FRUDDEN ENTERPRISES INC v. UNITED FARM WORKERS OF AMERICA AFL CIO (1984)

Frudden Enterprises, Inc. (Frudden), an agricultural employer within the meaning of Labor Code section 1140.4, subdivision (c), seeks review of a decision of the Agricultural Labor Relations Board (Board).   The decision, which followed a finding that Frudden had committed unfair labor practices in violation of section 1153, subdivisions (a) and (c) ¹ , required Frudden to reestablish the method of harvesting Frudden had utilized prior to September 4, 1979 [utilizing three harvesting machines and three hand crews], to offer all former hand-crew and machine-crew strikers reinstatement to their former or substantially equivalent positions, and to make them whole for their losses.

The primary questions raised are whether the Board's decision is supported by substantial evidence and whether the remedy imposed—the restoration of the status quo ante—is an abuse of the Board's discretion.

Facts

Frudden is a California corporation engaged in the business of growing and harvesting fresh market tomatoes in the King City area of Salinas Valley.   Dennis Frudden is the owner and general manager of the corporation.   After monitoring the experience of its competitors in mechanized collection methods in the years 1977 and 1978, Frudden made a management decision to phase out hand collection and convert to mechanical collection of tomatoes beginning with the 1979 harvest.   In January of 1979, Frudden made arrangements to obtain three Johnson mechanical harvesters at a cost of approximately $100,000 each, with payments due at the end of the 1979 harvest season of $25,000 per machine, or a total payment of $75,000.

On August 1, 1979, Frudden began its harvest with the three mechanical harvesters, staffed with three machine crews and supplemented by four hand collection crews.   Early into the harvest, after Frudden had determined that the machine collection method increased efficiency and resulted in substantial cost savings, Frudden began to lay off hand-crew workers and to give the remaining hand-crew workers “long weekends.”

On August 16, 1979, approximately 25–50 supporters of the United Farm Workers, AFL–CIO (UFW) accompanied by a UFW organizer, appeared on the fields, assertedly for the purpose of stopping the harvesters.   The intruders surrounded and climbed onto the machines, urged the workers to leave their jobs, and threw tomatoes at employees who refused to leave the machines.   The sheriff was called, and although Frudden's operations were substantially disrupted, the machines did not stop and the harvest continued.   These activities resulted in charges being filed against the UFW which were the subject of proceedings in Frudden Enterprises, Inc. 7 ALRB 22.

Despite the interruptions, Frudden continued its conversion from hand to machine collection.   On August 20, 1979, Frudden laid off approximately 30 hand-crew workers and combined the remaining hand-crew workers into three crews.   On August 27, 1979, the hand-crew workers, dissatisfied because their work hours had been reduced, struck in protest, and convinced the majority of the machine-crew workers to join the strike.   The UFW was consulted, a ranch committee was elected in the field, with Jose Luis Rucio chosen as chairman, and the workers signed authorization cards and a petition for a representative election.   Frudden and its supervisors were aware of these activities, but continued to harvest, using the harvesting machines, assisted by supervisory personnel and other growers and their families.   On August 28, 1979, in response to the strike, Frudden entered into an agreement with Gonzales Packing Company to rent two additional harvesting machines, and Dennis Frudden directed supervisor Frances Arroyo to hire replacement workers for the additional machines.

On the evening of August 29, 1979, the Board conducted an expedited representative election, which resulted in an overwhelming victory for the UFW.²

Although Dennis Frudden denied that he was at the polling place on the evening of August 29, 1979, Rucio testified that Dennis was present and that he and Perez, at the head of 200 strikers, had informed Dennis Frudden that the strike was over and that they wanted their jobs back.   Frudden's testimony that he was not present was discredited, and the administrative law officer found that Frudden heard the offer, did not answer, and climbed into his pickup and drove away.

No harvesting was done from August 30 to September 3 because of the long Labor Day weekend and because the tomatoes were still too green.   On August 30, 1979, Rucio and 200 strikers went to the Frudden office to advise Frudden that they wanted to return to work, but Dennis Frudden was not there.   On August 31, 1979, Rucio and other members of the organizing committee returned to the office.   As they were about to leave, they saw Dennis and tried to talk to him, but he entered his office, closed the door and declined to talk to them.

At 6 a.m. on September 4, 1979, the day harvesting was to resume, approximately 200 former strikers led by Rucio arrived in the field, the majority of them carrying buckets.   Dennis Frudden was called to the field, and Rucio told him that the strikers were ready to return to work.   Frudden told the strikers that when he needed them he would call them.   That same day, while former strikers waited at the edge of the field to be recalled, 20 new employees, none of them strikers, were hired to staff the fourth machine.   The following day, the fifth machine was put into operation, and 34 new employees, none of them strikers, were hired.

On September 5, 1979, picketing was resumed, to protest Frudden's failure to rehire the strikers.   On September 7, picketing ceased.   On September 8, Frudden dispatched a mailgram to the UFW, requesting that it be advised in writing whether the strike had been abandoned and stating that “the company intends to take workers back on a seniority basis [sic] as they apply for work and work is available.”   There was no response to the mailgram.   On September 9, 1979, Dennis Frudden instructed a supervisor to form two hand crews from former strikers and put them to work on September 11 and 12.   On September 11, 1979, a hand crew consisting of approximately 30 strikers, resumed work.   On September 12, 1979, a second hand crew, consisting of 40 strikers, resumed work.

On September 19, 1979, Frudden reduced the number of harvesting machines from five to four.   Although there was considerable turnover, none of the 56 machine-crew strikers were rehired in 1979.   The remaining 63 hand-crew strikers were not rehired in 1979, nor were they able to obtain employment with Frudden in 1980.

Frudden finished the 1979 season with four machines and two hand crews.   Frudden experimented during the 1979 season in an effort to determine the most efficient ratio of hand crews to machines.   An uneven number of machines was inefficient since the trucks hauling the tomatoes from the fields were equipped with a front and rear trailer.   Each machine worked on one trailer.   If three machines were used the trucks would have to wait until the fourth trailer was filled.   It developed that “the right number” was a ratio of four machines to two hand crews.   This ratio was also used during the 1980 season.

The Board found that Frudden had violated section 1153, subdivisions (a) and (c) by failing to reinstate machine-crew strikers to vacancies which occurred after September 4, 1979, and by failing to hire hand-crew strikers to fill the machine-crew positions which became available when the two additional harvesters were brought into the fields.   The Board also found that Frudden had discriminatorily replaced the employees in its hand crews by renting the two additional harvesting machines.

Frudden protests, contending that its decision to mechanize its tomatoe harvest, implemented prior to the advent of union organizational or other protected activity at its ranches, was supported by legitimate and substantial business justification;  and that the Board's order, which required it to return to its earlier, inefficient, noncompetitive method of operation, is punitive rather that remedial, and that compliance would be unduly burdensome and unnecessary to effectuate the policies of the Act.

Discussion

On review, “[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, 758, 195 Cal.Rptr. 651, 670 P.2d 305.)

 It is not an unfair labor practice to replace striking employees with others to carry on the business, and the employer is not required to displace those hired to fill the places of strikers in order to create positions for the strikers upon their election to resume employment.  (Labor Board v. Mackay Co. (1938) 304 U.S. 333, 345–346, 58 S.Ct. 904, 910–11, 82 L.Ed. 1381;  Laidlaw Corporation v. N.L.R.B. (1969) 414 F.2d 99, 104;  see S.P. Growers Assn. v. Rodriguez (1976) 17 Cal.3d 719, 723, fn. 2, 131 Cal.Rptr. 761, 552 P.2d 721.)   It is well established, however, that economic strikers who have been permanently replaced prior to their unconditional offer to return to work are entitled to an offer of reinstatement “[i]f and when a job for which the striker is qualified becomes available.”  (NLRB v. Fleetwood Trailer Co. (1967) 389 U.S. 375, 381, 88 S.Ct. 543, 547, 19 L.Ed.2d 614.)   The right can be defeated only if the employer can show that his action was due to “legitimate and substantial business justifications.”  (NLRB v. Fleetwood Trailer Co., supra, 389 U.S. at p. 378, 88 S.Ct. at p. 545.)

Assuming that NLRB precedent applies,³ although section 1140.4, subdivision (b) is silent as to employees whose work has ceased as a consequence of a labor dispute, the Fleetwood case set forth two situations in which “legitimate and substantial business justifications” for refusing to reinstate employees who have engaged in an economic strike have been recognized:  (1) when the jobs claimed by the strikers are occupied by workers hired as permanent replacements during the strike in order to continue operations;  (2) when the striker's job has been eliminated for substantial and bona fide reasons other than considerations relating to labor relations;  for example, “the need to adapt to changes in business conditions or to improve efficiency.”  (NLRB v. Fleetwood Trailer Co., supra, 389 U.S. at pp. 379–380, 88 S.Ct. at p. 546.) ⁴

Frudden contends (1) there was no showing of an unconditional offer to return to work, and (2) assuming that there was such an offer, Frudden has shown a legitimate and substantial business justification for refusal to rehire.

1. Did the employees make an unconditional offer to return to work?

 Frudden's first contention is that the offers to return to work were deficient.   However, the employees' “right to reinstatement does not depend upon technicalities relating to [their] application.”  (NLRB v. Fleetwood Trailer Co., supra, 389 U.S. 375, 381, 88 S.Ct. 543, 547, 19 L.Ed.2d 614.)   It has been held that the appearance of workers at the plant to solicit an answer from the employer as to whether they still had their jobs was tantamount to the unconditional offer to return to work.  (Leon Ferenbach, Inc. (1974) 212 NLRB 136.)   Here the employee representative Jose Rucio testified that he informed Dennis Frudden on August 29 that the strike was over and the strikers wanted their jobs back.   Also, at 6 a.m. on September 4, 204 employees showed up at the Frudden fields, equipped with buckets, prepared to return to work;  again Rucio informed Frudden they were ready to work.   A union representative's request is sufficient to contitute an offer on behalf of each striker.  (Laidlaw Corporation v. N.L.R.B., supra, 414 F.2d 99, 106, fn. 3;  National Labor Relations Board v. Brown & Root, Inc. (1953) 203 F.2d 139, 147.)   In Rivcom Corp. v. Agricultural Labor Relations Bd., supra, 34 Cal.3d 743, 756, 195 Cal.Rptr. 651, 670 P.2d 305 the court stated:  “Deficient applications are no legal justification for a refusal to hire if proper, timely offers to work would also have been rebuffed.”   The record is replete with evidence that individual strikers who thereafter attempted to return to work were repeatedly rebuffed.   The Board's finding that the employees made an unconditional offer to return to work is supported by substantial evidence.

2. Did Frudden show that his refusal to reinstate the strikers was due to “legitimate and substantial business justification?

 Once the strikers had made an unconditional offer to return to work, Frudden had a duty to reinstate the striking employees upon the departure of the permanent replacements or “[i]f and when a job for which the striker is qualified becomes available.”  (NLRB v. Fleetwood Trailer Co., supra, 389 U.S. 375, 381, 88 S.Ct. 543, 547, 19 L.Ed.2d 614.)   On September 4, 1979, Frudden hired new employees, non-strikers, for its machine crews, and it continued to hire new employees as replacements.⁵  Frudden did not seek out, notify or reinstate the strikers.   Frudden's argument that the addition of the machines had eliminated the jobs of the hand crew and that hand crew could not perform the jobs of departing machine-crew workers was properly rejected.   The evidence is clear that the duties of the machine crew were not so dissimilar as to disqualify the hand crew from filling the machine-crew positions.

There is sufficient evidence to support the Board's finding of discrimination by Frudden against its striking employees in violation of section 1153, subdivisions (a) and (c).   Accordingly, we find it unnecessary to inquire into Frudden's motive for renting the two additional machines.   (Rivcom Corp. v. Agricultural Labor Relations Bd., supra, 34 Cal.3d 743, 757–758, 195 Cal.Rptr. 651, 670 P.2d 305;  NLRB v. Fleetwood Trailer Co., supra, 389 U.S. 375, 380, 88 S.Ct. 543, 546, 19 L.Ed.2d 614.)

The Remedy

 Although the Board has wide discretion in ordering affirmative action to remedy unfair labor practices (§ 1160.3), that discretion is not unbounded.   It must be exercised reasonably by the Board, whose “ ‘power to command affirmative action is remedial, not punitive․’ ”  (Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (1979) 93 Cal.App.3d 922, 940, 156 Cal.Rptr. 152, quoting from Edison Co. v. Labor Board (1938) 305 U.S. 197, 236, 59 S.Ct. 206, 219, 83 L.Ed. 126, emphasis added.)

We are concerned with the appropriateness of a remedial order which required Frudden to return to the status quo ante existing on September 4, 1979 [three machines and three hand crews], despite the fact that Frudden had determined through experience in the 1979 and 1980 harvests that the proper ratio of machine to hand crews to maximize the efficiency and productivity of its harvest in this highly competitive enterprise is four machines and two hand crews.   Moreover, as hereinbefore noted, the requirement of using three machines and three hand crews is inefficient.   This method of harvest will require the truckers to wait until both trailers are filled by the third machine.   This will necessarily be costly and unproductive.   If Frudden's operation is not cost efficient it cannot successfully compete with other growers.   It therefore appears to us that to require Frudden to continue operations in a inefficient, costly manner can only be construed as a punitive and retributive measure rather than a remedial one.   The order of the Board to return to the status quo ante, is, we believe, disproportionate to the acts of Frudden in failing to rehire the striking employees.   Moreover, the Board's order has no time limit, and because Frudden was not charged with a violation of a duty to bargain (§ 1153, subd. (e)), there is no accompanying directive that Frudden be required to bargain with the union over its decision.⁶  Also, recent authority defining the duty to bargain over management decisions, although not dealing directly with the subject of mechanization, casts doubts upon the NLRB decisions relied upon by the Board as authority for its action (see First National Maintenance Corp. v. NLRB (1981) 452 U.S. 666, 686–688, 101 S.Ct. 2573, 2584–85, 69 L.Ed.2d 318;  Ill. Coil Spring Co. (1984) 268 NLRB 87;  § 1155.2, subd. (a)).

 The Board's remedial powers exist, as appears from the statute itself, to effectuate the policies of the Act.  (J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 39–40, 160 Cal.Rptr. 710, 603 P.2d 1306;  Shepard v. N.L.R.B. (1983) ––– U.S. ––––, ––––, 103 S.Ct. 665, 670, 74 L.Ed.2d 523.)   That portion of the Board's order which requires that Frudden reinstate the striking machine-crew and hand-crew workers and make them whole for their losses will adequately remedy the discrimination practiced against them by Frudden.   The additional remedy of restoration of the status quo ante, under the circumstances of this case, is not reasonably needed to effectuate the policies of the Act and can only be characterized as punitive.   (N.L.R.B. v. Townhouse T.V. & Appliances, Inc. (7th Cir.1976) 531 F.2d 826, 831–832;  N.L.R.B. v. American Manufacturing Company of Texas (5th Cir.1965) 351 F.2d 74, 80–81.)

That portion of the Board's order requiring Frudden to restore to the status quo ante as of September 4, 1979, is annulled.   The matter is remanded to the Board for formulation of a remedial order consistent with the views expressed herein;  in all other respects the order is enforced.

I respectfully dissent.

Upon substantial evidence the Agricultural Labor Relations Board (Board) found two discrete instances of conduct constituting unfair labor practices in violation of Labor Code section 1153, subdivisions (a) and (c) ¹ of the Agricultural Labor Relations Act (ALRA):  (1) Frudden Enterprises, Inc.'s (Frudden) refusal to reinstate machine-crew and hand-crew strikers;  and (2) Frudden's replacement of hand-crew strikers with harvesting machines.   The Board ordered Frudden to offer reinstatement to the strikers as a remedy for its refusal to rehire, and required restoration of the status quo ante, i.e., three machines, three machine crews and three hand crews, to remedy the retaliatory mechanization.

The majority enforces the Board's order only as to the first unfair labor practice, reasoning that the remedy for the second is punitive and inefficient.   Since the Board's finding of retaliatory mechanization is supported by substantial evidence and the remedy of restoration of the status quo ante is patently reasonable, I would issue a decree enforcing the Board's order in its entirety.

A. Finding of Discriminatory Mechanization

Section 1153 makes it an unfair labor practice for an employer “[t]o interfere with, restrain, or coerce” employees in the exercise of their right to organize (§ 1153, subd. (a)) or “[b]y discrimination in ․ hiring or tenure ․ to ․ discourage membership in any labor organization.”  (§ 1153, subd. (c).)  The Board adopted the conclusion of the Administrative Law Officer (ALO) that Frudden violated this section when it “discriminatorily added the two additional harvesting machines to retaliate against the [hand-crew] strikers for their union activities.”

Factual determinations of the Board such as whether an employer's actions were attributable to antiunion animus must be upheld on appeal if supported by substantial evidence on the whole record.  (§ 1160.8;  Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 757, 763, 195 Cal.Rptr. 651, 670 P.2d 305.)   As was done here the Board may infer an antiunion motivation from circumstances and reject an employer's alternative explanations.²  (Rivcom Corp. v. Agricultural Labor Relations Bd., supra, 34 Cal.3d at pp. 757–758, 195 Cal.Rptr. 651, 670 P.2d 305.)   A Board finding of discriminatory motive must be sustained if on the whole record the grounds for discrediting the employer's asserted reasons were plausible.   (Ibid.)  In this cause the grounds are not only plausible but patently reasonable.

The Board's finding of a discriminatory purpose was based on three factors:  (1) the timing of the decision;  (2) the relative costs of machine versus hand harvesting;  and (3) the failure to reinstate the former strikers.

1. Timing

The record reveals the following:  Frudden began its 1979 ³ harvest with three mechanical harvesters, three machine crews to operate them and four hand crews.   Due to a decrease in the demand for tomatoes, in August Frudden reduced the hand pickers' work hours and on August 20 laid off one of the four hand crews.   On August 27 all the hand-crew workers, joined by the majority of the machine-crew workers, struck to protest the layoff and reduction in hand-crew work.   Although Frudden had earlier made general inquiries, it was not until August 28—the second day of the strike protesting the loss of work—that arrangements were made to rent two more labor-saving harvesting machines.   Even Dennis Frudden testified that the strike was a motivating factor in his decision to rent the additional machines at the time he did.   The timing of Frudden's decision to further mechanize its operation—in the midst of a strike protesting the reduction in hand-crew work which had already occurred—supports the Board's conclusion that Frudden's action was retaliatory.

2. Costs

Dennis Frudden testified that labor costs for hand picked tomatoes were approximately $32 a ton and approximately $17 a ton when processed by machine.   He also testified that he paid $20 per ton to rent the machines.   Thus harvesting by machine cost Frudden approximately $37 a ton, exceeding the hand method by $5 a ton.

This testimony is substantial evidence supporting the Board's finding that hand picking costs exceeded machine picking costs and further discredits Frudden's assertion that its decision was motivated by cost considerations, not antiunion sentiment.

3. Refusal to rehire

Frudden refused the strikers' August 29 and September 4 unconditional offers to return to work, and instead on September 5 hired new employees—nonstrikers.   Frudden's demonstrated preference for nonstrikers over strikers who in the meantime had also become unionized further supports the Board's finding of a discriminatory motive.

Buttressing the Board's rejection of Frudden's asserted innocent motives is the ALO's finding that Dennis Frudden was not a credible witness on the issue of the strikers' offer to return to work.   Since the trier of fact found him unreliable as to one issue it was reasonable for the Board to discredit his testimony as to his motive for renting the machines.

Often the only direct evidence of an employer's motivation is his own testimony, which cannot help but be self-serving.  (See Rivcom Corp. v. Agricultural Labor Relations Bd., supra, 34 Cal.3d at p. 757, 195 Cal.Rptr. 651, 670 P.2d 305.)   Accordingly, motive must be determined “from all the circumstances, and the Board's expertise entitles it to considerable deference in deciding that question.”  (Ibid.)  The timing of the decision to add the machines, the relative costs of the two harvesting methods, the failure to rehire the strikers, and the ALO's judgment of Dennis Frudden's credibility conjoin to constitute strong reasons for the Board's disbelieving Frudden's asserted innocent motives.   Substantial evidence thus supports the Board's conclusion that Frudden's action was attributable to a discriminatory motive (§ 1160.8);  hence this constituted an unfair labor practice.  (§ 1153, subds. (a) and (c).)

B. Status Quo Ante Order

To remedy the unfair labor practice of retaliatory mechanization the Board ordered Frudden to reestablish its prior harvesting method of three machines, three machine crews and three hand crews.   Agreeing with Frudden that the ordered remedy will wreak “a severe financial loss and a debilitating loss in operational efficiency ․” the majority annuls that portion of the Board's order.   In so doing the majority:  (1) applies the wrong standard of review;  (2) requires that remedies be economically efficient;  (3) misreads federal precedent;  and (4) characterizes Frudden's two separate wrongs as one unfair labor practice.

1. Standard of review

The majority's rationale for annulling the status quo ante order is that the Board's “ ‘ “power to command affirmative action is remedial, not punitive ․” ’ ”  (Majority opn., ante, at p. 601.)   Although this is an accurate description of the Board's authority, it is not a correct statement of the standard for judicial review of Board decisions.   The punitive/remedial test was urged and implicitly rejected as a standard of review in Nish Noroian Farms v. Agricultural Labor Relations Bd. (1984) 35 Cal.3d 726, 744, 201 Cal.Rptr. 1, 677 P.2d 1170.   In so doing the court set forth the proper standard for review of Board decisions:  “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.”  (Id., 35 Cal.3d at p. 745, 201 Cal.Rptr. 1, 677 P.2d 1170, emphasis added.)   This is also the federal standard for review of the decisions of the National Labor Relations Board (NLRB), the Board's federal counterpart.  (Fibreboard Corp. v. Labor Board (1964) 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233.)

No patent unreasonableness is evident here.   Quite to the contrary, the reasonableness of the remedy jumps out from the record which indicates:  (1) the additional machines were rented, not purchased, and therefore Frudden would suffer no loss of capital investment;  (2) the rental agreement was entirely executory:  Frudden's financial obligation was determined by its use of the machine;  and (3) in 1979 the costs of harvesting by machine exceeded the costs of harvesting by hand.

Even if the punitive/remedial dichotomy were the proper standard of review, the cases the majority cites fail to support its conclusion that the status quo ante order is punitive.   In N.L.R.B. v. Townhouse T.V. & Appliances, Inc. (7th Cir.1976) 531 F.2d 826, employee truck drivers unionized and their employer retaliated by subcontracting its delivery service, thereby eliminating the drivers' jobs.  (Id., at pp. 827–828.)   The court annulled that portion of the NLRB's order requiring reestablishment of the delivery service because doing so would entail a $16,000 capital outlay.  (Id., at p. 831.)   Here, in contrast, reestablishment of the prior ratio of machines to hand crews would require no capital outlay.   The same financial circumstances distinguish N.L.R.B. v. American Manufacturing Company of Texas (5th Cir.1965) 351 F.2d 74.   There the court struck an order requiring a manufacturer who had subcontracted to avert unionization to resume its trucking operation.  (Id., at p. 80.)   Again, as in Townhouse, the court stressed the capital outlay—$150,000—which would have been necessary in order to comply with the decision.  (N.L.R.B. v. American Manufacturing Company of Texas, supra, at p. 80.)

2. Economic efficiency

The majority also emphasizes its view of the operational inefficiency which the Board's ordered ratio of three machines to three hand crews would allegedly cause.  (Majority opn., ante, at p. 601.)   Although efficiency and cost effectiveness are valid business objectives, the Board is charged with designing remedies which effectuate the objectives of the ALRA:  encouraging and protecting the right of employees to self-organization.  (§ 1140.2.)   It is against the criteria of the ALRA and no other that the Board's remedy must be measured.  (See Jasmine Vineyards, Inc. v. Agricultural Labor Relations Bd. (1980) 113 Cal.App.3d 968, 982, 170 Cal.Rptr. 510.)

3. Federal authority

In suggesting that the cases upon which the Board relied in fashioning its restoration order are no longer valid in light of “recent [contrary] authority defining the duty to bargain over management decisions ․” (majority opn., ante, at p. 601) the majority misses the Board's point.

First, the cases were cited by the Board merely to demonstrate that a status quo ante order is a customary remedy used by the federal board to correct the effects of unfair labor practices.   Thus it is beside the point that the unfair labor practice in several of those cases—the refusal to bargain with the union—was not the illegal conduct here.

Second, status quo ante orders are not restricted to cases involving a refusal to bargain.   In St. John's Constr. Corp. v. NLRB (1981) 258 NLRB 67, 108 LRRM 1244, an employer sought to avoid unionization by dismissing employees and subcontracting their work.   The federal board found several instances of discriminatory conduct but did not find a refusal to bargain since, as here, the decision to subcontract was made at a time when the employees were not represented.   Resumption of the subcontracted operation was ordered because:  (1) a status quo ante order is proper where an elimination of work stems from an antiunion motive;  and (2) no undue hardship would result since the subcontracting agreements were terminable at will.   Those same considerations support the remedial order here.

Third, First National Maintenance Corp. v. NLRB (1981) 452 U.S. 666, 101 S.Ct. 2573, 69 L.Ed.2d 318, cited by the majority (majority opn., ante, at p. 601), in no way repudiates the status quo ante order as an appropriate device to remedy a discriminatory termination of work.   Holding that an employer has no duty to bargain over a decision to close its business, the court never addressed the question of appropriate remedies but took care to harmonize its decision with Fibreboard Corp. v. Labor Board, supra, 379 U.S. at page 215, 85 S.Ct. at page 405.   In Fibreboard the court held that an employer does have a duty to bargain over a decision to subcontract work and upheld a status quo ante order since the subcontract was terminable at will.   Thus the order was not “a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.”   (Id., at p. 216, 85 S.Ct. at p. 405.)   Frudden has made no showing of patent unreasonability here;  therefore the order must be enforced.

4. Two separate unfair labor practices

The majority concludes that reinstatement of the hand-crew workers on a job availability basis will adequately remedy Frudden's discriminatory conduct.   (Majority opn., ante, at p. 601.)   This ignores the obvious:  the Board found two discrete instances of discriminatory conduct and concluded that each required a separate cure.   The first unfair labor practice was Frudden's discriminatory failure to reinstate machine-crew strikers to their previous positions and to hire hand-crew strikers for the positions on the two new machines.   The second unfair labor practice was Frudden's discriminatory replacement of hand-crew strikers with two machine harvesters, i.e., retaliatory mechanization.

By its second discriminatory practice Frudden eliminated hand-crew jobs.   This action could reasonably be expected to create an intimidating work environment, one which discourages the future exercise of organizational rights.  (§ 1140.2.)   Such employer coercion is specifically condemned by the policies of the ALRA (ibid.), and is deserving of a separate remedy to expunge its ill effect.  (See Fibreboard Corp. v. Labor Board, supra, 379 U.S. at p. 216, 85 S.Ct. at p. 405.)   The task of framing remedies appropriate to effectuate the policies of the ALRA is a matter committed to the expertise of the Board.  (Nish Noroian Farms v. Agricultural Labor Relations Bd., supra, 35 Cal.3d at p. 745, 201 Cal.Rptr. 1, 677 P.2d 1170;  Jasmine Vineyards, Inc. v. Agricultural Labor Relations Bd., supra, 113 Cal.App.3d at p. 982, 170 Cal.Rptr. 510.)   In a similar context the United States Supreme Court has cautioned:  “[C]ourts must not enter the allowable area of the Board's discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy․”  (Phelps Dodge Corp. v. Labor Board (1941) 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271.)

The remedy the Board has fashioned to cure the effects of Frudden's discriminatory replacement of hand-crew strikers with machines is patently reasonable when considered in light of the ALRA policies the Board is charged with effectuating.   I would therefore enforce the Board's order in its entirety, without prejudice to Frudden to seek modification thereof when appropriate.⁴

FOOTNOTES

1.   Labor Code section 1153 provides:“It shall be an unfair labor practice for an agricultural employer to do any of the following:“(a) To interfere with, restrain, or coerce agricultural employees in the exercise of the rights guaranteed in Section 1152.“․“(c) By discrimination in regard to the hiring or tenure of employment, or any term or condition of employment, to encourage or discourage membership in any labor organization․”Unless otherwise indicated, all further statutory references are to the Labor Code.

2.   The UFW obtained 201 votes out of a total of 216 ballots.

3.   Title 29 of the United States Code section 152(3) of the National Labor Relations Act, defines the terms “employee” to “include any employee ․ and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular or substantially equivalent employment․”  (Emphasis added.)   The analogous California statute, section 1140.4, subdivision (b) of the Act, has omitted the underlined language and provides in pertinent part, as follows:“The term ‘agricultural employee’ or ‘employee’ shall mean one engaged in agriculture, as that term is defined in subdivision (a)․”

4.   In Fleetwood, the Board considered only the first claimed justification;  it did not consider the second justification because no changes in methods of production or operation were shown to have been instituted which might have resulted in the elimination of strikers' jobs.

5.   After Frudden had refused to reinstate the economic strikers, the strike, when renewed, was converted into an unfair labor practice strike.   However, unfair labor practice strikers are not entitled to reinstatement of jobs which were assigned to permanent replacements before the economic strike was converted into an unfair labor practice strike.   (R.J. Oil & Refining Co., Inc. (1954) 108 NLRB 103.)

6.   Section 1153, provides:“It shall be an unfair labor practice for an agricultural employer to do any of the following:  ․“(e) To refuse to bargain collectively in good faith with labor organizations certified pursuant to the provisions of Chapter 5 (commencing with Section 1156) of this part.”

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

2.   Frudden contended that it introduced the two machines in the middle of the strike simply as part of its continuing program to mechanize its tomato harvest.

3.   Unless otherwise indicated, all dates refer to 1979.

4.   Since the status quo ante remedy was directed against mechanization stemming from a discriminatory motive, the Board's order should not be interpreted as requiring Frudden to maintain that ratio of machines to hand crews in perpetuity.  (See Rivcom Corp. v. Agricultural Labor Relations Bd., supra, 34 Cal.3d at p. 771, fn. 25, 195 Cal.Rptr. 651, 670 P.2d 305.)

PANELLI, Associate Justice.

CALDECOTT, P.J., concurs.