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Court of Appeal, Fourth District, Division 1, California.

ABATTI FARMS, INC., Abatti Produce, Inc., Petitioners, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent, UNITED FARM WORKERS OF AMERICA, AFL–CIO, Real Party in Interest.


Decided: April 19, 1985

Gray, Cary, Ames & Frye and Merrill F. Storms, Jr., San Diego, for petitioners. Agr. Labor Relations Bd., Michael Lee, for respondent. United Farm Workers of America, AFL–CIO and Dianna Lyons, Sacramento, for real party in interest.

Abatti Farms, Inc. and Abatti Produce, Inc. (Abatti or Company) have filed a petition for review of an Agricultural Labor Relations Board (ALRB or Board) decision, 9 ALRB No. 70.   In the decision, the Board found that Abatti had violated Labor Code section 1153(e) by making changes in the terms and conditions of employment of its tractor drivers without negotiating those changes with the employees' certified bargaining representative, the United Farm Workers (UFW).

Effective June 7, 1978, Abatti and the UFW entered into a six-month contract in which Abatti agreed to give its tractor drivers a 10-minute break in the morning and afternoon and to utilize a seniority system.   In April 1982, the UFW filed an unfair labor practice charge alleging the Company refused to bargain in good faith by failing to comply with the break and seniority provisions of the contract insofar as they related to tractor drivers.   A complaint was issued and a hearing was held before an administrative law judge (ALJ).   The ALJ found the Company had never complied with the contractual break and seniority provisions as they applied to the tractor drivers.   He decided that where a condition of employment is established by contract, failure to comply with that provision is a unilateral change which is a per se refusal to bargain, a violation of Labor Code section 1153(e).   The Board affirmed and adopted the ALJ decision.

 In the usual case, an unlawful unilateral change is found to exist when an employer changes a term or condition of employment without first negotiating over the desired change with the certified labor representative of the employees who will be affected by the change.

It is the Company's position that litigation of the alleged violation is barred by the six-month statute of limitations prescribed in Labor Code section 1160.2.  Section 1160.2 provides, in pertinent part, “No complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the board․”  In the instant case, UFW did not file the unfair labor practice charge until April 1982, almost four years after the alleged violation initially occurred.

The Board found the charge was not barred by the six-month statute of limitations requirement.   This finding was based on two separate grounds.   First, the Board applied the legal principle that the six-month statute of limitations period does not commence to run until the party filing the charge knows or should know the unfair labor practice has occurred.  (See Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 30, 173 Cal.Rptr. 856.)   The Board made a factual finding that until 1982 the UFW did not know of the facts underlying the alleged unfair labor practice nor should they have known.   A factual finding must be sustained if it is supported by substantial evidence.  (Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 757, 195 Cal.Rptr. 651, 670 P.2d 305.)

 The lack of actual knowledge by the UFW is not disputed.   Whether the UFW should, through reasonable diligence, have known the facts underlying the charge is disputed.   The Board found in the UFW's favor on this issue.   This finding was based upon findings that the tractor drivers had no knowledge of the specific terms of the contract and, therefore, did not know the terms were being violated;  and, there was little or no contact between the UFW and the tractor drivers between 1978 and 1982 because of great tension between the Company and the UFW resulting in a Company-supported decertification election which was overturned by the Board several years after it took place.   This Court concludes that the Board's finding that lack of knowledge of the unilateral change by the UFW was excused because it would not have discovered those facts through reasonable diligence is not supported by substantial evidence.   Notwithstanding the existence of tension between the UFW and the Company, the unilateral change could have been discovered had the UFW advised the tractor drivers of the terms of the contract which governed the terms and conditions of their employment.   Had it done so, any failure by the Company to comply with those terms would likely have been reported to the UFW.   Had they not been reported to the UFW, the UFW could then make the exercise of reasonable diligence argument.   Having not advised the employees of their terms and conditions of the contract, it is not now in a position to successfully make the argument.

The second ground, relied upon by the Board in finding no statute of limitation bar, was that the unilateral change of which the Union complained was a continuing violation of the law.   Having found that the Board's first ground lacked merit, this Court must review the second ground.

The Board's conclusion that the unilateral change was a continuing violation of the Labor Code was based on Julius Goldman's Egg City (1980) 6 ALRB No. 61.   Egg City is inapposite.   It did not involve a question of the continuing nature of a unilateral change.   It involved discriminatory abolition of employees' seniority because of their engaging in a strike.   In Egg City, the Board stated:

“We conclude that Respondent's conduct in maintaining and giving effect to a discriminatory hiring policy was a continuing violation of the Act which occurred within the six-month period immediately preceding the filing of the charge.”

 A discrimination occurs each time a person is discriminated against.   It is irrelevant when it began.   As a result, although a discriminatory practice began over six months before a charge is filed, the charge is timely filed if the discriminatory practice has been enforced within the six-month period.

Pursuant to applicable NLRB precedent, a unilateral change is not a continuing unfair labor practice which may be filed whenever the employees or their union desires.   The unfair labor practice charge must be filed within six months of the unilateral change.  (Continental Oil (1971) 78 LRRM 1626;  Labor Board v. Katz (1962) 369 U.S. 736, 746, fn. 13, 82 S.Ct. 1107, 1113, fn. 13, 8 L.Ed.2d 230.)   A change in the terms and conditions occurs only once.   The change occurs at the time of the change.   There are continuing effects of the change, but the change itself does not continue.   For this reason, although a discriminatory employment practice which commenced years ago may underlie an unfair labor practice charge filed within six months of a discriminatory act, a unilateral change made years ago cannot underlie a charge filed years after the change.

The unfair labor practice charge filed in this case, alleging a unilateral change which occurred years before the charge was filed was untimely filed and the ALRB decision, 9 ALRB No. 70, is reversed.   The ALRB is ordered to dismiss the charge.

BUTLER, Acting Presiding Justice.

LEWIS and LESTER,* JJ., concur.

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