426.00 PICKETING

426.01 In General

426.01 Mere maintenance of picket line while tendering offer to return did not render offer insincere or invalid.

VESSEY & COMPANY, INC., 7 ALRB No. 44

426.01 Mere maintenance of picket line while tendering offer to return did not render offer insincere or invalid.

VESSEY & COMPANY, INC., 7 ALRB No. 44

426.02 What Constitutes Picketing; Strike Distinguished; Threat To Picket

426.02 Parking lot handbilling occurring simultaneously and in the same general area as unlawful sidewalk picketing constitutes an extension and integral part of the picketing.

UNITED FARM WORKERS OF AMERICA, 19 ALRB No. 15

426.02 Parking lot conduct, which involved the wearing of placards, speaking to store customers, distribution of leaflets, and patrolling by handbillers who walked up and down the parking lot aisles and vigorously approached store customers with their leaflets, constituted picketing.

UNITED FARM WORKERS OF AMERICA, 19 ALRB No. 15

426.03 Right To Picket In General; Who May Picket; Intra-union Disputes; Who May Be Picketed

426.03 In determining the scope of the section 1154(d)(4) prohibition of jurisdictional picketing, the Board looks to the NLRA for guidance but takes into account the greater protections afforded employee informational picketing and secondary activity under the ALRA.

UNITED VINTNERS, INC., 10 ALRB No. 34

426.04 Union Responsibility; Local And International Unions

426.04 Where union members were authorized and directed by union to engage in demonstrations or picketing activity, later acts and conduct during confrontation at laundromat were not such a deviation from conduct to warrant finding that agency relationship had terminated. Respondent union found liable for acts and conduct of union member at two (trailer park, laundromat)locations.

UFW/CALIFORNIA COASTAL FARMS, 6 ALRB No. 64

426.05 Honoring Picket Lines

426.06 Interference With Picketing (see also section 406)

427.00 METHODS OF PICKETING

427.01 In General

427.02 Statements On Picket Signs; Misrepresentations

427.03 Following Or Obstructing Vehicles

427.04 Mass Picketing, Obstructing Access, Or Interference With Business

427.05 Violence, Threats, Molesting Workers Or Customers; Name Calling

427.05 Evidence presented by Respondent of sporadic picket line violence was not of such magnitude to render strikers' offer to return to work conditional or insincere. Specific instances of strike misconduct or violence was more appropriately addressed at compliance stage.

VESSEY & COMPANY, INC., 7 ALRB No. 44

427.05 Threats of unspecified reprisals constitute unlawful restraint and coercion in violation of section 1154(a)(1) of Act. Local Union No. 153 IBEW (1975) 221 NLRB 345 [90 LRRM 1688].

UFW/CALIFORNIA COASTAL FARMS, 6 ALRB No. 64

427.05 Union violated section 1154(a)(1) by picketing residences of agricultural employees in large numbers, shouting loudly and angrily, threatening employees, and using coarse and contemptuous epithets. Conduct tended to coerce and restrain targeted workers.

UFW/CALIFORNIA COASTAL FARMS, 6 ALRB No. 64

427.05 Union violated section 1154(a)(1) by threatening agricultural employee ("stop working for sake of your family;" "things would go bad for sure") at public laundromat.

UFW/CALIFORNIA COASTAL FARMS, 6 ALRB No. 64

427.06 Forfeiture Of Right Of Peaceful Picketing

427.07 Location Of Picketing; Trespassing; Residential Picketing

427.07 Where union members were authorized and directed by union to engage in demonstrations or picketing activity, later acts and conduct during confrontation at laundromat were not such a deviation from conduct to warrant finding that agency relationship had terminated. Respondent union found liable for acts and conduct of union member at two (trailer park, laundromat) locations.

UFW/CALIFORNIA COASTAL FARMS, 6 ALRB No. 64

427.07 Where union violated section 1154(a)(1) by picketing residences of agricultural employees, remedy concluded submission of written apology to residents of picketed houses. UFW/CALIFORNIA COASTAL FARMS, 6 ALRB No. 64

427.07 Board rejected ALO suggestion to impose limitations as to number of picketers who may picket residence and times when such picketing may be permitted.Board to review such matters on case-by-case basis.

UFW/CALIFORNIA COASTAL FARMS, 6 ALRB No. 64

427.07 Union violated section 1154(a)(1) by threatening agricultural employee ("stop working for sake of your family;" "things would go bad for sure") at public laundromat.

UFW/CALIFORNIA COASTAL FARMS, 6 ALRB No. 64

427.07 Union violated section 1154(a)(1) by picketing residences of agricultural employees in large numbers, shouting loudly and angrily, threatening employees, and using coarse and contemptuous epithets. Conduct tended to coerce and restrain targeted workers.

UFW/CALIFORNIA COASTAL FARMS, 6 ALRB No. 64

428.00 OBJECT OF PICKETING; NONREPRESENTATIVE UNIONS

428.01 In General

428.02 Organization Or Recognition As Object (see section 301.03)

428.02 Union did not violate recognitional picketing statute (Lab. Code § 1154(h)) because, although union's ultimate goal may have been recognition by California grape growers, General Counsel did not demonstrate that recognition was union's immediate goal. Rather, union's immediate goal was to end supermarket's promotion and sale of table grapes tainted with pesticides.

UNITED FARM WORKERS OF AMERICA, 19 ALRB No. 15

428.02 Respondent union violated section 1154(d)(3) and (h) of the Act by picketing the employer for recognition when the Board had properly certified another union as the collective bargaining representative of said employees. (ALJD pp. 5-6.)

JULIUS GOLDMAN'S EGG CITY, 5 ALRB No. 8

428.03 Certification Or Other Proceeding Pending

428.04 Contest of Incumbent Union's Certification Or Contract; Jurisdictional Disputes

428.04 Although classic jurisdictional dispute not likely to occur under ALRA, potential 1154(d)(4) claim may arise in certain situations, such as where employer employs both agricultural and non-agricultural employees or where employer contracts with other employers, becomes part of joint enterprise or is replaced by alter ego or successor with larger pre-existing work force.

UNITED VINTNERS, INC., 10 ALRB No. 34

428.04 Where union picketed with object of preserving vineyard work previously performed by its members under long-standing vineyard management arrangement with employer of its members and decision to contract with non-union management company initiated by charging party which has since "attempted to withdraw the 1154(d)(4) charge, Board found dispute at issue not subject to resolution under sections 1154(d)(4) and 1160.5 and quashed notice of hearing.

UNITED VINTNERS, INC., 10 ALRB No. 34

428.04 Respondent union violated section 1154(d)(3) and (h) of the Act by picketing the employer for recognition when the Board had properly certified another union as the collective bargaining representative of said employees. (ALJD pp. 5-6.) JULIUS GOLDMAN'S EGG CITY, 5 ALRB No. 8

428.05 Protest Against Working Conditions, Discharge, Replacement Of Strikers, Breach Of Contract Or Unfair Practices

428.05 Workers were engaged in PCA when attempting to convince co-workers that fields too wet for work.

SUPERIOR FARMING COMPANY, 8 ALRB No. 40

428.06 Racial Equality As Object

429.00 SECONDARY ACTIVITY; HOT CARGO CONTRACTS; JURISDICTIONAL DISPUTES; RECOGNITIONAL PICKETING

429.01 Secondary Picketing And Boycotts

429.01 Certified labor organization does not lose ability to engage in do not patronize picketing publicity under second publicity proviso of ALRA at end of initial certification year. Labor organization is certified until decertified.(Nish Noroian Farms (1982) 8 ALRB No. 25.)

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 Board orders labor organization to compensate persons injured in their business or property by union's violations of the secondary boycott provisions of the ALRA. Such persons may participate, by intervention if necessary, in compliance proceedings following the Board's liability determination, but no compensation shall be awarded for conduct not found violative of the Act in the liability proceeding. Regional Directors shall conduct secondary boycott compliance proceedings in conformity with the procedures and practices set forth in Title 8, California Code of Regulations, section 20290, et seq., so far as possible.

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 Similarity of secondary boycott provisions of ALRA to those of NLRA mandates construction of ALRA's provisions in conformity with precedents construing similar provisions of NLRA. (Kaplan's Fruit & Produce Co. v. Superior Court (1979) 26 Cal.3d 60 [160 Cal.Rptr. 745].)

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 ALRB rejects employer's contention that second and third publicity provisos of ALRA permit only indirect requests by labor organization to public to withdraw patronage from targeted secondary entity. The federal cases impose no such restriction. (Honolulu Typographical Union Local No. 37 v. NLRB (D.C. Cir. 1968) 401 F.2d 952 [698 LRRM 3004].)

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 Third publicity proviso of ALRA permits labor organization, not currently certified but that has not lost an election within the preceding 12 months, and with respect to the unit of agricultural employees the labor organization wishes to represent no other labor organization is currently certified representative, to engage in all publicity permissible under the first proviso and, in addition, to request the consuming public to withdraw its patronage from the targeted secondary entity provided that all restrictions applicable to a certified labor organization are met and provided further that the publicity used to request the public to withdraw its patronage not be picketing.

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 ALRB rejects ALJ's totality of circumstances approach to adequacy of labor organization's informational disclosure. Where union relies on multiple communications media such as picket signs, chanting, and union flags, at least one such medium must furnish all necessary informational elements required to satisfy truthfully advising provision of publicity provisos. Other media used must refrain from false or misleading information.

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 Labor organization agent's warning to secondary employer that union would follow secondary's delivery trucks to discover secondary's customers and would engage in informational picketing of customers to inform them of primary dispute and secondary's and secondary's customers' role in dispute not illegal threat under ALRA. Agent's warning merely informs secondary of union's intent to engage in legal conduct.

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 Labor organization engages in do not patronize picketing publicity at its peril after it loses a decertification election and files objections to the election.If the election is set aside by the Board, no violation of the secondary boycott provisions of the ALRA will be found if the picketing publicity is otherwise legal. If union's objections are dismissed and election is not set aside, Board may find violation for engaging in do not patronize publicity by uncertified labor organization from date of tally of ballots.

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 Second publicity proviso of ALRA permits currently certified labor organization to engage in all publicity permitted under the first proviso, and also allows it to request public to withdraw its patronage from entity that is the target of its secondary conduct provided that there are no proscribed secondary effects as under the first proviso, and provided also that the labor organization's publicity truthfully advises the consuming public of the nature of its primary dispute and the targeted secondary entity's relationship to that dispute.

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 As picketing is qualitatively different from pure speech such as leafletting and is clearly entitled to less constitutional protection than pure speech, Board's interpretation of fourth publicity proviso of ALRA does not violate labor organization's free speech rights under federal or California constitutions by requiring that labor organization's picketing publicity truthfully advise the public of nature of its primary dispute and relationship of secondary entities to that dispute.

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 Labor organization agent's threat to secondary employer to picket secondary's customers even if secondary ceased to supply customers with primary's struck product illegal under ALRA. If primary's struck product not present at secondary's customers, there is no producer/ distributor relationship between primary and secondary or secondary's customers as required by publicity provisos, and picketing is not protected by publicity provisos. Threat to engage in illegal conduct is illegal threat.

(San Francisco Labor Council (Ito Packing Co.) (1971) 191 NLRB 261 [77 LRRM 1593].)

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 First publicity proviso of ALRA declares all publicity, including picketing, concerning labor organizations' disputes with primary employers legal provided that such publicity (1) truthfully advises public of existence and nature of primary labor dispute and relation of targeted secondary employer to that dispute; (2) results in no proscribed secondary effects such as work stoppages or interruptions in pick-ups and deliveries among employees of an employer other than the one(s) with whom the union has its actual labor dispute; and (3) does not request that the consuming public withdraw its patronage from the entity that is the target of the union's secondary conduct.

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 Board orders labor organization found to have violated secondary boycott provisions of ALRA to mail notice of Board's decision to secondary entities with respect to whom the labor organization's secondary conduct was found violative of ALRA. Mailing serves function of informing most directly affected entities of Board's resolution of issues never previously addressed.

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 Fourth publicity proviso of ALRA bans unconstitutional restrictions on labor organizations' publicity, including picketing, in order to re-emphasize Legislature's commitment to widest possible latitude for labor organizations to publicize primary disputes consistent with the protections granted secondary employers and entities.

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 ALRB rejects ALJ's conclusion that labor organization agent's statement that labor organization would

picket secondary's customers as long as they did

business with secondary really meant the secondary's customers would be picketed as long as they received

the primary's product from the secondary.Board will

not require secondaries to show they were unaware

agent's threats really were aimed at primary rather

than at themselves as statements plainly indicated. Ambiguous threats will be construed against the

labor organization.

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 ALRB rejects employer's contention that all informational elements necessary to truthfully advise public of nature of labor organization's primary dispute and targeted secondary entity's relation to that dispute, as required by ALRA's publicity provisos, must be on each and every picket sign used by a picketing labor organization.

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 Labor organization agent's direct request to secondary employer not to do business with primary not prohibited under ALRA. Such request is mere solicitation to exercise managerial discretion, and does not constitute prohibited threats, coercion, or restraint. (NLRB v. Servette, Inc. (1964) 377 U.S. 46 [84 S.Ct. 1098].)

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 Union's publicity is adequate to meet truthfully advising requirement of ALRA's publicity provisos if (1) there is no substantial departure from fact and (2) there is no inferable intent to deceive. (International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Milk Drivers and Dairy Employees Local 537 (Lohman Sales) (1961) 132 NLRB 901 [49 LRRM 1429].)

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 To meet truthfully advising requirement of ALRA's publicity provisos labor organization's publicity must (1) disclose existence and nature of primary dispute and (2) indicate secondary employer's relationship with that dispute. (Hospital & Service Employees Union, Local 399, Service Employees International Union, AFL-CIO v. NLRB (Delta Airlines) (9th Cir. 1984) 743 F.2d 1417 [117 LRRM 2717].)

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 Labor organization agent's warning that picketing of secondary would continue as long as secondary received primary's product illegal under ALRA where picketing then occurring illegal for failure to comply with requirements of publicity provisos. When labor organization warns that it will continue picketing that is ongoing, it assumes risk that picketing that is occurring may be illegal.

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 ALRA's ban on "hard" or employee boycott, in which labor organization attempts to force other employers to curtail or cease business contacts with the employer(s) with whom it has its actual labor dispute by persuading employees of those other employers to withhold their services until compliance with the labor organization's wishes is obtained, indicates legislative intent not to permit agricultural labor organizations unlimited power to coerce secondary employers.

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.01 Legislature balanced agricultural labor organizations' interest in appealing to the public, including consumers, to support them against the primary employer(s) with whom they have their actual dispute with secondary employers' interest in avoiding entrapment in labor dispute(s) not of their own making by creating ordered sequence of permissible publicity techniques that enable labor organizations to communicate their information to the consuming public while limiting the application of those techniques so as to prevent undue economic coercion of secondary employers.

UFW (THE CAREAU GROUP dba EGG CITY), 15 ALRB No. 10

429.02 Secondary Boycotts And Secondary Recognition Strikers; Labor Code Section 1154(d)(2)

429.02 Union supporters engaged in unlawful, do-not patronize secondary picketing when they stood or walked back and forth along sidewalks in front of stores, carried banners or flags and large signs urging people to boycott table grapes and not to shop in the stores, and sometimes chanted slogans or approached cars as they entered the parking lot and asked occupants not to shop at the stores. UNITED FARM WORKERS OF AMERICA, 19 ALRB No. 15

429.02 Since union was certified at only about 12 of the 830 table grape growers in California, its do-not-patronize picketing of secondary employer is not protected by second proviso of Labor Code section 1154(d), which permits do-not-patronize picketing if union is currently certified as representative of the primary employer's employees. UNITED FARM WORKERS OF AMERICA, 19 ALRB No. 15

429.02 Union's secondary do-not-patronize picketing is not protected by free speech provisions of California or U.S. Constitution.

UNITED FARM WORKERS OF AMERICA, 19 ALRB No. 15

429.02 Labor Code sec. 1155, which provides that the expression of views, arguments or opinions shall not constitute evidence of an unfair labor practice, protects normal persuasive activities engaged in by employers and unions, but does not apply to coercive speech or picketing in furtherance of unfair labor practices.

UNITED FARM WORKERS OF AMERICA, 19 ALRB No. 15

429.03 Inducement For Secondary Object; "Individuals" Induced; Labor Code Section 1154(d)(l)

429.04 Strikes Or Picketing In Furtherance Of Boycott

429.04 Prohibition in ALRA against secondary picketing to induce customers to stop doing business with struck employer does not prohibit primary picketing which induces customers to refuse to pick up orders.

KAPLAN'S FRUIT & PRODUCE CO. v. SUPERIOR CT. (1979) 26 Cal.3d 60

429.05 Hot Cargo Contracts And Subcontractor Clauses, Ban On; Labor Code Section 1154.5

429.06 Jurisdictional Disputes; Labor Code Sections 1154(d)(4); 1160.5

429.07 "Any Employer" Under Section 1154(d)(4)

429.07 Where employees withhold their labor to exert pressure on the employer for a change in the wage structure, they are engaged in protected concerted activity. Termination for the refusal to work violates the Act.

LIGHTNING FARMS, 12 ALRB No. 7

429.07 In section 1160.5 proceeding Board did not reach questions of charging party's motivation for change in vineyard management contract or its obligation to bargain over that change or whether union engaged in unlawful secondary activity or recognitional picketing.

UNITED VINTNERS, INC., 10 ALRB No. 34

429.07 Because section 1154(d)(4) protects "any employer," it is not necessary for Board to determine whether party charging union with unlawful jurisdictional picketing is "agricultural" employer or employer of vineyard workers whose work is in dispute.

UNITED VINTNERS, INC., 10 ALRB No. 34

429.07 Where union picketed with object of preserving vineyard work previously performed by its members under long-standing vineyard management arrangement with employer of its members and decision to contract with non-union management company initiated by charging party which has since attempted to withdraw the 1154(d)(4) charge, Board found dispute at issue not subject to resolution under sections 1154(d)(4) and 1160.5 and quashed notice of hearing.

UNITED VINTNERS, INC., 10 ALRB No. 34

429.07 In determining the scope of the section 1154(d)(4) prohibition of jurisdictional picketing, the Board looks to the NLRA for guidance but takes into account the greater protections afforded employee informational picketing and secondary activity under the ALRA.

UNITED VINTNERS, INC., 10 ALRB No. 34

429.07 Although classic jurisdictional dispute not likely to occur under ALRA, potential 1154(d)(4) claim may arise in certain situations, such as where employer employs both agri-cultural and non-agricultural employees or where employer contracts with other employers, becomes part of joint enterprise or is replaced by alter ego or successor with larger pre-existing work force.

UNITED VINTNERS, INC., 10 ALRB No. 34

430.00 STRIKERS, PICKETING, AND BOYCOTTS: DISCHARGE; REFUSAL OF REINSTATEMENT, ETC.

430.01 In General

430.01 Employer's unilateral change in terms and conditions of employment is per se refusal to bargain.

GEORGE ARAKELIAN FARMS v. ALRB (1986) 186 Cal.App.3d 94

430.02 What Constitutes A "Discharge" Of Strikers; Tactical Discharge; Quitting

430.02 Board held that the employer violated sections 1153(c) and (a) by discharging unfair labor practice strikers. Although the strikers had earlier participated in unprotected activities, the employer indicated its willingness to have the strikers return by requiring them to sign a "no-strike" agreement under penalty of discharge.

O.P. MURPHY'S SONS (1979) 5 ALRB No. 63

430.03 Offer of Benefits, "Superseniority," Etc. To Refuse To Strike Or Abandon Strike

430.04 Application For Reinstatement, Sufficient; Individual Or Union Application

430.04 When strikers present selves for work, they have made a sufficient unconditional offer to return to work, even though no express offer is articulated to employer.

ANTHONY HARVESTING, INC., 18 ALRB No. 7

430.04 Respondent, having unlawfully concluded that strike constituted a quit, would have declined to consider an express unconditional offer to return to work, if such express offer had been made.

ANTHONY HARVESTING, INC., 18 ALRB No. 7

430.04 Economic strikers who unconditionally apply for reinstatement have a right to immediate reinstatement unless the employer can show that its refusal to reinstate was due to a legitimate and substantial business justification.

BERTUCCIO FARMS, 10 ALRB No. 52

430.04 Filing ULP charge alleging unlawful failure to rehire does not constitute unconditional offer to return to work. Absent other evidence of unconditional offer, no violation of Act by failure to rehire.

COLACE BROTHERS, INC., 8 ALRB No. 40

430.04 Unfair labor practice strikers who make unconditional request for reinstatement must be reinstated to former positions and replacement workers must be ousted.

VESSEY & COMPANY, INC., 7 ALRB No. 44

430.04 Strikers' offer to return to work and declaration that they were available for work "upon recall" was an unconditional offer to return even though parties' expired labor agreement had contained a seniority provision. Mere maintenance of picket line while tendering offer to return did not render offer insincere or invalid. Evidence presented by Respondent of sporadic picket line violence was not of such magnitude to render strikers' offer to return to work conditional or insincere. Specific instances of strike misconduct or violence was more appropriately addressed at the compliance stage. Unfair labor practice strikers who make unconditional request for reinstatement must be reinstated to former positions, and replacement workers must be ousted. (Ibid.)

VESSEY & COMPANY, INC., 7 ALRB No. 44

430.04 Evidence presented by Respondent of sporadic picket line violence was not of such magnitude to render strikers' offer to return to work conditional or insincere. Specific instances of strike misconduct or violence was more appropriately addressed at compliance stage.

VESSEY & COMPANY, INC., 7 ALRB No. 44

430.04 Mere maintenance of picket line while tendering offer to return did not render offer insincere or invalid.

VESSEY & COMPANY, INC., 7 ALRB No. 44

430.04 Strikers' offer to return to work and declaration that they were available for work "upon recall" was an unconditional offer to return even though parties' expired labor agreement had contained a seniority provision. VESSEY & COMPANY, INC., 7 ALRB No. 44

430.05 Replacement Of Strikers, Effect Of; Economic Or Unfair Practice Strikes

430.05 Permanent replacement of economic strikers is a defense to failure to reinstate, but employer has burden of showing that both it and the replacements explicitly understood that the replacements hired with permanent status. ANTHONY HARVESTING, INC., 18 ALRB No. 7

430.05 Upon receipt of economic strikers' unconditional offers to return to work and employer's subsequent refusal to reinstate those returning workers, employer violates Act unless employer establishes legitimate and substantial business justifications.

VESSEY & COMPANY, INC., 13 ALRB No. 17

430.05 Employer violates sections 1153(c) and (a) by failing to treat returning strikers' offers to return to work in nondiscriminatory fashion where employer alters its established seniority practices and imposes new hiring and recall policies designed to limit reemployment opportunities of returning strikers.

VESSEY & COMPANY, INC., et al. 13 ALRB No. 17

430.05 In establishing legitimate and substantial business justifications for not offering reinstatement to returning economic strikers, employer has burden of proving a mutual understanding between itself and the replacements that they were permanent.

VESSEY & COMPANY, INC., 13 ALRB No. 17

430.05 Under NLRB precedent, where Employer fails to reinstate returning strikers on grounds former positions occupied by replacements, employer violates section 1153(c) and (a) absent showing that prior to offer to return, replacements understood they were hired as permanent employees. SAM ANDREWS' SONS, INC. 12 ALRB No. 30

430.05 Dissent: Member Henning would find strike converted to unfair labor practice strike by personnel director's statement that reinstated strikers would be required to abandon their established seniority. In his view, such statement was inherently destructive of employee rights resulting in conversion of the strike irrespective of employee sentiment.

SAM ANDREWS' SONS, INC., 12 ALRB No. 30

430.05 As a matter of law, commission of an unfair labor practice, standing alone, will not convert otherwise economic strike. General Counsel must show causal connection between ULP and prolongation of strike.

SAM ANDREWS' SONS, 12 ALRB No. 30

430.05 Dissent: Member Carrillo would apply presumptions announced in Seabreeze Berry Farms to reinstatement of economic strikers into seasonal positions filled by replacements where periodic layoffs constituted "significant break" in employment relationship.

SAM ANDREWS' SONS, INC., 12 ALRB No. 30

430.05 Where Board's "Seabreeze" doctrine not applicable, as Members McCarthy and Gonot found they were not in this case, "legitimate and substantial business justification" for failing or refusing to reinstate an economic striker immediately upon offer to return to work on grounds striker permanently replaced requires affirmative showing by employer that both employer and replacement worker had mutual understanding employment status would be permanent.

SAM ANDREWS' SONS, INC., 12 ALRB No. 30

430.05 In section 1160.5 proceeding Board did not reach questions of charging party's motivation for change in vineyard management contract or its obligation to bargain over that change or whether union engaged in unlawful secondary activity or recognitional picketing.

SAM ANDREWS' SONS, INC., 12 ALRB No. 30

430.05 Where, during an economic strike by regular employees, an employer engages a labor contractor to harvest an upcoming crop and begins independent recruitment efforts to obtain replacement workers, the fact that no replacement employee has accepted an offer of employment prior to the receipt of an unconditional offer to return to work by striking employees is critical in determining whether the employer may refuse to accept such offers to return to work. The employer's inchoate plans to replace the striking employees are not legitimate and substantial business justifications, and, absent such justification, such as the actual hiring of specific replacement workers, returning economic strikers retain their rights of reinstatement. VESSEY & COMPANY, INC., 11 ALRB No. 3

430.05 Absent a demonstration of a legitimate and substantial business justification, an employer's denying economic strikers their reinstatement rights is inherently destructive of the important employee right to strike.

VESSEY & COMPANY, INC., 11 ALRB No. 3

430.05 In section 1160.5 proceeding Board did not reach questions of charging party's motivation for change in vineyard management contract or its obligation to bargain over that change or whether union engaged in unlawful secondary activity or recognitional picketing.

BRUCE CHURCH, INC., 9 ALRB No. 74

430.05 In class discrimination cases, the General Counsel has the burden of proving: (1) that the alleged discriminatory conduct was directed against an entire group, and (2) that the individual was a member of that group. Absent proof of a plan or a scheme, a group resolution under sections 1154(d)(4) and 1160.5 and quashed notice of hearing.

BRUCE CHURCH, INC., 9 ALRB No. 74

430.05 A strike, economic at its outset, was converted to an unfair labor practice strike when the employer's unlawful bargaining strategy came to fruition, and, after conversion, the employer's unlawful conduct served to prolong the strike by preventing the development of conditions under which strikers would have returned to work. Employees who, subsequent to the date of conversion, made unconditional offers to return to work were therefore entitled to reinstatement to their former or equivalent positions even if replacements had been hired.

BRUCE CHURCH, INC., 9 ALRB No. 74

430.05 Whether striking Employees unconditionally offering to return to work had been permanently replaced prior to conversion of economic strike to ULP strike appropriately deferred to compliance proceedings.

COLACE BROTHERS, INC., (1982) 8 ALRB No. 1

430.05 Where strike converted from economic to ULP strike prior to date of unconditional offer, Respondent's failure to reinstate strikers as of date of unconditional offer violates 1153(c) and (a).

COLACE BROTHERS, INC., (1982) 8 ALRB No. 1

430.05 Economic strike was later converted to ULP strike. Respondent is allowed to demonstrate at compliance stage that certain of striking Employees were perm replaced prior to conversion of strike. Such perm replaced workers were entitled to reinstatement as of date of unconditional offer to return unless Respondent could also show that is was necessary to offer perm work to the replacements beyond the first harvest season as set forth in Seabreeze Berry Farms, 7 ALRB No. 40.

VESSEY & COMPANY, INC., 7 ALRB No. 44

430.05 Economic strike was later converted to ULP strike. Respondent is allowed to demonstrate at compliance stage that certain of striking Employees were perm replaced prior to conversion of strike. Such perm replaced workers were entitled to reinstatement as of date of unconditional offer to return unless Respondent could also show that is was necessary to offer perm work to the replacements beyond the first harvest season as set forth in Seabreeze Berry Farms, 7 ALRB No. 40.

VESSEY & COMPANY, INC., 7 ALRB No. 44

430.05 In compliance hearing to determine if strikers were permanently replaced, Board's decision in Seabreeze Berry Farms (1981) (7 ALRB No. 40) controls and if only some strikers were permanently replaced, least senior Employees deemed those first replaced.

ADMIRAL PACKING CO., et al, 7 ALRB No. 43

430.05 Employer did not violate Act by procuring replacement employees by word-of-mouth rather than through its usual method of written recall notices and by changing location of pickup point for replacement employees during a strike, since obligation to bargain during an economic strike does not extend to an employer's decision to hire temporary replacement workers or to the method by which the employer chooses to obtain them.

COLACE BROTHERS, INC. (1980) 6 ALRB No. 56

430.05 Employer did not violate sections 1153(a) and (c) of the Act by failing or refusing to recall its melon harvest workers because the melon harvest workers were on strike and had made no offer to return to work at the time Employer obtained replacement workers.

JACK BROTHERS & McBURNEY, INC. (1980) 6 ALRB No. 12

430.05 The Board held that the ALJ erred in dismissing a paragraph of the complaint alleging recruitment of replacement employees without informing them of the existence of a labor dispute merely because there was no precedent to establish that the conduct alleged therein constituted a violation of section 1153(a), and that the ALJ should have allowed the general counsel to develop a full factual record on the novel issue so that appropriate findings and conclusions could be made.

SUN HARVEST, INC., 6 ALRB No. 4

430.06 Conditions Imposed By Strikers; Delay In Seeking Reinstatement

430.06 Offer to return to work upon recall not conditional since Employees' could not return until Respondent accepted offer by recalling them.

COLACE BROTHERS, INC., (1982) 8 ALRB No. 1

438.06 No violation for unilaterally changing hiring method and pickup point utilized to obtain replacement employees during a strike, since obligation to bargain during an economic strike does not extend to an employer's decision to hire temporary replacement workers or to the method by which the employer chooses to obtain them.

COLACE BROTHERS, INC. (1980) 6 ALRB No. 56

430.06 Not unlawful for Employee to refuse to reinstate striking employees who offer to return to work prior to the hiring of replacements since offer tendered by union conditioned upon Employee bargaining with Employer over the wage dispute which triggered the strike.

KYUTO NURSERY, 3 ALRB No. 30

430.07 Termination Of Strike; Settlement Agreements; Voluntary Return To Work; Promise To Rehire Strikers

430.08 Reinstatement Offer; Substantially Equivalent Employment; Conditions To Or Delay In Reinstatement; Order Of Recall

430.08 Adoption of documentation procedures for identifying returning ULP strikers reasonable in light of extended passage of time since inception of strike and limitations on contemporaneous court injunction ordering employer to reinstate only those strikers who had previously submitted written offers to return; delays in reinstatement resulting from such procedures to be remedied in compliance phase of earlier case.

LU-ETTE FARMS, INC., 10 ALRB No. 20

430.09 Strikers' Refusal Of Reinstatement Offer Or Failure To Report; Acceptance Of Other Employment As Quit

430.10 Reinstatement Of Employees On Layoff Or Leave During Strike

430.11 Discrimination As Between Returning Strikers

430.11 Employer's knowledge of felony charges pending against returning economic strikers showed a good faith belief that they had engaged in serious strike misconduct, and that belief constituted a legitimate substantial business justification for not rehiring those employees.

BERTUCCIO FARMS, 10 ALRB No. 52

430.11 The fact that an employer in good faith believed that a returning striker engaged in misconduct sufficient to bar his/her rein-statement is no defense to a ULP finding if the misconduct in fact did not occur; however, once an employer has shown such a good faith belief, the burden of showing that the misconduct did not occur shifts to the General Counsel. BERTUCCIO FARMS, 10 ALRB No. 52

430.11 A recognized legitimate and substantial business justification for refusing to reinstate returning economic strikers is the employer's good faith belief that the strikers engaged in serious strike misconduct.

BERTUCCIO FARMS, 10 ALRB No. 52

430.12 Comparative Treatment Of Strikers And Nonstrikers During Or After Strike; Seniority, Wage Payments,Vacations, Etc.

430.12 Derogatory statements to and about returned strikers violated Act as part of overall scheme of harassment and intimidation.

LU-ETTE FARMS, INC., 10 ALRB No. 20

430.12 Discrimination against returning strikers, known to be union supporters, shown by disparate treatment received by strikers as compared with nonstrikers.

LU-ETTE FARMS, INC., 10 ALRB No. 20

430.12 Exhorting employees not to assist returned strikers violated Act as part of overall scheme of harassment and intimidation. LU-ETTE FARMS, INC., 10 ALRB No. 20

430.12 Statements indicating that returning strikers would be subject to more onerous working conditions and would be singled out for criticism and disrespect was inherently threatening in violation of section 1153(a); illegal import of statements exacerbated by the hypercritical and disparaging treatment returning strikers actually received from their foremen.

LU-ETTE FARMS, INC., 10 ALRB No. 20

430.12 Photographing of returned strikers at work without their consent and against their wishes, while not constituting surveillance because employees not engaged in protected activity, violated Act as part of overall scheme of harassment and intimidation against returning strikers.

LU-ETTE FARMS, INC., 10 ALRB No. 20

430.12 When discrimination is charged in the treatment afforded returning unfair labor practice strikers, the prima facie case elements of union activity and employer knowledge are met, but more preference shown toward other strikers is insufficient evidence to carry the General Counsel's burden. BRUCE CHURCH, INC., 9 ALRB No. 74

431.00 TEMPORARY SHUTDOWNS AND LOCKOUTS

431.01 In General

431.01 Employer did not have a reasonable fear that a strike was imminent, and its phasedown constituted economic action designed to apply pressure for contractual concessions on the union during the time period specified in section 1155.3(a). WEST FOODS, INC., 11 ALRB No. 17

431.02 Reason Or Motive For Shutdown; Timing Of Shutdown; Continued Operations

431.02 Employer's motives for instituting a lockout were not "defensive"in nature as employer did not harbor a reasonable fear of an imminent strike.

WEST FOODS, INC., 11 ALRB No. 17

431.02 Employer's discontinuance of operations in the midst of pruning operations in the face of picketing activity was unlawful as it tended to aid the rival union, and to intimidate the incumbent union's supporters; the layoff of non-striking employees was in retaliation for their union support and therefore unlawful.Advice from a labor consultant that the cessation was necessary was no defense to the retaliation.

ARAKELIAN FARMS, 9 ALRB No. 25

431.03 Strike Called Or Anticipated; Employer Associations; Strike Insurance Plans; "Whipsawing" Strikes

431.03 Employer's motives for instituting a lockout were not "defensive" in nature as employer did not harbor a reasonable fear of an imminent strike.

WEST FOODS, INC., 11 ALRB No. 17

431.04 Layoffs In Non-Struck Plants, Departments, Or Units

431.04 Employer's discontinuance of crop in order to prevent harvest-time strike, several months in the future, among pro-Union Employees violated section 1153(c). Preemptive layoff cannot be justified by mere possibility of strike.

ABATTI FARMS, INC., and ABATTI PRODUCE, INC.,

7 ALRB No. 36

431.05 Eviction From Property; Protection Of Employees From Violence

431.06 Eviction From Company Houses, Labor Camp

432.00 REFUSAL TO BARGAIN IN GOOD FAITH

432.00 REFUSAL OF EMPLOYER TO BARGAIN COLLECTIVELY IN GOOD FAITH

432.01 In General, Labor Code Section 1153(e)

432.01 Where Board in decision on objections found them 462.01 insufficient to deny certification, but that the misconduct bordered on level of misconduct that had caused Board to set aside elections in past, sufficient to make refusal to bargain seeking Board and judicial review of the misconduct on that present one showing good faith belief in that election might be overturned. Board noted that Employer's remaining contentions were exaggerated or unsupported by evidence, but that they did not negate the one contention presented in this case showing good faith contention.

TRIPLE E PRODUCE CORP., 19 ALRB No. 2

432.01 Where an employer consistently and unreasonably refuses to provide information requested by the union's bargaining representative, submits predictably unacceptable proposals, refused to discuss mandatory subjects of bargaining, fields negotiators whose authority was not sufficiently broad to permit negotiations to proceed without undue delay, and unilaterally modified tentative agreements without good cause, the employer is unlawfully refusing to bargain collectively in good faith.

ROBERT MEYER dba MEYER TOMATOES, 17 ALRB No. 17

432.01 When the record as a whole reflects dilatory tactics or an effort to stall bargaining efforts which continues over a period of many months and long after any need for "clarification" has vanished, it is appropriate to order the employer to makewhole its agricultural employees for the losses suffered as a result of the employer's unlawful refusal to bargain.

ROBERT MEYER dba MEYER TOMATOES, 17 ALRB No. 17

432.01 Respondent violated section 1153(e) by failing to effects bargain over numerous reductions in crop acreage and production.

PLEASANT VALLEY VEGETABLE, 12 ALRB No. 31

432.01 Employer violated section 1153(e) by failing, as required by expired labor agreement, to inform union of its intention to prune the prune trees in time (30 days in advance of the start-up of the season) for union to negotiate rate. TEX-CAL LAND MANAGEMENT, INC., ET AL.

12 ALRB No. 26

432.01 Failure to timely notify incumbent union of impending closure warrants, in addition to usual order to effects bargain, limited backpay remedy equivalent to a minimum of two weeks pay for all employees employed from time of decision to actual closure in order to restore a semblance of bargaining strength that would have obtained had Respondent fulfilled its bargaining obligation at a time when the employee unit was still intact.

ROBERT J. LINDELEAF, 12 ALRB No. 18

432.01 Meyers Industries does not require the Board to factor out individual motives to see if all employees were activated by the same one in order to determine if walkout is concerted activity.

ARMSTRONG NURSERIES, INC., 12 ALRB No. 15

432.01 One day walkout presumptively protected in absence of proof that it was part of a pattern of disruptive activities.

ARMSTRONG NURSERIES, INC., 12 ALRB No. 15

432.01 Action of five employees in walking off the job together to protest longer workday and employer's failure to notify them of change is concerted even if some of the employees had individual reasons for joining in the walkout. ARMSTRONG NURSERIES, INC., 12 ALRB No. 15

432.01 Employer violated section 1153(e) by locking out its employees and by refusing to bargain in good faith with the employees' certified bargaining representative.

WEST FOODS, INC., 11 ALRB No. 17

432.01 Employer's assertion that its proposals, including union security, to exclude employees of its labor contractor from the terms of a contract was a form of a technical refusal to bargain, held to be without merit; proposals to exclude such employees are per se violations and, in any event, at no time did employer have a reasonable good faith belief that its labor contractor employees were not its agricultural employees.

PAUL W. BERTUCCIO, 10 ALRB No. 16

432.01 Employer's conditioning of bargaining over employees in the bargaining unit on concessions from the union is a per se violation of the duty to bargain.

PAUL W. BERTUCCIO, 10 ALRB No. 16

432.01 The filing of a petition for unit clarification does not suspend the duty to bargain over employees in question.

PAUL W. BERTUCCIO, 10 ALRB No. 16

432.01 Employer's conduct in refusing to provide requested information, failing to submit economic proposals over a 19-month period, submitting only two non-economic proposals, and implementing unilateral changes constituted an unlawful refusal to bargain collectively in good faith. ROBERT H. HICKAM, 10 ALRB No. 2

432.01 An employer who merely gives the appearance of bargaining, but has no intention of reaching an agreement, acts in bad faith and violates section 1153(e). GROW-ART, 9 ALRB No. 67

432.01 Employer violated the ALRA by unlawfully repudiating its contract with union and laying off employees in violation of contract seniority provision. PETER D. SOLOMON and JOSEPH R. SOLOMON dba CATTLE VALLEY FARMS/TRANSCO LAND AND CATTLE CO., 9 ALRB No. 65

432.01 Given employer's substantial, consistent and unreasonable refusal to provide the bargaining representative with information requested from which the inference clearly arises that employer's illegality was conscious and in bad faith, it is appropriate to order that employer make whole its agricultural employees for the losses they suffered as a result of employer's unlawful refusal to bargain. CARDINAL DISTRIBUTING COMPANY, INC., et al.,

9 ALRB No. 36

432.01 The obligation to bargain in good faith means that while the parties need not agree, they must meet with the intent to reach agreement if at all possible. Reaching tentative agreements on articles in the proposed contract pending agreement on all the articles is a well-established method of fulfilling one's bargaining obligations. However, unilateral withdrawal of tentative agreements without good cause is indicative of bad faith bargaining, not withstanding the tentative nature of the agreements. Formal rules of contract formation are not binding.

ARAKELIAN FARMS, 9 ALRB No. 25

432.01 Under NLRA & ALRA, Employer is required to bargain collectively with collective bargaining agent over wages, hours, and other terms and conditions of employment.

N. A. PRICOLA PRODUCE, 7 ALRB No. 49

432.01 Good faith bargaining requires negotiating with intent to reach agreement.

ADMIRAL PACKING CO., et al, 7 ALRB No. 43

432.01 Violation of section 1153(e) also violation of section 1153(a). ADMIRAL PACKING CO., et al, 7 ALRB No. 43

432.01 Employee engaged in PCA by serving as crew spokesman in meeting with co. owner where workers' grievances about wages and working conditions discussed.

YAMAMOTO FARMS, 7 ALRB No. 5

432.01 Section 1152(a) cannot be basis of violation as it merely defines collective bargaining.

MASAJI ETO, et al., 6 ALRB No. 20

432.01 Mere "griping" about a condition of employment is not protected, but when the "griping" coalesces with expression inclined to produce group or representative action, the statute protects the activity.

JACK BROTHERS & MCBURNEY, INC. (1980) 6 ALRB No. 12

432.01 Where the employer continued to farm after its duty to bargain arose, but refused to bargain with the UFW before it terminated its agricultural operations or thereafter, the Board found that the employer had refused to bargain in violation of section 1153(e). P&P Farms, 5 ALRB No. 59

432.01 Good faith bargaining is such bargaining as leads either to a contract or impasse. WILLIAM DAL PORTO & SONS, INC. v. ALRB (1987) 191 Cal.App.3d 1195

432.01 A party is guilty of surface bargaining when it merely goes through the motions of negotiating a collective bargaining agreement without any real intent to enter into a binding agreement.

George Arakelian Farms, Inc. v. ALRB (1989) 49 Cal.3d 1279

432.01 Employer's failure to grant post-certification access constitutes a refusal to bargain in good faith and violates both 1153(e) and 1153(a). F&P GROWERS ASSN. v. ALRB (1985) 172 Cal.App.3d 1127

432.01 Employer's failure to provide information necessary to taking post-certification access violates 1153(e) and 1153(a). F&P GROWERS ASSN. v. ALRB (1985) 172 Cal.App.3d 1127

432.01 Because Board has issued bargaining order expressly to remedy employer's ULP's, bargaining duty can be enforced under 1160.8 whether or not failure to comply would, itself, be independent ULP under 1153(e).

HARRY CARIAN SALES v. ALRB (1985) 39 Cal.3d 209

432.01 Board finding of bad faith bargaining overturned where employers did not make take-it-or-leave-it offer, bargained to impasse over crucial issue of economics, genuinely believed that their economic proposal was controlled by then-existing presidential wage and price guidelines, and only communicated their views about status of negotiations in advertisements directed to employees.

CARL JOSEPH MAGGIO, INC. v. ALRB (1984) 154 Cal.App.3d 40

432.01 Section 1153(f) does not preclude employer from bargaining with certified union after "certification year."

MONTEBELLO ROSE CO. v. ALRB (1981) 119 Cal.App.3d 1

432.01 Board refusal to extend certification under 1155.2(b) is not res judicata as to later-instituted ULP charges, since General Counsel was not a party to initial proceedings and such an interpretation would make unlikely any further use of extension of certification procedure.

MONTEBELLO ROSE CO. v. ALRB (1981) 119 Cal.App.3d 1

432.01 Collective bargaining requires time and interaction for maturation of relationship between employer and union.

MONTEBELLO ROSE CO. v. ALRB (1981) 119 Cal.App.3d 1

432.01 Neither statute nor regulations provide any avenue for courts to review ALRB orders extending certification. Employer cannot obtain indirect review thereof by refusing to bargain.

YAMADA BROS. v. ALRB (1979) 99 Cal.App.3d 112

432.02 Refusal To Bargain For Purpose Of Obtaining Judicial Review; Technical Refusal To Bargain (see also section 463.03)

432.02 Dissent, particularly one that disregarded established distinction between impact of conduct of agents of parties and third parties on election, does not make refusal to bargain in that case a close question under

J. R. Norton (1980) 26 Cal.3d 1, nor does ALJ decision denying certification for reasons rejected by Board.

TRIPLE E PRODUCE CORP., 19 ALRB No. 2

432.02 Where employer failed to produce declaratory support which was legally or factually sufficient to establish a prima facie showing that its peak objection should be heard, employer has not shown reasonable litigation posture in arguing that Board's dismissal of its objection was erroneous.

SCHEID VINEYARDS AND MANAGEMENT CO., 19 ALRB No. 1

432.02 Employer would not have waived its right to seek judicial review of Board's dismissal of its obligations prior to certification by giving union that had received majority of votes in election notice and opportunity to bargain as to specific changes in mandatory subject of bargaining it wished to effectuate before certification.

GERAWAN RANCHES, et al. 18 ALRB No. 16

432.02 Respondent violated bargaining obligation by closing housing it had previously provided without notice to or bargaining with union that received majority of ballots in Board election.

GERAWAN RANCHES, et al. 18 ALRB No. 16

432.02 Board will not allow relitigation of facts proved in representation proceeding in subsequent unfair labor practice case where employer fails to present new or previously unavailable evidence, or to demonstrate extraordinary circumstances justifying such relitigation. Exceptions to relitigation ban in cases showing widespread threats and property damage, or actual as opposed to merely threatened violence, not applicable where basis for relitigation request is presence or absence of impermissible promise of benefit.

LIMONEIRA COMPANY, 15 ALRB No. 20

432.02 Concurrence/Dissent: Relitigation is warranted in unfair labor practice proceedings of matters previously determined in underlying representation proceeding when there are faulty findings of facts and conclusions of law in the prior Decision. (Cf. Sutti Farm (1981))

7 ALRB No. 42 and Triple E Produce Corp. (1980) 6 ALRB No. 46, revd. on other grounds, Triple E Produce Corp. v. ALRB (1983) 35 Cal.3d 42 where election-related issues were reconsidered because of errors due to oversight by Board.)

LIMONEIRA COMPANY, 15 ALRB No. 20

432.02 Board finds incidents of actual violence sufficient to justify dismissing technical refusal to bargain complaint and vacating prior certification order where (1) pro-union employees surrounded labor consultants in their car after having bombarded the car with hardened dirt clods and unripe tomatoes and rocked the car as if intending to overturn it; (2) pro-union employees and union organizers coerced non-participating workers into ceasing work by pelting them with hardened dirt clods and unripe tomatoes; and (3) pro-union employees surrounded labor consultant's car at polling site on day of election and bombarded car with hardened dirt clods and unripe tomatoes while beating on car with fists and rocking car as if to overturn it.

ACE TOMATO COMPANY, INC./GEORGE B. LAGORIO FARMS,

15 ALRB No. 7

432.02 Where actual violence creates atmosphere of fear and coercion or reprisal sufficient to render employee free choice impossible, Board will follow T. Ito & Sons Farms, 11 ALRB No. 36 and reconsider facts previously litigated in representation proceeding. ACE TOMATO COMPANY, INC./GEORGE B. LAGORIO FARMS, 15 ALRB No. 7

432.02 On remand from Court of Appeal, Board found that two month delay between request and refusal to bargain, absent other evidence of bad faith, was insufficient to support a finding of bad faith. Board concluded that it was improper to rely upon other factors which were either not relied upon by the ALJ due to credibility resolutions or not fully litigated in the underlying election objection proceedings.

SAN JUSTO RANCH/WYRICK FARMS 14 ALRB No. 1

432.02 Concurrence/Dissent: Member McCarthy would hold the employer's unexplained 70-day delay in responding to union's bargaining request to be evidence of lack of reasonableness and good faith. He would impose makewhole from 30 days after the bargaining request until the employer notified union of its technical refusal to bargain. SAN JUSTO RANCH/WYRICK FARMS 14 ALRB No. 1

432.02 The Board declined to award makewhole relief following an employer's technical refusal to bargain after it concluded that the employer's arguments concerning the appropriateness of the Board's unit designation, the identity of the statutory employer and the conduct of the election were reasonable.

S & J RANCH, INC., 12 ALRB No. 32

432.02 Absent facts such as those found compelling in T. Ito & Sons Farms (1985) 11 ALRB No. 36, Board does not relitigate representation case issues presented in subsequent ULP proceedings where there is no newly discovered or previously unavailable evidence, or a claim of extraordinary circumstances.

S & J RANCH, INC., 12 ALRB No. 32

432.02 Board concludes that Respondent's technical refusal to bargain was reasonable and asserted in good faith.As such, a makewhole remedy was not required. Members Henning and Carrillo dissented.

PLEASANT VALLEY VEGETABLE, 12 ALRB No. 31

432.02 The Board revoked earlier certification, adopting the exception established in Subzero Freezer, Inc. (1984) 271 NLRB No. 7 to the general rule proscribing relitigation of representation issues during the technical refusal-to-bargain proceeding, where the Board finds that the election was conducted in an atmosphere of fear and coercion.

T. ITO & SONS FARMS, 11 ALRB No. 36

432.02 Employer violated section 1153(e) when it refused to bargain in order to obtain ALRB ruling on its argument that the duty to bargain lapsed at the end of the certification year.

0. E. MAYOU & SONS, 11 ALRB No. 25

432.02 Employer's attempts to limit his presence at a negotiating session it requested, to a posture of less than full bargaining, were ineffective to preserve a technical refusal to bargain posture asserted previously.

0. E. MAYOU & SONS, 11 ALRB No. 25

432.02 Board inferred bad faith from employer's wholly discredited testimony in defense of his refusal to recognize and bargain with the union.

JOHN ELMORE FARMS, et al., 11 ALRB No. 22

432.02 The Board refused to award makewhole relief following an employer's technical refusal to bargain after it concluded that the employer's argument concerning the peak calculation in the underlying representation proceeding was reasonable.

ADAMEK AND DESSERT, INC., 11 ALRB No. 8

432.02 Makewhole remedy appropriate where employer could not have entertained a reasonable good faith belief that employees were disenfranchised absent showing of lack of notice or evidence that voters were prevented from voting by misconduct of Board or any party.

LEO GAGOSIAN FARMS, INC., 10 ALRB No.39

432.02 Employer's unilateral closure of operation without notice to union - prior to certification of union - did not violate section 1153(e) where employer held a reasonable belief at the time of the refusal to bargain that it was the employer of a group of employees and reasonably believed that the election petition was therefore untimely.

W. G. PACK, JR., 10 ALRB No. 22

432.02 Makewhole remedy appropriate where employer's technical-refusal-to- bargain based on successorship was not raised in reasonable good faith; employer's legal theory was highly impractical, mechanical, and totally without support in state or federal precedent, and employer tried to create its own claim through illegal discrimination.

SAN CLEMENTE RANCH, LTD., 10 ALRB No. 21

432.02 Employer's assertion that its proposals, including union security, to exclude employees of its labor contractor from the terms of a contract was a form of a technical refusal to bargain, held to be without merit; proposals to exclude such employees are per se violations and, in any event, at no time did employer have a reasonable good faith belief that its labor contractor employees were not its agricultural employees.

PAUL W. BERTUCCIO, 10 ALRB No. 16

432.02 Employees will be made whole where employer persists in challenging the certification order merely as a means of delaying the negotiations process; allegations of Board agent misconduct, even if true, did not describe conduct which would tend to affect results of election.

GEORGE A. LUCAS & SONS, 10 ALRB No. 14

432.02 An employer that wishes to test the validity of the Board's certification must refuse to bargain with the certified bargaining representative in a timely manner; such a rule is necessary in order to insure the integrity of the Board's process and the judicial process.

GROW-ART, 9 ALRB No. 67

432.02 An employer who embarks upon negotiations with a certified union implicitly abandons any objections it may have raised regarding the validity of the certification.

GROW-ART, 9 ALRB No. 67

432.02 An employer who merely gives the appearance of bargaining, but has no intention of reaching an agreement, acts in bad faith and violates section 1153(e). GROW-ART, 9 ALRB No. 67

432.02 Where the Board specifically included packing shed workers in the bargaining unit, the certified bargaining representative had a duty to represent those workers, and the employer's attempt to have the bargaining representative voluntarily exclude the packing shed workers from the unit was contrary to the purposes of the Act. GROW-ART, 9 ALRB No. 67

432.02 Employer violated Labor Code section 1153(e) when it refused to bargain in order to seek judicial review of the validity of the underlying certification of a bargaining representative.

SAN JUSTO RANCH/WYRICK FARMS, 9 ALRB No. 55

432.02 The Board must determine in technical refusal to bargain cases whether makewhole relief is appropriate on a case-by-case basis.

C. MONDAVI & SONS, d/b/a CHARLES KRUG WINERY

6 ALRB No. 30

432.02 Board follows NLRB precedents which hold that the duty to bargain is not tolled pending the outcome of a judicial appeal of an unfair labor practice case, even though the validity of the certification may turn on the resolution of the ULP charge, citing East Coast Equipment Corporation (1977) 229 NLRB No. 130 [95 LRRM 116].

ABATTI FARMS INC., 5 ALRB No. 34

432.02 Board will not relitigate representation issues in related unfair labor practice decisions.

GEORGE ARAKELIAN, 4 ALRB No. 53

432.02 The ALRB adopts NLRB's broad proscription against relitigation of representation issues in a related unfair labor practice proceeding (viz., technical refusal to bargain cases). Absent newly discovered or previously unavailable evidence, or extraordinary circumstances justifying relitigation, the Board will not re-examine its earlier determinations of election objections.

C. MONDAVI & SONS dba CHARLES KRUG WINERY (1978)

4 ALRB No. 52

432.02 The ALRB adopts NLRB's broad proscription against relitigation of representation issues in a related unfair labor practice proceeding (viz., technical refusal to bargain cases). Absent newly discovered or previously unavailable evidence, or extraordinary circumstances justifying relitigation, the Board will not re-examine its earlier determinations of election objections.

J.R. NORTON COMPANY (1978) 4 ALRB No. 39

432.02 Makewhole remedy applies whether employer's refusal to bargain was designed solely to procure review in courts of underlying election issues, or whether it was of flagrant or willful variety. In either case, employees have lost their statutorily created rights to be represented by their Board certified representative during negotiations of wages, hours, and other terms and conditions of employment.

PERRY FARMS, INC., 4 ALRB No. 25

432.02 Unless litigation of the employer's position furthers the policy and purposes of the Act, the employer, not the affected employees, should ultimately face the consequences of its choice to litigate the representation issues rather than bargain with the employees in good faith.

George Arakelian Farms, Inc. v. ALRB (1989) 49 Cal.3d 1279

432.02 In cases involving a technical refusal to bargain, any relevant evidence tending to show that no contract would have been consummated between the parties is more appropriately introduced in the compliance proceedings of the Board's bifurcated determination process, rather than the liability proceedings, because the question of what the parties might have agreed to concerns the amount of damages rather than the fact of damages.

George Arakelian Farms, Inc. v. ALRB (1989) 49 Cal.3d 1279

432.02 Employer's duty to bargain continues during its court challenge of Board's decision to certify union as bargaining representative.

GEORGE ARAKELIAN FARMS v. ALRB (1986) 186 Cal.App.3d 94

432.02 Makewhole relief is not automatically available whenever the Board finds that an employer has failed to present a prima facie case in support of its objections; any other view would inhibit challenges in close cases raising important questions of fact or law concerning fairness of an election.

LINDELEAF v. ALRB (1986) 41 Cal.3 d 861

432.02 Makewhole relief appropriate where union prevails in election by sizeable margin, employer's evidentiary objections to Board's ruling were neither substantial nor of a nature to have affected outcome of election, and workers have endured a prolonged delay.

LINDELEAF v. ALRB (1986) 41 Cal.3d 861

432.02 Makewhole relief is appropriate when an employer unreasonably refuses to accept the results of free and fair election, in effect using litigation as pretense to thwart collective bargaining process.

LINDELEAF v. ALRB (1986) 41 Cal.3d 861

432.02 Makewhole relief is appropriate even where there is a lone dissenting hearing officer, Board member, or appellate judge who finds merit in an employer's claim of election misconduct. A holding otherwise would potentially eliminate any disincentive for employers to pursue dilatory appeals by too easily immunizing them against makewhole demands.

LINDELEAF v. ALRB (1986) 41 Cal.3d 861

432.02 Employer's denial of recognition to newly elected union is a devastating psychological blow.

RULINE NURSERY CO. v. ALRB (1985) 169 Cal.App.3d 247

432.02 The term "technical refusal to bargain" refers to employer's seeking judicial review by refusing to bargain with union.

F&P GROWERS ASSN. v. ALRB (1985) 168 Cal.App.3d 667

432.02 Board's two-part test for makewhole in technical refusal cases (see J.R. Norton (1980) 6 ALRB No. 26) accords with Supreme Court's guidelines in Norton v. ALRB (1979) 26 Cal.3d 1. GEORGE ARAKELIAN FARMS, INC. v. ALRB (1985) 40 Cal.3d 654

432.02 In applying makewhole in technical refusals-to-bargain, Board must look at facts and equities and determine whether litigation is pretense to avoid bargaining or employer believed in reasonable good faith that election conduct deprived employees of free choice. GEORGE ARAKELIAN FARMS, INC. v. ALRB (1985) 40 Cal.3d 654

432.02 Employer's refusal to bargain on ground of no successorship was based on employer's discriminatory refusal to hire former pro-union employees. Such discrimination is act of "bad faith" under Norton standards. BABBITT ENGINEERING & MACHINERY v. ALRB (1984) 152 Cal.App.3d 310

432.02 Need for stability in union representation is increased in a successorship situation, where employees need special protection from changes in policy, organization, and terms and conditions of employment.

SAN CLEMENTE RANCH, LTD. v. ALRB (1981) 29 Cal.3d 874

432.02 In determining whether makewhole is appropriate in technical refusal to bargain cases, Board must look at the totality of employer's conduct to determine whether litigation of its election objections was simply to delay bargaining or whether it litigated in a reasonable good faith belief that employees were denied free choice.

J.R. NORTON CO. v. ALRB (1979) 26 Cal.3d 1

432.02 Employer cannot obtain immediate review of Board's decision certifying union; it can only obtain review of such election matters after being found guilty of refusing to bargain--a "technical refusal."

J.R. NORTON CO. v. ALRB (1979) 26 Cal.3d 1

432.02 Availability of judicial review through technical refusal to bargain is a sufficient check on arbitrary administrative action to permit summary dismissal of objections. J.R. NORTON CO. v. ALRB (1979) 26 Cal.3d 1

432.02 Only way employer may obtain judicial review of election and certification is to refuse to bargain, be found guilty of ULP, and obtain review of election and certification in course of review of ULP decision.

PERRY FARMS INC. v. ALRB (1978) 86 Cal.App.3d 448

432.02 In absence of newly discovered or previously unavailable evidence or extraordinary circumstances, respondent in refusal-to-bargain proceeding may not litigate matters which were or could have been raised in prior representation proceedings.

PERRY FARMS INC. v. ALRB (1978) 86 Cal.App.3d 448

432.02 Orders in certification proceedings are not directly reviewable in courts, but only become reviewable by resistance to a ULP charge, at which time various issues involved in the certification may be reviewed.

NISHIKAWA FARMS, INC. v. MAHONY (1977) 66 Cal.App.3d 781

432.03 Persons Required To Bargain; Purchaser Or Transferee; "Successors"; Affiliated Companies

432.03 Lack of joint employer relationship between former landowner and former land management company holding the bargaining obligation does not preclude purchaser of land who also operates the ranch from succeeding to bargaining obligation. More consistent with established successorship principles and the policies underlying those principles to focus on who succeeds to the function of the predecessor employer, rather than on the passing of ownership interests.MICHAEL HAT FARMING CO.,

19 ALRB No. 13

432.03 Deemphasis of workforce majority criterion in San Clemente did not dispense with need for some substantial workforce continuity. Lack of any workforce continuity precludes finding successorship.

MICHAEL HAT FARMING CO., 19 ALRB No. 13

432.03 Workforce continuity may not be presumed where employer provides credible, nondiscriminatory business reasons for not hiring any employees of the predecessor.

MICHAEL HAT FARMING CO., 19 ALRB No. 13

432.03 Changes in duties, and complete change in supervisory staff are types of changes which are properly relied on to show lack of continuity of operations; however, other changes which simply made the operation more efficient and reduced labor needs should be given little weight because they did not change the essential nature of the enterprise nor significantly affect employees and their working conditions.

MICHAEL HAT FARMING CO., 19 ALRB No. 13

432.03 Where post-sale change in a workforce is due to gradual employee turnover rather than any "alteration in managerial direction" and where the continuity of operations and supervision was maintained by the new employer, the new employer succeeds to the former employer's bargaining obligation despite the fact that the new employer purchased only a fraction of the land covered by the original unit and only a minority of the seller's employees worked for the purchasers; the part of the unit purchased was the most labor-intensive part of the original unit and was broken off from the rest of the unit at an "obvious cleavage line."

SUMNER PECK RANCH, INC., 10 ALRB No. 24

432.03 Successor bound by certification issued after purchase where election held before purchase and successor knew of election and pending ALRB proceedings but chose not to intervene. SUMNER PECK RANCH, INC., 10 ALRB No. 24

432.03 Transcribed arguments of counsel for predecessor employer and union in prior representation proceeding which resulted in stipulation to withdraw objections, resulting in certification of union, properly excluded as irrelevant to successor employer's duty to bargain with union. SUMNER PECK RANCH, INC., 10 ALRB No. 24

432.03 Board found violation of section 1153(e) and (a) where successor- employer refused to meet and bargain with bargaining representative of predecessor's employees despite lack of continuity in work force as that condition resulted from successor's refusal to consider or hire predecessor's employees. RIVCOM CORPORATION and RIVERBEND FARMS, INC., 5 ALRB No. 55

432.03 Employer was not in bad faith in rejecting union's successorship clause, since employer had reason to believe that such language would make it difficult to sell company, and since it was unclear, at time of negotiations, whether ALRB would apply NLRB rule that successors are not bound by predecessors' contracts.

WILLIAM DAL PORTO & SONS, INC. v. ALRB (1984) 163 Cal.App.3d 541

432.03 Federal precedent on successorship is generally applicable under the ALRA, except to the extent the federal cases focus on "workforce continuity." Since high turnover is prevalent in agriculture, the federal focus on workforce continuity is not applicable.

BABBITT ENGINEERING & MACHINERY v. ALRB (1984) 152 Cal.App.3d 310

432.03 Whether purchaser of business becomes successor to existing bargaining obligation is determined on case-by- case basis. Factors to be considered are workforce continuity, continuity of business operations, similarity of supervisory personnel, similarity of product or service, similarity in methods of production, sales, or inventorying, and use of same plant. BABBITT ENGINEERING & MACHINERY v. ALRB (1984) 152 Cal.App.3d 310

432.03 In agriculture, workforce continuity as factor in successorship must be viewed in light of seasonal

and migratory nature of agricultural workforce-- characteristics which often result in high turnover.

BABBITT ENGINEERING & MACHINERY v. ALRB (1984) 152 Cal.App.3d 310

432.03 Finding of successorship upheld where employer disrupted workforce continuity by its own discriminatory hiring practices, and the business, real property, equipment, product, and unit size were all the same after purchase.

BABBITT ENGINEERING & MACHINERY v. ALRB (1984) 152 Cal.App.3d 310

432.03 Successorship analysis seeks to determine whether, after transfer of business control, the previously certified unit is still appropriate and in existence. Criteria include continuity of supervision, similarity of machinery or equipment, retention of employee functions, and, most importantly, continuity of work force.

RIVCOM CORP. v. ALRB (1983) 34 Cal 3d. 743

432.03 Although ALRA section 1156 requires that a labor organization must win secret ballot election before ALRB will certify it as exclusive bargaining agent, Legislature did not intend to abrogate obligations of a successor employer with regard to a union that was selected by predecessor's employees.

SAN CLEMENTE RANCH, LTD. v. ALRB (1981) 29 Cal.3d 874

432.03 Since there are a great variety of factual circumstances in which successorship issues may arise, and because different legal consequences may be at issue in different situations, each successorship case must be decided on a case-by-case basis and not pursuant to a single, mechanical formula.

SAN CLEMENTE RANCH, LTD. v. ALRB (1981) 29 Cal.3d 874

432.03 Because of great seasonal fluctuations in workforce of typical agricultural employer, it would cause unnecessary delay to determine whether successor employees are substantially same as predecessor employees only at the period of peak employment. Therefore, NLRB requirement that new employer's bargaining obligations cannot be determined until "full complement" of employees is hired is not strictly applicable to ALRA.

SAN CLEMENTE RANCH, LTD. v. ALRB (1981) 29 Cal.3d 874

432.03 In view of fact that new employer took over on-going ranch and continued regular operations of business for substantial period of time (4 months) with a workforce made up largely of predecessor's employees, ALRB was justified in imposing bargaining obligation on successor.

SAN CLEMENTE RANCH, LTD. v. ALRB (1981) 29 Cal.3d 874

432.03 In successorship context, employer's attempt to equate "full complement" and "peak employment" is totally unsound.

SAN CLEMENTE RANCH, LTD. v. ALRB (1981) 29 Cal.3d 874

432.04 Burden Of Proof; Evidence

432.04 In compliance proceeding, General Counsel has the burden of proving the appropriate duration of the makewhole remedy. MARIO SAIKHON, INC. 13 ALRB No. 8

432.04 Where facts stipulated to Board without hearing, the General Counsel failed to establish that the employe refused to provide information or otherwise refused to bargain where there existed a factual conflict in the record, which was impossible to resolve without credibility determinations.

0. E. MAYOU & SONS, 11 ALRB No. 25

432.04 Employer's admission that he did not intend to bargain over reinstatement of medical plan found to be conclusive on a issue of Employer's lack of good faith in raising issue of coverage lapse. ABATTI FARMS, INC., and ABATTI PRODUCE, INC., 7 ALRB No. 36

432.04 No finding Union reneged on agreements or improperly changed proposals because proposals not in evidence and changes testified to were minimal.

KAPLAN'S FRUIT AND PRODUCE COMPANY, 6 ALRB No. 36

432.04 No finding of bad faith based on parties' inability to compromise on hiring hall, even though reasonable compromises of parties' positions were proposed, because no evidence why proposals not accepted.

KAPLAN'S FRUIT AND PRODUCE COMPANY, 6 ALRB No. 36

432.04 Conduct away from bargaining table reflects on good faith at table. Nonetheless, inadequate evidence of surface bargaining; dismissal of pro-Union crew leader just before negotiations and two unilateral wage increases not sufficient to find overall bad faith.

KAPLAN'S FRUIT AND PRODUCE COMPANY, 6 ALRB No. 36

432.04 If the Board finds that the grower has failed to prove no contract would have been entered into absent his refusal to bargain, the Board should then impute an agreement and measure losses of pay and benefits with reference to the imputed contract.

PAUL W. BERTUCCIO v. ALRB (1988) 202 Cal.App.3d 1369

432.04 If the grower fails to carry its burden to prove no contract would have been agreed to absent the grower's refusal to bargain, the Board may find an agreement providing for higher pay would have been concluded but for the grower's refusal to bargain.

PAUL W. BERTUCCIO v. ALRB (1988) 202 Cal.App.3d 1369

432.04 The Board's General Counsel has the initial burden of producing evidence to show the grower unlawfully refused to bargain. Once the General Counsel produces such evidence, the burden of persuasion shifts to the grower to prove no agreement calling for higher pay would have been concluded in the absence of the illegality.

PAUL W. BERTUCCIO v. ALRB (1988) 202 Cal.App.3d 1369

432.04 The placing of the burden on the employer to rebut the presumption that the parties would have entered into an agreement had the employer bargained in good faith, does not unconstitutionally violate due process, since empirical data supports a rational connection between good faith bargaining and the consummation of an agreement. WILLIAM DAL PORTO & SONS, INC. v. ALRB (1987) 191 Cal.App.3d 1195

432.04 The placing of the burden on the employer to rebut the presumption that the parties would have entered into an agreement had the employer bargained in good faith, does not unconstitutionally violate due process, since empirical data supports a rational connection between good faith bargaining and the consummation of an agreement. WILLIAM DAL PORTO & SONS, INC. v. ALRB (1987) 191 Cal.App.3d 1195

432.04 If the employer fails to carry the burden of proving that no contract would have been concluded in good faith, the Board should impute to the parties an agreement, and measure losses of pay and benefits with reference to it.

WILLIAM DAL PORTO & SONS, INC. v. ALRB (1987) 191 Cal.App.3d 1195

432.04 In proceedings before the ALRB seeking a makewhole remedy under Labor Code section 1160.3 for an employer's refusal to bargain in good faith, there is a rebuttable presumption, placing the burden of proof on the employer, that the parties would have consummated a collective bargaining agreement had the employer bargained exclusively in good faith. WILLIAM DAL PORTO & SONS, INC. v. ALRB (1987) 191 Cal.App.3d 1195

432.04 In considering need for post- certification access, employer bears burden of overcoming presumption that there are no other adequate alternative means of communicating with employees. F&P GROWERS ASSN. v. ALRB (1985) 172 Cal.App.3d 1127

432.04 State of mind--the key issue in bad-faith bargaining case--is not question of law but of fact, and is most often established by circumstantial evidence. Such determinations must be made on basis of totality of circumstances.

WILLIAM DAL PORTO & SONS, INC. v. ALRB (1984) 163 Cal.App.3d 541

432.04 Board's regulations, (20382(g)) preclude admission in ULP proceedings of Board order extending certification.

YAMADA BROS. v. ALRB (1979) 99 Cal.App.3d 112

432.05 Violation Of Contract As Unfair Labor Practice

432.05 Employer violated the ALRA by unlawfully repudiating its contract with union and laying off employees in violation of contract seniority provision. PETER D. SOLOMON and JOSEPH R. SOLOMON dba CATTLE VALLEY FARMS/TRANSCO LAND AND CATTLE CO., 9 ALRB No. 65

432.06 Refusal To Bargain Between Union Election Victory And Certification

432.06 Where the General Counsel failed to show that the closure of these nursery for one-half day prior to New Year's Day represented a change in employment practices, the Board refused to find that the employer had violated its duty to bargain when it closed the nursery for one-half day without negotiating with the Union.

SUNNYSIDE NURSERIES, INC., 6 ALRB No. 52

432.06 The employer violated its duty to bargain where it changed its hiring practices following a Union election victory without negotiating with the Union even though the Board had not yet certified the Union's election victory. SUNNYSIDE NURSERIES, INC., 6 ALRB No. 52

432.06 Employer's denial of recognition to newly elected union is a devastating psychological blow. RULINE NURSERY CO. v. AGRICULTURAL LABOR RELATIONS BOARD (1985) 169 Cal.App.3d 247

432.06 Employer must bargain over effects of decision to close its operations, even while election objections are still pending. HIGHLAND RANCH v. ALRB (1981) 29 Cal.3d 848

432.06 While employer need not bargain to contract while election objections are pending and before union is certified, employer's refusal to bargain over changes in working conditions during that period is unlawful if union is ultimately certified. This policy is intended to prevent employer from undermining or boxing in union before contract bargaining even begins. HIGHLAND RANCH v. ALRB (1981) 29 Cal.3d 848

433.00 SUBJECTS FOR BARGAINING; UNION DEMANDS

433.01 Mandatory Subjects Of Bargaining

433.01 Where an employer consistently and unreasonably refuses to provide information requested by the union's bargaining representative, submits predictably unacceptable proposals, refused to discuss mandatory subjects of bargaining, fields negotiators whose authority was not sufficiently broad to permit negotiations to proceed without undue delay, and unilaterally modified tentative agreements without good cause, the employer is unlawfully refusing to bargain collectively in good faith.

ROBERT MEYER dba MEYER TOMATOES, 17 ALRB No. 17

433.01 Imposition of production standards enforced by disciplinary warnings constitutes change in a mandatory subject of bargaining requiring notice and opportunity to bargain be accorded certified representative.

SKALLI CORPORATION dba ST. SUPERY, 17 ALRB No. 14

433.01 Dues checkoff excepted from general rule that employer may not make unilateral changes in terms and conditions of employment embodied in a collective bargaining agreement following expiration of the agreement. Violation found where employer suddenly and unilaterally ceased dues deductions provided for in an on-going contract. CERTIFIED EGG FARMS AND OLSON FARMS, INC.,

16 ALRB No. 7

433.01 Respondent violated section 1153(c) by discriminatorily transferring harvest work from its own crew to a labor contractor. The transfer involved a mandatory subject of bargaining. PLEASANT VALLEY VEGETABLE, 12 ALRB No. 31

433.01 Employer's unilateral change from requirement of oral to written notice for union to take access was not a violation of 1153(e) as it was not a change affecting a mandatory subject of bargaining.

TEX-CAL LAND MANAGEMENT, INC., et al. 12 ALRB No. 26

433.01 Union's insistence on compliance with notification of hiring provision in expired contract was directed at a mandatory subject of bargaining.

TEX-CAL LAND MANAGEMENT, INC., 11 ALRB No. 31

433.01 Employer's importation of mushrooms from another facility did not have such a significant detrimental impact on the bargaining unit as to require negotiation.

WEST FOODS, INC., 11 ALRB No. 17

433.01 Employer's institution of a new rule requiring employees to cut lettuce in the rain was a mandatory subject of bargaining. BERTUCCIO FARMS, 10 ALRB No. 52

433.01 Employer's proposal that labor contractor employees who admittedly are covered by the certification be excluded from the terms of a proposed collective bargaining agreement is evidence of employer's bad faith.

PAUL W. BERTUCCIO, 10 ALRB No. 16

433.01 The filing of a petition for unit clarification does not suspend the duty to bargain over employees in question.

PAUL W. BERTUCCIO, 10 ALRB No. 16

433.01 An employer has no duty to bargain with the certified bargaining representative about its decision to sell a crop; such a decision lies at the core of entrepreneurial control and therefore is not subject to the collective bargaining process.

PAUL W. BERTUCCIO, 9 ALRB No. 61

433.01 A decision by management regarding what crop to grow or discontinue is not subject to the collective bargaining process; such a decision lies at the core of entrepreneurial control. CARDINAL DISTRIBUTING COMPANY, INC., et al., 9 ALRB No. 36

433.01 A decision to subcontract the production of a crop is subject to mandatory bargaining.

CARDINAL DISTRIBUTING CO., INC., et al., 9 ALRB No. 43

433.01 Employer violated section 1153(e) and (a) by unilaterally changing its recall procedure by instituting a written recall method instead of its previous written and oral notification system; method of recall was mandatory subject of bargaining and, although some unilateral changes are too insignificant to constitute violations of the Act, this change in the employer's recall procedure was significant enough to constitute an unlawful unilateral change. D'ARRIGO BROTHERS COMPANY OF CALIFORNIA, 9 ALRB No. 3

433.01 Under NLRA & ALRA, Employer is required to bargain collectively with collective bargaining agent over wages, hours, and other terms and conditions of employment.

N. A. PRICOLA PRODUCE, 7 ALRB No. 49

433.01 Relevant information regarding pension, medical, educational and welfare plans must be provided upon request since such plans are mandatory subjects of bargaining.UFW's Citizens' Participation Day Fund is a special circumstance. Although contributions to it are a mandatory subject since it provides a paid holiday,management and expenditure of the Fund concern UFW and its members and is permissive bargaining subject only.

ADMIRAL PACKING CO., et al, 7 ALRB No. 43

433.01 In the context of agricultural employment, where pesticides are so often used and may affect the health and safety of employees working near and with them. Pesticides and chemicals constitute a mandatory subject of bargaining.As such, information about pesticides is relevant and necessary for a certified labor organization to bargain.

AS-H-NE FARMS (1980) 6 ALRB No. 9

433.01 By unilaterally altering the crew assignments, respondent refused to bargain with the certified collective bargaining representative concerning a mandatory subject of bargaining. This conduct constitutes a per se violation of section 1153(e) and (a) of the Act and is evidence of respondent's overall failure to bargain in good faith. Montebello Rose Co., Inc./Mount Arbor Nurseries, Inc., 6 ALRB No. 64; NLRB v. Katz, 369 U.S. 736, 50 LRRM 2177 (1962); and Central Cartage, Inc. 236 NLRB No. 163, 98 LRRM 1554 (1978).

SAM ANDREWS' SONS (1979) 5 ALRB No. 38

433.01 The ALJ concluded respondent violated section 1153(e) and (a) of the Act by failing to provide relevant bargaining information requested by the union, failing to meet promptly and regularly, unilaterally granting wage increase and laying off employees, failing to adequately respond to union proposals, failing to bargain in good faith with respect to mandatory subjects of bargaining, excluding items previously agreed upon from a counterproposal, and submitting proposals which failed to respond to issues introduced by the union. The Board affirmed general conclusion as to violation of section 1153(e) and (a). HEMET WHOLESALE COMPANY, 4 ALRB No. 75

433.01 Even if an agricultural employer had no duty to provide its employees free lodging, kitchen utensils, and a line of credit for groceries before a union was certified as the employees' exclusive bargaining representative, the employer could not lawfully change these benefits without bargaining with the union since they had acquired the status of a condition of employment.

J.R. NORTON CO. v. ALRB (1987) 192 Cal.App.3d 874

433.01 Successorship is mandatory subject of bargaining.

WILLIAM DAL PORTO & SONS, INC. v. ALRB (1984) 163 Cal.App.3d 541

433.01 Transfer of work away from bargaining unit employees is a mandatory subject of bargaining, even where the work is transferred to another state.

NISH NOROIAN FARMS v. ALRB (1984) 35 Cal.3d 726

433.02 Permissive Subjects Of Bargaining

433.03 Illegal Subjects Of Bargaining

433.03 Employer's assertion that its proposals, including union security, to exclude employees of its labor contractor from the terms of a contract was a form of a technical refusal to bargain, held to be without merit; proposals to exclude such employees are per se violations and, in any event, at no time did employer have a reasonable good faith belief that its labor contractor employees were not its agricultural employees.

PAUL W. BERTUCCIO, 10 ALRB No. 16

433.04 Decision Bargaining

433.04 Change in number of canes to be left on grape vines during pruning is a matter that lies within the "core of entrepreneurial control" and is therefore not subject to decision bargaining. A matter need not involve the "scope and direction" of the enterprise to be subject only to effect bargaining.

BRIGHTON FARMING CO., INC., 18 ALRB No. 4

433.04 Employer has no obligation to bargain over an economically motivated decision to partially close its business, since the decision is not of the type that is amenable to resolution through the bargaining process.

VESSEY & COMPANY, INC., et al. 13 ALRB No. 17

433.04 Employer's conversion of vineyards from table grape to raisin production was a crop change decision which does not require decision bargaining; however, employer violated 1153(e) by failing to give the union notice of the conversion and an opportunity to bargain over its effects, since it could have been expected to have a significant impact on the continued availability of employment.

TEX-CAL LAND MANAGEMENT, INC., 11 ALRB No. 31

433.04 Employer's elimination of its own swamping trucks did not constitute violation of 1153(e) since the change was the type of management decision which is not appropriate for decision bargaining; bargaining over effects not required because it was not demonstrated that the use of subcontracted trucks had any impact on continued availability of employment.

TEX-CAL LAND MANAGEMENT, INC., 11 ALRB No. 31

433.04 Employer's decision to discontinue growing lettuce was a managerial decision to go partially out of business and was not subject to mandatory bargaining.

HOLTVILLE FARMS, INC., 10 ALRB No. 49

433.04 Employer has no obligation to bargain over an economically motivated decision to partially close its business. VALDORA PRODUCE COMPANY and VALDORA PRODUCE COMPANY, INC., 10 ALRB No. 3

433.04 An employer has no duty to bargain with the certified bargaining representative about its decision to sell a crop; such a decision lies at the core of entrepreneurial control and therefore is not subject to the collective bargaining process. PAUL W. BERTUCCIO, 9 ALRB No. 61

433.04 Employer's decision to grow almonds rather than go out of business did not affect wages, hours or other terms and conditions of employment, and there-fore was not a subject of mandatory bargaining. MOUNT ARBOR NURSERIES, INC., and MID-WESTERN NURSERIES, INC., 9 ALRB No. 49

433.04 A decision to subcontract the production of a crop is subject to mandatory bargaining. CARDINAL DISTRIBUTING CO., INC., et al., 9 ALRB No. 43

433.04 A decision by management regarding what crop to grow or discontinue is not subject to the collective bargaining process; such a decision lies at the core of entrepreneurial control. CARDINAL DISTRIBUTING COMPANY, INC., et al., 9 ALRB No. 36

433.04 Board reversed on finding of a subcontracting decision, requiring bargaining, where record showed no contractual relationship between employer discontinuing crop and lessee of grower's land, no control of crop by former employer, crop was dis-continued because it was uneconomical to grow in small parcels, discontinuance was a complete elimination of employer's investment in the crop, and union could not meaningfully bargain over employer's economic concerns. CARDINAL DISTRIBUTING CO. v. ALRB (1984) 159 Cal.App.3d 758

433.04 Board reversed on finding of a subcontracting decision, requiring bargaining, where record showed no contractual relationship between employer discontinuing crop and lessee of grower's land, no control of crop by former employer, crop was discontinued because it was uneconomical to grow in small parcels, discontinuance was complete elimination of employer's investment in the crop, and union could not meaningfully bargain over employer's economic concerns. CARDINAL DISTRIBUTING CO. v. ALRB (1984) 159 Cal.App.3d 758

433.04 Bargaining over management decisions which reduce jobs is required only where benefit for collective bargaining outweighs burden on the business. CARDINAL DISTRIBUTING CO. v. ALRB (1984) 159 Cal.App.3d 758

433.04 Decisions regarding what crop to grow or discontinue involve changes in scope and direction of business and are not mandatory subjects of bargaining. Subcontracting is mandatory subject because it focuses upon aspects of employment relationship that are amenable to bargaining.

CARDINAL DISTRIBUTING CO. v. ALRB (1984) 159 Cal.App.3d 758

433.04 Decisions regarding what crop to grow or discontinue involve changes in scope and direction of business and are not mandatory subjects of bargaining. Subcontracting is mandatory subject because it focuses upon aspects of employment relationship that are amenable to bargaining.

CARDINAL DISTRIBUTING CO. v. ALRB (1984) 159 Cal.App.3d 758

433.04 Bargaining over management decisions which reduce jobs is required only where benefit for collective bargaining outweighs burden on the business. CARDINAL DISTRIBUTING CO. v. ALRB (1984) 159 Cal.App.3d 758

433.04 Whether a decision is "subcontracting" involves 1) nature of employer's business before and after change, 2) reasons for change, 3) capital expense of change, 4) union's ability to make meaningful proposals concerning contemplated change. CARDINAL DISTRIBUTING CO. v. ALRB (1984) 159 Cal.App.3d 758

433.04 Employer has no duty to bargain over basic decision whether to go out of business; however, it must still bargain over effects of closure on its employees.

HIGHLAND RANCH v. ALRB (1981) 29 Cal.3d 848

433.05 Effects Bargaining

433.05 Change in number of canes to be left on grape vines during pruning is a matter that lies within the "core of entrepreneurial control" and is therefore not subject to decision bargaining. A matter need not involve the "scope and direction" of the enterprise to be subject only to effect bargaining.

BRIGHTON FARMING CO., INC., 18 ALRB No. 4

433.05 Upon notice to union of its impending closure and request of the union, employer is obligated to bargain over the effects of its decision.

VESSEY & COMPANY, INC., et al. 13 ALRB No. 17

433.05 Employer's failure to inform the union of when grape pruning was to begin and to bargain over the effects of this decision was a violation of section 1153(e). Decision had an impact on unit employees as the delay meant that more workers had to be hired, and employment was for shorter periods of time. TEX-CAL LAND MANAGEMENT, INC., et al. 12 ALRB No. 26

433.05 Employer's conversion of vineyards from table grape to raisin production was a crop change decision which does not require decision bargaining; however, employer violated 1153(e) by failing to give the union notice of the conversion and an opportunity to bargain over its effects, since it could have been expected to have a significant impact on the continued availability of employment. TEX-CAL LAND MANAGEMENT, INC.,

11 ALRB No. 31

433.05 Employer's elimination of its own swamping trucks did not constitute violation of 1153(e) since the change was the type of management decision which is not appropriate for decision bargaining; bargaining over effects not required because it was not demonstrated that the use of subcontracted trucks had any impact on continued availability of employment. TEX-CAL LAND MANAGEMENT, INC., 11 ALRB No. 31

433.05 Board granted default judgment and awarded limited backpay for employer's failure to bargain over effects of a partial closure.

KAPLAN'S FRUIT & PRODUCE CO., 11 ALRB No. 7

433.05 Employers violated their duty to bargain in good faith over the effects of their partial closure decision by delaying negotiations and failing timely to provide the union with information it requested.

HOLTVILLE FARMS, INC., 10 ALRB No. 49

433.05 No violation found for failure to engage in effects bargaining over partial closure where union failed to follow through on its request for effects bargaining.

VALDORA PRODUCE COMPANY and VALDORA PRODUCE COMPANY, INC., 10 ALRB No. 3

433.05 When an employer fails to timely notify the union of its decision to cease operations so as to provide the union a meaningful opportunity to bargain the effects of that closure, it violates its duty to bargain in good faith.

PIK'D RITE, INC., and CAL-LINA, INC., 9 ALRB No. 39

433.05 The proper remedy for a failure to provide a meaningful opportunity to bargain over the effects of a decision to cease operations is a limited backpay award coupled with an order to bargain; the limited backpay award is remedial, and its purpose is to restore the situation, as nearly as possible, to that which would have been obtained but for the violation. PIK'D RITE, INC., and CAL-LINA, INC., 9 ALRB No. 39

433.05 Employer obligated to bargain with union over the California effects of a unilateral change in work-allocation policy that was implemented in Arizona.

NISH NOROIAN FARMS v. ALRB (1984) 35 Cal.3d 726

433.05 Employer has no duty to bargain over basic decision whether to go out of business; however, it must still bargain over effects of closure on its employees.

HIGHLAND RANCH v. ALRB (1981) 29 Cal.3d 848

433.05 Employer must bargain over effects of decision to close its operations, even while election objections are still pending. HIGHLAND RANCH v. ALRB (1981) 29 Cal.3d 848

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