however, a decertification
election had not been held. Thus, the Union remained the employees’ certified
bargaining representative and Gerawan could not raise “ ‘a good faith doubt of majority


                                             72.
support’ ” defense to its refusal to bargain. (Gerawan Farming I, supra, 3 Cal.5th at
p. 1154, citing F & P Growers Assn. v. Agricultural Labor Relations Bd., supra,
168 Cal.App.3d at p. 678; see Nish Noroian Farms, supra, 8 ALRB No. 25.) Neither
could it refuse to bargain with the Union “on the ground that it has ‘abandoned’ its status
as representative.” (Gerawan Farming I, at p. 1155, citing Dole Fresh Fruit Company
(1996) 22 ALRB No. 4, Bruce Church, Inc. (1991) 17 ALRB No. 1 & Lu-Ette Farms,
Inc. (1982) 8 ALRB No. 91.)
       As our Supreme Court explained in Gerawan Farming I when rejecting
Gerawan’s assertion that the abandonment defense was “ ‘the only way to protect the
workers’ right to choose’ ”: “[T]he ALRA contains a comprehensive set of protections
for employees who no longer wish to be represented by the certified labor union,” such as
petitioning for a new election, and the employer has “multiple options to defend against
‘what may appear to be a derelict or defunct incumbent union.’ [Citation.] 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. This is true
whether in response to an initial demand to bargain, a renewed demand to bargain, or a
request to refer the parties to MMC. In all cases, the ALRA reserves the power to select
the union representative to the employees and labor organizations alone.” (Gerawan
Farming I, supra, 3 Cal.5th at pp. 1158‒1159.)
       Similarly, here, Gerawan may not refuse to bargain with its employees’ certified
bargaining representative based on its belief that it represents the employees’ interests
better than the Union. To hold otherwise would permit Gerawan to “ ‘do indirectly …
what the Legislature has clearly shown it does not intend the employer to do directly,’ ”
namely, “ ‘to limit the employer’s influence in determining whether or not it shall bargain
with a particular union … [and] remove the employer from any peripheral
participation.’ ” (Gerawan Farming I, supra, 3 Cal.5th at p. 1158.)




                                            73.
V.     Gerawan’s Motion to Disqualify Board Member Hall
       Gerawan brought a prehearing motion to disqualify Board member Isadore Hall III
from participating in the Board’s decision in this case, which the Board denied. The
Board also denied Gerawan’s motion for reconsideration. In its petition, Gerawan
contends the undisputed evidence demonstrated Hall’s animus toward it and created the
appearance of partiality; therefore, his participation in this case requires us to vacate the
Board’s decision and set aside its order. Gerawan also contends Hall’s participation in
the decision on the disqualification motion is an independent basis to vacate the Board’s
order.32
       A.     Gerawan’s Motions
       In April 2017, Gerawan moved to disqualify Hall from participating in the
exceptions process relating to the ALJ’s decision. Gerawan contended Hall’s previous
actions and statements demonstrated bias and lack of impartiality as to the specific facts
in this dispute. Specifically, Gerawan alleged that on October 22, 2014, when Hall was a
California State Assemblyman, he participated in a Los Angeles labor rally in support of
a UFW-sponsored resolution before the Los Angeles City Council, which concerned
some of the same unfair labor practice charges involved in this case. Based on this,


32      While Gerawan briefed these issues in the memorandum of points and authorities
attached to its petition for writ of review, it did not discuss this issue in its opening brief
other than to note that it would not “repeat its discussion of the disabling conflicts of
Member Hall,” citing to its argument in the petition. The Board contends by not
repeating the argument in its opening brief, Gerawan forfeited the issue. (See, e.g.,
Department of Personnel Administration v. California Correctional Peace Officers Assn.
(2007) 152 Cal.App.4th 1193, 1201 [appellant forfeited claim where its briefing did not
provide reasoned response to an issue respondent raised]; Parker v. Wolters Kluwer U.S.,
Inc. (2007) 149 Cal.App.4th 285, 290 [appellate court may disregard arguments made to
the trial court that are incorporated by reference into appellate brief, as this practice does
not comply with California Rules of Court, rule 8.204(a)(1)(B)].) As Gerawan points out
in its reply brief, these cases do not apply here, where a petitioner set forth its argument
in its petition for review. In any event, we exercise our discretion to decide the issue, as
the Board and Union were aware of argument and the grounds for it.

                                              74.
Gerawan argued a disinterested observer would conclude Hall had “in some measure
adjudged the facts as well as the law in this case in advance of hearing it,” and therefore
he must be disqualified from participating in the decision-making process in this matter.
With Hall disqualified, Gerawan argued the Board could not adjudicate the ALJ’s
decision because it lacked a valid quorum until the Governor filled at least one vacancy
on the Board.
       In support of the motion, Gerawan submitted a number of photographs, several
Facebook posts, the resolution, and a March 2017 letter from California Senator Andy
Vidak to California Senate President pro tempore Kevin de León. Several photographs
were from the UFW’s and Councilman Herb Wesson’s Facebook pages showing then-
Assemblyman Hall marching with supporters of the resolution. An October 29, 2014
statement posted on Hall’s Facebook page concerned the announcement that Maria Elena
Durazo was leaving her position as executive secretary of the Los Angeles County
Federation of Labor to become vice president for immigration, civil rights and diversity
at UNITE HERE International. Hall stated he listened to Durazo “speak at Prima Farm
Workers’ march to L.A. City Hall” and was inspired by her story. He further stated this
was not “the first time Maria Elena and I have teamed up for Los Angeles County
workers,” and he was proud to call her his friend and ally “in the continued fight to
empower California’s working people.”
       Two documents were posts from Hall’s Facebook page: (1) an October 24, 2014
announcement that Hall received an endorsement from John Burton in support of Hall’s
California State Senate bid, which listed over 40 other endorsements by individuals and
organizations, including the UFW; and (2) an October 26, 2015 announcement that the
UFW was endorsing Hall in his 2016 campaign for California’s 44th Congressional
District seat.
       The resolution, which was approved by the Los Angeles City Council on
October 22, 2014, and the mayor on October 28, 2014, listed seven recitations concerning


                                            75.
Gerawan and its refusal to implement the MMC contract. The resolution called on
Gerawan to meet “basic standards of conduct, including refraining from violating state or
federal laws such as labor relations laws, anti-discrimination laws, and minimum wage
and hour laws,” and “strongly urge[d] that Gerawan immediately implement the union
contract issued by the neutral mediator and the state of California.” One of the seven
recitations stated the Board’s general counsel “had filed four complaints—tantamount to
indictments—accusing the Gerawans” of ‘illegally excluding some of its farm workers
from the benefits of a [union contract]’; illegally ‘instigating and encouraging the
gathering of signatures’ on petitions to decertify the UFW; ‘unlawfully interrogating
workers about their union activities’ and ‘surveil[l]ing’ workers; ‘failing to bargain in
good faith with its employees’ union’; and failing to implement the state-issued union
contract.”
       Finally, in Vidak’s March 13, 2017 letter, Vidak asked de León to postpone the
Senate floor vote on the confirmation of Hall until an investigation could be conducted
regarding an incident that allegedly occurred at a hotel on February 28, 2017. Vidak
stated “several witnesses” told him Hall “threatened to use his position to ‘get’ several
farmers who oppose his confirmation.”
       Both the ALRB’s general counsel and the UFW filed oppositions to the motion.
They argued the documentary evidence Gerawan submitted did not establish actual bias
or prejudice requiring Hall’s disqualification. The general counsel contended to
disqualify Hall, Gerawan must present evidence showing he prejudged the facts and law
as to Gerawan’s bargaining behavior between January and August 2013, and Hall’s
presence at the labor rally about the MMC contract and the resolution did not satisfy that
burden of proof.
       Gerawan filed a reply reiterating its argument that Hall should be disqualified
because he publicly aligned himself with the UFW and against Gerawan at the rally,
revealing both an actual bias and an unacceptable probability of actual bias in


                                             76.
adjudicating this case. Gerawan submitted an anonymous declaration, dated May 8,
2017, regarding the February 28, 2017 incident reported in Vidak’s letter. The declarant,
a safety coordinator for a California company who was in Sacramento to attend a meeting
of the Fresh Fruit Association, described a conversation he had with Hall at a Sacramento
hotel that day. The declarant stated Hall asked him who Gerawan was and the declarant
answered it was a farming company in the Central Valley whose employees had been
trying to get their ballots counted to decertify the UFW, and Hall went on to say they
“made a video about me, and I am going to get their ass.”
       Gerawan asserted the declarant requested anonymity based on his fear that the
ALRB, general counsel, or UFW would target either he or his employer for coming
forward with this evidence. Gerawan argued the declaration revealed actual bias and
Hall’s intent to use his position to retaliate against Gerawan and its employees, and if
Hall would not recuse himself, he should be called to provide testimony.
       The Board denied the motion, with Hall participating in the decision. The Board
found Gerawan’s evidence concerning the rally and resolution did not establish either
actual bias or an unacceptable risk of bias on Hall’s part, as the evidence did not show
Hall made any statements concerning the resolution, signed the resolution, or was in
attendance when the resolution was presented to the City Council. The Board concluded
Hall’s limited participation as a state legislator in the October 22, 2014 events did not
prevent him from reaching an unbiased conclusion in this case. The Board did not
consider the anonymous declaration for the following reasons: (1) the statute Gerawan
relied on for withholding the declarant’s identity, Evidence Code section 1041, which
applies to a public entity’s privilege to refuse to disclose the identity of a confidential
informant, did not apply; (2) Gerawan did not explain why the declaration was not
provided with its initial motion; and (3) the declaration was inadmissible hearsay and not
supported by corroborating evidence or any other indicia of reliability.




                                              77.
       The Board rejected Gerawan’s argument that Hall was barred from participating in
the Board’s deliberations or decision on the motion, as the statute Gerawan relied on,
Government Code section 11512, subdivision (c), does not apply to the Board and under
ALRB and NLRB precedent, Board members and administrative law judges may hear
and rule on disqualification motions filed against them.
       Gerawan filed a motion for reconsideration of the Board’s decision. Gerawan
argued the Board committed clear error by excluding the confidential witnesses’
testimony and submitted an unredacted declaration that revealed the witness’ identity.
Gerawan’s attorney explained in his declaration that The Specialty Crop Company
(Specialty) contacted Gerawan on or about May 5, 2017, and said its employee, Shaun
Ramirez, had information relevant to Hall. Three days later, Specialty agreed to provide
Ramirez’s declaration to Gerawan pursuant to a memorandum of understanding that
required Gerawan to redact all identifying information because Specialty was concerned
about possible retaliation. After the Board denied Gerawan’s motion, Specialty gave its
written consent to file an unredacted version of the declaration, which revealed Ramirez’s
identity but otherwise was identical to the anonymous one.
       Gerawan argued Ramirez’s identity was an intervening change in law or evidence
that required reconsideration of the Board’s decision, and the disclosure of the declarant’s
identity removed any basis to disregard the declaration. Gerawan further argued the
declaration was not inadmissible hearsay, and the Board erred by disregarding the
declaration because it was offered with the reply.
       The Board denied the motion for reconsideration because Gerawan failed to show
extraordinary circumstances warranted reconsideration. The Board found the declarant’s
identity did not constitute previously unavailable or newly discovered evidence required
to grant reconsideration, as Gerawan was aware of the declarant’s identity before it filed
its reply brief and his identity was available to Gerawan. The Board further found
Gerawan’s explanation for not disclosing the declarant’s identity earlier did not satisfy


                                            78.
the standard for reconsideration and Gerawan’s attorney’s statements in his declaration
were not based on the attorney’s personal knowledge.
       Hall wrote a concurrence, in which he assured Gerawan, as well as other parties
who may come before the Board, “that I can and will, in the words of the oath I took
upon assuming this position, ‘faithfully discharge the duties’ of a Board Member” of the
ALRB. Hall listed the elected offices he held over the past 17 years, as well as his
master’s and doctoral degrees, and stated in all his years of public service, he had made,
and would continue to make, unbiased and fair decisions. Hall explained that after his
appointment to the Board on January 13, 2017, he became aware there were
“unwarranted attacks, including videos, being made against me on social media,” but he
did not attribute any of these videos to Gerawan and to his knowledge, Gerawan was not
responsible for them.
       While the declarant stated Hall asked him who Gerawan was on the eve of his
March 1, 2017 confirmation hearing, Hall was familiar with Gerawan at the time. On
January 27, 2017, Hall received a letter from de León concerning the confirmation
process, which requested responses to various questions, including several pertaining to
Gerawan, which he provided on February 10, 2017. Hall stated he harbored no bias or
hostility toward Gerawan and would consider only the record before the Board, and
applicable legal precedent, in his deliberations in this case, as well as all other cases that
came before the Board. For these reasons, Hall rejected the claims of bias leveled against
him and declined to recuse himself from participation in the deliberations in this case.
       B.     Due Process Right to a Fair Tribunal
       “When, as here, an administrative agency conducts adjudicative proceedings, the
constitutional guarantee of due process of law requires a fair tribunal. [Citation.] A fair
tribunal is one in which the judge or other decision maker is free of bias for or against a
party.” (Morongo Band of Mission Indians v. State Water Resources Control Bd. (2009)
45 Cal.4th 731, 737 (Morongo Band).) While the requirements of due process extend to


                                              79.
administrative adjudications, “[t]he standard of impartiality required at an administrative
hearing is less exacting than that required in a judicial proceeding.” (Gai v. City of Selma
(1998) 68 Cal.App.4th 213, 219‒220); Today’s Fresh Start, Inc. v. Los Angeles County
Office of Education (2013) 57 Cal.4th 197, 214 (Today’s Fresh Start).)
       Adjudicators are presumed to be impartial unless they have a financial interest in
the outcome. (Morongo Band, supra, 45 Cal.4th at p. 737.) “To show nonfinancial bias
sufficient to violate due process, a party must demonstrate actual bias or circumstances
‘ “in which experience teaches that the probability of actual bias on the part of the judge
or decisionmaker is too high to be constitutionally tolerable.” ’ ” (Today’s Fresh Start,
supra, 57 Cal.4th at p. 219, citing Morongo Band, at p. 737.) “The test is an objective
one,” and while the “ ‘degree or kind of interest . . . sufficient to disqualify a judge from
sitting “cannot be defined with precision” ’ [citation], due process violations generally
are confined to ‘the exceptional case presenting extreme facts.’ ” (Today’s Fresh Start, at
p. 219.)
       The presumption of impartiality may “be overcome only by specific evidence
demonstrating actual bias or a particular combination of circumstances creating an
unacceptable risk of bias.” (Morongo Band, supra, 45 Cal.4th at p. 741.) The mere
appearance of bias, however, is not a ground for the disqualification of a judicial officer.
(Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 791.)33 To
disqualify a judicial officer, the moving party must offer legally sufficient facts to
demonstrate the judicial officer’s bias, which must be “ ‘against a particular party
[citations] and sufficient to impair the judge’s impartiality so that it appears probable that
a fair trial cannot be held.’ ” (Id. at p. 792.) If that burden is satisfied, “the challenged
judicial officer or a reviewing court must still decide whether such bias will render it

33      A judicial officer may be disqualified based on an appearance of bias where “the
judicial officer either has a personal or financial interest, has a familial relation to a party
or attorney, or has been counsel to a party.” (Gai v. City of Selma, supra, 68 Cal.App.4th
at pp. 221‒222.)

                                              80.
probable that a fair trial cannot be held before that judge. In other words, the bias or
prejudice must be ‘sufficient to impair the judge’s impartiality.’ ” (Ibid.)
       “A mere suggestion of bias is not sufficient to overcome the presumption of
integrity and honesty.” (BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th
1205, 1236.) Bias may be shown by “a commitment to a result (albeit, perhaps, even a
tentative commitment)” (ibid.), or “through evidence that the adjudicator ‘had it “in” for
the party for reasons unrelated to the officer’s view of the law’ ” (Stivers v. Pierce
(9th Cir. 1995) 71 F.3d 732, 744). A decisionmaker is not “disqualified simply because
he has taken a position, even in public, on a policy issue related to the dispute, in the
absence of a showing that he is not ‘capable of judging a particular controversy fairly on
the basis of its own circumstances.’ ” (Hortonville Joint School Dist. v. Hortonville
Education Assn. (1976) 426 U.S. 482, 493.) However, bias or prejudice against a party
may be shown when a judge gratuitously offers an opinion on a matter not yet pending
before him or her. (Pacific etc. Conference of United Methodist Church v. Superior
Court (1978) 82 Cal.App.3d 72, 87.)
       C.      Gerawan’s Evidence Does Not Establish Bias
       We consider whether Gerawan presented specific evidence demonstrating actual
bias or a particular combination of circumstances creating an unacceptable risk of bias on
Hall’s part.
       The evidence presented with Gerawan’s original motion showed that Hall marched
in a rally with supporters of a city council resolution that urged Gerawan to implement
the MMC contract while he was a sitting state legislator campaigning for state senate.
There was no evidence then-Assemblyman Hall made any statement concerning the
resolution, signed the resolution or was in attendance when the resolution was presented
to the Los Angeles City Council. The only statement Hall made relative to the rally and
resolution was specific to Maria Elena Durazo, congratulating her on her new job and
praising her as a “true hero for working people” based on her accomplishments and


                                             81.
background. While Hall stated he listened to, and was inspired by, Durazo’s speech at
the “Prima Farm Workers’ march to L.A. City Hall,” the primary message of the
statement was one of praise for, and congratulations on, her career and new position.
Hall did not make any statement concerning the resolution of any matter that was pending
before the Board.
       The resolution itself did not contain any statements concerning the merits of the
issues that were before the Board in the current case. Although it stated the fact that the
general counsel had issued complaints containing various allegations against Gerawan,
including “ ‘illegally excluding some of its farm workers from the benefits of a [union
contract]’ and ‘failing to bargain in good faith with its employees’ union,’ ” the
resolution did not contain any statement as to the merits of these allegations. Rather, it
exhorted Gerawan generally to “meet[] basic standards of conduct, including refraining
from violating state or federal laws” and urged Gerawan to implement the MMC contract.
Thus, in addition to the fact there was no evidence Hall made a statement concerning the
resolution, the resolution itself does not contain any statement concerning the matters
before the Board, apart from the bare fact that complaints had been issued.
       At best, the evidence shows Hall has past, supportive associations with labor
groups when he was a state legislator, and that he was present for some portion of the
events that preceded the presentation of the resolution to the city council. This does not
satisfy Gerawan’s burden of showing actual bias or circumstances creating an
unacceptable risk of bias. (People v. Vasquez (2006) 39 Cal.4th 47, 63‒64 [personal
connections and relationships generally do not require recusal]; United States v. Black
(E.D.N.C. 2007) 490 F.Supp.2d 630, 661 [“a judge’s prior membership in or affiliation
with a politically related organization does not, by itself, provide a reasonable basis for
questioning a judge’s impartiality in cases in which that organization is a party”]; Bud
Antle, Inc. (1976) 2 ALRB No. 35, p. 4 [courts generally accept and condone an agency




                                             82.
member’s involvement with an industry unless it involves the member’s pecuniary
interest].)
        Contrary to Gerawan’s assertion, Hall did not make public statements that were
indicative of prejudgment of this case. For this reason, the cases Gerawan relies on are
distinguishable. In Berkshire Employees Ass’n of Berkshire Knitting Mills v. NLRB
(3d Cir. 1941) 121 F.2d 235, a sitting board member wrote a customer of Berkshire about
an ongoing strike at Berkshire’s mill and enclosed a union letter asking for cooperation
from Berkshire’s customers, which the court interpreted as encouraging a boycott on
Berkshire’s goods. (Id. at p. 238.) The court found the correspondence went “far beyond
a general predilection either for or against labor organizations in general or one
organization in particular,” and, if proven, showed the member “had already thrown his
weight on the other side.” (Id. at pp. 238‒239)
        In Antoniu v. SEC (8th Cir. 1989) 877 F.2d 721, while Antoniu’s request for a
broker-dealer license was pending before the Securities and Exchange Commission, a
commissioner gave a speech that outlined two recent cases in which the commission
imposed sanctions, referred to the sanctioned entities as “ ‘indifferent violator[s],’ ” and
went on to say that in Antoniu’s case, “ ‘his bar from association with a broker-dealer
was made permanent.’ ” (Id. at p. 723, italics omitted.) The court found this last
statement could “only be interpreted as a prejudgment of the issue,” and it could “come to
no conclusion other than that [the commissioner] had ‘in some measure adjudged the
facts as well as the law of a particular case in advance of hearing it.’ ” (Id. at pp. 723,
726.)
        Gerawan asserts Hall’s purported statement to Ramirez that “ ‘I am going to get
their ass’ ” evidenced Hall’s “willingness to use his position to ‘get’ those who, like
Gerawan, exercised the same right to petition the government as he exercised on the steps




                                             83.
of City Hall.”34 The Board, however, declined to consider the anonymous declaration
containing this statement on Gerawan’s original motion based in part on its anonymity.
Gerawan does not argue the Board erred in this regard and presumes this evidence was
properly before the Board. While Gerawan attempted to rectify the problem on its
motion for reconsideration by filing a declaration that disclosed the declarant’s identity,
the Board denied the motion because Gerawan failed to satisfy its standard for granting
reconsideration, namely, showing “extraordinary circumstances, i.e., an intervening
change in the law or evidence previously unavailable or newly discovered.” (South Lakes
Dairy Farms (2013) 39 ALRB No. 2, p. 2.) Gerawan does not argue the Board erred in
its decision, other than to say “[i]gnoring evidence does not resolve the issue of Hall’s
bias.” Gerawan has forfeited the issue by failing to present legal authorities or reasoned
argument on this point. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836,
852.)
        Since Gerawan has not shown that Hall had an actual bias or there was an
unacceptable risk of bias, the Board did not err when it denied Gerawan’s disqualification
motion.
        D.    Hall’s Participation in the Motions
        Gerawan contends Government Code section 11512, subdivision (c),35 which
requires a request to disqualify an agency member be heard by the other agency
members, prohibited Hall from participating in the Board’s deliberations or decisions on
the motions for disqualification and reconsideration. This section, however, does not
apply to the Board as a matter of law.


34    Gerawan incorrectly asserts Hall was a Board member when he made statements
to Ramirez. At the time, Hall had been appointed, but he had not yet been confirmed.
35     Government Code section 11512, subdivision (c) allows a party to request
disqualification of any administrative law judge or agency member before evidence is
taken at a hearing, and “[w]here the request concerns an agency member, the issue shall
be determined by the other members of the agency.”

                                             84.
       The administrative adjudication provisions of the Administrative Procedure Act
are set forth in two chapters contained in part 1 of division 3 of title 2 of the Government
Code: Chapter 4.5 (commencing with Government Code section 11400) and chapter 5
(commencing with Government Code section 11500). (Gov. Code, § 11400, subd. (a).)
The ALRA adopts the provisions of “Chapter 4.5 (commencing with Section 11400) of
Part 1 of Division 3 of Title 2 of the Government Code” for purposes of “a hearing to
determine an unfair labor practice charge.” (§ 1144.5, subd. (a).) The ALRA, however,
does not state the provisions of chapter 5, which includes section 11512, apply to ALRB
proceedings; therefore, that chapter does not apply to the ALRB. (Gov. Code, § 11501,
subd. (a) [“This chapter applies to any agency as determined by the statutes relating to
that agency.”].) As the Law Revision Commission Comments following Labor Code
section 1144.5 explain: “Although Section 1144.5 is silent on the question, the formal
hearing provisions of the Administrative Procedure Act (Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code) do not apply
to proceedings of the Agricultural Labor Relations Board under this part.” (Cal. Law
Revision Com. com., West’s Ann. Lab. Code (2011) foll. Lab. Code, § 1144.5, citing
Gov. Code, § 11501.)
       Gerawan’s contention that Hall may not participate in deliberations or issuance of
rulings on its motions also lacks support in ALRB and NLRB precedent, where Board
members and administrative law judges hear and rule on disqualification motions filed
against them. (See Gerawan Farming, Inc., supra, 42 ALRB No. 1, p. 3, fn.2; Triple E
Produce Corp. (1997) 23 ALRB No. 8, p. 13; California Coastal Farms, Inc. v.
Doctoroff (1981) 117 Cal.App.3d 156, 158‒159; Service Employees Int’l Union, Nurses
Alliance, Local 121RN (Pomona Valley Hosp.) (2010) 355 NLRB 234, 235; Emeryville
Trucking, Inc. (1986) 278 NLRB 1112, fn. 1; Cedars-Sinai Medical Center (1976) 224
NLRB 626; West India Fruit & Steamship Co., Inc. (1961) 130 NLRB 343, 345, fn. 6.;
but see Bud Antle, Inc., supra, 2 ALRB No. 35, p. 7 [noting that a Board member who


                                            85.
was the subject of a disqualification motion did not participate in the decision on the
motion].)
       Since Hall was not required to recuse himself from ruling on Gerawan’s motions,
we do not decide whether his participation was compelled by the rule of necessity. Had
Hall recused himself, there would be open questions as to whether the remaining two
Board members could act or wait until the Governor made at least one appointment to the
vacancies to act. The Board had the authority to act on the motions with Hall’s
participation.
                                     DISPOSITION
       The petition is denied. The Board’s order in Gerawan Farming, Inc. (2018)
44 ALRB No. 1 is affirmed. The Board and UFW are awarded their costs in this original
proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(B).)




                                                              DE SANTOS, J.
WE CONCUR:



DETJEN, Acting P.J.



PEÑA, J.




                                            86.
