451.00 LIMITATION PERIOD FOR FILING CHARGE: LABOR CODE SECTION 1160.2

451.01 In General

451.01 Where respondent failed to assert statute of limitations defense and failed to object to full litigation of facts pertaining to alleged failure to provide information outside six-month period of section 1160.2, Board may examine such evidence and, where warranted, find violations of the Act. RICHARD A. GLASS COMPANY, INC.,

14 ALRB No. 11

451.01 Board adopts the national board's decision in Ducane Heating Corp. (1985) 273 NLRB 1389 concerning the appropriate standard to apply in reviewing a regional director's reinstatement of a previously dismissed charge. However, considering the process of the instant case through the Board's hearing and decision process, the Board did not apply Ducane standard to the instant case. Chairperson James-Massengale and Member Gonot dissented: they would apply Ducane standard to this case.

PLEASANT VALLEY VEGETABLE, 12 ALRB No. 31

451.01 Defense of statue of limitations will limit makewhole remedy but evidence of bad faith bargaining prior to six-month period is relevant background for finding of violation.

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

451.01 Bard limits award of makewhole because certain losses of pay, due to unlawful change in hiring practices, did not occur within six months of the filing of the charge.

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

451.01 Complaint issued more than six months after charge filed not time barred by section 1160.2 which applies only to filing of charge.

ROGERS FOODS, INC., 8 ALRB No. 19

451.01 Allegations in charge or complaint may be supplemented by specific allegations which relate back to date charge filed. Sufficient if charge informed charged party of general nature of alleged viols.

ROGERS FOODS, INC., 8 ALRB No. 19

451.01 Six-month limitations period for filing charges provides affirmative defense which must be annotated by party charged.

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

451.01 The six-month limitation of Section 1160.2 of the Act is not jurisdictional, but must be the subject of an affirmative defense; respondent's failure to raise the statutory limitation constituted a waiver of the defense.

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

451.01 Six-month statutory limitation provided in section 1160.2 of the Act is not jurisdictional. It must be raised as affirmative defense. Failure to raise limitation at hearing constitutes waiver of that defense.

PERRY FARMS, INC., 4 ALRB No. 25

451.01 Claim that statute of limitations has run under 1160.2 is an affirmative defense, and employer has burden of establishing that union had actual or constructive notice of charged unlawful conduct.

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

451.01 Section 1160.2 bars filing of charges based on acts which occurred over six months from time charging party knew or should have known of the act upon which the charge is based.

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

451.01 Limitation period in 1160.2 does not begin to run until claimant obtains actual or constructive notice of violation. Union did not become aware of employer's bad faith bargaining until false impasse was declared.

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

451.02 Amended Charge Or Complaint; Withdrawal Of Charge; Reopening

451.02 Charge not untimely filed, where initial charge cited incorrect date for ULP, but amended charge (filed more than 6 months after ULP) corrected the date.

HARLAN RANCH COMPANY, 18 ALRB No. 8

451.02 Since employee's claim of discriminatory discharge is closely related to the facts and circumstances of her husband's discharge, her claim is not barred by the statue of limitations although the original charge was filed only by the husband.

BAIRD-NEECE PACKING CORPORATION, 14 ALRB No. 16

451.03 Computation of Six-Month Period

451.03 A ULP charge alleging a refusal to bargain is timely filed so long as the Respondent has unlawfully refused to bargain, upon request, within the six-month period preceding the filing of the charge, even if the initial refusal to bargain was made outside the six-months limitations period, citing The Pulitizer Publishing Co. (1979) 242 NLRB 35 [101 LRRM 1101]; Ocean system, inc. (1977) 227 NLRB 1593 [94 1496]. GOURMET HARVESTING AND PACKING, INC. AND GOURMET FARMS, 14 ALRB No. 9

451.03 Where the union requested information and bargaining sessions within the six-month period preceding the filing of a charge, the charge is not untimely filed despite the fact that the union was certified over two years earlier and received notice following the end of the first year that the employer had doubts regarding its continuing obligation to bargain due to the union's inactivity.

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

451.03 The six-month limitation prescribed by Labor Code section 1160.2 commences when a party has reasonable notice of the other party's bad faith intentions.

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

451.03 Six-month statute of limitations does not begin to run until charging party has either actual or constructive notice of allegedly unlawful act.

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

451.03 Testimony of one employee that he was aware of termination of term or condition of employment constitutes neither actual nor constructive notice of the change to certified union.

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

451.03 In refusal-to-bargain cases dealing with unlawful unilateral changes, running of statute of limitations in 1160.2 is tolled when charging party has no actual or constructive notice of unlawful conduct.

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

451.03 Limitation period in 1160.2 does not begin to run until claimant obtains actual or constructive notice of violation.Union did not become aware of employer's bad faith bargaining until false impasse was declared.

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

451.04 Continuing Or Separate Violations

451.04 Even though initial request for information was made outside six-months limitations period of section 1160.2, Board may examine such prior conduct to explain or clarify conduct which occurred within six months of the filing of the relevant unfair labor practice charge.

RICHARD A. GLASS COMPANY, INC., 14 ALRB No. 11

451.04 Defense of statue of limitations will limit makewhole remedy but evidence of bad faith bargaining prior to six-month period is relevant background for finding of violation.

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

451.04 Surface bargaining is a continuing violation. Therefore, late filing of the charge is not a defense to the violation, but merely limits the time period during which the Board may find a violation. Boise Implement Company, 106 NLRB 657, 32 LRRM 1530 (1953), enf'd 215 F.2d 652, 34 LRRM 2788 (9th Cir. 1954)

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

451.04 Employer's discontinuance of term or condition of employment does not constitute continuing violation of the Act for purposes of statute of limitations.

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

451.04 Failure to pay vacations and holidays is continuing violation of Act for which employer is liable commencing with beginning of limitations period--six months prior to the filing of the charge.

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

451.04 Failure To Raise Six Month Limitation

451.04 Where respondent failed to assert statute of limitations defense and failed to object to full litigation of facts pertaining to alleged failure to provide information outside six-month period of section 1160.2, Board may examine such evidence and, where warranted, find violations of the Act.

RICHARD A. GLASS COMPANY, INC. 14 ALRB No. 11

451.05 Parties; Service Of Charge

451.05 Where the Board dismissed an allegation on its merits, it found it unnecessary to rule on employer's exception regarding the validity of the service of the charge on which the allegation was based.

ARAKELIAN FARMS, 9 ALRB No. 25

451.05 Labor contractors are not indispensable parties in ALRB proceedings; reinstatement remedies may be ordered against growers, despite potential interference with contracts to provide labor and absence of labor contractors during hearings.

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

451.06 Successor Companies And Unions

451.07 Six-month statutory limitation provided in section 1160.2 of the Act is not jurisdictional. It must be raised as affirmative defense. Failure to raise limitation at hearing constitutes waiver of that defense.

PERRY FARMS, INC., 4 ALRB No. 25

452.00 COMPLAINT OR SPECIFICATION

452.01 In General

452.01 Board adopted NLRB's policy of not allowing respondents to question discriminatees concerning their interim earnings or search for employment outside the confines of an administrative hearing.

MARIO SAIKHON, INC., 10 ALRB No. 36

452.02 Issuance Of Complaint Or Specification

452.02 The General Counsel may issue complaints based on conduct discovered during an investigation of related charges.

BEN AND JERRY NAKASAWA d/b/a NAKASAWA FARMS AND B.J.HAY HARVESTING, 10 ALRB No. 48

452.02 If the General Counsel does not include discoverable charges in the complaint, they may be forever waived.

BEN AND JERRY NAKASAWA d/b/a NAKASAWA FARMS AND B.J.HAY HARVESTING, 10 ALRB No. 48

Accord: DUKE WILSON COMPANY 12 ALRB No. 19

452.02 Final authority over whether ULP complaint should issue is with General Counsel, not Board.

BELRIDGE FARMS v. ALRB (1978) 21 Cal.3d 551

452.03 Refusal To Issue Complaint; Appeal From

452.03 Regional Director's failure or refusal to issue a complaint is not a final decision on the merits, citing NLRB v. Baltimore Transit Co. (4th Cir. 1944) 140 F.2nd 51 [13 LRRM 739].

VENTURA COUNTY FRUIT GROWERS, INC., 10 ALRB No. 45

452.03 General Counsel's refusal to issue complaint is not a final order of Board under 1160.8 and therefore is not reviewable.

BELRIDGE FARMS v. ALRB (1978) 21 Cal.3d 551

452.03 Mandamus is available to review General Counsel's erroneous interpretation of statute; however, whether a particular act constitutes unlawful restraint or coercion is question of fact, not matter of statutory construction, and General Counsel's exercise of discretion is not subject to extraordinary writ.

BELRIDGE FARMS v. ALRB (1978) 21 Cal.3d 551

452.03 General Counsel's refusal to issue complaint is immune from judicial review except where there is a colorable claim of violation of constitutional right, an act in excess of specific grant of authority, or an erroneous construction of applicable statute.

BELRIDGE FARMS v. ALRB (1978) 21 Cal.3d 551

452.04 Definiteness; Giumarra Bill Of Particulars

452.04 Specification prepared on programmable calculator need not show each step of computations where methodology was explained in sufficient detail to allow verification of net figures.

ROBERT H. HICKAM, 10 ALRB No. 24

452.04 Allegations in charge or complaint may be supplemented by specific allegations which relate back to date charge filed. Charge need only inform charged party of general nature of alleged violations.

ROGERS FOODS, INC., 8 ALRB No. 19

452.04 The ALJ properly denied Respondent's request to take oral depositions since the complaint was sufficiently clear to put Respondent on notice as to what witnesses and evidence would be necessary to present its defense.

ARNAUDO BROS. INC. (1977) 3 ALRB No. 78

452.04 A complaint is sufficient if it specifically and clearly identifies the events or incidents alleged as unfair labor practices.

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

452.05 Scope Of Inquiry

452..0 The General Counsel may issue complaints based on conduct discovered during an investigation of related charges.

BEN AND JERRY NAKASAWA d/b/a NAKASAWA FARMS AND B.J.HAY HARVESTING, 10 ALRB No. 48

452.05 Board declined to adopt ALJ's findings that makewhole period terminated at nominal end of employer's technical refusal to bargain, leaving determination of when employer commenced good faith bargaining to second phase of compliance proceeding.

J.R. NORTON COMPANY, INC., 10 ALRB No. 42

452.05 Where the question of employer;s good faith was raised by employer's defense of bona fide impasse, ALJ properly analyzed employer's overall course of conduct in collective bargaining, despite General Counsel's desire to limit pleadings to allegations of per se refusal-to-bargain.

ROBERTS FARMS, INC., 9 ALRB No. 27

452.05 A party may be estopped from claiming that his/her uncharged conduct constituted ULP where he/she has acquiesced in the trial of such conduct as ULP.

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

452.05 Where conduct is litigated solely to prove defense to ULP allegation, it may not be held to itself constitute ULP.

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

452.05 Once ALRB's jurisdiction is invoked through filing of charge, General Counsel is free to make full inquiry under its broad investigatory power, and complaint is not limited to allegations in charge.

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

452.05 Any evidence concerning any potentially appropriate remedy is material and relevant, regardless of whether General Counsel has requested remedy in his complaint.

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

452.05 Board's plenary jurisdiction to vindicate public rights is invoked by filing of charge, and after investigation, Board is not limited in its inquiry to specific matters alleged in the charge, but may inquire into related matters.

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

452.06 Variance Of Complaint From Charge; Evidence, Findings, Or Order Varying From Complaint; Events Subsequent To Charge Or Complaint

452.06 Board has broad discretion in fashioning appropriate remedy and may grant particular relief even though not requested in complaint by General Counsel.

D. PAPAGNI FRUIT CO., 11 ALRB No. 38

Accord: BEN AND JERRY NAKASAWA (1984) 10 ALRB No. 48

DUKE WILSON COMPANY 12 ALRB No. 19

452.06 If the General Counsel does not include discoverable charges in the complaint, they may be forever waived.

BEN AND JERRY NAKASAWA d/b/a NAKASAWA FARMS AND B.J.HAY HARVESTING, 10 ALRB No. 48

452.06 Due to failure to allege violation of section 1153(d) in complaint, Board declined to go beyond finding that discriminatory refusal to rehire son of union activists (due to his expected participation in favor of union position in representation case hearing) violated section 1153(c) and (a).

VISALIA CITRUS PACKERS, 10 ALRB No. 44

452.06 Although unilateral wage change not alleged in complaint as violation of 1153(e), it was fully litigated at hearing and clearly related to allegation of bad faith bargaining which was included in complaint.

SIGNAL PRODUCE COMPANY, 6 ALRB No. 47

452.06 Where neither charge nor complaint allege wage increase as violation of 1153(e), increase not treated as per se violation,and ALO did not conclude it was a violation, issue has not been fully litigated as independent violation and regarded thus as background evidence of employer's attitude toward bargaining.

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

452.06 Where conduct is neither charged as ULP nor alleged as such in complaint, Board may not find that conduct constituted ULP unless it is fully and fairly litigated.

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

452.06 A party may be estopped from claiming that his/her uncharged conduct constituted ULP where he/she has acquiesced in the trial of such conduct as ULP.

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

452.06 Where conduct not charged as ULP, Board may determine that such conduct constituted ULP if it is related to, and intertwined with, other conduct which has been alleged in complaint, provided that matter is fully litigated.

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

452.06 Where conduct is litigated solely to prove defense to ULP allegation, it may not be held to itself constitute ULP.

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

452.06 Where amendments to complaint concern conduct which falls within the same pattern of, but presents different varieties than, original allegations, and where employer is given adequate opportunities to defend, such amendments are proper.

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

452.06 Once ALRB's jurisdiction is invoked through filing of a charge, General Counsel is free to make full inquiry under its broad investigatory power, and complaint is not limited to allegations in charge.

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

452.06 Any evidence concerning any potentially appropriate remedy is material and relevant, regardless of whether General Counsel has requested remedy in his complaint.

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

452.06 Board properly made finding of bad faith refusal to bargain over layoff and rehire policies where timely charge alleged layoff and failure to rehire was discriminatory, finding only affected one additional employee, and finding did not disrupt a prior agreement or relationship.

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

452.06 Board's plenary jurisdiction to vindicate public rights is invoked by filing of charge, and after investigation, Board is not limited in its inquiry to specific matters alleged in the charge, but may inquire into related matters. NISH NOROIAN FARMS v. ALRB (1984) 35 Cal.3d 726

452.06 Board may draw any reasonable inference from evidence fully and fairly litigated, regardless of specific litigation theories of the parties.

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

452.07 Amendments

452.07 Amendment of specification to include additional employees, exclude others, and correct inaccuracies was appropriate where errors were discovered during Board-ordered recomputation of makewhole award.

ROBERT H. HICKAM, 10 ALRB No. 25

452.07 Board granted General Counsel's motion to amend complaint after partial summary judgement award but before remanded hearing; complaint amended to delete part of prayer relating to remedy to be considered at remand hearing, thereby obviating need for remand hearing.

F & P GROWERS ASSOCIATION, 9 ALRB No. 28

452.07 Charge or complaint may be supplemented by allegations which relate back to date charge filed. Charge need only inform charged party of general nature of alleged violations.

ROGERS FOODS, INC., 8 ALRB No. 19

452.07 General Counsel may amend a complaint at close of case in chief where events fully litigated, Respondent had notice of amendment prior to presenting its case, and no prejudice shown because of timing of amendment. Exception thereto untimely.

ROGERS FOODS, INC., 8 ALRB No. 19

452.07 Amendment of complaint permitted despite General Counsel's failure to comply with 8 Cal. Admin. Code section 20222 (10 day limit) where amendment set forth in transcript and no prejudice shown by Respondent.

ROGERS FOODS, INC., 8 ALRB No. 19

452.07 Amendment of complaint during hearing to add one Employee and to delete another was proper where both were part of the same crew receiving the alleged discriminatory disciplinary notice, and the complaint referred to named and "other employees".

GIUMARRA VINEYARDS, INC., 7 ALRB No. 7

452.07 Amendment to complaint must relate in nature to events for which charges were filed and original complaint issued, but amendment need not necessarily relate in time to charged acts.

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

452.07 Actions before ALRB are not subject to technical pleading requirements. Issue is whether party was denied due process or otherwise prejudiced by amendments to complaint.

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

452.07 Objecting party must show how it was actually prejudiced by amendment to complaint.

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

452.07 ULP complaint can be amended during hearing.

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

452.07 Where amendments to complaint concern conduct which falls within the same pattern of, but presents different varieties than, original allegations, and where employer is given adequate opportunities to defend, such amendments are proper.

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

452.07 Board may liberally grant amendments to conform to proof, absent prejudice, including extension of remedial order to joint employer.

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

452.07 Alleged joint employer not unfairly surprised when General Counsel requested amendment of complaint, since president of and counsel for both companies were present during entire hearing and no request for continuance or reopening was made by joint employer.

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

452.07 General Counsel properly amended complaint during hearing where new allegations were fully litigated and no prejudice to employer was apparent in record.

KAWANO, INC. v. ALRB (1980) 106 Cal.App.3d 937

452.08 Answer Or Other Defenses

452.08 Where Respondent admitted Employee's discharge in Complaint and never sought to amend its answer to deny discharge, it cannot later argue that Employee voluntarily quit.

B. & B. FARMS, 7 ALRB No. 38

452.08 Six-month limitations period for filing charges provides affirmative defense which must be asserted by party charged. MASAJI ETO, et al., 6 ALRB No. 20

452.08 Affirmative defenses that employer denied fair and impartial procedures dismissed for lack of evidence. Affirmative defense that charging party engaged in misconduct improper and stricken from answer. Anderson Lithograph Co. (1959) 124 NLRB 920, IHED p. 7.

PAUL W. BERTUCCIO and BERTUCCIO FARMS, 5 ALRB No. 5

452.08 When 13 persons failed to file an answer to the General Counsel's complaint the Board issued an Order to Show Cause. The Board shall deem true all allegations and issue an order accordingly (unless an adequate response is received within 10 days).

WESTERN TOMATO, et al., 3 ALRB No. 51

452.08 Claim that statute of limitations has run under 1160.2 is an affirmative defense, and employer has burden of establishing that union had actual or constructive notice of charging unlawful conduct.

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

452.09 Service Of Charge, Complaint, Or Specification; Labor Code Section 1151.4

452.09 Under NLRB precedent, ALRB acquired jurisdiction over

all three entities comprising a single integrated enterprise --which Board found to be a single employer-- notwithstanding its failure to specifically serve upon each a copy of ULP charge and concurrent failure to list each as a respondent in complaint.

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

452.09 Uncharged and unnamed party may be held responsible for ULP's where that unnamed entity comprises part of single employer which was properly served and named.

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

452.10 Parties To Charge, Complaint, Or Specification

452.10 Labor contractor may have right to intervene if remedial order could affect contractual relationships.

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

452.10 Uncharged and unnamed party may be held responsible for ULP's where that unnamed entitY comprises part of single employer which was properly served and named.

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

452.10 Under NLRB precedent, ALRB acquired jurisdiction over all three entities comprising a single integrated enterprise-- which Board found to be a single employer--notwithstanding its failure to specifically serve upon each a copy of ULP charge and concurrent failure to list each as a respondent in complaint.

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

452.11 Intervention

452.11 Labor contractor may have right to intervene if remedial order could affect contractual relationships.

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

452.12 Consolidation, Severance, Or Bifurcation Of Proceedings

452.12 Where there was a threshold question of jurisdiction, Board bifurcated liability phase of unfair labor practice proceeding, set hearing on question of jurisdiction alone, issued interlocutory decision finding jurisdiction, and then remanded to ALJ to complete hearing on merit of underlying charges.

BUD ANTLE, INC. (1992) 18 ALRB No. 6

452.12 Compliance proceedings bifurcated to enable parties to litigate appropriateness of regional Director's makewhole formula first and, after Board review of the ALJ's findings regarding the formula, to consider a detailed specification computed in accordance with the Board's decision on the formula.

J.R. NORTON COMPANY, INC., 10 ALRB No. 42

452.12 IHE bifurcated section 1160.5 hearing to isolate question of whether reasonable cause existed to believe that conduct at issue violated section 1154(d) (4).

UNITED VINTERS, INC., 10 ALRB No. 34

452.12 Although ALJ not authorized to sever charges sua sponte and against the wishes of General Counsel and all other parties, board decided to sever for administrative efficiency and to avoid further delay where allegations could be remedied in compliance phase of earlier case.

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

452.12 Consolidation of unfair labor practice charges and election objections for hearing for the purpose of administrative convenience and efficiency does not deprive an agricultural employer of due process.

M. CARATAN, INC., 9 ALRB No. 33

Accord: SEQUOIA ORANGE CO., 11 ALRB No. 21

452.12 Consolidation of cases related both in fact and law was in the interests of administrative economy and justice: Initial complaint alleged bad faith bargaining by Employer group. Second complaint alleged bad faith by Union in same negotiations.

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

452.13 Default Or Failure To Appear

452.13 ALJ properly granted General Counsel's motion for default where Employer failed to file timely answer to complaint or backpay specification. Employer's defense that its owner is not fluent in English is invalid since owner acknowledged taking complaint to Employer's agent for service of process, who is fluent in English. Further, the action was not filed against an individual but against a corporation, which may not assert a linguistic disability.

AZTECA FARMS, INC., 18 ALRB No. 15

452.13 Board rejects Employer's argument that default judgement should not be granted because no prejudice resulted from its failure to file timely answer. Board finds some prejudice did result from Employer's failure. Further, lack of prejudice will be considered only when there is some excuse for the delay. (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523.)

AZTECA FARMS, INC., 18 ALRB No. 15

452.13 Default judgement granted where Respondent failed to file an answer to the complaint, did not appear at the prehearing conference and did not respond to General Counsel's motion to deem allegations in complaint true and for default judgement.

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

452.13 Board granted default judgement but did not award contractual makewhole prayed for in the complaint where the allegations of the complaint did not support a finding of bad faith bargaining.

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

452.13 Failure to show good cause sufficient to defer Motion for Summary Judgement includes such defenses as failure of respondent's attorney to file answer because he had not been paid; answer to complaint not filed because respondent financially unable to retain counsel; respondent's attorney delinquent in reviewing matter; respondent absent from the office in order to attend to other pressing business matters.

LU-ETTE FARMS, INC., 11 ALRB No. 4

452.13 Motion for Summary Judgement granted where respondent failed to file answers to initial and second consolidated complaint, did not seek extension of time in which to file answer, complaint put respondent on notice as to requirement of answer as well as consequences for failure to comply and respondent not a stranger to Board proceedings.

LU-ETTE FARMS, INC., 11 ALRB No. 4

452.13 The general counsel may move for summary judgment against five persons who filed answers to a complaint but did not appear at the hearing.

WESTERN TOMATO, et al., 3 ALRB No. 51

el4 5 When 13 persons failed to file an answer to the General Counsel's complaint the Board issued an Order to Show Cause. The Board shall deem true all allegations and issue an order accordingly (unless an adequate response is received within 10 days).

WESTERN TOMATO, et al., 3 ALRB No. 51

452.14 Withdrawal Of Complaint Before Hearing; Appeal From

452.14 Dismissal of charges proper after hearing on refusal to bargain charges but prior to issuance of decision where parties entered into collective bargaining contract and all parties agreed to dismissal.

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

452.15 Request For Deferral To Arbitration (see also section 106.03)

453.00 HEARINGS

453.01 In General

453.01 Where employer seeks to resubmit in Dal Porto proceeding evidence purporting to demonstrate that it would not have entered into a contract calling for higher wages due to its weak financial condition that was previously proffered and rejected in the liability stage without explanation, rehabilitation, or expansion of supporting documentation, Board has no basis to retreat from prior rejection of such proof, and employer has suffered no prejudice entitling it to a Dal Porto hearing.

ROBERT H. HICKAM, 17 ALRB 7

453.01 A post-hearing brief is timely filed if it is mailed on the date it is due.(8 Cal. Admin. Code 20480(b).)

FRUDDEN PRODUCE, INC. (1978) 4 ALRB No. 17

453.01 The ALRB has the authority to establish evidentiary standards in unfair labor practice proceedings and may appropriately bar at the threshold proffered evidence that fails to meet these standards. George Arakelian Farms, Inc. v. ALRB (1989) 49 Cal.3d 1279

453.01 Reg. 20290 requires that factors limiting employer's liability for backpay be determined in backpay proceeding which follows determination of whether ULP has occurred.

SUPERIOR FARMING CO. v. ALRB (1984) 151 Cal.App.3d 100

453.01 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

453.01 Proceedings before ALRB are neither civil actions nor proceedings known to the common law, and absent a statute providing for jury trial in such proceedings, no such right exists.

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

453.02 Notice And Opportunity For Hearing; Summary Judgment

453.02 When no factual conflicts must be resolved prior to ruling on the legal rights of the parties, the Board utilizes a summary disposition procedure similar to civil summary judgment. MARIO SAIKHON, INC., 15 ALRB No. 3

453.02 Proof that a union perceived itself as having failed to obtain intended wage levels does not constitute proof of wage level flexibility sufficient to raise a triable issue that the employer's bad faith bargaining conduct, rather than the union's unvarying wage proposals, caused the parties' failure to reach contractual agreement.

MARIO SAIKHON, INC., 15 ALRB No. 3

453.02 The task of the Board on a motion for summary disposition of pending matters is issue identification, not issue resolution. MARIO SAIKHON, INC., 15 ALRB No. 3

453.02 Board will grant a motion for summary disposition of pending matters when the moving party's proof establishes its entitlement to judgment in its favor, and the opposing party's proof fails to raise a triable issue as to any matter then pending.

MARIO SAIKHON, INC., 15 ALRB No. 3

453.02 The failure of a party opposing a motion for summary disposition to challenge the admissibility of evidence brought forward by the moving party in support of its motion constitutes a waiver of further challenge to the admissibility of such proof.

MARIO SAIKHON, INC., 15 ALRB No. 3

453.02 Board will not grant a summary disposition by default; it will determine the legal sufficiency of the moving party's evidentiary presentation prior to examining the counter-presentation of the opposing party.

MARIO SAIKHON, INC., 15 ALRB No. 3

453.02 When faced with a motion for summary disposition of a matter pending before it, the Board will liberally construe the evidentiary support presented by the party opposing the granting of the motion.

MARIO SAIKHON, INC., 15 ALRB No. 3

453.02 Board is not bound by the details of civil summary judgment practice when faced with a motion for summary disposition of matters pending before it; the Board will look for guidance, however, to the requirements of Code of Civil Procedure section 437(c) in the application of its own procedure.

MARIO SAIKHON, INC., 15 ALRB No. 3

453.02 For purposes of determining the propriety of summary disposition of a pending matter, the Board will take as true the factual assertions of the opposing party that have adequate evidentiary support.

MARIO SAIKHON, INC., 15 ALRB No. 3

453.02 Board will independently scrutinize the record for the presence of genuine issues of material fact that would render a summary disposition improper.

MARIO SAIKHON, INC., 15 ALRB No. 3

453.02 The presence of the rebuttable presumption affecting the burden of proof created by the court in William Dal Porto & Sons v. ALRB (1987) 191 Cal.App.3d 1195 does not affect the ability of the Board to grant summary disposition of the question whether the parties negotiating for a collective bargaining agreement would have reached agreement in the absence of a party's bad faith bargaining conduct. MARIO SAIKHON, INC., 15 ALRB No. 3

453.02 Board granted partial summary judgement by awarding summary judgement against employer on liability issue but remanding for portion of makewhole period; supplemental Decision made partial summary judgement final.

F & P GROWERS ASSOCIATION, 9 ALRB No. 22

453.02 It is prejudicial and a violation of a respondent's due process rights for the Board to find a violation when the specific allegation was dismissed by the ALJ after General Counsel's case in chief, since the respondent must be allowed an opportunity to contest or rebut facts used by the Board in its findings. In such circumstances, if the Board disagrees with the ALJ's dismissal, a remand is generally warranted; in this case, it was deemed unnecessary. NICK J. CANATA, 9 ALRB No. 8

453.02 Board reversed ALO's partial granting of motion for summary judgment and ordered hearing reopened.

ALBERT C. HANSEN, 4 ALRB No. 41

453.02 Board reversed ALO's grant of motion for summary judgment. Respondent entitled to trial de novo to determine if conduct litigated in elections objections case constituted violations of 1153(a) and (b). Consistent with Evidence Code, evidence from representation trial may be part of record in later ULP hearing. ALBERT C. HANSEN, 4 ALRB No. 41

453.02 A party may be estopped from claiming that his/her uncharged conduct constituted ULP where he/she has acquiesced in the trial of such conduct as ULP.

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

453.02 Where conduct is litigated solely to prove defense to ULP allegation, it may not be held to itself constitute ULP.

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

453.02 Where conduct is neither charged as ULP nor alleged as such in complaint, Board may not find that conduct constituted ULP unless it is fully and fairly litigated.

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

453.02 Alleged joint employer not unfairly surprised when General Counsel requested amendment of complaint, since president of and counsel for both companies were present during entire hearing and no request for continuance or reopening was made by joint employer.

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

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