SAN CLEMENTE RANCH, LTD., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD of the State of California, Respondent, UNITED FARM WORKERS OF AMERICA, AFL–CIO, Real Party in Interest.
WRIT OF REVIEW
Petition for review of a supplemental decision and revised order of the Agricultural Labor Relations Board (ALRB or the Board). At issue in the instant case is the propriety of the ALRB's imposition of the “make-whole” remedy provided in Labor Code section 1160.3 to redress unfair labor practices 1 against petitioner San Clemente Ranch, Ltd., without making factual findings concerning petitioner's “good faith,” or “reasonableness” in seeking judicial review, particularly in view of the holding of J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 160 Cal.Rptr. 710, 603 P.2d 1306.
We briefly summarize the factual and procedural history of this extended labor dispute between two California agricultural operations, Highland Ranch and San Clemente Ranch, Ltd., the present petitioner, and real party in interest, the United Farm Workers of America, AFL–CIO (UFW). The following account of events is primarily derived from two previous California Supreme Court decisions in this ongoing litigation (Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848, 176 Cal.Rptr. 753, 633 P.2d 949, (hereinafter Highland )) and San Clemente Ranch, Ltd. v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 874, 176 Cal.Rptr. 768, 633 P.2d 964, (hereinafter San Clemente I ) and is not intended to be all-inclusive.
In 1975 the California Legislature enacted the Agricultural Labor Relations Act (ALRA), contained in Labor Code sections 1140 et seq. and generally patterned after significant federal labor legislation, including the National Labor Relations Act (NLRA). Pursuant to the Act, the ALRB was designated as the agency responsible for administering and implementing the act. The purpose of the Act, as expressed in Labor Code section 1140.2, was to “provide for collective-bargaining rights for agricultural employees” and “to encourage and protect the right [of such employees] to full freedom of association, self-organization, and designation of representatives of their own choosing, to negotiate the terms and conditions of their employment, and to be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ․”
In the spring of 1977, the UFW commenced attempts to organize the agricultural workers employed by Highland Ranch, a 647-acre ranch in Orange County which had for many years grown various vegetable crops. There was a packing shed on the premises and many of the employees lived in a rent-free labor camp owned and run by Highland. Highland resisted unionization of its employees vigorously; however, on July 21, 1977, the UFW petitioned the ALRB for certification as the Highland employees' bargaining representative as provided by the Act. The requisite election was scheduled for July 28, 1977, and was held that day. The UFW won 93% of the vote. Four days later, Highland sought to have the election set aside, challenging it on various grounds. These challenges were pending until November 2, 1977, when the ALRB dismissed them. Highland did not contest the dismissal, and on November 29, 1977, the ALRB certified the UFW as the exclusive collective bargaining agent for Highland's agricultural employees.
In late September 1977, Highland commenced negotiations with Deardorff-Jackson Company, also a California grower, concerning the sale of Highland Ranch. Deardorff-Jackson formed petitioner San Clemente, a limited partnership with Deardorff-Jackson as general partner, to purchase and operate Highland. Consequently, pursuant to the agreement of sale between Highland and San Clemente, petitioner San Clemente obtained Highland's land lease and ranch facilities, machinery and equipment. The final escrow papers were signed by Highland on November 29, 1977, the day that the UFW was certified as the Highland employees' union. San Clemente was aware that Highland was engaged in struggle with the UFW and that various unfair labor practices, including but not limited to the misconduct on election day, had been charged against Highland. (The escrow documents included a provision that the seller, Highland, would be responsible for consequences of its dispute with the UFW, presumably those accruing up to the time of sale).
The UFW was not informed by Highland between the day of the election and November 29, 1977, some four months later, of Highland's intention to sell the ranch and terminate its business. Ultimately, Highland's failure to so inform the UFW and its failure to give the UFW the opportunity to bargain concerning the effect of termination on Highland's employees was found to constitute an unfair labor practice by Highland (in addition to various other unfair labor practices by Highland, not pertinent in our discussion here); after making this determination, the ALRB imposed a limited back pay obligation on Highland. The finding and the remedy imposed were both upheld by the California Supreme Court in Highland, supra. Of particular significance herein is that the Highland court upheld the administrative remedy imposed on the ground that it had been applied “in the specific, narrow circumstances that such remedy has long been found appropriate under the applicable federal precedent.” (Highland, 29 Cal.3d 866, 176 Cal.Rptr. 753, 633 P.2d 949.)
Petitioner San Clemente refused to bargain with the UFW when it took over the Highland operation in December 1977, on the ground it had no obligation to do so. As a practical matter, the takeover had occurred at the end of the tomato season, when the need for labor was at its lowest point, although some Highland employees did work for San Clemente. The ALRB ultimately determined that petitioner was the successor employer to the seller (Highland) and was obligated to recognize and bargain with the UFW; that petitioner had in fact taken over an ongoing ranch operation and had continued for some time to utilize some former Highland employees who worked in similar capacities for petitioner; that petitioner had refused to bargain with the UFW; that this refusal constituted an unfair labor practice for which the Board imposed the “make-whole” remedy on petitioner San Clemente.
In San Clemente I, the California Supreme Court reviewed the ALRB's finding of “successorship” (the first of such matters the Board had considered) and upheld it, determining that there was ample federal precedent for applying, as the Board had, the federal criteria of “sufficient continuity in the work force” to the situation; the San Clemente I decision also determined that it was proper for the ALRB to take into account additional factors peculiar to this state's agricultural operations, which rely on migratory workers, in resolving the successorship issue.
The San Clemente I court, however, remanded to the ALRB that portion of the order which imposed the “make-whole” remedy on petitioner San Clemente; as was explained in a footnote, number 9 at 29 Cal.3d 883, 176 Cal.Rptr. 768, 633 P.2d 964, “[t]he Board's decision in this case was rendered prior to our decision in J.R. Norton v. Agricultural Labor Relations Board (1979) 26 Cal.3d 1, 160 Cal.Rptr. 710, 603 P.2d 1306, and as a consequence the Board included in its remedial order a “make-whole” requirement without undertaking an evaluation of San Clemente's conduct as required by our Norton decision. (Id., at pp. 39–40, 160 Cal.Rptr. 710, 603 P.2d 1306.) The Board apparently concedes that under Norton this aspect of the remedial order must be set aside and remanded to the Board for further proceedings.”
Upon remand, the ALRB made the supplemental decision and revised order which is now before us for review. A three-member panel determined that the Norton holding was inapplicable to the factual situation addressed by the Board and the reviewing courts in Highland and San Clemente I, and “decided to affirm our original Decision and to reinstate remedial Order in this matter.” (8 ALRB No. 11).
Thereafter, petitioner sought review in the Court of Appeal; the petition was denied without written opinion. Petitioner sought hearing in the California Supreme Court, a hearing which the ALRB did not oppose, on the ground that an important legal question was involved. On December 8, 1982, the California Supreme Court unanimously (with two justices not participating) granted petitioner's petition for hearing and transferred the case to the Supreme Court, and then retransferred it to the Court of Appeal, Second District, Division One, with directions to issue a writ of review to be heard before this court when the proceeding is ordered on calendar. The writ of review was duly issued on December 21, 1982.
THE NORTON DECISION
In San Clemente I, the California Supreme Court remanded to the ALRB that portion of its order imposing “make-whole” relief on petitioner for reconsideration in light of Norton. The Board chose to interpret Norton narrowly and concluded that Norton had no application to the instant matter. In assessing the correctness of the Board's position, it is necessary to review Norton in some detail.
In Norton, the petitioner was an agricultural employer who had filed a petition with the ALRB setting forth seventeen grounds of challenge to a 1976 election from which the UFW had emerged as the chosen bargaining representative of petitioner's agricultural workers. The Board summarily dismissed fifteen of the charges on the ground that no prima facie case had been made by the petitioner-employer concerning them. After hearing on the two remaining charges, the Board found them unfounded and certified the UFW as the exclusive bargaining agent of petitioner's employees. Petitioner continued to refuse to recognize the UFW as such, and would not bargain with it, claiming a “good faith” doubt as to the validity of the election and a desire to seek judicial review of the administrative decision in this regard. The ALRB found the petitioner's refusal to bargain constituted an unfair labor practice (as provided in Labor Code section 1153(e)); and ordered some remedial measures, including the imposition on the employer of the cost of the delay by making the employees whole for any loss that they sustained. The California Supreme Court remanded that portion of the order with directions to reconsider it in the light of its preceding discussion.
As noted previously, Labor Code section 1160.3 gives the ALRB the power to enter an order “making employees whole, when the Board deems such relief appropriate, for the loss of pay resulting from the employer's refusal to bargain ․”
The Board had interpreted this language in its administrative decisions to (1) confer on the Board more power to compensate employees for failure to bargain than they were entitled to under federal law and precedent (Adam Dairy dba Ranchos Dos Rios, 4 A.L.R.B. No. 24) and (2) to justify the announcement (as it did in Perry Farms, Inc., 4 A.L.R.B. No. 25) of “a blanket rule for the application of the make-whole remedy in all cases in which an employer is found to have refused to bargain in contravention of Labor Code section 1153, subdivision (e).” 2 (26 Cal.3d 27–28, 160 Cal.Rptr. 710, 603 P.2d 1306.)
The Norton court perceived a serious problem in applying the “make-whole” remedy to all refusals by an employer to bargain, because the only way, under the election-certification procedure established either by the NLRA or the ALRA, that an employer can obtain judicial review of administrative action by the ALRB with respect to the election the employer feels was unfair, is by refusal to bargain. (See, particularly, Norton, 26 Cal.3d 18–19, fn. 11, 160 Cal.Rptr. 710, 603 P.2d 1306.) The failure to bargain under these circumstances is referred to as a “technical” refusal to bargain, undertaken for the purpose of obtaining judicial review of the election process.
The ALRB's response in Norton was that the employer's intent in seeking review (and the attendant delay) and whether the failure to bargain was “technical” or not, were immaterial insofar as the effect was concerned, i.e., the employees suffered the same harm regardless and should be compensated for the delay. Implicit was that the potential for abuse by the employer in resisting bargaining while claiming “good faith” outweighed the danger in subjecting the employer to “make-whole” orders if he sought judicial review by “technical” refusal.
The Norton court disagreed. While conceding the respect afforded administrative interpretation of legislation, the court termed the freedom of choice of representation by agricultural employees the fundamental premise of the ALRA, as enacted by the California Legislature. It reasoned that that freedom would be empty in the absence of integrity in the election process, which in turn could only be protected if it could be challenged in an orderly fashion without the chilling effect, particularly upon small employers, of automatic “make-whole” compensation orders. Norton found this fundamental premise overcame the possibility of the potential abuse of judicial review in the absence of “make-whole” orders, i.e., utilizing judicial review for purposes of delay and for weakening fledgling unions, newly certified and not yet established.
However, Norton pointed out that there was no clear federal precedent for applying the “make-whole” remedy to employers who refuse to bargain while seeking judicial review, and emphasized that “[t]he importance of judicial review, as a check on arbitrary administrative action in the context of federal labor legislation, has been explicitly acknowledged by the United States Supreme Court.” (26 Cal.3d 33, 160 Cal.Rptr. 710, 603 P.2d 1306.)
In addition, the Norton court found that the language of section 1160.3 itself reflected legislative intent that, rather than apply the “make-whole” remedy per se to every refusal to bargain, the Board was to apply it “when the board deems such relief appropriate” (section 1160.3) a process necessarily involving assessment of particular factual circumstances.
Finding that a per se remedy is “impermissible in this setting,” the Norton court ordered the matter remanded, directing that the 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 ․” (26 Cal.3d 39, 160 Cal.Rptr. 710, 603 P.2d 1306) (emphasis added) before applying the “make-whole” remedy.
The ultimate holding of Norton is, in effect, a holding relative to the economic burdens of litigation: when the litigation concerns the fairness of a union election, policy considerations compel that both the employer and the employees, as potential beneficiaries of judicial review, may on occasion be required to share the financial cost of delay.3
Since Norton, the appellate courts have been alert to the issue of administrative “overkill,” the overly-broad imposition of the remedial measures set forth in section 1160.3. (See, e.g., George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1980) 111 Cal.App.3d 258, 168 Cal.Rptr. 537, petn. for hg. den. S.Ct. Jan. 11, 1981, and M.B. Zaninovich, Inc. v. Agricultural Labor Relations Bd. (1981) 114 Cal.App.3d 665, 171 Cal.Rptr. 55, petn. for hg. den. S.Ct. Mar. 11, 1981.)
In Arakelian Farms the reviewing court held that a make whole order issued by the ALRB, after it found an employer guilty of unfair labor practices in discharging a cantaloupe harvesting crew for engaging in concerted activities, was defective in ordering back pay for five employees. The court held there was no proof that they would have worked as members of the crew after the date they were terminated had employment been available. Further, the court declared that back pay can only be awarded to those who would have worked during the period but for the discriminatory practices of the employer and that the order was also defective in requiring back wages to be paid from the date of termination to the date the employee is offered reinstatement. Since the workers were employed in harvesting cantaloupes, which employment was neither continuous nor permanent, the appropriate period would be from the date of termination until such time as the harvesting of cantaloupes would have been completed.
In Zaninovich, the court declared that “the automatic issuance of a particular affirmative remedy in every section 1153, subdivision (a) violation case contravenes the ‘spirit and principle’ of [Norton]. In Norton it was held the automatic award of make-whole relief under section 1160.3 in technical refusal to bargain cases is an abuse of discretion.”
The general lessons to be gleaned from the language in Norton as well as the Arakelian Farms and Zaninovich cases are that automatic across-the-board imposition of the make-whole remedy and “overkill” remedies ordered by the ALRB are inappropriate. A determination of the remedy to be applied in any particular case requires Board evaluation of the facts and equities of each such case, and that remedial orders are subject to judicial review in order to protect the important interest of a check on arbitrary administrative action.
The rationale, underpinning the above, soundly based in reason and logic, is expressed in Norton and Zaninovich. In respect to an automatic across-the-board imposition of the make-whole remedy, the Norton court stated at page 31, 160 Cal.Rptr. 710, 603 P.2d 1306: “ ‘[I]t is as old in philosophy at least as Aristotle, and it is settled in the law as well, that the application of an apparently uniform rule may in reality engender unfair discrimination when like measures are applied to unlike cases.’ ” In respect to “overkill” remedies, the Zaninovich court said at page 690, 171 Cal.Rptr. 55: “By analogy to the criminal law tenet that the punishment should fit the crime, in the adjudication of labor disputes the remedy should fit the unfair labor practice.”
THE CASE AT BENCH
In Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 173 Cal.Rptr. 856, ptn. for hg. den. S.Ct., Aug. 7, 1981, after reviewing the administrative disposition of a complex and protracted struggle between the rose grower and the UFW, the Court of Appeal remanded the disposition to the Board pursuant to Norton for a determination of whether the grower had shown good faith in refusing to bargain with the union after the union's certification had expired before imposing the “make-whole” remedy upon the grower-employer. The Montebello court regarded the duration of the duty to bargain, a question of statutory interpretation, a “complex and unique question of law.” (119 Cal.App.3d 37, 173 Cal.Rptr. 856.)
We note that in the instant case, the ALRB relies on the administrative decision rendered on remand in Montebello, (1982) 8 A.L.R.B. No. 3, wherein it refused to apply Norton. It regarded the central issue for which judicial review was sought, namely the duration of a union's certification and the duty of the employer to bargain, one which did not involve direct protection of the rights of agricultural employees to freely choose their own bargaining representatives.
Here, petitioner San Clemente argues that the Board's supplemental decision and revised order, reaffirming the original imposition of “make-whole” relief without further inquiry into petitioner's good faith in seeking judicial review of the “successorship” issue, was not supported by substantial evidence.4 We do not view this as the determinative issue.
It is our understanding of the ALRB's ruling on remand, that it did not undertake to make any factual findings which might be pertinent in applying Norton principles to the case, but that it decided, as in Montebello, as a matter of law, that Norton did not apply, and as a consequence, made no factual findings upon remand. The ALRB simply reaffirmed its decision to impose “make-whole” relief on petitioner San Clemente, a decision previously made, presumably, after exercising discretion.
We conclude that the standard of review appropriate upon our judicial review of this most recent reaffirmation by the ALRB is that which governs administrative remedial decisions rather than fact-finding; namely, whether the ALRB abused its discretion in imposing “make-whole” relief in the way it did.
We, as the ensuing discussion indicates, further conclude that the ALRB has abused its discretionary administrative powers by its refusal to make factual findings in support of its determination to impose “make-whole” relief on petitioner San Clemente.
We are mindful that it has long been the rule (in both the federal and state context) that judicial review of remedies imposed by administrative tribunals is limited to a determination of whether the administrative action complained of is within the limits of the broad discretionary power administrative tribunals enjoy in administering and implementing policy with respect to the purposes of the statutory law from which the administrative power is derived.
This principle is actually an extension of separation of powers doctrine, which figures significantly in our form of government. As was explained in Phelps Dodge Corp. v. N.L.R.B. (1941) 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271, “Because the relation of remedy to policy is peculiarly a matter of administrative competence, courts must not enter the allowable area of the Board's discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.” California courts have always been cognizant of this danger in reviewing administrative rulings by administrative agencies.
Only where the remedy imposed is a manifest abuse of discretion may a court intervene. Such intervention has been found necessary when, for example, it is apparent that “the order [complained of] is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the act.” (Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 967, 157 Cal.Rptr. 476.)
That is the situation as we perceive it here. The purpose of the ALRA is at least twofold: to protect the agricultural workers' freedom of choice as to bargaining representation and to foster peaceful relations between the workers and their employers. Implicit in the enactment of this legislation was that the administration of the act would proceed in an orderly, unbiased and even-handed manner with respect to both employers and employees. The legislative concerns in this general respect was clearly reflected in the 1978 amendment to sections 1145 and 1149 of the Act wherein the following sentence was specifically inserted: “All employees appointed by the general counsel shall perform their duties in an objective and impartial manner without prejudice toward any party subject to the jurisdiction of the board.” Unless a climate of confidence is maintained in this regard, in respect to Board action, the primary objectives of the ALRA would be lost and elementary constitutional principles of due process and basic fairness will be abridged.
In Norton, the California Supreme Court carved out a limited exception to the rule that administrative tribunals properly determine the imposition of remedies as part of their discretionary power, a power with which courts do not interfere, ordinarily. In section 1160.3 of the Act, it is clear that the California Legislature intended that the Board, not the courts, exercise power over the imposition of remedies. The limited exception expounded by Norton was regarded by the Norton court as essential because of the singular legal position in which an employer finds itself when it deems it necessary to challenge a union election, under both federal and California law: the challenge must be made as a matter of defense to an unfair labor practice charge, that of refusal to bargain, rather than by affirmative action; the refusal is termed “technical”. Only in this way may judicial review be secured. Given this circumstance, Norton was totally understandable.
The procedural reality facing an employer who is not certain his employees have been afforded the “freedom of choice” envisioned by the California Legislature in enacting the ALRA is directly related to the integrity of the union election process. It was reasoned by Norton that across-the-board utilization of the “make-whole” remedy when employers defended a “technical” refusal to bargain and sought judicial review would also directly affect, adversely, the maintenance of election integrity. We construe this to be the pivotal basis for Norton.
As was carefully explained in Norton, the expressed statutory concern for election integrity outweighed the admitted potential the Norton limitation placed upon the ALRB for discouraging unreasonable litigation, undertaken in bad faith, to delay bargaining and to weaken newly-certified unions to prevent them from delivering to their members. The Norton opinion is replete with language which suggested that it was a narrow exception to prevailing administrative law and precedent, directly tied to issues involving election safeguards and protection of agricultural employees. Norton's final conclusion was that per se imposition of “make-whole” relief was “impermissible in this setting.” (26 Cal.3d 39, 160 Cal.Rptr. 710, 603 P.2d 1306.) (Italics added.) To this limited extent, we agree with the ALRB that nothing in Norton compelled it to apply Norton to either Montebello or the instant case.
However, we deem it an appropriate exercise of judicial review to expand the underlying concerns expressed in Norton, and other appellate cases decided subsequent to Norton, and we do so here.
Petitioner argues that the “successorship” issue in San Clemente I was (1) an issue concerning election integrity or (2) determined by Norton. Neither argument is supportable.
The real thrust of San Clemente I was the recognition that once a union is certified as the exclusive bargaining agent for a bargaining unit pursuant to the ALRA, the unit endures for the purpose of collective bargaining for at least one year, despite the fact that the membership of that unit may radically change during that period of time, due to the seasonal nature of the work and the migratory nature of the California agricultural work force, and despite the fact that the employer, too, might change, that there might be a transfer of ownership in the agricultural operation.5
While the “successorship” issue may not have directly or primarily involved election integrity per se, it was, arguably, a “unique and complex issue of law.” (Montebello, supra, 119 Cal.App.3d 37, 173 Cal.Rptr. 856.) 6 First, there was no clear-cut federal or state statutory precedent. Second, the federal decisional law did not deal with the issue of “successorship” in the context of California agricultural operations, the peculiar elements of weather and migration. Third, the courts were called upon to make a crucial interpretation of relatively new legislation. Finally, resolution of the issue presented in San Clemente I could reasonably be viewed as beneficial to the legislative goal of agricultural peace for both employers and employees. For these reasons, it can be contended that “make-whole” relief was inappropriately imposed here, and that both the employers and employees should share the economic burden of the litigation.
However, as was stated in Norton, “[i]t is clear that make-whole relief is appropriate when an employer refuses to bargain for the purpose of delaying the collective bargaining process.” (26 Cal.3d 31, 160 Cal.Rptr. 710, 603 P.2d 1306.) Thus, even when the issue presented for judicial review is a “unique and complex issue of law”, the intent of the litigator is material to determining the propriety of requiring “make-whole” relief. We cannot, and do not, determine petitioner's intent in this court, for that is a fact-finding task and the province of the ALRB. What we do determine here is that, given the circumstances presented by this particular litigation, fairness dictates that petitioner have the opportunity to present to the ALRB such evidence as it may have or desire to show that it acted in reasonable “good faith” in undertaking this litigation, before the ALRB imposes “make-whole” relief or any other relief on petitioner San Clemente for the delay occasioned by its seeking judicial review of the administrative rulings concerning the “successorship” issue.
The writ is granted. Let a decree issue setting aside and remanding to the ALRB the “make-whole” remedy order under review for reconsideration consistent with the views expressed in this opinion, including, after hearing, making written findings of fact in support of its ultimate decision concerning the remedy, if any, to be imposed.
1. That section provides, in pertinent part, that when the Agricultural Labor Relations Board has determined that an unfair labor practice has occurred, the Board shall order the practice to stop and shall order the offending party or parties not only to desist but “to take affirmative action, including reinstatement of employees with or without back pay, 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 ․” (Italics added.)
2. That section terms an unfair labor practice “to 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.”
3. We quote at length from pages 37–40, 160 Cal.Rptr. 710, 603 P.2d 1306 in Norton“The Board's interpretation of the make-whole clause contravenes these principles of statutory construction. Initially, it does so because it treats the words ‘when the board deems such relief appropriate’ as surplusage, and thus fails to accord them adequate significance. Labor Code section 1160.3 provides in relevant part that after the Board finds a person guilty of an unfair labor practice, it ‘shall ․ cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, to take affirmative action, including reinstatement of employees with or without backpay, and making employees whole, when the board deems such relief appropriate, for the loss of pay resulting from the employer's refusal to bargain, and to provide such other relief as will effectuate the policies of this part.’ If the Legislature had intended make-whole relief to be imposed every time an employer committed an unfair labor practice by refusing to bargain, it would have been entirely superfluous for it to have included the clause ‘when the board deems such relief appropriate.’ Secondly, as discussed above, the ALRB's interpretation of the provision is inconsistent with ALRA policy. Thus, we conclude the Legislature did not intend the phrase ‘when the board deems such relief appropriate’ to be interpreted so broadly as to require make-whole relief in every instance that an employer is found to have committed an unfair labor practice in contravention of Labor Code section 1153, subdivision (e).” (Italics original.)“This conclusion is further supported by the legislative history of the Act. The hearings before the Senate committee reviewing the bill make it clear that the language explicitly permitting the Board to order make-whole relief was intended by the Legislature to resolve the question of the Board's power to issue such an order, not to grant the Board unfettered discretion to do so in all cases in which an employer ultimately does not prevail in his election challenge. In those hearings, then-Secretary of Agriculture and Services (now Chief Justice) Rose Elizabeth Bird, one of the drafters of the bill, stated that the ‘language was just placed in because there has been a good deal of discussion with the National Labor Relations Act that it ought to be amended to allow the “make-whole” remedy, and this is something that the people who have looked at this Act carefully believe is a progressive step and should be taken. And we decided since we were starting anew here in California, that we would take that progressive step.’ (Hgs. on Sen. Bill No. 1 (Third Ex.Sess.1975) before Sen. Industrial Relations Com. (May 21, 1975.))” C“(7c) Because the Board applied the wrong standard by ruling that Norton's failure to recognize the union while seeking judicial review required per se make-whole relief, the case must be returned to the Board so that it can apply the proper standard. (Cf. Labor Board v. Truitt Mfg. Co. (1955) 351 U.S. 149, 157 [76 S.Ct. 753 , 100 L.Ed. 1027, 1034] (conc. and dis. opn. of Frankfurter, J.).) As the United States Supreme Court recently observed, ‘It is a guiding principle of administrative law, long recognized by this Court, that “an administrative determination in which is embedded a legal question open to judicial review does not impliedly foreclose the administrative agency, after its error has been corrected, from enforcing the legislative policy committed to its charge.” [Citations.] ․ It also affords the [NLRB] the opportunity, through additional evidence or findings, to reframe its order better to effectuate that policy. [Citations.]’ (LLRB v. Food Store Employees (1974) 417 U.S. 1, 9–10 [94 S.Ct. 2074 [2079–80], 40 L.Ed.2d 612, 618].)”“On remand, the 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 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 (sic ) 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. As discussed above, judicial review in this context is fundamental in providing for checks on administrative agencies as a protection against arbitrary exercises of their discretion. On the other hand, our holding does not mean that the Board is deprived of its make-whole power by every colorable claim of a violation of the laboratory conditions of a representation election: it must appear that the employer reasonably and in good faith believed the violation would have affected the outcome of the election.”“In short, a per se remedy is impermissible in this setting. Not only are there degrees of violations (see Food Store Emp. U., Loc. No. 347 Amal. Meat Cut. v. N.L.R.B. (D.C.Cir.1973) 476 F.2d 546, 554, fn. 13) but, more fundamentally, other factors peculiar to labor relations may outweigh the appropriateness of make-whole relief in particular cases. (Phelps Dodge Corp. v. Labor Board (1941), supra, 313 U.S. 177, 194–195 [61 S.Ct. 845, 852–853, 85 L.Ed. 1271, 1283].) 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 Act.”
4. “With respect to factual matters, the standard of review is clear: factual findings of the Board are conclusive ‘if supported by substantial evidence on the record considered as a whole’ [Lab.Code, § 1160.8; Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 343–346, 156 Cal.Rptr. 1, 595 P.2d 579].” (Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1982) 135 Cal.App.3d 906, 915 [185 Cal.Rptr. 588].) “This means that the court must examine the entire record, including evidence which detracts from the Board's decision.” (Jasmine Vineyards, Inc. v. Agricultural Labor Relations Bd. (1980) 113 Cal.App.3d 968, 975, 170 Cal.Rptr. 510.)
5. Moreover, the San Clemente I court in its disposition of the case stated in pertinent part, at page 892: “Let a decree issue (1) setting aside and remanding to the Board the make-whole portion of the order pursuant to J.R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d 1, 160 Cal.Rptr. 710, 603 P.2d 1306 (see fn. 9, ante ), ․”Footnote 9 in San Clemente I, as previously noted, appearing at page 883 states: “The Board's decision in this case was rendered prior to our decision in J.R. Norton v. Agricultural Labor Relations Board (1979) 26 Cal.3d 1 [160 Cal.Rptr. 710, 603 P.2d 1306] and as a consequence the Board included in its remedial order a ‘make whole’ requirement without undertaking an evaluation of San Clemente's conduct as required by our Norton decision. (Id., at pp. 39–40 [160 Cal.Rptr. 710, 603 P.2d 1306].) The Board apparently concedes that under Norton this aspect of the remedial order must be set aside and remanded to the Board for further proceedings.”
6. That the “successorship” issue arguably presented a “unique and complex issue of law” finds some support in the fact, of which we take judicial notice, that the “successorship” issue was before this court in the consolidated cases of San Clemente Ranch, Ltd. v. Agricultural Labor Relations Board (2 Civ. No. 57298); and Highland Ranch v. Agricultural Labor Relations Board (2 Civ. No. 57728) (filed June 27, 1980). In this court's lengthy multiple issue published opinion (consisting of 134 pages of lead and concurring and dissenting opinions) on the “successorship” issue, San Clemente persuaded this court in its briefs and during oral argument to split two to one in favor of San Clemente Ranch and against the Board on that issue. The State Supreme Court granted a petition for a hearing to that opinion which culminated in the State Supreme Court cases of Highland and San Clemente I referred to in this opinion.
L. THAXTON HANSON, Associate Justice.
SPENCER, P.J., and LILLIE, J., concur.