ABATTI FARMS, INC., et al., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA, AFL–CIO, Real Party in Interest.
Petitioner Abatti Produce, Inc. (Abatti)1 seeks review of the decision of the Agricultural Labor Relations Board (ALRB; here Board) in Abatti Farms, Inc., Abatti Produce, Inc. (1983) 9 ALRB No. 59, making backpay awards to 13 agricultural employees (here, discriminatees)2 with respect to whom Abatti had committed discriminatory discharges or refusals to rehire in violation of Labor Code 3 section 1153, subdivisions (a) and (c), part of California Agricultural Labor Relations Act (ALRA) (§ 1140 et seq.; see Abatti Farms, Inc. v. Agricultural Labor Relations Bd. (1980) 107 Cal.App.3d 317, 328, et seq. 165 Cal.Rptr. 887). Abatti challenges the particular backpay formula adopted by the Board as well as its application in terms of the substantiality of the evidence in support of the awards.4
For each of the 13 discriminatees, the Board adopted a “daily” basis formula for computing Abatti's net backpay liability. The daily formula, also known as the Sunnyside and J & L Farms formulae,5 focuses, on a day by day basis, upon what money the discriminatee earned from interim employment (employment after discharge until reinstatement or waiver) is to be deducted from the backpay the discriminatee would have earned had the discriminatee continued working for the employer found to have unlawfully discharged or refused to rehire the discriminatee. (See Nish Noroian Farms v. Agricultural Labor Relations Bd. (1984) 35 Cal.3d 726, 743, 201 Cal.Rptr. 1, 677 P.2d 1170, here Nish Nor oian.) The computation is made in the context of the rule the discriminatee must use reasonable diligence to mitigate loss by seeking other suitable employment. (Nish Noroian, supra, 35 Cal.3d at p. 743, 201 Cal.Rptr. 1, 677 P.2d 1170.) Generally, the backpay calculation ceases for the period of time the discriminatee does not use reasonable diligence in seeking employment. The backpay calculation also ceases for any period of a discriminatee's interim disability that is not a usual incident of the hazards of living generally, but does not cease where the interim disability is closely related to the nature of interim employment or arises from the unlawful discharge and is not a usual incident of the hazards of living generally. (American Mfg. Co. of Texas (1967) 167 NLRB 520, 522.) Moreover, wages from “true substitute” interim employment must be offset against gross backpay when using the daily formula even where the interim work is performed on different weekdays, or even in different seasons, than was the unlawfully terminated job. (Nish Noroian, supra, 35 Cal.3d at p. 746, 201 Cal.Rptr. 1, 677 P.2d 1170.)6
A summary of the daily formula method of calculating backpay, used here by the Board, is:
“[W]ages the employee earns elsewhere on days he would not have worked for the original employer in any event may not be subtracted from the backpay award. Thus, ․ ‘[i]f a claimant would have worked on Monday, Tuesday, Thursday, and Friday of a specific week but for the [unlawful discharge], then his interim earnings for Wednesday of that week will not be offset against the employer's liability․’ “ (Nish Noroian, supra, 35 Cal.3d at p. 743, 201 Cal.Rptr. 1, 677 P.2d 1170.)
The daily method also is described as follows:
“ ‘[l]oss of pay is to be determined by multiplying the number of days the employee was out of work by the amount the employee would have earned per day. If on any day the employee was employed elsewhere, the net earnings of that day shall be subtracted from the amount the employee would have earned [from the violating employer] for that day only․’ (J & L Farms, supra, 6 A.L.R.B. No. 43, p. 2; Sunnyside Nurseries, Inc., supra, 3 A.L.R.B. No. 42, p. 4.)” (Nish Noroian, supra, at p. 743, fn. 8, 201 Cal.Rptr. 1, 677 P.2d 1170.)
Abatti urged the Board to use the quarterly method of calculation, known as the “Woolworth formula,” as a result of the National Labor Relations Board decision in F.W. Woolworth Company (1950) 90 NLRB 289. The Woolworth formula is described as follows:
“The public interest in discouraging obstacles to industrial peace requires that we seek to bring about, in unfair labor practice cases, ‘a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination.’ In order that this end may be effectively accomplished through the medium of reinstatement coupled with back pay, we shall order, in the case before us and in future cases, that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, hereinafter called ‘quarters,’ shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which [the employee] would normally have earned for each such quarter or portion thereof, [his] net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the backpay liability for any other quarter.” (90 NLRB at pp. 292–293; emphasis added.)
Before deciding to apply the daily formula method of calculating backpay, the Board affirmed the findings of the Administrative Law Judge other than those it modified, thus affirming a finding that the 13 discriminatees were “steady workers employed virtually year-round in the care of [Abatti's] crops during the growing stages .” [ALJD 3;7 9 ALRB No. 59, p. 2.] The Board went on to justify use of the daily method of backpay calculation on the basis that the Woolworth formula does not take into account the seasonal and sporadic nature of agricultural employment.
In more detail, the Board said:
“We note that the NLRB is not wedded to the Woolworth quarterly computation, but that it is the ‘usual formula’ for the computation of net backpay. (See NLRB v. J.H. Rutter–Rex Manufacturing Co. (1969) 369 U.S.  258 [90 S.Ct. 417, 24 L.Ed .2d 405] [72 LRRM 2881]; Golay & Company, Inc. v. NLRB (7th Cir.1971) 447 F.2d 290 [77 LRRM 3041]; San Juan Mercantile Corp. (1962) 135 NLRB 698 [49 LRRM 1549].) The ‘usual’ employment situation in the industrial sector is full time steady employment. In contrast, the ‘usual’ employment situation in California agriculture is sporadic, seasonal employment in the course of which hours and wages fluctuate daily for agricultural workers. Employees often work for limited periods of time during a short harvest, or a thinning or pruning season, and often work less than a full week or only a few days at a time before moving on to a different job, a different employer, or a different area. The availability of work is affected by many factors beyond the control of either the employer or the employee, such as weather, perishability of the crop and consumer (market) demand. (High and Mighty Farms (1982) 8 ALRB No. 100.) Thus, we have held that the Woolworth formula is not an applicable NLRA precedent for California agriculture because it does not take into account the seasonal and sporadic nature of agricultural employment. The agricultural industry relies, in large part, on short-term employment of a migrant labor force.” (9 ALRB No. 59, pp. 9–10.)
Abatti contends the Board erred in applying the daily backpay formula without considering the work history of the individual discriminatees, particularly in light of its finding the discriminatees had steady, year-round employment with Abatti before the wrongful discharges or refusals to rehire.
We approach this issue with recognition that the Board, by statute and in accord with its duty to follow applicable precedents of the National Labor Relations Act, as amended (§ 1148), has wide discretion to devise procedures and methods, including methods of backpay calculation, to effectuate the policies of the ALRA. (National Labor Relations Board v. Seven–Up Bottling Co. (1953) 344 U.S. 344, 346–347, 73 S.Ct. 287, 289, 97 L.Ed. 377.) As the Board points out, an important aspect of ALRA policy and power of the Board in connection with remedial orders is set forth in section 1160.3, providing in part:
“If ․ the board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, the board shall state its findings of fact and shall issue and 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. Where an order directs reinstatement of an employee, backpay may be required of the employer or labor organization, as the case may be, responsible for the discrimination suffered by him.” (Emphasis added.)
It is thus clear that in an appropriate case the Board is empowered to fashion a backpay remedy based on the daily formula. (Nish Noroian, supra, 35 Cal.3d at pp. 743–746, 201 Cal.Rptr. 1, 677 P.2d 1170.) The question in this case, however, is whether it was arbitrary and unreasonable, i.e., an abuse of discretion, for the Board to apply the daily formula in light of its finding these discriminatees had steady, year-round employment with Abatti and in the exercise of its duty to follow N.L.R.B. precedent. (See Frudden Enterprises, Inc. v. Agricultural Labor Relations Bd. (1984) 153 Cal.App.3d 262, 268, 201 Cal.Rptr. 371; Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 967–968, 157 Cal.Rptr. 476; N.L.R.B. v. Ozark Hardwood Company (8th Cir.1960) 282 F.2d 1, 7.)
The Board itself recognized the Woolworth formula “is the ‘usual formula’ for the computation of net backpay.” (9 ALRB No. 59, pp. 9–10.) Nish Noroian tells us the Woolworth formula “is applied only to the industrial norm of steady, year-round employment. Noroian concedes that the NLRB uses a formula similar to [the daily formula] where the violating employer had offered only sporadic employment.” (Nish Noroian, supra, 35 Cal.3d at p. 744, 201 Cal.Rptr. 1, 677 P.2d 1170.) The discriminatees in question in Nish Noroian had been employed steadily during the irrigation season, and the employer argued the Board could not assume the sporadic nature of agricultural employment as a basis for using the daily formula. In response to this argument, Nish Noroian said:
“But the Board may rely on cumulative experience in devising its remedies. [Citation.] It has often confronted problems of daily turnover in California agriculture. [Citations.]
“The Board, an expert agency, has broad discretion to fashion remedies to effectuate the purposes of the act. Courts will interfere only where those remedies are patently unreasonable under the statute. [Citations.] We cannot say that the Sunnyside–J & L Farms formula, expressed as a general principle, is an unreasonable exercise of the Board's jurisdiction.” (35 Cal.3d at p. 745, 201 Cal.Rptr. 1, 677 P.2d 1170.)
Nish Noroian then cautioned “[t]hat a ‘daily’ formula is a proper rule of thumb, however, does not mean it may fairly be applied in an identical manner to all situations.” (35 Cal.3d at p. 746, 201 Cal.Rptr. 1, 677 P.2d 1170.) The court went on to make it clear the Board is expected to offset true substitute interim employment, even though worked on different days or in different seasons, in making its backpay calculation under the daily formula.
As is set forth in section 1160.3, the purpose of a backpay award is to make whole the employee who has been discriminated against as the result of an unfair labor practice. (Frudden Enterprises, Inc. v. Agricultural Labor Relations Bd., supra, 153 Cal.App.3d 262, 268, 201 Cal.Rptr. 371; N.L.R.B. v. Brown & Root, Inc. (8th Cir .1963) 311 F.2d 447, 452.) Making the discriminatee whole, of course, accommodates “as close approximations as possible” (N.L.R.B. v. Brown & Root, Inc., supra, 311 F.2d 447, 452), but does not encompass either unfairly enriching or short-changing the discriminatee.
The record before us discloses a substantial difference in the amounts involved when the backpay calculation is made under the Woolworth formula as compared to the daily formula. In the cases of Rodriguez and Bermea, the Administrative Law Judge (ALJ) computed backpay using the Woolworth formula and arrived at backpay figures, including expenses, of $9,041.33 and $6,701.41, respectively. The Board awarded Rodriguez and Bermea backpay using the daily formula in the amounts of $12,764.46 and $7,960.85, respectively. The figures using the daily formula are 41 percent and 18.7 percent, respectively, higher than those arrived at using the Woolworth formula.8 In the context of the rule requiring that the discriminatee be made whole, no more nor less, the substantial differences in the resulting figures necessitate a decision on which method is appropriate to accomplish the statutory purpose. For the following reasons, we find the Board must apply the Woolworth formula in this case.
The discriminatees here are steady, year-round employees during the growing season. For “steady, year-round” employees in the industrial sector, the usual rule under NLRB precedent is to apply the Woolworth formula, as Nish Noroian teaches and the Board recognizes. The fact the discriminatees here work seasonally is not alone sufficient to support a method of backpay calculation different from the usual Woolworth formula method for steady, year-round employees. Moreover, there is irreconcilable inconsistency in the concepts of steady, year-round employment, as found here, and the remaining factor the Board used as justification for its use of the daily formula, the fact that agricultural employees in general have sporadic employment. An employee cannot be in a position of having been “offered only sporadic employment” (Nish Noroian, supra, 35 Cal.3d at p. 744, 201 Cal.Rptr. 1, 677 P.2d 1170) while at the same time being a “steady, year-round” employee. The factor of sporadic employment has no application to the discriminatees involved in this case and thus cannot rationally support use of the daily backpay formula in contravention of the usual NLRB precedent of using the Woolworth formula to compute backpay in the case of “steady, year-round” employees.
We conclude the method of calculation chosen by the Board “ ‘was so irrational as to amount to an abuse of discretion.’ “ (Butte View Farms v. Agricultural Labor Relations Bd., supra, 95 Cal.App.3d 961, 967, 157 Cal.Rptr. 476, quoting from Bagel Bakers Council of Greater N.Y. v. N.L.R.B. (2d Cir.1977) 555 F.2d 304, 305.) As we have seen, there is here involved much more than a “ ‘somewhat different result’ “ which alone will not support invalidation of a choice of a particular computation method. (Ibid .) The matter must be remanded to the Board for recalculation of backpay on the basis of the Woolworth formula.
Abatti raises numerous issues pertaining to the substantiality of the evidence in connection with 12 of the 13 individual awards.9 In light of the conclusion we have reached in part I, ante, it is unnecessary to address many of these issues. We consider only those issues pertaining to the duration or tolling of the backpay period. Issues dealing with offsets from interim earnings are not ripe for decision because offsets will have to be recalculated under the Woolworth formula.
On the issues we consider, we are directed: “[F]indings of the board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall ․ be conclusive.” (§ 1160.8; Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 757, 195 Cal.Rptr. 651, 670 P.2d 305.)
Moreover, the Board is the ultimate factfinder, not the ALJ. (§ 1160.3; Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 794, 171 Cal.Rptr. 590, 623 P.2d 151; and see Abatti Farms, Inc. v. Agricultural Labor Relations Bd., supra, 107 Cal.App.3d 317, 336, 165 Cal.Rptr. 887, concurring op. by Staniforth, J.) On the burden of proof in these proceedings, the rules are:
“[T]he burden is upon general counsel to show by a preponderance of the evidence that the employer has been guilty of an unfair labor practice and that an award of backpay is justified. General counsel further has the burden to show the gross amounts of backpay due. When that has been done, however, ‘the burden is upon the employer to establish facts which would negative the existence of liability․’ (N.L.R.B. v. Brown & Root, Inc., supra, 311 F.2d at p. 454.)” (Frudden Enterprises, Inc. v. Agricultural Labor Relations Bd., supra, 153 Cal.App.3d 262, 268, 201 Cal.Rptr. 371.)
A. The Interim Disabilities of Andres Montoya and Elena Solano
There was ample evidence from which the Board could conclude Montoya's rheumatism and back injuries in 1979 and 1980 and Elena Solano's knee injury in March 1977 were closely related to the nature of the interim employment and not usual incidents of the hazards of living generally. Montoya, an Abatti shovel crew member, was injured as a result of interim employment pitching melons for employer Jose M. Estrada. Elena Solano, a member of Abatti's weed and thin crew, was injured while harvesting asparagus at Gourmet Harvesting. In each case, the Board could find tolling of the backpay was inappropriate. (American Mfg. Co. of Texas, supra, 167 NLRB 520, 522–523.)
B. The Disability Claim of Abelino Ortega
Ortega filed worker's compensation claims seeking permanent full disability for the periods May 1974 to November 1974 and March 1975 to August 1978. His physician for purposes of the claims testified to statements Ortega made about his inability to work during a period even extending into April 1980 when he was last examined by the physician. Yet, Ortega testified he was not disabled and diligently looked for work during the entire period, denying telling the physician he was unable to work due to his disability and establishing he did some interim junkyard work during the period from 1978 to 1980.
The Board resolved these and other conflicts in the testimony in Ortega's favor and determined his disability was established as of April 1980, and not before. The Board further found Ortega's worker's compensation claim, which had been dismissed without prejudice, alone is not sufficient to establish he was disabled and unable to work, relying on Dayton Tire & Rubber Co. v. N.L.R.B. (10th Cir.1979) 591 F.2d 566. Dayton Tire says, “[t]o the extent that the findings of the state [worker's compensation] agency can be considered inconsistent with those of the Board, the Board's findings are controlling on the issues before it.” (591 F.2d at p. 570.) This broad principle supports the Board's determination, and although as the ALJ noted, the evidence may be viewed with “some suspicion,” the Board's conclusion is consistent with its factfinding power.
C. The Strike Activity of Elena and Jesus Solano
Both Elena and Jesus Solano participated in the strike at Cal Coastal Farms in 1979 by regular picketing from three to seven hours per day, several days per week for several months. Each received $25 per week from the union. There was a small food allowance as well.
Elena and Jesus Solano testified they each looked for work in the mornings of each day before joining the picket line. As finder of fact, the Board properly could credit the testimony and conclude Elena and Jesus Solano were not willfully idle while participating in the 1979 strike with the result that the backpay period continued to run during their strike activity. (See International Trailer Company, Inc., etc. (1965) 150 NLRB 1205, 1213, 1218.)
D. The Capital Loss of Raul Jimenez
Soon after Jimenez left Abatti in 1976, he bought a car for $1,000 but sold it two months later for $400 in order to pay medical expenses related to the birth of his child. Medical insurance provided by Abatti would have covered these expenses had Jimenez still been working there. The Board awarded $600 for the capital loss.
Section 10610 of the NLRB Casehandling Manual excludes capital losses from the sale of personal possessions from the NLRB definition of allowable personal expenses. Abatti contends the Board erred in not following this NLRB “precedent.” In accord with its broad authority to fashion remedies, the Board could award the capital loss to Jimenez under these circumstances. The NLRB manual provision is not, technically, “precedent” as it does not represent binding decisional or statutory law. The award here is closely related to Jimenez' loss of work and, thus, loss of medical coverage at Abatti, it is in no way speculative and it directly carries out the purpose of backpay awards of making employees whole. As the ALRB points out, had Jimenez spent cash on hand for this medical expense, the amount would have been reimbursed. (Sam Tanksley Trucking, Inc. (1974) 210 NLRB 656, 660.) There is no basis for distinguishing Jimenez' situation of medical need and its direct relationship with his loss of work at Abatti.
E. Board's Refusal to Toll Backpay Period of Ramon Berumen and Francisco Ortiz During Interim Work for Abatti
Berumen and Ortiz were employed by Abatti as shovelers working year-round before it wrongfully refused to rehire them in 1976. Abatti rehired Berumen on its melon crew, a seasonal job, from October 1, 1978, to March 23, 1981. Abatti rehired Ortiz on the melon crew from April 11, 1977, to March 23, 1981. On March 23, 1981, both Berumen and Ortiz refused reinstatement to the shoveler crew.
Looking to the year-round versus seasonal nature of the positions, the Board found the melon crew jobs were not substantially equivalent to the shoveler jobs and determined the backpay period would not be tolled. The Board also did not credit Abatti with the melon crew wages it paid to Berumen and Ortiz for purposes of offset, as a result of the Board's application of the daily formula.
The Board's determination there was no cutoff of the backpay period due to the absence of substantially equivalent employment is supported by substantial evidence. We note, however, upon its recalculation of backpay under the Woolworth formula, the Board should take into account for offset purposes any applicable interim earnings from Abatti just as it would interim earnings from any other employer.
F. Board Tolling and Offset Decisions Contrary to ALJ in Cases of Miguel Lopez Chavez and Martinez Chavarria
In Chavez' case, the ALJ tolled from the backpay period the time between July 15, 1980, and September 20, 1980, as time during which Chavez was out of the United States on family sick leave. The general counsel introduced some payroll stubs under the name Miguel Lopez, Chavez' first and middle names, showing earnings during that time, but no social security number tied them to Chavez. The ALJ credited testimony of an ALRB agent who recounted interviews with discriminatees during which he learned Chavez was out of the country on family sick leave during the time in question. Chavez did not testify about this time frame.
In Chavarria's case, the ALJ offset certain earnings in Woodland during 1976 and 1977.
In both cases, though there was no exception by either party to the ALJ's recommendation, the Board went the other way, counting the period in question in Chavez' case as part of the backpay period and deleting the offset in Chavarria's case. Again, as the ultimate factfinder, the Board could make its findings contrary to those of the ALJ based on its own views on the weight or credibility of the evidence. That it did here.
Having reached this conclusion, it is unnecessary to address the Board's position, based on Nish Noroian, that where a decision of the Board rests on grounds not previously addressed by the parties, the appropriate action is to seek reopening for further evidence if that appears necessary, i.e., move for reopening or reconsideration of the agency's decision on grounds of “extraordinary circumstances”; and barring such action, the aggrieved party cannot complain of a denial of fair procedure. (Nish Noroian, supra, 35 Cal.3d 726, 742, 201 Cal.Rptr. 1, 677 P .2d 1170, citing Cal. Admin.Code, tit. 8, § 20286, subd. (c).)
G. The Board's Determination on Reinstatement Offer to Isodore Andrade Prieto
In November 1980, ALRB Field Examiner David Arizmendi contacted Andrade, telling him he would most likely be reinstated by Abatti in the near future. In writing, the ALRB agent then furnished Abatti with certain addresses, including Andrade's address, “to facilitate reinstatement.” In January 1981, Abatti mailed a postcard offering reinstatement to Andrade at the address furnished by the ALRB agent, but there was no response to the postcard. Abatti sent a second reinstatement postcard to Andrade at the same address with the same result. Abatti followed this action with a certified letter offering reinstatement to Andrade, but the letter was returned. Abatti sent a copy of this returned letter to the ALRB agent. In the summer of 1981, the ALRB agent telephoned Andrade and discussed Abatti's offer of reinstatement. In January 1982, Richard Delgado, a second ALRB field examiner, wrote Abatti saying reinstatement was satisfied. Abatti did not telephone Andrade though it had his number.
On these facts, the Board affirmed the ALJ's finding Andrade did not receive a valid offer of reinstatement until the hearing and was not reinstated until May 24, 1982. (9 ALRB No. 59, p. 6.) In reaching his decision backpay would not be tolled effective January 1981, based on a good faith offer of reinstatement (see Knickerbocker Plastic Co., Inc. (1961) 132 NLRB 1209, 1218), the ALJ relied on Monroe Feed Store (1959) 122 NLRB 1479, 1480–1481, in which it was held that mailing to the last known address was not a bona fide offer of reinstatement since other means were available to the employer to find out the current and correct address of the employee. The ALJ also relied on National Labor Relations Board v. Jay Co. (9th Cir.1954) 227 F.2d 416, 419, in which tolling due to a good faith offer of reinstatement was not at issue since the NLRB had tolled running of the backpay period on the basis the letter was mailed in good faith even though the letter mailed to the employee's last known address was returned to the sender. The issue in Jay Co . was whether the sending of the letter removed any obligation to reinstate the employee. The court, noting the employer could have made better efforts to find a current address for the employee, upheld the NLRB determination the employer did not comply with its duty to remedy the wrong for purposes of avoiding a reinstatement order altogether. (Jay Co., supra, 227 F.2d at p. 419.)
Jay Co. thus is consistent with the Knickerbocker Plastic Co. rule that if the offer of reinstatement, whether or not received by the addressee, is made in good faith, it will serve to toll the backpay period.
Here, the Board misapplied the law to the facts. The only issue was Abatti's good faith in mailing the offers of reinstatement. The Board's own agent, Arizmendi, furnished Andrade's address and discussed reinstatement with Andrade before the postcards and letter were sent. The reliability of the address Abatti used or its lack of effort to find an accurate address thus do not furnish any basis on which to resolve the issue of whether Abatti made a good faith offer of reinstatement. (Cf., Monroe Feed Store, supra, 122 NLRB 1479.) Arizmendi, the Board's own agent, demonstrated a belief in the good faith of the offer when he discussed the reinstatement offer with Andrade in the summer of 1981 after the postcards and letter were sent. Finally, the Board's own agent, Delgado, further confirmed the good faith of the offer of reinstatement by repeatedly stating the offer was satisfactory. Under these circumstances, there is overwhelming evidence Abatti's offer of reinstatement in January 1981 was made in good faith. Accordingly, under the Knickerbocker Plastic Co. rule, the backpay period must be tolled as of January 1981, when the good faith offers of reinstatement were mailed to Andrade.
H. Burden of Proof
Abatti has raised certain issues pertaining to the burden of proof. In light of the conclusions we have reached, those issues need not be addressed in detail. In further proceedings, the parties shall follow the rules on burden of proof set forth in Frudden Enterprises, Inc. v. Agricultural Labor Relations Bd., supra, 153 Cal.App.3d 262, 268, 201 Cal.Rptr. 371.
The Board's backpay award in 9 ALRB No. 59 is annulled and the matter is remanded for further proceedings consistent with this opinion. In all other respects, the Board's order in 9 ALRB No. 59 is enforced.
I respectfully dissent.
Abatti seeks to overturn final orders of the Agricultural Labor Relations Board (ALRB) awarding backpay to 13 discriminatees.1 This appeal court's task commences with the recognition of but one fundamental standard for appellate review. The power to review factual findings of the Board is limited. Such findings 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., 24 Cal.3d 335, 343, 156 Cal.Rptr. 1, 595 P.2d 579; Universal Camera Corp. v. National Labor Rel. Bd., 340 U.S. 474, 71 S.Ct. 456, 464, 95 L.Ed. 456; N.L.R.B. v. Pacific Grinding Wheel Co., Inc. (9th Cir.1978) 572 F.2d 1343, 1347; N.L.R.B. v. Warren L. Rose Castings, Inc. (9th Cir.1978) 587 F.2d 1005, 1008.) “[I]f there is evidence to support each of two conflicting views, the findings of the Board must be allowed to stand despite the fact that we might have reached the opposite conclusion on our own. [Citations.]” (N.L.R.B. v. Pacific Grinding Wheel Co., Inc., supra, 572 F.2d 1343, 1347.) We therefore are required to start with the findings as made by the Board and if found to be in accordance with the law and supported by substantial evidence, we must accept them. (N.L.R.B. v. Miller Redwood Company (9th Cir.1969) 407 F.2d 1366, 1369.)
Where there is disagreement between the administrative law judge and the Board's conclusion, the substantial evidence rule is not modified. “If the Board ‘can point to evidence’ which supports its inference and if this evidence is ‘substantial’ when measured against the ALJ's contrary findings as well as opposing evidence, its finding must be upheld.” (Harry Carian Sales v. Agricultural Labor Relations Bd., 39 Cal.3d 209, 243, 216 Cal.Rptr. 688, 703 P.2d 27.) Thus, even if the evidence will support two fairly conflicting views, the appeal court may not displace the Board's choice even though it might have reached a different conclusion had it been the factfinder. (See concurring and dissenting opn. of Tamura, J. in George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd., 111 Cal.App.3d 258, 280, 168 Cal .Rptr. 537.) The statutorily mandated deference to findings of fact run in favor of the Board and not in favor of the initial trier of facts, the administrative law judges. (Penasquitos Village, Inc. v.. NLRB (9th Cir.1977) 565 F.2d 1074, 1076; George Arakelian Farms, Inc., supra, 111 Cal.App.3d at p. 280, 168 Cal.Rptr. 537.)
The decision involved in this case requires the drawing of inferences based upon the peculiar facts of this case placed in context of the accumulated experience of the Board. (See Abatti Farms, Inc. v. Agricultural Labor Relations Bd., 107 Cal.App.3d 317, 327, 165 Cal.Rptr. 887; Triple E Produce Corp. v. Agricultural Labor Relations Bd., 35 Cal.3d 42, 196 Cal.Rptr. 518, 671 P.2d 1260, dissenting opn. by J. Broussard, p. 59, 196 Cal.Rptr. 518, 671 P.2d 1260.) “These questions presented to the Board were of such nature as to call for expertise. Presumptively, the Board is equipped or informed by experience to deal with this specialized field of knowledge; therefore their findings carry the authority of an experience which the courts do not possess and therefore must respect. (Universal Camera Corp. v. Labor Board, 340 U.S. 474, 488 [71 S.Ct. 456, 464, 95 L.Ed. 456]․)” The majority errs because it fails to examine the decision and orders of the Board here in light of these fundamental premises.
It is Abatti's fundamental contention the Board improperly applied the daily pay formula in determining the amount of backpay owed the 13 discriminatees. The Board applied the “Sunnyside Nurseries, Inc. backpay formula” ((1977) 3 A.L.R.B. No. 42) approved by the California Supreme Court in Nish Noroian Farms v. Agricultural Labor Relations Bd., 35 Cal.3d 726, 201 Cal.Rptr. 1, 677 P.2d 1170, where the court said: “Under a formula first adopted by the [ALRB] in Sunnyside Nurseries, Inc․, backpay owed to an unlawfully discharged employee for a particular day may be offset only by wages earned in outside employment on that same day.” (Id., at p. 732, 201 Cal.Rptr. 1, 677 P.2d 1170.) In Noroian, the Supreme Court affirmed the Board's backpay order—based on the Sunnyside formula—in full. (Ibid.)
Abatti contends the Board improperly applied the Sunnyside daily backpay formula; it should have offset interim earnings against backpay on a quarterly basis as provided for in F.W. Woolworth Company ((1950) 90 NLRB 289.) Under the Woolworth formula, all interim earnings for a three-month period are deducted from backpay otherwise due the employee for the same three-month period.
To determine the validity of this contention of use of an improper measure or standard for determining the backpay due, a detailed examination of the Nish Noroian decision is in order to determine the scope and import here of its holdings.2
Nish Noroian Farms v. Agricultural Labor Relations Bd., supra, 35 Cal.3d 726, 201 Cal.Rptr. 1, 677 P.2d 1170, held an unlawfully discharged employee must use reasonable diligence to mitigate his loss by seeking other suitable employment; sums earned from the interim work are to be deducted from the backpay otherwise due. (Id., at p. 743, 201 Cal.Rptr. 1, 677 P.2d 1170.) The Supreme Court illustrated the rule as follows: Under this formula if a claimant would have worked on Monday, Tuesday, Thursday and Friday of a specific week but for the unlawful discharge, then his interim earnings for Wednesday of that week would not be offset against the employer's liability.3 In Nish Noroian, as here, Abatti urges the “daily formula” was punitive and beyond the Board's remedial discretion. Here, however, in contradistinction to Nish Noroian, Abatti did demur, did complain to the Board of its use of the Sunnyside backpay formula. In this detail Abatti has not failed to exhaust its administrative remedy; the employer is not thereby foreclosed from any argument before this court. (Id., at p. 743, 201 Cal.Rptr. 1, 677 P.2d 1170; George Arakelian Farms, Inc. v. Agricultural Labor Relations Board, 40 Cal.3d 654, 221 Cal.Rptr. 488, 710 P.2d 288.)
The Nish Noroian court disposed of the argument made as to applicability of the Woolworth “quarterly” rule, stating:
“At the outset, we reject any suggestion that the formula is unfair because it departs from the NLRA policy of offsetting interim earnings against backpay on a quarterly basis as provided in F .W. Woolworth Company (1950) 90 N.L.R.B. 289. Woolworth is applied only to the industrial norm of steady, year-round employment. Noroian concedes that the NLRB uses a formula similar to that of Sunnyside and J & L Farms where the violating employer had offered only sporadic employment.” (Nish Noroian Farms v. Agricultural Labor Relations Bd., supra, 35 Cal.3d 726, 744, italics added, fn. omitted, 201 Cal.Rptr. 1, 677 P.2d 1170.)
The Supreme Court further pointed out: “Indeed, in appropriate cases, the NLRB employs an ‘hourly’ formula. Earnings from supplementary work employee performs outside the hours he would have worked for the original employer are not deductible from gross backpay. [Citation.]” (Nish Noroian, supra, 35 Cal.3d 726, 744, 201 Cal.Rptr. 1, 677 P.2d 1170.)
Continuing, the Supreme Court stated:
“The ALRB's similar rule, which it applies generally, is based on the seasonal and sporadic nature of the agricultural employment. For employment of that kind a daily formula makes eminent sense. Noroian does not dispute that farm workers are often hired on a day-by-day or part-week basis; they may spend a typical work week in service of several different growers. A worker hired for a three-day week remains available for employment elsewhere on the other two days. No one would suggest that earnings from the job on those two days should be subtracted from his pay for the three-day employment.” (Ibid., italics added.)
The Supreme Court explained “[t]he situation is no different after the employee is discharged unlawfully from the three-day job. Subsequent earnings from other employers on the other two days are not a substitute for the lost three-day employment. The principal goal of a backpay award, ‘[to restore] the situation, as nearly as possible, to that which would have obtained but for the illegal [discharge]’ (Woolworth, supra, 90 N.L.R.B., at p. 292), can only be achieved by continuing to recognize the separateness of those earnings.” (Nish Noroian, supra, 35 Cal.3d 726, 744–745, 201 Cal.Rptr. 1, 677 P.2d 1170, italics added.)
The Supreme Court concluded in the context of “seasonal” or “sporadic” employment, the daily formula also serves the other objectives cited in Woolworth. Without a daily formula, explained the Supreme Court:
“[A]n agricultural employer who had discharged a three-day employee unlawfully could escape liability by withholding reinstatement as long as the employee's earnings elsewhere during the other two days were higher. And the employee might be induced to waive reinstatement to his three-day job in order to prevent the further offset of earnings on the other two days against accrued backpay.” (Nish Noroian, supra, 35 Cal .3d 726, 745, 201 Cal.Rptr. 1, 677 P.2d 1170.)
Again, most important is the Supreme Court's response to Noroian's argument that the “Board had no right to ‘assume’ the sporadic nature of agricultural employment.” (Ibid.) The court said:
“Here, it [Noroian] urges, the record shows Becerril and Baca had been employed steadily during the irrigation season. But the Board may rely on cumulative experience in devising its remedies. (Labor Board v. Seven–Up Co. (1953) 344 U.S. 344, 348–349․)
“The Board, an expert agency, has broad discretion to fashion remedies to effecutate the purposes of the act. Courts will enter only where those remedies are patently unreasonable under the statute. [Citations.]” (Id., at p. 745, 201 Cal.Rptr. 1, 677 P.2d 1170, italics added.)
The Supreme Court concluded it could not say that the Sunnyside formula was an unreasonable exercise of the Board's jurisdiction.
But the Supreme Court continued with this caveat:
“That a daily formula is a proper rule of thumb “however, does not mean it may fairly be applied in an identical manner to all situations. It would be unfair not to offset wages from true substitute employment, even if the new work is performed on different week days, or even in different seasons, than was the unlawfully terminated job. For example, if an agricultural employee replaced a steady full-time Wednesday–Sunday job with similar full-time Tuesday–Thursday work under circumstances indicating the latter position was a true substitute for the former, his Monday and Tuesday wages in the new position should not be exempt from offset.”
“The Board concedes that, in a supplementay backpay proceedings, the employer may introduce evidence of the discharged employee's work history. The Sunnyside–J & L Farms formula will then be applied equitably to the facts adduced.” (Nish Noroian, supra, 35 Cal.3d 726, 746, 201 Cal.Rptr. 1, 677 P.2d 1170, italics added.)
The Supreme Court then further illustrated the Board's varied backpay remedies as applied in Mario Saikhon, Inc. (1983) 9 A.L.R.B. No. 50. The Board (in Saikhon ) after review of the employee's (Alejo) particular work history determined he had established a pattern of working steadily and full time during the Imperial Valley lettuce season but taking the rest of the year off. After his unlawful discharge he moved permanently to Salinas where lettuce was harvested a different time of the year. There he resumed his pattern of full-time, singleseason employment in lettuce. The Board concluded the subsequent employment though it occurred only during days and seasons when the employee would not have been working for his former employee was a substitute for the prior. The Board therefore ordered an offset against backpay.
The Supreme Court held Noroian may introduce evidence of the employees' employment history.
“The evidence already available suggested that Becerril and Baca were employed steadily except for annual layoffs during the winter hiatus in irrigation at Noroian. Becerril and Baca were, of course, available for other work during any such hiatus period. Thus, amounts they have earned from other employment during the subsequent winter seasons should not be deducted from the gross pay they would have earned from Noroian in other seasons. [Citations.]” (Nish Noroian, supra, 35 Cal.3d 726, 746, fn. 11, italics added, 201 Cal.Rptr. 1, 677 P.2d 1170.)
From the Nish Noroian decision this rational conclusion follows: The Supreme Court allocated to the Board the factual inquiry whether interim work was a true substitute for employment that has been unlawfully denied. (Nish Noroian, supra, 35 Cal.3d 726, 745, 201 Cal.Rptr. 1, 677 P.2d 1170 .) “The Board, an expert agency, has broad discretion to fashion remedies to effectuate the purposes of the act.” (Ibid.)
Secondly, the Supreme Court's opinion further clearly indicates it is the employer's evidentiary burden to establish facts at the backpay hearing which would warrant a deviation from the daily formula norm. (See Nish Noroian, supra, 35 Cal.3d 726, 746, 201 Cal.Rptr. 1, 677 P.2d 1170; Frudden Enterprises, Inc. v. Agricultural Labor Relations Bd., 153 Cal.App.3d 262, 268, 201 Cal .Rptr. 371.)
After Nish Noroian and in conformity with those views expressed, the burden of proof has been expressly placed on the employer on this issue. In Verde Produce Company, Inc. (1984) 10 A.L.R.B. No. 35, the harvesters were discriminatees, recipients of unfair labor practice by the employer. The Board held: “But for the discrimination the discriminatees would have worked during the 1979–80, 1980–81, and 1981–82 harvests from the beginning of December to the end of March. [Verde's] payroll records indicate that the work week would have been from Monday to Saturday and would have varied from three to six days per week (although six days was the norm), depending on the availability of work.” (Id., at p. 4.) The Board points out “the great fluctuation in daily earnings suggests that work days were of widely varying lengths.” (Ibid.) The Board held: “[W ]e believe it was [Verde's ] burden to produce interim earnings data in more specific form.” (Id., at p. 6.) (See also Mario Saikhon, supra, 9 A.L.R.B. No. 50, cited with approval in Nish Noroian, 35 Cal.3d at p. 746, 201 Cal.Rptr. 1, 677 P.2d 1170.)
Thus Nish Noroian, Frudden, Verde and Siakhon decisions direct a two-step analysis in the inquiry whether interim work earnings are to be offset on a formula other than the daily. First, the facts must establish that the work was itself a true substitute. In both Siakhon and Verde the work, the wages, and the weekly work schedule and the seasons' length all matched. The interim work obtained by Alejo in Saikhon and by Vargas in Verde reflected two true substitute employments. Second, the facts should establish that the discrimination victims' employment histories were such that when no work was available at the respondent's [Abatti here] farm, the victim did not customarily seek supplemental income from other similar employment.
In Saikhon the employer carried this evidentiary burden as to employee Alejo. (Mario Saikhon, Inc., supra, 9 A.L.R.B. No. 50.) In Verde the victim testified he did not seek supplemental employment on the odd days off. The Supreme Court's reference to the “hiatus period” (in Nish Noroian ) discloses the significance of the victim's work history with respect to seeking supplement income. (35 Cal.3d 726, 746, fn. 11, 201 Cal.Rptr. 1, 677 P.2d 1170.) It is a fair deduction from Noroian, Frudden, Saikhon and Verde the employer bears the evidentiary burden of establishing the facts at least by preponderance of the evidence to warrant an abandonment of the daily formula norm.
In determining whether a discriminatee has sought for and/or has been offered reinstatement to a substantially equivalent job or has obtained a substantially equivalent interim employment is a complex interrelated factual-legal question to be resolved on a case-by-case basis. National Labor Relations Board (NLRB) precedent teaches that a whole series of factors must be considered, including wages, hours, types of employment, whether temporary or permanent, as well as the nature of work history of the discriminatee. NLRB decisions declare substantially equivalent interim employment is employment at the same or greater rate of pay in a production type of job with a reasonable continuation of employment and expectation of future employment. (Southeastern Envelopes, Inc., 246 NLRB 423.) In order to be “substantial equivalent” a job must as nearly as possible place the discriminatee in the situation he or she would have obtained but for the illegal determination. (Phelps Dodge Corp. v. National Labor Relations Bd., 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271.) In effect, it is the employer's obligation to restore the discriminatee to status quo ante. (Id., at p. 194, 61 S.Ct. at 852.)
Can the determination of what constitutes a “substantially equivalent” employment be answered in a mechanical application? The NLRB and our Supreme Coutt decisions teach the issue must be determined on a case-by-case basis through an objective appraisal of a number of factors both tangible and intangible. (Littlerock Air Motive, Inc., 182 NLRB 666.) Such factors as wages, hours, fringe benefits, retention, job skills required, job location and distance, difference in duties and responsibilities, working conditions and other work-related factors must be considered. Both similarities and dissimilarities of the job must be considered and they must be considered together as well as individually. (J.B. Industries, Inc ., 245 NLRB 538.) A substantially equivalent job has been held not to have been found when the job was merely temporary. (John Lutts Welding & Fabricating, Inc., 239 NLRB 582) or the salary was less (Chase Natl. Bank of the City of New York ) or the work or assignment involved was less desirable (Royal Crown Bottling Co., Inc., 188 NLRB 352) or the work required different skills, involved different working conditions (Polynesian Cultural Ctr., Inc. v. N.L.R.B. (9th Cir.1978), 582 F.2d 467) the work was harder (Ramona's Mexican Food Products, Inc., 203 NLRB 63) the work shift was different (American Medical Ins. Co., Inc., 235 NLRB 1417) was at a different location (Scientific Pest Control Corp., 224 NLRB 1651). Because of the unique and sporadic nature of agricultural employment (as noted in Noroian ) a determination of what constitutes a “substantially equivalent” employment in agricultural setting is more difficult than in the industrial sector.
The administrative law officer (ALO) as well as the Board acknowledged, relied upon and applied the foregoing broad principles in determining the 13 claims for backpay. Each of the 13 discriminatees, according to Abatti, obtained substantially equivalent employment with another employer before being offered reinstatement. Therefore it urges backpay liability should be tolled as to each. Back pay liability for each discriminatee continues to accrue but is to be offset by a discriminatee's earnings in substantially similar employment and the offset may not exceed the amount of interim earnings earned by the discriminatee. Thus if the interim earnings calculated on a daily basis equal or exceed the gross backpay due, there is no net backpay liability. The gross backpay liability terminates only when the good faith offer of reinstatement is made to the former job or a substantially equivalent job if the former job is unavailable or if the discriminatee waives or abandons his or her right to reinstatement. (Monstro Plastic Corp., 136 NLRB 1342.) The Board concluded all 13 discriminatees had made reasonably diligent efforts to seek interim employment, none obtained substantially equivalent employment with an interim employer.
It is in light of the foregoing rules, Abatti's contention the ALRB legally erred when it applied its daily backpay formula must be examined. The answer to the question posed is to be found in a thicket of factual determinations made as to each of the 13 discriminatees, and the decisive question: Does substantial evidence support the Board's choice of remedy as well as awards made?
The record shows Isidoro Andrade Prieto worked one and a half years for Abatti before being terminated on January 24, 1976. Andrade was employed as a tractor driver. Eighty percent of the tractor drivers worked year-round. At the time of his termination, Andrade had as much seniority as half of Abatti's tractor drivers.
Following termination, Andrade remained unemployed until May 15, 1976. During this period of unemployment, Andrade sought work approximately three times per week in the early morning hours. He contacted foremen at various agricultural operations and talked to friends and acquaintances concerning job leads.
On May 15, 1976, Andrade obtained a job at Valley Nitrogen. He was laid off on May 31, 1976.
Upon being laid off at Valley Nitrogen, Andrade resumed his search for alternative employment. His job searches took him all over the Imperial Valley, from his home in Heber beyond Westmoreland, at a cost of $5 per day and up to $30 per week.
On June 30, 1976, Andrade found employment at Danny Dannenberg Farms. He was employed as a machine operator, driving tractors, etc. Andrade continued in Dannenberg's employ until he was laid off on December 22, 1976.
Again, upon being laid off, Andrade began searching for other employment as a machine operator. In addition to contracting foremen and other employees with whom he was acquainted, he contacted the state employment office.
On January 26, 1977, Andrade obtained a job with D'Arrigo Brothers as a machine operator. He worked there until February 19, 1977, when he was laid off. Two days after being laid off Andrade was hired by Samra and Thind, where he worked until June 26, 1977. On June 26, Andrade was recalled by D'Arrigo and worked there until March 9, 1978. Andrade was laid off by D'Arrigo on March 9 and remained unemployed for three months. Finally, on June 12, 1978, Andrade landed a job, for one day, with El Don, a labor contractor.
Thereafter, on July 18, 1978, Andrade was once again recalled by D'Arrigo. He worked steadily for D'Arrigo until March 3, 1979, when he was laid off.
After engaging in yet another search for employment, Andrade obtained work with Glen Shumard, with whom he worked from July 16, 1979, until August 18, 1979. On August 20, 1979, Andrade returned to work for D'Arrigo, working continuously for D'Arrigo up to February 2, 1980. He has worked exclusively for D'Arrigo since that time. Andrade, during periods of layoff since 1979, was able to find employment to supplement his D'Arrigo earnings.
After the layoff of February 2, 1980, Andrade was recalled by D'Arrigo on June 10, 1980. He worked steadily until he was laid off on February 17, 1981. Andrade was recalled on June 19, 1981, and worked without further layoff until April 24, 1982.
On May 24, 1982, Andrade was reinstated to his former position with Abatti.
Abatti argues substantial evidence does not support the Board's finding that Andrade's backpay liability was not tolled until May 24, 1982. Abatti asserts its backpay liability to Andrade was tolled by its efforts to contact him in January 1981. Abatti relies upon cases in which the employee had notice of the offer of reinstatement but rejected it. (N.L.R.B. v. Murray Products, Inc. (9th Cir.1978) 584 F.2d 934, 940–942.) These cases are not in point because Andrade never received the offer of reinstatement. Andrade had not absented himself, left the country. This is not the case factually where the employer did not know his whereabouts. While a good faith offer of return to work will toll the employer's backpay liability, this rule has not been employed in cases where the employer knew the employee had not actually been contacted by means of a letter or telephone call and had other means of possibly contacting the employee but did not attempt to do so. (Reaves Rubber, Inc., 252 NLRB 134; Marlene Industries Corp., 234 NLRB 285.) In the above cited cases, the employer used the telephone number or address that it had to write or call the employee. In each case, the employer was unsuccessful. The employers though had other means of attempting to reach the employee, such as a known acquaintance, the union or the employee's last known address. In each case, the NLRB held the employer's efforts were not sufficient to toll the employer's back pay obligation since by its wrongful conduct the employer had precipitated the problem.
Here Abatti admits the certified letters were returned. Thus Abatti knew that Andrade had not been contacted, yet it made no further attempts to contact him. Abatti did not contact the ALRB from whom it had obtained Andratti's address. It did not contact the UFW union. No foreman was sent to Andrade's home as was done in the case of Jiminez, infra. In fact the company did not check its files for an address or telephone number which had been supplied it by Andrade while working for the company. If more evidence to support the Board's finding is needed, the company foreman had visited Andrade at his home several years earlier to advise that Tony Abatti wanted to see him.
Substantial evidence supports the Board's decision (conformable to NLRB precedent) that the backpay liability to Andrade continued to May 24, 1982. Abatti argues this court should not deny enforcement to the pay award to Andrade because of an ALRB employee's acts (unknown to Andrade) resulted in representation that the company had met its obligation to offer reinstatement. By this contention, Abatti seeks to raise a species of estoppel. The necessary elements of estoppel have not been shown here. (City of Long Beach v. Mansell, 3 Cal.3d 462, 489, 91 Cal.Rptr. 23, 476 P.2d 423.) At least three of the four elements to establish an equitable estoppel are not present in this case. Significantly, no misleading act on the part of discriminatee Andrade supports an estoppel.
BERUMEN AND ORTIZ
Ramon Berumen and Francisco Ortiz were shoveler employees year-round until fired January 23–24, 1976. Berumen and Ortiz accepted seasonal employment on an Abatti melon crew during the backpay period. Both men before termination had worked as year-round members of Abatti's shovel crew. Both men searched diligently for other work. Each obtained some short-term work. These men returned to work for Abatti on the melon crew (Oct. 1, 1978) before being offered reinstatement to their former jobs as shovelers. As shovelers, both Berumen and Ortiz worked year ‘round for Abatti.5 The obtained employment on the melon crew was seasonal and both men suffered economic losses when they worked on the melon crew. The shovelers jobs were still available and each was entitled to an offer of reinstatement to his former job. By any of the established tests of determining substantially equivalent employment, Berumen and Ortiz did not obtain substantially equivalent employment when they began working on the melon crew. Thus Abatti's backpay liability continued until they were offered reinstatement to their former jobs. (See N.L. R.B. v. Blue Hills Cemetery, Inc. (1st Cir.1977) 567 F.2d 529.)
As noted above, the employer's backpay liability is tolled (1) where it reinstates the discriminatee to his or her former job or a substantial equivalent or (2) the discriminatee rejected such a reinstatement. (Polynesian Cultural Ctr., Inc. v. N.L.R.B., supra, 582 F.2d 467, 475–476, back pay liability was not tolled where the employee had formerly worked as a cultural demonstrator but rejected offer of reinstatement to an office worker position; N.L.R.B. v. Aycock (5th Cir.(1967) 377 F.2d 81, 84, the employer reinstated a capping machine operator to a truck driver instructor with equal pay; the court held such reinstatement did not toll the backpay obligation.) In Delorean Cadillac, Inc., 231 NLRB 329, the offer of position as a used car salesman to former new car salesman did not operate to toll the backpay. The foregoing rules of law make it manifest that the Board did not abuse its discretion in holding Berumen nor Ortiz were not reinstated to their positions entitling Abatti to toll its backpay liability. Both had previously been employed as shovelers, a job requiring different skills than that of melon harvesters to which they were reinstated. The shovel crew job consisted of year-round, whereas the harvest work taken by them was seasonal. Without shadow of doubt substantial evidence supports the application of the daily formula and the backpay liability found by the Board.
CHAVARRIA AND CHAVEZ
Lorenzo Chavarria worked on Abatti's shovel crew until his termination on January 29, 1976. With the exception of a single day's work, he was unable to find another job until March 26, 1976.
During this period of his unemployment, Chavarria daily went to El Hoyo in Calexico where he sought work. Labor contractors gather at El Hoyo to hire and transport workers to the fields.
From March 26, 1976, until July 20, 1976, Chavarria worked for Freedman/Travertine thinning grapes. Chavarria found his next job in Woodland, California, with Jose, a labor contractor.
During December 1976 and January 1977, Chavarria again worked for Freedman/Travertine in the Coachella area, pruning grapes. He was laid off at the end of January 1977 at which time he began searching for other work in the Coachella area. In March 1977 he was recalled by Freedman/Travertine. That summer, he again worked for the labor contractor in Woodland. Thereafter, he returned to Coachella, where in January 1978, he was recalled by Freedman/Travertine. He worked there from January to July 1978.
Chavarria was rehired by Freedman/Travertine in the fall of 1978. Indeed, up to the date of the hearing, since 1978 he had worked exclusively for Freedman/Travertine.
In late January 1981, Chavarria rejected an offer of reinstatement to his former job with Abatti.
The evidence establishes Chavarria found substantial employment with one employer during the backpay period. Abatti argues his backpay liability was tolled by this fact; the Board erred in applying its daily backpay formula to this case. The facts show that Chavarria was employed as a shoveler. The substantial employment he obtained with another employer was a pruner or thinner of grapes. Moreover, Chavarria was deprived of year ‘round employment with Abatti. He worked only seasonally for other employers.
The issue of “substantially equivalent employment” was factually and legally litigated. The evidence regarding interim wage suggested he had not obtained substantially equivalent employment prior to Abatti's offer of reinstatement in 1981. Chavarria's earnings were significantly less from the grape pruning work.
Abatti's contention that Chavarria's subjective state of mind resulted in a waiver of the right to backpay was properly rejected. (N.L.R.B. v. East Texas Steel Castings Company (5th Cir.1958) 255 F.2d 284.) Substantial evidence supports the Board's finding of no substantially equivalent employment as well as the calculation of earnings on the daily formula loss.
Miguel Chavez was a member of Abatti's sprinkler crew before discharge. He worked year-round. He diligently sought work after termination. Chavez found substantial seasonal work with Bud Antel harvesting lettuce and with other labor contractors.
Chavez sought but was unable to find work in Imperial Valley during 1976. He testified he contacted growers several times a week. In 1977 he worked for Bud Antel during the lettuce season 1977 and 1978 and for Bud Antel again in Salinas in 1979. He rejected Abatti's reinstatement offer in 1981. The ALO determined this interim employment did not equate with Abatti's year-round sprinkler job. The interim work was seasonal, involving lettuce harvest, required traveling with the crops. The work for Abatti was steady every month if sporadic within any month. The loss in wages was reflected in daily calculations. Substantial evidence supports the Board's conclusion the daily formula was appropriate, that substantial equivalent employment was not obtained and the wage loss was factually proven.
In summary, neither Chavarria nor Chavez obtained substantially equivalent employment during the backpay period with Abatti or any other employer, as that term is defined. Each was a year-round employee with Abatti but obtained seasonal work requiring different skills than that performed for Abatti.
Following his layoff as a sprinkler, Raul Jimenez immediately diligently began searching for interim employment. He obtained sporadic employment only in the backpay period.
Abatti claims the Board's backpay calculation as to Raul Jimenez (and Chavez) are inaccurate because the Board assumed year-round employment and as the least senior members of the sprinkler crew, neither Jimenez nor Chavez was entitled to year-round work. Abatti argues the two employees would not have been transferred to work of other crews when there was no work for them on the sprinkler crew.
Whether Chavez and Jimenez were entitled to year-round employment was a necessary factual determination, a predicate to establish Abatti's backpay liability question. In determining this issue, the Board found they were year-round employees. These facts were considered by the Board (but ignored here by Abatti) in arriving at this conclusion. Seniority lists were supplied by the company. These lists showed that only five employees (possibly six) had as much seniority as Jimenez and Chavez. The fact only five (or at most six) employees had a greater seniority than Jimenez and Chavez substantiates the Board's determination they were year-round employees. Abatti provided no 1975 date of hire for the sixth sprinkler employee Ignasio Rios. Further support for the Board's choice of the daily formula based upon year-round employment of Jimenez and Chavez was foreman Sanchez' testimony that Abatti almost always employed two units of men in the sprinkler crew of eight workers; that the workers of the sprinkler crews are given work in other crews when there was no available sprinkling work. Thus the sprinkler crew members work year-round although the job may have included shoveling, tractor driving or other work. In this factual circumstance, the Board was entitled to conclude that he, Rios, had less seniority than either Chavez or Jimenez.
Abatti claims that the Board improperly placed the burden on it of disproving the general counsel claim. The law is to the contrary. The employer bears the burden of proving the facts which reduces its liability to the wronged employees. Once the general counsel proves the amount of gross backpay due, the employer must establish any and all facts reducing its liability. (Frudden Enterprises, Inc. v. Agricultural Labor Relations Bd., supra, 153 Cal.App.3d 262, 201 Cal.Rptr. 371.) In N.L.R.B. v. Dodson's Market, Inc. (9th Cir.1977) 553 F.2d 617, 619, the employer failed to prove the employee would not have been entitled to continue working 40 hours per week absent the unlawful discrimination. Clearly, the Board's findings are supported by substantial evidence in light of the entire record. This court cannot with reason dispute the Board's finding. It is clear under the law that Abatti had the burden of establishing any and all facts tending to “negative the existence of liability.” (Frudden, supra, 153 Cal.App.3d 262, 268, 201 Cal.Rptr. 371; Florence Printing Company v. N.L.R.B. (4th Cir.1967) 376 F.2d 216, 222, 223; N.L.R.B. v. Brown & Root, Inc. (8th Cir.1963) 311 F.2d 447, 454.)
Finally, pursuant to the formula adopted by the Board, no backpay liability accrued unless Abatti employed at least six employees on the sprinkler crew during the relevant backpay period. To conclude they would not have been entitled to employment on year-round crews is not supported by the evidence.
Abatti next contends the Board's award of $600 expense to Jimenez is not supported by the record. The parties concede the medical expenses incurred by Jimenez' wife would have been covered by Abatti's medical insurance plan for field employees had Jimenez not been unlawfully refused employment. This $600 figure is derived by Jimenez' loss when he sold his car in order to obtain money to cover the medical expenses. The $600 is a proper recompense by whatever name it is called for the loss of insurance coverage. The award is supported by substantial evidence. Had Jimenez cash on hand to meet medical costs, clearly Abatti would have been required to reimburse him. He simply sold his car to get funds. (Sam Tanksley Trucking Inc., 210 NLRB 656.) The purpose of the backpay order is to make the employees whole for the losses suffered as a result of the unlawful employer's discrimination. (Butte View Farms v. Agricultural Labor Relations Bd., 95 Cal.App.3d 961, 157 Cal.Rptr. 476.)
Jesus and Elena Solono worked in Abatti's weed and thin crew. After discharge, discriminatee Elena Solano had 27 interim jobs, she sought work without end.6
After discharge, Jesus Solano had 32 interim employers. That they sought work and did not obtain substantially equivalent employment is manifest. The Solanos in January 1979 joined a UFW-santioned strike against their interim employer California Coastal Farms. During the strike, both Mr. and Mrs. Solano engaged in picketing. Before joining the picket line in the afternoon, they each sought alternative employment for three to four hours earlier in the day. Abatti claims backpay liability should be tolled during the strike, based upon the fact the Solanos received $25 per week as well as butter and lard during the strike from the UFW.
Both employees testified they continued to seek work during the strike, that they picketed during only a few hours a day after first searching for work. The issue here is whether they made a reasonable effort looking for alternative employment. The uncontradicted testimony in the case indicates they did make such attempts. The Board's finding that they were not willfully idle during the one-year strike period is supported by substantial evidence.
Mr. Solano was shot by Abatti's foreman, Mr. Rios, in May 1979. No backpay was sought or awarded due to this period of inability to work arising from this cause.
In March 1977, Mrs. Solano suffered a knee injury while working for a substitute employer, Gourmet Harvesting Company. She was idled for three weeks. The Board held she was entitled to backpay during this period of disability because her injury was work related. The NLRB decision in American Manu. Company of Texas, 167 NLRB 520, supports the Board's conclusion. Abatti argues (from the same case) that the Board was in error, claiming that Solano's injury was a result of “general hazard of living,” therefore she was not entitled to any backpay for the time she was unable to work. The American Manu. case does not support Abatti. There the NLRB ruled that the employer's backpay liability should not be tolled when during a period of substitute work the employee incurred a disability. The reason: The employee was injured during the course of her interim employment—that injury probably would not have occurred absent the employer's unlawful discrimination. The employee may not have been required to climb on the loads and dislodge them had he continued in the employment of his former employer. The NLRB decision holds disabilities resulting from industrial accidents are not to be a cause for abatement of backpay because they are “attributable to events which would not have taken place, or to environmental factors which would not have been present had the employee not been unlawfully removed from his employment at respondent's pl.ant․ [A] discriminatee would not reasonably have been expected to suffer the industrial caused ailment and consequent pay loss if he had retained his former employment.” (167 NLRB 522, italics added.)
This reasoning was applied here. Mrs. Solano was employed as a weeder and thinner by Abatti. After her discharge, she sought to find any work available. At the time of her injury she was harvesting asparagus. On that job she was required to move in and out of rows and around so as to cut and pick them. This was not required at the Abatti job. Thus her injury arose out of, is traceable to her interim employment. Under the NLRB precedent, the Board properly declined to toll Abatti's backpay liability during this period of disability.
Andres Montoya had been employed by Abatti as a member of the shovel crew. After being improperly dismissed, he searched for work diligently. Montoya found interim employment pitching watermelons in both 1979 and 1980. Following each season he suffered back pains and rheumatism for approximately two months. Shoveling was not as physically demanding a job as watermelon pitching.
The Board refused to toll Abatti's backpay liability during Montoya's period of disability due to his back difficulty. The evidence showed Montoya had not suffered back pains and rheumatism before his unlawful discharge. Montoya sought interim employment during the period of his back suffering but was not able to work during such period. Abatti argues Montoya's inability was due to his age, not the interim work—watermelon throwing. The evidence was Montoya's “watermelon throwing” work was more strenuous than the work at Abatti. He was required to bend and lift heavy objects (watermelon). Such efforts were not required as a shoveler for Abatti. Further, Montoya had no back problem or rheumatism before his unlawful discharge and the watermelon throwing. The suffering could reasonably be traced to his interim employment sought and accepted because of Abatti's unlawful conduct. In this factual circumstance substantial evidence supports the Board's refusal to toll Abatti's liability to Montoya during the disability period.
Abelino Ortega was an irrigator at Abatti until unlawful discharge. Abatti claims the Board erred in allowing employee Ortega backpay from 1975 to 1978 because (1) he was disabled, unable to work and (2) he did not reveal his interim earnings until just before the hearings.
Ortega engaged in an exhaustive search for alternative work following his discharge. He arose very early each day, beginning his search between 3 and 4 a.m. He looked in all of the familiar places in Calexico: El Hoyo, the pickup points for labor contractors, the UFW hiring hall, grower pickup points and the employment office. He also on occasion drove to the fields looking for work.
In 1978, Ortega began working at Yarda El Tata dismantling motors. He earned about $42 per week in this job. While working for Yarda El Tata, Ortega continued searching for agricultural work in the Imperial Valley. He arose early and looked for work at the previously mentioned places. Following his search for work, Ortega would go to work at Yarda El Tata.
In August 1978, Ortega filed a disability claim based on a 1974 accident. Ortega claimed to have been unable to work from January 1975 through November 1978. He was examined by Dr. Lasry, first on April 4, 1979. At that time he was capable of performing stoop labor.
Ortega visited Dr. Lasry again on April 16, 1980. By that time his condition had deteriorated, and he was diagnosed as having Hansen's disease. As of that time, Ortega was incapable of performing agricultural labor.
Ortega continued to work at Yarda El Tata until about March 1980. At that time he went to work for another Mexicali auto dismantler, Antonio Lepe. Ortega earned from $63 to $84 per week. He was still working for Lepe at the time of the hearing.
Abatti's position is not borne out by the evidence or supported by the law. Dr. Lasry testified Ortega was able to perform agricultural work at least up until early 1980. Further, Ortega in fact worked sporadically during the backpay period. When he was out of work he diligently sought work. Thus, Ortega was not disabled to work during the backpay period the Board found. He suffered no willful loss of earnings. Dr. Lasry (in 1980) diagnosed Ortega was suffering from Hansen's disease. Ortega's testimony regarding his search for work and his Mexicali employment was corroborated by other witnesses. Ortega did in fact disclose his interim earnings; they were properly deducted.
Law cited by Abatti is not in point. In Transport Worker's Union Local 512, 204 NLRB 1114, a skycap was injured in an automobile accident and he sought backpay. The record shows he had not worked during the backpay period and engaged only in minimal search of work. Here, the evidence is to the contrary. Medical evidence shows Ortega was capable and did work to the extent he could obtain it, until early 1980. He had engaged in extensive search for alternative employment. As long as Ortega was in the job market and was performing some work he was properly found eligible for backpay in spite of notations indicating a disability. Only when Ortega became in fact disabled to work did Abatti's liability abate. Thus, the evidence supports the Board's finding the liability of Abatti was not tolled until early 1980.
BERMEA AND RODRIGUEZ
Reynaldo Bermea was a shoveler until discharged. He searched diligently for work.
Bermea worked for Freedman/Travertine from April 26 to May 13 and from June 1 to July 31, 1976. He next obtained work with labor contractor Mike Pasos at the Pili Voz Ranch from December 1976 to February 1977. He also worked from January 3 through 4, 1977, at Interharvest Co.
On February 28, 1977, Bermea obtained employment with V.C. Britton, near Firebaugh, California, about eight miles from Mendota. Bermea worked as an irrigator, mill employee, and gardner for Britton up through the backpay hearing. On January 29, 1981, Bermea rejected Abatti's offer for reinstatement to his old job.
During his search for work, Bermea accumulated travel expenses of $590. These amounts covered three trips from Calexico to Coachella, Coachella to Firebaugh and around the Imperial Valley.
Augustin Rodriguez worked for Abatti as a shoveler/irrigator prior to being discharged on January 28, 1976. When working for Abatti, when there was no shovel/irrigation work, Rodriguez worked in the shop.
Upon being terminated, Rodriguez engaged in a lengthy search for alternative employment. He arose at 2 a.m., and drove his car to the locations in Calexico where employers and labor contractors hired and picked up workers. He also contacted many Imperial Valley growers, including Joe Maggio, Mario Saikhon, Danny Jackson and a Hindustani whose name he could not recall.
On June 1, 1976, Rodriguez obtained employment with LaBrucherie, where he worked until August 14, 1976. At that time he quit to enter the hospital for needed surgery.
Rodriguez was unemployed until January 1, 1977, when he found work with Jose M. Estrada. He worked for Estrada until February 8, 1977. On February 16, 1977, Rodriguez secured employment with Paul Fornassero for 10 days. He continued the sporadic work picture until offered reinstatement in January 1981. He did not respond. Both Bermea and Rodriguez present typical backpay cases where the daily formula was clearly warranted.7
Finally, Abatti claims the Board improperly altered certain fact findings in the case of Bermea and Rodriguez, changing the administrative law judge's (ALJ) backpay calculation based on a quarterly basis (Woolworth ) to the daily (Sunnyside ) formula. This issue was not raised before the Board. The doctrine of exhaustion of administrative remedies applies to this ALRB proceeding; therefore, unless the claim of error was first presented to the Board, the Court of Appeal has no jurisdiction to hear such claim. (Butte View Farms v. Agricultural Labor Relations Bd., supra, 95 Cal.App.3d 961, 971, 157 Cal.Rptr. 476.) In George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd., supra, 40 Cal.3d 654, 221 Cal.Rptr. 488, 710 P.2d 288, the Supreme Court held when an administrative tribunal is created by the Legislature, the requirement of exhaustion of administrative remedies is jurisdictional. The doctrine applies in “disputes before the ALRB.”
Even if the issue were here, Abatti's position is incorrect. It is the Board, not the ALO, that is the statutory finder of fact. (Andrews v. Agricultural Labor Relations Bd., 28 Cal.3d 781, 794, 171 Cal.Rptr. 590, 623 P.2d 151.) The Board is empowered to independently review the record and make its own findings. We examine those findings to determine their correctness under law and support by substantial evidence before disturbing them. If the issue was properly before this court, it is without merit. A patient review of the Bermea–Rodriguez cases warrant the application of the Sunnyside daily formula. (See assignment of reasons for the rejection. (9 A.L.R.B. No. 59, pp. 13–14.)
The ALO rejected the quarterly calculation (except in two instances) as well as “individualized calculation.” He reasoned: “Neither approach takes into account the particular nature of the agricultural employment or the plight of these individuals who were deprived of full-time work by virtue of Respondent's discriminatory conduct.” (9 A.L.R.B. No. 59, ALO dec. p. 10.)
After its review of the entire record, the Board concluded: “Because of the nature of agricultural labor in California, the ALRB has determined that it is necessary to divide the backpay period into components shorter than calendar quarters in order to avoid the same potential deleterious and unjust effects that led the national board to adopt its Woolworth formula.” (9 A.L.R.B. No. 59, at p. 9.)
The conclusion to use the “daily formula” is supported by a much uncontradicted substantial evidence. The formula chosen is well within the “wide discretion in fashioning remedies” granted to the Board by the Agricultural Labor Relations Act. The daily formula “encourages the respondent to immediately offer reinstatement.” (9 ALRB No. 59, at p. 11.) “The use of daily calculations effectuates the purpose of the ALRA.” (9 A.L.R.B. No. 59 at p. 13, .) These rules squarely track the NLRB.
The United States Supreme Court has held the NLRB has broad discretion in fashioning remedies, subject to limited judicial review. (Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 216, 85 S.Ct. 398, 406, 13 L.Ed.2d 233.) “[T ]he relation of remedy to policy is peculiarly a matter for administrative competence.” (Phelps Dodge Car v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271.) That rule applies here. Thus, an order of the Board will not be disturbed by the courts unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the act. (Ibid.; Labor Board v. Seven–Up Co., 344 U.S. 344, 346–347, 73 S.Ct. 287, 288–89, 97 L .Ed. 377.)
“ ‘In framing a remedy, the Board has wide discretion, subject to limited judicial scrutiny. We can reverse only if we find that the method chosen was so irrational as to amount to an abuse of discretion, ․ [¶] A backpay award is only an approximation, necessitated by the employer's wrongful conduct. In any case, there may be several equally valid methods of computation, each yielding a somewhat different result․ The fact that the Board necessarily chose to proceed by one method rather than another hardly makes out a case of abuse of discretion.’ (Bagel Bakers Council of Greater N.Y. v. N.L.R.B. (2d Cir.1977) 555 F.2d 304, 305.) (In accord see National Labor Relations Board v. Carpenters Union, Local 180 (9th Cir.1970) 433 F.2d 934, 935; N.L.R.B. v. Brown & Root, Inc. (8th Cir.1963) 311 F.2d 447, 452.)” (Butte View Farms v. Agricultural Labor Relations Bd., supra, 95 Cal.App.3d 961, 967–968, 157 Cal.Rptr. 476.)
This lengthy, almost torturous, repetitive account details of work sought, work obtained has but one purpose, to wit: to demonstrate the overwhelming uncontradicted evidence which points to but one conclusion. These 13 discriminatees did not obtain substantial equivalent employment. Here the “daily” formula remedy was required under the law and judicial decisions if the purposes of the act were to be effectuated.
These parties were wronged in 1976. To send this cause back to the ALRB for application of the Woolworth formula edges this case into the environs of Dickens' Jarndyce v. Jarndyce epic account of shocking delay in enforcement of rights. (Dickens, Bleakhouse (1852–53).)
These fundamental rules and policies and factual determinations compel our upholding the decision of the ALRB in all respects: (1) No abuse of discretion is shown in applying the daily formula; and (2) the backpay awards and remedies chosen are in every respect supported by substantial evidence.
1. Abatti Produce, Inc. and Abatti Farms, Inc. now operate only under the name Abatti Produce, Inc.
2. The discriminatees, their applicable backpay period and amount of backpay awarded, not including interest, are:Reynaldo Bermea (1/29/76 to 1/29/81)$ 7,960.85Ramon Berumen (1/23/76 to 3/23/81)$21,822.26Lorenzo Martinez Chavarria (1/23/76 to 1/25/81)$21,748.98Andres Montoya (2/2/76 to 11/25/80)$29,953.65Francisco Ortiz (1/24/76 to 3/23/81)$24,344.93Agustin Rodriguez (1/20/76 to 1/25/81)$12,764.46Herlinda Avitua (2/13/76 to 11/17/80)$19,874.95Elena Solano (2/2/76 to 11/17/80)$21,569.82Jesus Solano (2/2/76 to 11/17/80)$22,364.65Miguel Lopez Chavez (1/21/76 to 1/25/81)$29,758.62Raul Jimenez (1/21/76 to 10/8/81)$27,981.98Isidoro Andrade Prieto (1/24/76 to 5/24/82)$30,981.27Abelino Ortega (1/27/76 to 4/16/80)$41,586.40
FN3. All statutory references are to the Labor Code unless otherwise specified.. FN3. All statutory references are to the Labor Code unless otherwise specified.
4. Facts pertaining to issues in the area of substantial evidence will be set forth in the body of the opinion.
5. Sunnyside Nurseries, Inc. (1977) 3 ALRB No. 42 and J & L Farms (1980) 6 ALRB No. 43.
6. Nish Noroian furnishes this example of required offset for true substitute interim work income under the daily formula of backpay calculation:“For example, if an agricultural employee replaced a steady full-time Wednesday–Sunday job with similar full-time Thursday–Tuesday work under circumstances indicating the latter position was a true substitute for the former, his Monday and Tuesday wages in the new position should not be exempt from offset.” (35 Cal.3d at p. 746, 201 Cal.Rptr. 1, 677 P.2d 1170.)Nish Noroian's statements about the propriety of the Board's use of the daily formula for computing backpay are, technically, dicta because the court held Nish Noroian had waived its objections to the use of the daily formula. (Nish Noroian, supra, 35 Cal.3d at p. 743, 201 Cal.Rptr. 1, 677 P.2d 1170.) Nish Noroian 's statements about proper application of the daily formula were presented for the parties' guidance in future proceedings to determine the exact amount of backpay due. (Ibid.)
7. “ALJD” refers to the Supplemental Decision of the Administrative Law Officer dated October 4, 1982, appended to the petition for review.
8. The record contains calculations by Abatti using the Woolworth formula for each discriminatee, and shows a wide divergence in the resulting figure, in 12 of the 13 cases resulting in a higher figure using the daily method.
9. Other than as encompassed in its argument about use of the daily formula, Abatti raises no issue in connection with the award to Herlinda Avitua.
1. This court has previously upheld the ALRB's unfair practice findings in Abatti Farms, Inc. v. Agricultural Labor Relations Bd., 107 Cal.App.3d 317, 165 Cal.Rptr. 887, finding substantial evidence to support the ALRB conclusions the employer (Abatti) had unlawfully denied union organizers access to the work place, had been responsible for illegal surveillance of union activities and unlawfully interrogated employees concerning their union sympathies and had discriminatorily refused to rehire 13 of 14 union adherents who were laid off. This court returned the cause to the ALRB for redetermination of the appropriate remedy and for backpay proceedings.
2. Abatti had asked in its brief that the decision in this case be withheld until the Nish Noroian decision was issued by the Supreme Court. This we have done.
3. More specifically, the formula is “ ‘[l]oss of pay is to be determined by multiplying the number of days the employee was out of work by the amount the employee would have earned per day. On any day the employee was employed elsewhere, the net earnings of that day shall be subtracted from the amount the employee would have earned [from the violating employer] for that day only․’ “ (Nish Noroian, supra, at p. 743, fn. 8, 201 Cal.Rptr. 1, 677 P.2d 1170.)
5. While Berumen and Ortiz worked for Abatti (before discharge) every month in a calendar year, this was steady work in that sense, yet the work was to say the least sporadic. Berumens earnings per month in 1976 would have been from about $155.77 (Jan.) to a high of $771.678 (Oct.1976) each month varied with the number of days worked. This sporadic nature of the work characterize the entire 1976–1981 backpay period. The same is true of Ortiz, e.g., a low (Jan.1976) $140.70 to a high in October of $771.68. As the Verde Board states of agricultural field work: “[E]ven steady, full-time work is not regular in the sense of five eighthour days per work week.” (10 A.L.R.B. No. 35, p. 3.) An examination of the earnings record of each of the 13 discharged employees verifies the sporadic nature of the year-round employment.
6. Mrs. Solano faithfully sought substitute employment. She arose early each morning, beginning her search between 3 and 4 a.m. Her quest took her to all of the Calexico pickup points for employers and labor contractors, including the Pizza Hut on Imperial Avenue, Conchita's Cafe, the Chevron station, the California Market, the Bank of America, MacDonald's, the ice company, and the Circle K store. She also sought work at various stores, packing sheds, cafeterias and hotels.
7. Abatti raised no claim as to the 13th discriminatee Herlinda Avitua. Abatti apparently acquiesced in the liability of Avitua. There is no need to recount the facts as to liability or amount owed.
STANIFORTH, J., filed dissenting opinion.