In J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1., the Supreme Court considered the issue of make whole relief in the context of such a technical refusal to bargain. (Id. at pp. 27-40.) The court observed that the technical refusal to bargain procedure is necessary because election certification decisions by the Board are not subject to direct judicial review (id. at p. 27), and it is important to provide a check on arbitrary action by the Board in regard to representation elections (id. at p. 30). The court then discussed the standard to be applied by the Board regarding make whole relief in such cases. In particular, the court held that where an employer engages in a technical refusal to bargain but ultimately loses the election challenge after obtaining judicial review, the Board is required to evaluate whether to impose make whole relief under the following standard: "The Board must determine from the totality of the employer's conduct whether it went through the motions of contesting the election results as an elaborate pretense to avoid bargaining or whether it litigated in a reasonable good faith belief that the union would not have been freely selected by the employees as their bargaining representative had the election been properly conducted. We emphasize that this holding does not imply that whenever the Board finds an employer has failed to present a prima facie case, and the finding is subsequently upheld by the courts, the Board may order make-whole relief. Such decision by hind-sight would impermissibly deter judicial review of close cases that raise important issues concerning whether the election was conducted in a manner that truly protected the employees' right of free choice." (Id. at p. 39.) In J.R. Norton Co., the Supreme Court concluded its discussion of make whole relief with the following words: "In short, a per se remedy is impermissible in this setting. Not only are there degrees of violations citation but, more fundamentally, other factors peculiar to labor relations may outweigh the appropriateness of make-whole relief in particular cases. . The Board's remedial powers do not exist simply to reallocate monetary loss to whomever it considers to be most deserving; they exist, as appears from the statute itself, to effectuate the policies of the ALRA." (J.R. Norton Co., supra, 26 Cal.3d at pp. 39-40.)