Filed 5/14/15




                            CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIFTH APPELLATE DISTRICT

TRI-FANUCCHI FARMS,
                                                                  F069419
        Petitioner,
                                                             (40 ALRB No. 4)
                  v.

AGRICULTURAL LABOR RELATIONS
BOARD,

        Respondent;                                             OPINION
UNITED FARM WORKERS OF AMERICA,

        Real Party in Interest.



        ORIGINAL PROCEEDING; petition for writ of review.
        Sagaser, Watkins & Wieland, Howard A. Sagaser, William M. Woolman and
Ian B. Wieland for Petitioner.
        J. Antonio Barbosa, Paul M. Starkey and Scott P. Inciardi for Respondent.
        Mario Martinez, Thomas P. Lynch and Edgar I. Aguilasocho for Real Party in
Interest.
                                         -ooOoo-
       Tri-Fanucchi Farms (Fanucchi) is an agricultural employer conducting farming
operations in Kern County. In 1977, Fanucchi’s agricultural employees elected the
United Farm Workers union (UFW) to be their exclusive bargaining representative.
However, for reasons UFW has not explained, no bargaining occurred between 1988 and
2012, a period of 24 years. In 2012, UFW contacted Fanucchi and requested the
recommencement of bargaining. Fanucchi refused to bargain with UFW on the ground
that, because of the 24-year hiatus, UFW had abandoned Fanucchi’s agricultural
employees. A complaint was then filed against Fanucchi for unfair labor practices, and
the matter was referred to an administrative law judge (ALJ). Ultimately, the
Agricultural Labor Relations Board (the Board) upheld the determinations of the ALJ that
(i) abandonment and similar equitable theories were not available as defenses to the duty
to bargain under the Agricultural Labor Relations Act (Lab. Code, § 1140 et seq.,1; the
ALRA) and (ii) make whole relief was appropriate under the circumstances. (See Tri-
Fanucchi Farms (2014) 40 ALRB No. 4.) Fanucchi then petitioned this court for review
of the Board’s decision in Tri-Fanucchi Farms, supra, 40 ALRB No. 4 and we agreed to
review the matter.
       The primary issue raised in the petition is whether UFW’s past conduct indicating
abandonment—namely, its failure to bargain for 24 years—gave Fanucchi a legal basis to
refuse to bargain with UFW once that union returned and sought to recommence
bargaining. We affirm the Board’s position that such facts did not create a defense to
bargaining or excuse Fanucchi from its obligation as employer to bargain in good faith
with UFW. Rather, in the instant context, the appropriate remedy for UFW’s past
dereliction was (and is) in the hands of the agricultural employees themselves. That is, if
the employees do not wish to be represented by UFW, their recourse is to replace or
decertify UFW by a new election pursuant to sections 1156.3 or 1156.7.

1      Unless otherwise indicated, all further statutory references are to the Labor Code.


                                                2.
       We preface our opinion with a brief comment on the broader issue of
abandonment. In a companion case decided on the same day herewith, Gerawan
Farming, Inc. v. Agricultural Labor Relations Bd. (May 14, 2015, F068526/F068676)
___ Cal.App.4th ___, we have concluded that where a union requests the Board to order
mandatory mediation and conciliation (MMC) under section 1164 et seq., the employer
may defend against the MMC request by raising the issue of the union’s abandonment of
its representative status, including abandonment thereof based on such union conduct as
unreasonably lengthy absence and inactivity. One reason we concluded that such an
abandonment theory could properly be raised by the employer in that limited context was
the fact that the statutory MMC process is not a mere extension of voluntary bargaining,
but is a distinct legal procedure that results in an imposed collective bargaining
agreement (CBA) without the parties’ consent, on terms dictated by a mediator and
ordered by the Board. (§§ 1164, subd. (d), 1164.3.) Since to a substantial degree the
MMC process leaves consensual bargaining behind, we held that the employer’s
continuing duty to bargain was not an obstacle to raising abandonment at that stage.
Another reason we allowed the employer to raise abandonment in that context was a
recognition that, where a long-absent union returned to the scene and requested the MMC
process, in general there would not be an adequate opportunity for employees to exercise
a decertification option if they did not want to be represented by that union. Moreover, as
more fully explained in said companion case, we concluded that allowing such a theory
to be raised in response to a union’s MMC request was the only way to preserve the
employees’ fundamental statutory right to choose.
       Here, in contrast to the above described companion case, the parties’ dispute arose
out of the ordinary bargaining context. The MMC process was not invoked. Fanucchi
simply refused to bargain with UFW on the ground of the alleged abandonment. As
noted above, we conclude that UFW’s lengthy period of inactivity did not defeat
Fanucchi’s duty to engage in bargaining with that union upon request. Accordingly, we

                                             3.
affirm the portion of the Board’s decision in Tri-Fanucchi Farms, supra, 40 ALRB No. 4
that rejected Fanucchi’s defenses to the duty to bargain and held that Fanucchi committed
unfair labor practices under section 1153, subdivisions (a) and (e), for refusal to bargain
with UFW and refusal to provide information. However, for reasons that will be more
fully explained below, we reverse the portion of Tri-Fanucchi Farms, supra, 40 ALRB
No. 4 wherein the Board imposed make whole relief against Fanucchi. Such relief was
not appropriate in this case because Fanucchi’s pursuit of judicial review of the
abandonment issue provided needed clarification on that important legal question
affecting labor relations under the ALRA.
                       FACTS AND PROCEDURAL HISTORY
       Fanucchi is a family-owned farming enterprise in Kern County, California, that
grows and harvests a variety of crops, including carrots, cotton, tomatoes, garlic, onions
and wine grapes. Fanucchi maintains approximately 35 yearround employees and hires
several hundred seasonal employees through various labor contractors. In 1977, an
election by secret ballot was held by Fanucchi’s agricultural employees and UFW was
voted by them to be their collective bargaining representative. The election of UFW as
the employees’ representative was certified by the Board at that time.
       Some initial bargaining sessions occurred after UFW was certified. However,
based on a poll of its employees in the early- to mid-1980’s, Fanucchi believed they no
longer wanted UFW to represent them. In 1984, Fanucchi refused to bargain with UFW
based on an alleged good faith belief that UFW no longer had majority support and also
based on alleged union abandonment of the bargaining unit and related equitable
defenses. UFW then brought an unfair labor practices complaint against Fanucchi and
the Board held in UFW’s favor. Fanucchi filed a petition for review of the Board’s
decision. In a nonpublished opinion issued by this court in 1987, we rejected each of
Fanucchi’s claimed defenses and affirmed the Board’s findings that Fanucchi’s refusal to



                                             4.
bargain was an unfair labor practice. (Tri-Fanucchi Farms v. Agricultural Labor
Relations Bd. (Nov. 21, 1987, F008776) [nonpub. opn.].)2
       In 1988, Fanucchi informed UFW that it was willing to bargain. According to
Fanucchi, UFW responded in 1988 that it would arrange bargaining dates as soon as its
negotiator returned from vacation. However, UFW failed to follow through and no
bargaining dates were ever scheduled. The next time UFW contacted Fanucchi was
24 years later by letter dated September 28, 2012, wherein UFW requested that
bargaining be restarted and asked for certain information from Fanucchi relevant to
bargaining. Fanucchi responded by letter of October 19, 2012, stating that it was refusing
to bargain with UFW on the ground that UFW had abandoned the bargaining unit and
was “no longer the valid collective bargaining representative of [Fanucchi’s] employees.”
Fanucchi’s letter also advised that it was seeking judicial review of the abandonment
issue—an issue that had not yet been specifically addressed by the courts—and Fanucchi
insisted that its refusal should be viewed by UFW as a “technical refusal to bargain” to
facilitate such judicial review. Along these lines, Fanucchi asked UFW to agree to
expedited proceedings based on stipulated facts, but UFW was not willing to proceed in
that manner.
       On March 7 and April 16, 2013, UFW filed charges with the Board’s regional
office in Visalia alleging that Fanucchi was engaging in unfair labor practices by refusing
to bargain and by refusing to provide information relevant to bargaining. On
September 5, 2013, the Board’s general counsel (the General Counsel) filed a
consolidated administrative complaint (the Complaint) against Fanucchi, claiming that
Fanucchi’s conduct constituted unfair labor practices in violation of section 1153,



2       We grant the Board’s request for judicial notice of this prior nonpublished opinion. We
do not rely on it as precedent, but merely refer to it as a part of the historical background to the
present case.


                                                  5.
subdivisions (a) and (e) of the ALRA,3 and requesting that the Board award make whole
relief for the benefit of the employees (§ 1160.3).
       On October 8, 2013, Fanucchi filed an answer to the Complaint. Fanucchi’s
answer admitted to the material underlying facts, but claimed as a defense to the duty to
bargain that UFW abandoned its representative status and/or had unclean hands and/or
was barred by laches, all because of the 24-year period of UFW inactivity. Further, the
answer reiterated that Fanucchi’s refusal to bargain was in good faith for the purpose of
obtaining judicial review of an important labor relations issue (i.e., union abandonment).
       A hearing of the case was scheduled for October 21, 2013, before ALJ Thomas
Sobel. Prior to the hearing, the General Counsel filed a motion in limine with the ALJ
requesting the exclusion of all evidence relating to Fanucchi’s abandonment defense on
the ground that such a defense to an employer’s duty to bargain was not recognized under
established Board precedent. The ALJ granted the motion in limine, which he regarded
as in substance a motion to strike or a judgment on the pleadings relating to Fanucchi’s
abandonment defense and the related equitable defenses premised on the 24-year hiatus.
The ALJ held that even if the facts Fanucchi sought to prove were true, they did not
establish a defense to bargaining; therefore, the motion was granted.
       Having rejected Fanucchi’s claimed defenses to the duty to bargain, the ALJ
proceeded to consider the merits of the Complaint in light of Fanucchi’s answer, which
had admitted to the material factual allegations. The ALJ found that Fanucchi’s refusal
to bargain, etc., constituted unfair labor practices. On the issue of whether to award make
whole relief, the ALJ found that Fanucchi’s refusal to bargain as a means of seeking
judicial review was not justifiable because the Board’s precedents were very clear that

3       Under section 1153, it is an unfair labor practice for an employer “[t]o interfere with,
restrain, or coerce agricultural employees in the exercise of the rights guaranteed in
Section 1152” (id., subd. (a); or “[t]o refuse to bargain collectively in good faith with labor
organizations certified pursuant to the provisions of Chapter 5 (commencing with Section 1156)
of this part” (id., subd. (e)).


                                               6.
purported abandonment based on past union inactivity was not a defense to a current
request to bargain by the same union. Therefore, the ALJ found that Fanucchi’s efforts to
obtain judicial review of a “settled” labor issue did not further the purposes of the ALRA.
Consequently, the ALJ held that make whole relief should be awarded against Fanucchi.
       The ALJ’s written decision was transferred to the Board. On November 20, 2013,
Fanucchi filed with the Board 15 “exceptions” to the ALJ’s decision. Among other
things, the exceptions challenged the ALJ’s decision to treat the motion in limine as a
motion for judgment on the pleadings, the ALJ’s rejection of Fanucchi’s abandonment
and related equitable defenses, the ALJ’s refusal to take evidence concerning those
defenses, and the ALJ’s decision to award make whole relief.
       On April 23, 2014, the Board issued its decision, which was reported at Tri-
Fanucchi Farms, supra, 40 ALRB No. 4. The Board found, in agreement with the ALJ,
that Fanucchi’s refusal to bargain with UFW and to provide information constituted
violations of section 1153, subdivisions (a) and (e). The Board rejected Fanucchi’s
contention that a defense existed to its duty to bargain based on the alleged abandonment
on the part of UFW. The Board likewise rejected the similarly framed equitable defenses
of laches, estoppel and unclean hands based on the same 24-year bargaining hiatus. The
equitable claims were also rejected on the additional ground that there was no prejudice
or harm caused to Fanucchi. On the question of whether make whole relief was proper,
the Board expressed that because there was already established Board precedent rejecting
the abandonment theory, “[Fanucchi’s] position cannot be said to further the policies and
purposes of the ALRA.” (Tri-Fanucchi Farms, supra, 40 ALRB No. 4, p. 18.)
Accordingly, the Board agreed with the ALJ that make whole relief was appropriate.
       Fanucchi filed a petition to this court seeking our review of the Board’s decision in
Tri-Fanucchi Farms, supra, 40 ALRB No. 4. We issued a writ of review.




                                             7.
                                       DISCUSSION
I.     Standard of Review
       The issues raised by Fanucchi are legal, primarily involving the interpretation of
the ALRA and the question of the availability of certain defenses to an employer’s
statutory duty to bargain under the ALRA. Integral to these questions are the basic
legislative purposes and policies of the ALRA. Since the Board is the administrative
agency entrusted with enforcement of the ALRA, its interpretation of the ALRA is given
deference by the courts and will be followed if not clearly erroneous. (Montebello Rose
Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 24 (Montebello Rose).)
Nevertheless, it is fundamental in statutory construction that courts should ascertain the
intent of the Legislature so as to effectuate the purpose of the law. (J.R. Norton Co. v.
Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 29 (J.R. Norton Co.); Bodinson
Mfg. Co. v. California E. Com. (1941) 17 Cal.2d 321, 326 [courts state the true meaning
of a statute finally and conclusively].) Thus, while an administrative agency is entitled to
deference when interpreting policy in its field of expertise, it cannot alter or amend the
statute it is interpreting, or enlarge or impair its scope. (J.R. Norton Co., supra, at p. 29;
Adamek & Dessert, Inc. v. Agricultural Labor Relations Bd. (1986) 178 Cal.App.3d 970,
978 (Adamek & Dessert).)
II.    ALRA Statutory Overview
       The issue of whether abandonment or other equitable theories may be raised as a
defense to bargaining requires an understanding of the statutory provisions and main
purposes of the ALRA. We therefore begin with a brief overview of the ALRA.
       In 1975, the California Legislature enacted the ALRA “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., supra, 26 Cal.3d at p. 8.) The ALRA declares it is the policy
of the State of California “to encourage and protect the right of agricultural employees to

                                              8.
full freedom of association, self-organization, and designation of representatives of their
own choosing … for the purpose of collective bargaining or other mutual aid or
protection.” (§ 1140.2.)4 As noted by our Supreme Court, “[a] central feature in the
promotion of this policy is the [ALRA’s] procedure for agricultural employees to elect
representatives ‘for the purpose of collective bargaining with respect to rates of pay,
wages, hours of employment, or other conditions of employment.’ (Id., § 1156 et seq.)”
(J.R. Norton Co., supra, at p. 8.)
       Under that election procedure, if a proper petition has been filed, the Board directs
that an election be held by a secret ballot vote of employees to determine an issue of
employee representation, such as whether a particular labor organization shall be the
employees’ bargaining representative.5 (§§ 1156, 1156.3.) Except in certain runoff
elections, every ballot “shall provide the employee with the opportunity to vote against
representation by a labor organization by providing an appropriate space designated ‘No
Labor Organizations.’” (§ 1156.3, subd. (c).) After the election, the Board “shall certify”
the result unless it determines based on a sustained election challenge “that there are
sufficient grounds to refuse to do so.” (§ 1156.3, subd. (e)(2) [stating grounds for such
refusal].)
       If a labor organization (i.e., a union)6 is certified as the winner of such an election
and thus becomes the employees’ bargaining representative, certain legal consequences
follow. First, a statutory bar exists to holding another representation election for at least
the initial one-year certification period. (§§ 1155.2, subd. (b), 1156.5, 1156.6.) Second,
a duty to bargain is created, which is owed by the employer to the union and vice versa.

4      The same employees also have the right “to refrain from any or all such activities .…”
(§ 1152.)
5       A similar procedure exists by which the agricultural employees may vote to decertify a
labor organization so that it is no longer their representative. (§ 1156.7.)
6      The terms “union” and “labor organization” are used synonymously herein.


                                               9.
(§§ 1153, subd. (e), 1154, subd. (c), 1152.) However, unlike the election bar, the duty to
bargain does not expire with the initial one-year period. That is because a union’s status
as the employees’ certified bargaining representative continues beyond the one-year
period for purposes of extending the parties’ duty to bargain. (Montebello Rose Co.,
supra, 119 Cal.App.3d at pp. 24–26, 29 [affirming ALRB’s conclusion that a certified
union continues to enjoy that status after the initial certification year expires].) 7
Consequently, it has been held that once a union is certified as the bargaining
representative of an employer’s agricultural employees, the employer’s duty to bargain
with that union continues until the union is replaced or decertified through a subsequent
election pursuant to sections 1156.3 or 1156.7. (Montebello Rose, supra, at pp. 23–24,
29 [approving statutory interpretation adopted by the Board in Kaplan’s Fruit & Produce
Co., Inc. (1977) 3 ALRB No. 28]; Adamek & Dessert, supra, 178 Cal.App.3d at p. 983;
Bruce Church, Inc. (1991) 17 ALRB No. 1, p. 13 [stating principle adhered to by the
Board that “a [u]nion remains the certified representative until decertified”]; Pictsweet
Mushroom Farms (2003) 29 ALRB No. 3, p. 7 [same].)8
       In summary, the ALRA recognizes, protects and promotes agricultural employees’
right to collective bargaining (§ 1140.2) and, in the furtherance of that right, the ALRA
requires the agricultural employer and the employees’ certified representative to bargain
collectively in good faith. (§§ 1153, subd. (e), 1154, subd. (c).) The ALRA defines the
parties’ mutual obligation to bargain collectively in good faith as follows: “[T]o bargain
collectively in good faith is the performance of the mutual obligation of the agricultural

7       Although section 1155.2, subdivision (b), refers to an initial one-year period of
certification (and allows for a one-year extension thereof), that time limitation has been held to
relate only to the election bar, not to the duty to bargain aspect of certification. (Montebello
Rose, supra, 119 Cal.App.3d at pp. 24–30.)
8     A third consequence of certification is that no CBA may be negotiated or entered by the
employer with any other (not currently certified) labor organization. (§ 1153, subd. (f).) The
ALRA further declares that only a certified labor organization may be a party to a legally valid
CBA. (§ 1159.)


                                                10.
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.” (§ 1155.2, subd. (a).)
       When an employer or labor organization fails to bargain in good faith as required,
or when other unfair labor practices (as defined in the ALRA) have occurred, recourse to
the Board is provided and the Board is empowered to issue orders or take remedial action
to effectuate the purposes of the ALRA. (§§ 1160–1160.9; see, e.g., Harry Carian Sales
v. Agricultural Labor Relations Bd. (1985) 39 Cal.3d 209, 229–230 [discussing Board’s
remedial authority relating to unfair labor practices].)
III.   Abandonment
       With the above statutory framework in mind, we now consider the issue of
whether UFW’s lengthy absence and inactivity in this case created an abandonment
defense to Fanucchi’s duty to bargain. We hold it did not.
       We begin with the Board’s perspective on the issue. In its decision in the instant
case, reported at Tri-Fanucchi Farms, supra, 40 ALRB No. 4, the Board explained its
rejection of Fanucchi’s claim that UFW’s conduct provided a defense to bargaining:

       “The Board’s previous decisions have been very clear that, under the
       ALRA, the fact that a labor organization has been inactive or absent, even
       for an extended period of time, does not represent a defense to the
       employer’s duty to bargain. (Dole Fresh Fruit Co., Inc. (1996) 22 ALRB
       No. 4; Pictsweet Mushroom Farms[, supra,] 29 ALRB No. 3; San Joaquin
       Tomato Growers, Inc. (2011) 37 ALRB No. 5.) The Board recently
       reaffirmed its holdings on abandonment and confirmed that, except in cases
       where the union disclaims interest in representing the bargaining unit or
       becomes defunct, the union remains certified [for purposes of the
       employer’s duty to bargain] until removed or replaced through the ALRA’s
       election procedures, regardless of any bargaining hiatus or union inactivity


                                             11.
       that may have occurred. (Arnaudo Brothers, LP (2014) 40 ALRB No. 3[,]
       pp. 9–12.) These principles stem from the legislative intent inherent in the
       ALRA that the power to select and remove unions as bargaining
       representatives should reside with agricultural employees and not with their
       employers. [Citation.] The facts alleged by [Fanucchi] fall squarely within
       this well-established rule.” (Tri-Fanucchi Farms, supra, 40 ALRB No. 4,
       p. 8, fn. omitted.)
       Additionally, in the same decision of this matter in Tri-Fanucchi Farms, supra, 40
ALRB No. 4, the Board further explained that the principal remedy for such union
failings—namely, a new election—is left in the hands of the agricultural employees:

               “In cases where a union is failing to adequately carry out its duties as
       bargaining representative and employees’ appeals to the union itself are
       insufficient to resolve the situation, the remedy for such dereliction is for
       the members of the bargaining unit to seek to decertify the union or replace
       it with another union through the ALRA’s election procedures. Bargaining
       unit members may also, where appropriate, seek to enforce their union’s
       duty of fair representation. [Citation.] While these procedures are
       unavailable to the employer, it need not stand idly by if a certified union
       refuses to come to the bargaining table but may use the ALRA’s unfair
       labor practice procedures to assert a claim that a union is unlawfully
       refusing to bargain. [Citation.] Additionally, a union that fails to respond
       to changes to terms and conditions of employment proposed by the
       employer may be held to have waived its right to bargain over those
       changes, privileging the employer to implement them without bargaining.
       [Citation.] However, what the employer may not do is impose its own
       choice on employees by unilaterally determining that it will no longer
       bargain with the union. [¶] Accordingly, [Fanucchi’s] claim that it was not
       obligated to bargain with the UFW due to an alleged period of inactivity by
       the UFW does not represent a legally cognizable defense to the duty to
       bargain under the ALRA.…” (Tri-Fanucchi Farms, supra, 40 ALRB
       No. 4, pp. 8–9.)
       The Board’s position (recited above) on the abandonment issue as it relates to the
employer’s duty to bargain is consistent with how California appellate courts have
construed the ALRA. An important principle recognized in the ALRA cases is that an
employer’s duty to bargain with the originally certified union continues until that union is
replaced or decertified by a subsequent election. (See Montebello Rose, supra, 119



                                             12.
Cal.App.3d at pp. 23–24 [“employer’s duty to bargain does not lapse after one year but
continues until such time as the union is officially decertified as the employee bargaining
representative”]; F&P Growers Assn. v. Agricultural Labor Relations Bd. (1985) 168
Cal.App.3d 667, 672 (F&P Growers) [“an employer’s duty to bargain does not lapse
after one year even in the absence of an extension”]; Adamek & Dessert, supra, 178
Cal.App.3d at p. 983 [“the company has a duty to bargain with the union until the union
is decertified through a second election”].) In accordance with this principle, if a
certified union’s neglect or inaction causes the agricultural employees to be dissatisfied
with that union, the appropriate remedy is for the employees to pursue a decertification
election. (See, e.g., §§ 1156.3 & 1156.7; F&P Growers, supra, at pp. 674–678.) As one
court put it, “So long as the employees can petition for a new election if they wish to
remove the union, the employer has no real cause for concern about whether it is
bargaining with the true representative of its employees.” (Montebello Rose Co., supra,
at p. 28.)9
       The case of F&P Growers sheds additional light on the issue before us. In F&P
Growers, the employer refused to continue bargaining with the originally certified union
in that case, the UFW, because allegedly “objective criteria revealed that a majority of
employees in the bargaining unit no longer supported the UFW .…” (F&P Growers,
supra, 168 Cal.App.3d at p. 670.) The employer had argued that since the NLRA’s
rebuttable presumption rule had been found applicable to the ALRA, other related NLRA
precedents likewise should be adopted, including the rule allowing an employer to refuse
to bargain with a certified union if the employer had a good faith belief that the union had
lost its majority support. (F&P Growers, supra, at pp. 672–677.) In resolving that issue,

9       We note the employer’s continuing duty to bargain with a certified union does prejudice
the employer because, in accordance with how bargaining is defined under the ALRA, both the
employer and the union retain their respective rights of contractual consent as guaranteed in
section 1155.2, subdivision (a), which states that the obligation to bargain in good faith “does not
compel either party to agree to a proposal or require the making of a concession.”


                                                13.
the Court of Appeal concluded that the loss of majority support defense to bargaining
with a particular union was clearly inapplicable to the ALRA because of important
differences between the ALRA and the NLRA. (F&P Growers, supra, at pp. 674–676.)
For example, the NLRA permitted an employer to bargain with a union that had
demonstrated its majority status by means other than an election, but the ALRA only
allowed an employer to bargain with a union that had won an election. Moreover, the
NLRA permitted employers to petition for an election, but the ALRA did not allow
employers to file election petitions regarding the certification or decertification of a
union. (F&P Growers, supra, at pp. 674–678.) As noted in F&P Growers, these
distinctive provisions of the ALRA indicated the Legislature did not intend for an
agricultural employer to participate in deciding whether or not it shall bargain with a
particular union. Such choice was left solely to the employees, and was removed from
the employer. (F&P Growers, supra, at pp. 677–678.) For these reasons, the Court of
Appeal held that employers could not refuse to bargain with a particular union based on a
good faith belief in loss of majority status, since that would allow employers to do
indirectly (i.e., effectively decertify a union) what the Legislature had removed from the
employer’s purview. (Id. at p. 677.)
       In the present case, Fanucchi’s assertion of abandonment as an alleged defense to
its duty to bargain is clearly analogous to the loss of majority support defense that was
asserted by the employer in F&P Growers. In both cases, the employer refused to
bargain with a previously certified union based on a factual development that allegedly
resulted in a defense to bargaining. As F&P Growers correctly held, the Legislature did
not intend for an agricultural employer to participate in deciding whether or not it shall
bargain with a particular union and, therefore, the employer in that case could not refuse
to bargain with the certified union based on a claimed defense of loss of majority support.
(See F&P Growers, supra, 168 Cal.App.3d at pp. 677–678.) In light of the similar nature
of the case at bench, we believe that the same reasoning applies and the same result

                                             14.
should follow. Thus, here, Fanucchi was not entitled to refuse to bargain with UFW
based on UFW’s past failings or inactivity, and such conduct did not create a defense to
bargaining, whether labeled as abandonment or otherwise.
       Moreover, “[a] guiding principle for evaluating the Board’s decision … is that an
administrative agency is entitled to strong deference when interpreting policy in its field
of expertise” (Montebello Rose Co., supra, 119 Cal.App.3d at p. 24). Based on the
foregoing analysis of the present issue, it is appropriate that we defer to the Board’s
resolution thereof. In implementing the ALRA and its policies, the Board held in the
present case (Tri-Fanucchi Farms, supra, 40 ALRB No. 4), as it has held in previous
Board decisions, that past union absence or inactivity do not create an abandonment
defense to the duty to bargain. In light of existing judicial construction of the ALRA as
reflected in the Court of Appeal decisions noted above, the Board’s position on this issue
constituted a reasonable interpretation and application of the ALRA. Accordingly, the
Board’s decision on that discrete issue is hereby affirmed. Since Fanucchi had no valid
defense to the duty to bargain, it follows that its refusal to bargain with UFW or to
provide information constituted unfair labor practices, as the Board further held. We
affirm these latter findings as well.
IV.    Related Equitable Defenses
       For the same reasons set forth above regarding abandonment, the related equitable
defenses premised on the same underlying facts—namely, UFW’s failure to bargain for
24 years—likewise did not constitute defenses to the duty to bargain under the ALRA. In
substance, these equitable defenses raised by Fanucchi (i.e., laches, unclean hands, and
estoppel) were merely a reiteration under different labels of the same essential claim of
abandonment. We affirm the Board’s conclusion that UFW’s past inactivity and/or
absence did not create a defense to bargaining under these alternative equitable theories.




                                             15.
V.     Make Whole Relief
       We now consider whether make whole relief was appropriately ordered by the
Board. We begin by providing a brief description of this unique remedy. If an employer
is guilty of an unlawful labor practice for refusal to bargain in good faith, the Board has
discretion under the ALRA to impose a make whole remedy against the employer to
compensate the employees for losses incurred as a result of the delays in the collective
bargaining process. (See J.R. Norton Co., supra, 26 Cal.3d at pp. 27, 36.) The purpose
of the make whole remedy is to put the parties and the employees in the economic
positions that they presumably would have been in if the employer had not unlawfully
refused to bargain. (F&P Growers, supra, 168 Cal.App.3d at p. 682.)
       The statutory provision of the ALRA authorizing make whole relief is
section 1160.3. Section 1160.3 provides in relevant part that whenever the Board finds
an employer guilty of an unfair labor practice for refusal to bargain, the Board may enter
an order “requiring such person to cease and desist from such unfair labor practice, [and]
to take affirmative action, including … 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 polices of this part.”
(Italics added.) As the wording of the statute clearly indicates, make whole relief is
discretionary in nature and is to be applied only where the Board determines it is
appropriate under the circumstances. (J.R. Norton Co., supra, 26 Cal.3d at pp. 37–38;
F&P Growers, supra, 168 Cal.App.3d at pp. 680–682.)
       In determining whether or not such relief is appropriate, the Board must consider
the facts and equities of each particular case. (J.R. Norton Co., supra, 26 Cal.3d at
pp. 37–38.) Thus, it is not permissible to impose make whole relief on a per se basis,
such as by imposing it automatically whenever an employer is found to have committed
an unfair labor practice by refusing to bargain. (Ibid.) In F&P Growers, the Court of
Appeal explained the implications in that case of this rule against per se relief: “[E]ven

                                             16.
though the employer may have had no right to be involved in deciding whether it would
or would not bargain with [UFW], the Board was still required to examine the employer’s
conduct for particular facts and circumstances to see if the make whole remedy was
appropriate. The fact that we now hold that the employer was required to bargain with
[UFW] regardless of its good faith belief does not negate the discretionary nature of the
make whole relief under the statute.… Even though that belief is no defense for failure to
bargain, the language of the statute is clear that the Board issue the make whole relief
only when it ‘deems’ the relief appropriate.” (F&P Growers, supra, 168 Cal.App.3d at
p. 681.)
       A special type of case in which the issue of make whole relief sometimes arises is
where the employer has made a “‘technical’ refusal to bargain” as a means of obtaining
judicial review of the validity of a representation election. (J.R. Norton Co., supra, 26
Cal.3d at p. 27.) In J.R. Norton Co., the Supreme Court considered the issue of make
whole relief in the context of such a technical refusal to bargain. (Id. at pp. 27–40.) The
court observed that the technical refusal to bargain procedure is necessary because
election certification decisions by the Board are not subject to direct judicial review (id.
at p. 27), and it is important to provide a check on arbitrary action by the Board in regard
to representation elections (id. at p. 30). The court then discussed the standard to be
applied by the Board regarding make whole relief in such cases. In particular, the court
held that where an employer engages in a technical refusal to bargain but ultimately loses
the election challenge after obtaining judicial review, the Board is required to evaluate
whether to impose make whole relief under the following standard: “[T]he Board must
determine from the totality of the employer’s conduct whether it went through the
motions of contesting the election results as an elaborate pretense to avoid bargaining or
whether it litigated in a reasonable good faith belief that the union would not have been
freely selected by the employees as their bargaining representative had the election been
properly conducted. We emphasize that this holding does not imply that whenever the

                                             17.
Board finds an employer has failed to present a prima facie case, and the finding is
subsequently upheld by the courts, the Board may order make-whole relief. Such
decision by hind-sight would impermissibly deter judicial review of close cases that raise
important issues concerning whether the election was conducted in a manner that truly
protected the employees’ right of free choice.” (Id. at p. 39.)10
       In the case before us, contrary to Fanucchi’s characterization of its actions, the
refusal to bargain was not technical (in the J.R. Norton Co. sense) because the validity of
the representation election and original certification of UFW based on that election were
not at issue.
       Where, as here, the employer’s refusal to bargain was not technical, F&P
Growers, provides an instructive analysis of the Board’s generally followed approach to
the issue of make whole relief in such cases.11 In F&P Growers, the Board had adopted
a particular standard for deciding on whether make whole relief was appropriate. That
standard was as follows: “[W]e consider on a case-by-case basis the extent to which the
public interest in the employer’s position weighs against the harm done to the employees
by its refusal to bargain. Unless litigation of the employer’s position furthers the policies
and purposes of the [ALRA], the employer, not the employees, should ultimately bear the
financial risk of its choice to litigate rather than bargain.” (F&P Growers, supra, at
p. 682.) The Court of Appeal held that the above standard was a proper method for the
Board to use in determining whether make whole relief was appropriate: “The Board


10      In J.R. Norton Co., the Supreme Court concluded its discussion of make whole relief with
the following words: “In short, a per se remedy is impermissible in this setting. Not only are
there degrees of violations [citation] but, more fundamentally, other factors peculiar to labor
relations may outweigh the appropriateness of make-whole relief in particular cases. [Citation.]
The Board’s remedial powers do not exist simply to reallocate monetary loss to whomever it
considers to be most deserving; they exist, as appears from the statute itself, to effectuate the
policies of the [ALRA].” (J.R. Norton Co., supra, 26 Cal.3d at pp. 39–40.)
11     The court in F&P Growers expressly acknowledged that “the case before us does not
involve a ‘technical refusal’ to bargain .…” (F&P Growers, supra, 168 Cal.App.3d at p. 681.)


                                              18.
used its own standards in determining appropriateness of the remedy in this particular
case, and this they were entitled to do.” (Id. at p. 682.) Nevertheless, in applying that
standard as a framework for determining the appropriateness of the remedy, the Board
still must reach its decision in a discretionary (not a per se) manner based on the facts and
equities of the particular case. As the Court of Appeal stated: “Since the Board in the
instant case did in fact examine the facts and circumstances of the particular case, and did
not apply the make whole remedy per se or automatically, but applied it only after it
exercised discretion and deemed that relief appropriate, the order herein was not an abuse
of discretion.… [¶] The language of the Board’s decision shows that they knew they had
to examine each case individually, and the language of their decision indicates that they
examined the case on a case-by-case basis.” (Ibid.)
       Here, the Board explicitly followed the standard that was approved in F&P
Growers. The Board’s written decision stated as follows: “Here, because [Fanucchi] is
not seeking review of a certification election, F&P Growers applies, rather than J.R.
Norton. The issue, therefore, is whether the public interest in [Fanucchi’s] position
outweighs the harm done to employees by its refusal to bargain. The position taken by
[Fanucchi] is based principally on its contention the UFW forfeited its certification by
abandoning the bargaining unit. As discussed above, this position is contrary to over
30 years of Board precedent holding that abandonment is not a defense to the duty to
bargain. Accordingly, [Fanucchi’s] position cannot be said to further the policies and
purposes of the ALRA. [Citation.] [¶] … [¶] Based upon our review of the facts and
circumstances and the equities of this case, we conclude, in agreement with the ALJ, that
an award of makewhole is appropriate and that, under the circumstances presented in this
case, ‘[Fanucchi], not the employees, should ultimately bear the financial risk of
[Fanucchi’s] choice to litigate rather than bargain.’ [Citation.]” (Tri-Fanucchi Farms,
supra, 40 ALRB No. 4, pp. 18, 20, fns. omitted.)



                                             19.
       It is clear that the Board’s decision to impose make whole relief was based solely
on its legal evaluation or value judgment that Fanucchi’s litigation of the abandonment
issue herein—which was premised on UFW’s 24 years of inactivity—did not further the
policies and purposes of the ALRA. With all due deference to the Board regarding
ALRA policy issues, we believe the Board was clearly wrong in its legal conclusion that
Fanucchi’s litigation efforts in this matter did not further the purposes and policies of the
ALRA, as we now explain.
       Although it is true that the Board’s prior decisions stated that even “a prolonged
period” of union absence or inactivity did not create an abandonment defense to the
employer’s duty to bargain (e.g., San Joaquin Tomato Growers, Inc., supra, 37 ALRB
No. 5, p. 4; Pictsweet Mushroom Farms, supra, 29 ARLB No. 3, p. 14), no appellate
court has (or had) decided that specific issue until, in this case, Fanucchi sought and
obtained judicial review. Ultimately, it is the courts that must ascertain the intent of a
statute so as to effectuate the purpose of the law. (J.R. Norton Co., supra, 26 Cal.3d at
p. 29; Bodinson Mfg. Co. v. California E. Com., supra, 17 Cal.2d at p. 326 [the courts
state the meaning of a statute finally and conclusively].) Moreover, notwithstanding the
Board’s prior decisions, we believe the question of how an appellate court would actually
rule when confronted with the novel situation of such long-term union absence or
egregious inactivity (i.e., 24 years) as alleged here was far from certain.12 Additionally,
the question of UFW abandonment (or apparent abandonment) of bargaining units is not
an isolated incident limited to the present case, but apparently has been a recurring
problem, as reflected by the Board’s own cases and the cases before this court in which


12      As noted by Fanucchi, neither the Board nor the courts would be unconcerned that a
union has apparently disregarded its statutory responsibilities to a bargaining unit for over two
decades, as occurred here. It was not unreasonable to raise the issue of abandonment here, since
such extreme dereliction would seem to be antithetical to the ALRA policies of having actual
employee representation by the elected union and of promoting the collective bargaining
relationship. (See, e.g., §§ 1140.2, 1152, & 1155.2, subd. (a).)


                                               20.
the issue has been raised. For all of these reasons, and despite the Board’s prior attempts
to summarily dispose of the issue, the question has remained to a significant degree
unsettled and controversial. Against this larger backdrop, it is clear to us that judicial
review of the issue was reasonably necessary and helpful to all parties concerned,
including both unions and agricultural employers, for the beneficial purpose of clarifying
and/or confirming the law. Therefore, Fanucchi’s advancement of this litigation plainly
furthered the broader purposes of the ALRA to promote greater stability in labor relations
by obtaining an appellate decision on this important issue. Accordingly, we conclude
that the Board prejudicially erred when it ordered make whole relief in this case, and that
portion of the Board’s order is hereby reversed.
VI.    Other Issues Need Not Be Reached
       In view of the fact that we have decided, as a matter of law, the question of the
nonavailability of Fanucchi’s abandonment-related defenses to the duty to bargain, and
that we have further concluded, as a matter of law, that make whole relief was improper
in this case, we find it unnecessary to address Fanucchi’s remaining contentions. Those
remaining contentions, largely dealing with procedural and due process issues would
not—even if correct—change our disposition of the principal legal issues as indicated
above or otherwise require a different outcome. We therefore do not reach those
additional matters.




                                             21.
                                     DISPOSITION
      The portion of the Board’s decision in Tri-Fanucchi Farms, supra, 40 ALRB
No. 4, which imposed make whole relief against Fanucchi is reversed. The balance of the
Board’s decision is affirmed. Each party to bear its own costs.

                                                        ___________________________
                                                                           KANE, J.
WE CONCUR:


___________________________
HILL, P.J.


___________________________
LEVY, J.




                                           22.
