I respectfully dissent. In my view the court misconstrues and unduly limits the controlling principle announced in William Dal Porto & Sons, Inc. v. Agricultural Labor Relations Bd. (1987) 191 Cal.App.3d 1195 [237 Cal.Rptr. 206] (hereafter Dal Porto).
As a consequence, the employer here and those in all future cases stemming from technical refusals to bargain, are subjected to the formidable liability of make-whole relief without a hearing on an essential element of liability, and thus, without due process.
The essence of Dal Porto, drawn from Labor Code section 1160.3 and fortified by federal precedent under the National Labor Relations Act, on which California law is modeled (Dal Porto, supra, 191 Cal.App.3d at p. 1205), is that the Agricultural Labor Relations Board (hereafter Board) may not award make-whole relief without first finding after hearing that the parties would have entered into a collective bargaining agreement providing for higher pay but for the employer’s unlawful refusal to bargain. (Ibid.) And, because the statute requires that the loss of pay must be one “resulting from the employer’s refusal to bargain,” the employer’s refusal to bargain must be found to have been the cause of failure to reach agreement. (Id., at p. 1206.) These crucial findings, the majority decides, may here be made by a process which as I see it constitutes the application of a conclusive presumption.
The majority resolves to confine the hearing requirement of Dal Porto to cases of surface bargaining because those cases provide a history of negotiations from which it is possible to determine whether the parties’ failure to agree resulted from legitimate disagreement as to certain crucial issues or solely from the employer’s bad faith refusal to bargain. Dal Porto did arise from surface bargaining and the court there did discuss extensively the kind of evidence which, in that context, might be adduced to prove that no contract would have been reached. (191 Cal.App.3d at pp. 1211-1212.)
*1300By no means, however, did Dal Porto limit its call for hearing and finding on causation to cases accompanied by a history of negotiation. Indication that Dal Porto contemplated the application of its new rule as well to cases arising from the employer’s technical refusal to bargain is found in the court’s dnalysis of the burden of proof issue. In concluding that the employer avoiding make-whole liability must bear the burden of establishing that a contract, would not have been entered into despite its bad faith refusal to bargain, the court said: “It is obvious a contrary conclusion, placing the burden on the Board, would effectively nullify the Board’s ability to impose make-whole relief in many cases and would therefore encourage employers unlawfully to refuse to bargain. Thus, for example, make-whole relief has been awarded in cases where the employer, without reasonable cause to do so, mounts a challenge to a representation election. [Citations.] At the time of a representation election negotiations have not even begun; the issues about which the parties will bargain are unknown. It would therefore doubtless be impossible to tell whether the parties would have reached agreement had they bargained. Understandably, the cases upholding the make-whole remedy in the context of elections have never imposed upon the Board the unenviable duty of proving a contract would have been concluded were it not for the employer’s unlawful interference in the election process.” (Italics added; 191 Cal.App.3d at p. 1209.)
Dal Porto’s implication, thus, is that the employer guilty of bad faith technical refusal to bargain is entitled, no less than his surface-bargaining counterpart, to an opportunity to prove that factors other than the employer’s bad faith refusal to bargain precluded agreement for higher pay. Equally clear i¿ the implication that a bargaining history such as may be found in surface bargaining is neither the exclusive nor necessary source of evidence that such a contract would not have been consummated. Nevertheless, the Board arid now the majority assume that an employer who has refused to bargain at all could have nothing but speculative evidence to offer on the issue of causation. The result—the crucial findings of cause and liability are made without the hearing so assiduously found necessary by Dal Porto. The method—j-a conclusive presumption not justified by either logic or sound policy. (See Dal Porto, supra, 191 Cal.App.3d at p. 1206, fn. 7.)
Neither Labor Code section 1160.3 nor Dal Porto limits proof on the issue of causation to the parties’ prior bargaining history, and a conclusive presumption thus cannot be justified on the ground that such evidence is unavailable. In these circumstances, application of the conclusive presumption serves only to penalize the employer for its refusal to bargain. Such punishment is impermissible since make-whole relief is a compensatory, not *1301a punitive, remedy. (J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 36 [160 Cal.Rptr. 710, 603 P.2d 1306].)
The Board thus may not hold the employer liable for make-whole relief without considering on a case-by-case basis the evidence an employer might present to establish that no contract would have been consummated despite its failure to bargain in good faith. The Board’s rule here does not even permit the making of an offer of proof.
I agree that the Board has greater expertise in these matters and should therefore be accorded appropriate deference. However, I fail to see how the Board’s expertise rises to the level of omniscience in predicting that any evidence the employer might produce would necessarily be speculative. For example, evidence would not necessarily be speculative if it disclosed that all similarly situated employers who did bargain in good faith throughout the relevant make-whole period nevertheless could not reach agreement with the union. That fact, coupled with evidence of the nature and circumstances of the negotiations, might well convince the Board that the nonbargaining employer would likewise not have reached agreement with the union.
The majority concludes by suggesting that the employer will ultimately suffer no prejudice because it may present evidence of lack of causation at the compliance or damage phase of the proceedings. While this result is difficult to reconcile with the majority’s earlier analysis of the issue, it at least affords this employer some opportunity to establish a lawful defense. However, while I share the majority’s reluctance to reopen the issue of liability at this late date, the fact remains that the intervening change in law affects the issue of liability. I therefore believe the proper course for the Board to follow is to reopen that issue.
Presiding Justice, Court of Appeal, Sixth Appellate District, assigned by the Chairperson of the Judicial Council.