Appeal from the United States District Court for the Northern District of California. D.C. No. 92-20666 JW (PVT). James Ware, District Judge, Presiding. Original Opinion Previously Reported at:,.
Before: Herbert Y.c. Choy, Stephen Reinhardt, and Edward Leavy, Circuit Judges. Opinion by Judge Reinhardt.
Order AND AMENDED OPINION
REINHARDT, Circuit Judge:
This case involves several complicated questions regarding the preemptive effect of the National Labor Relations Act ("NLRA" or "the Act"). Bud Antle, Inc., ("Bud" or "the company") appeals the district court's Rule 12(b)(6) dismissal of its action against the members and executive secretary of the California Agricultural Labor Relations Board ("ALRB" or "state board").*fn1 The company claims that the National Labor Relations Act ousts the ALRB of jurisdiction to adjudicate various unfair labor practice charges which are now pending before the state board. It seeks injunctive relief to prohibit the ALRB from continuing its proceedings. The district court concluded that the NLRA does not preempt ALRB jurisdiction over the charges. It also held that it was required to abstain pursuant to Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). Bud challenges both of these decisions on appeal, and we reverse.
The ALRB, a state agency, is organized in a similar manner to the NLRB. It administers a statute (the Agricultural Labor Relations Act, or ALRA) that, in its form but not its scope, is nearly identical to the NLRA. For purposes of this case, there is only one difference, fundamental as it is, between the NLRA and the ALRA: the NLRA expressly excludes "agricultural laborers" from coverage, see 29 U.S.C. § 152(3), while the ALRA applies only to agricultural employees excluded from NLRA coverage. See Cal. Labor Code §§ 1140.4, 1148. This case revolves around several unfair labor practice charges which were filed against Bud and are currently pending before the state board. These charges arose from a dispute which occurred during 1989 contract negotiations between Bud and Local 78-B of the Fresh Fruit and Vegetable Workers ("FFVW" or "the union"), the representative of Bud's employees who handled or processed agricultural goods at several cooling facilities in California ("the bargaining unit"). The basic question is whether as of 1989 the employees involved were agricultural laborers who were clearly excluded from coverage under the NLRA. Only if they were not actually or arguably covered under that act, would they have been subject to the jurisdiction of the ALRB.
Bud markets about 40 million cartons of fresh vegetables each year, giving it the largest volume of any producer of fresh vegetables in the United States. At one time, the company functioned as a fully integrated operation and used its own employees and equipment to grow, harvest, cool, pack, transport and market the crops it produced. However, beginning in approximately 1981 or 1982, it began to change its mode of operation by divesting itself of its primary growing operations. Bud has turned instead to a variety of contracting-out arrangements in order to secure produce for marketing. Under these arrangements, the company agrees with independent growers to purchase crops raised on the growers' land.*fn2 Although Bud oversees various aspects of the growers' operations and may participate in transplanting and harvesting crops, the growers are responsible for cultivation and often bear the risk of any crop failure during the growing season. The company relied more and more heavily on these arrangements throughout the 1980s, and it grew its last crop in 1989. Thus, it now relies exclusively on these contracting-out practices to obtain its products.
The unfair labor practice charges in this case involve employees in Bud's cooling facilities. These facilities are located away from the farms on which the produce is grown. The ALRB certified the union as the exclusive representative of the bargaining unit employees in 1976. Between 1976 and 1986, Bud and the union negotiated four collective bargaining agreements. Each collective bargaining agreement expressly based recognition of the union on the ALRB certification.
On March 31, 1989, the final collective bargaining agreement between Bud and the union expired. Although the company and the union actively negotiated for a new contract, negotiations broke down over the summer. On August 28, 1989, the union went on strike. The company responded by unilaterally implementing its "last and final offer" on September 11, and then locking out the striking employees and hiring replacements nine days later. During this time, the company filed with the state board five sets of unfair labor practice charges against the union. In one instance, it invoked the assistance of the ALRB to obtain a temporary restraining order against what it alleged was unlawful secondary picketing.*fn3
The union also filed unfair labor practice charges with the ALRB. The issue before us is whether the state board has jurisdiction to adjudicate these charges. Seven sets of charges are involved. They were filed between September 1, 1989 and June 15, 1990. In those charges, the union alleged that Bud had committed numerous violations of the ALRA over the period from February of 1989 to August of 1990. The bulk of the violations allegedly occurred during the breakdown of negotiations in the summer of 1989.*fn4 The ALRB began investigating the union's charges, but it did not place them on the same expedited schedule as the company's secondary picketing charges.
On December 18, 1989, the company for the first time raised a question regarding the ALRB's authority in a letter to the ALRB's Regional Field Examiner. Bud invoked NLRB jurisdiction for the first time on January 18, 1990, when it filed unfair labor practice charges with the Board against the union.*fn5 However, the company did not formally challenge ALRB jurisdiction until April 17, 1990, in a letter to the Salinas ALRB Regional Director. The letter stated that the company had come to realize that "none of the employees working at the Company's cooling facilities can be agricultural employees under the Agricultural Labor Relations Act," because their work was too attenuated from agricultural activity to be exempt from the NLRA.
Despite Bud's challenge, the ALRB continued its investigation and prosecution of the union's charges against Bud. The company responded by seeking a remedy in the NLRB. On September 7, 1990, Bud filed a unit clarification petition with the Board. That petition sought a determination that the employees at the company's California cooling facilities were not "agricultural laborers" exempt from the Act. Although the Regional Director initially dismissed this petition, the Board ordered it reinstated and granted the ALRB amicus curiae status in the unit clarification proceeding.*fn6
On January 7, 1991, two weeks after the Board reinstated the unit clarification petition, on January 7, 1991, Bud filed a motion with the ALRB to hold the complaint in abeyance pending resolution of the jurisdictional issues currently before the NLRB. The ALRB's Executive Secretary denied this motion three weeks later. Because the NLRB unit clarification proceedings involved only the current status of the bargaining unit employees, while the ALRB unfair labor practice proceedings involved the employees' status as of 1989, the state board concluded that the actions were not duplicative. The ALRB denied Bud's request for review of the Executive Secretary's decision on March 1, 1991.
Thwarted in its earlier attempts to force the state board to suspend its proceedings, Bud sought relief in federal court. On March 7, 1991, the company filed an amended complaint in the United States District Court for the Southern District of California. This complaint sought declaratory and injunctive relief to prevent the state board from proceeding with the charges against Bud, as well as damages. The company requested a preliminary injunction against the ALRB, but the district court denied this motion on April 11, 1991.
On May 1, 1991, the NLRB Regional Director issued a decision on Bud's unit clarification petition. The Regional Director concluded that, as of the hearing on the petition, the bargaining unit employees were not "agricultural laborers," and thus were covered by the NLRA. However, the Regional Director specifically declined to make a determination regarding the status of the employees at any time prior to the date of the hearing. She explained her decision with the following footnote 15:
The clarification made herein is only as of the date of the hearing herein. I specifically decline to make the declaration requested by the Employer-Petitioner as to its status in 1989. The Employer-Petitioner cites no case authority which mandates such a finding by me, and I conclude that it is inappropriate in the present proceeding.
In addition, the record reflects that on November 2, 1989, the ALRB (which was granted amicus curiae status in the instant proceeding by the Board's December 24, 1990, Order), issued a Notice of Hearing and Complaint, alleging that the Employer-Petitioner had engaged in certain unfair labor practices under the Agricultural Labor Relations Act of the State of California. Apparently, a hearing before the ALRB was commenced on April 16, 1991, in which the Employer-Petitioner contends that it is not under the ALRB's jurisdiction. The effect of the clarification herein on the proceedings before the ALRB should be determined by the ALRB and the reviewing courts. Thus, the question as to whether the ALRB has jurisdiction to continue prosecution of those charges currently before it is not appropriately addressed herein.
Following the Regional Director's decision, the company sought in the Southern District a temporary restraining order against the ALRB's prosecution of the unfair labor practice proceedings. On May 13, 1991, the district court denied the application. The court stated that the ALRB was "competent to decide the jurisdictional issue." It also noted that the NLRB had failed to exercise its power to seek injunctive relief against the ALRB: "Where the NLRB does not act to protect its own jurisdiction, this court will not interfere with the proper activity of a competent state tribunal." No further proceedings of substance occurred in the Southern District action. On August 28, 1991, the company and the ALRB stipulated to the dismissal of the complaint. The complaint was dismissed without prejudice except to the extent that it was "based on allegations of collusion, improper contact and/or prejudicial conduct" between the ALRB and its General Counsel.
Somewhat tardily, the union filed an unfair labor practice charge with the NLRB on September 6, 1991. This charge raised essentially the same claims as the ALRB charges. The Regional Director refused to issue a complaint, and the Board affirmed that decision. The members concluded that the union's charges were barred by the NLRB's six-month statute of limitation.
However, the ALRB proceedings continued. On December 16, 1991, the ALRB Administrative Law Judge issued a recommended interlocutory decision on the issue of the state board's jurisdiction.*fn7 The Administrative Law Judge concluded that Bud was a farmer and that its cooling employees were agricultural employees exempt from the NLRA. Thus, he held that the ALRB had jurisdiction to adjudicate the unfair labor practice claims. The ALRB affirmed the Administrative Law Judge's decision, and the California Court of Appeal dismissed Bud's petition for review.
On October 20, 1992, five days after its setback in the state Court of Appeal, Bud again sought immediate federal court review. This time, it filed in the District Court for the Northern District of California. In the Northern District action, which is the one now before us, Bud asserted six causes of action, most of which alleged that NLRA preemption displaced ALRB jurisdiction over the unfair labor practice charges.*fn8 The complaint sought declaratory and injunctive relief against the pending ALRB proceedings, as well as damages against the individual defendants.*fn9 Each party soon filed dispositive motions. On November 9, 1992, the ALRB moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). On January 8, 1992, Bud sought partial summary judgment on its declaratory and injunctive relief claims. When the ALRB filed its opposition to Bud's partial summary judgment motion, it suggested that the district court treat its motion to dismiss and opposition to partial summary judgment as a cross-motion for summary judgment.
On March 4, 1993, the district court granted the ALRB's motion to dismiss the complaint in its entirety for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Accordingly, the district court dismissed the cross-motions for summary judgment as moot. The court concluded that footnote 15 of the NLRB Regional Director's unit clarification decision "clearly indicated that the proper forum for determining the Bargaining Unit's status in this matter was the ALRB." The district court also concluded that abstention was warranted under the principles of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). The court denied the ALRB's request for sanctions under Fed. R. Civ. P. 11.
Bud appealed the district court's dismissal of its complaint, and the ALRB appealed the denial of Rule 11 sanctions. While this appeal was pending, the NLRB granted review of a unit clarification petition regarding another unit of Bud's employees. Bud Antle, Inc., 311 NLRB No. 184 (Aug. 26, 1993). The Board stated that it granted review because the ALRB's decision that it had jurisdiction over the FFVW's case "created a Federal-state jurisdictional conflict." Id. at 1. The Board specifically ...