D'Arrigo Decision Vacated by ALRB (9/28/2007)

In May of 2006, the ALRB ruled that D'Arrigo Bros. had failed to bargain in good faith with the United Farm Workers (UFW), potentially exposing the employer to severe sanctions through the ALRB's make-whole remedy.  The employer appealed the decision to the Court of Appeal, and the company continued to discuss its differences with the union.  In November 2006, D'Arrigo settled a long standing class action lawsuit for unpaid wages for $3.5 million.  Some observers had estimated the potential liability to be as high as $10 million.  A class action gender discrimination lawsuit is still pending against the company.

In early 2007, the UFW obtained an order from the ALRB directing the parties to submit to mandatory contract mediation in the hopes of having an arbitrator impose a contract on the employer.  In September 2007, the ALRB announced that the UFW and D'Arrigo had reached an agreement on a comprehensive collective bargaining agreement, and that the parties had agreed to stipulate to a dismissal of the appeal of the bad faith bargaining decision.

In a highly unusual move by the ALRB, the agency has agreed to vacate the unfair labor practice decision against D'Arrigo (D'Arrigo Bros. Co. of California, 32 ALRB No. 1 (2006)) as part of the settlement between the parties and to prohibit anyone from using the decision for any purpose.  The original decision has been removed from the ALRB web site,  and the ALRB is treating the case as though it never existed.

This is unusual because published decisions become precedent for future cases, and are rarely, if ever, depublished because of a settlement between the parties.  Usually, a case is depublished because a higher court decides there was an error of law, or that the case was not appropriate to be treated as published precedent.  However, the ALRB believes that its decision to vacate the decision as part of the settlement will promote collective bargaining and stability in labor relations.

COUNSEL TO MANAGEMENT:

D'Arrigo was embroiled in one of the longest labor disputes in agriculture, having been at odds with the UFW since the 1970s.  The Company has been struck, slandered in the press, and attacked with litigation.  The ALRB's cooperation in the settlement demonstrates that when a party decides to buy peace through settlement, it should consider the broadest possible settlement in order to gain all that it is looking for in the settlement.  The long range impact of this type of settlement remains unknown because if the relationship between the UFW and D'Arrigo sours, it appears that the union will not be able to use its success in the bad faith bargaining case against the company.  Employers should take this case as an example of the need to think creatively when the time comes to settle a dispute in order to obtain as much as it can at the bargaining table.