San Diego Nursery Co. v. Agricultural Labor Relations Board

Opinion

The Agricultural Labor Relations Board (ALRB or Board) appeals from an order of the San Diego Superior Court granting a preliminary injunction prohibiting ALRB agents from conducting “worker education” on the premises of the San Diego Nursery Company, Inc. (Employer) without the Employer’s permission. The superior court found “absent express statutory authorization, the ALRB

On December 28, 1977, and before any UFW filing of a petition for a representative election as authorized by Labor Code section 1156.3, ALRB agents notified the Employer of its plan to visit its business premises to implement this policy. The Employer verbally denied access to the ALRB agents. On the following day, two ALRB field examiners came to the Employer’s premises and attempted to talk, outside the building, to workers. Their arrival was at the end of the work day and immediately before the employees’ Christmas party. The ALRB agents were denied access, to talk with the employees. They charged they were physically “blocked,” denied entry by the Employer’s attorney. The Employer then (Jan. 4, 1978) sought injunctive relief against any entry into its place of business by ALRB agents without (1) their having first obtained a search warrant or (2) an order of the superior court under Labor Code section 1151, subdivision (b). The trial court after hearing denied a preliminary injunction upon the first ground tendered (the requirement of a search warrant). But the court found “absent express statutory authorization” the ALRB and its agents should be enjoined from entering upon the Employer’s premises without permission of the Employer for the purpose of conducting worker education. The ALRB appeals this order.

Contentions

The Employer contends the ALRB “simply does not have any power to enter private property” to conduct worker education, citing California Constitution, article I, sections 1, 7 and 19. It is argued that the California Legislature has placed express limits on the power of the ALRB to enter an employer’s property. Worker education as is projected by the ALRB is not an investigation within the statute; even if it

The ALRB contends the preliminary injunction was improvidently granted for the following reasons: (1) the issue of the right to a qualified but unconsented to access to an agricultural employer’s worksite for a purpose necessary to effectuate the stated objectives of the Act has been decided adversely to the employer (Agricultural Labor Relations Bd. [ALRB] v. Superior Court, 16 Cal.3d 392 [ 128 Cal.Rptr. 183 , 546 P.2d 687 ]); (2) the entry upon the employer’s property by the ALRB agent for worker education is expressly authorized by Labor Code section 1151, subdivision (a); (3) worker education is a reasonable and proper means to effectuate the legislative grant of power in Labor Code section 1140.2 and section 1152 “to encourage and protect the right of agricultural employees” to organize and to choose freely their bargaining representatives and to insure that the employees are informed of their statutory right; (4) finally, the worker education program effectuates the ALRB duty under the Labor Code section 1160 to prevent unfair practices and to insure the fairness of the election process and entry upon the employer’s property for these limited purposes is constitutionally valid.

Discussion

The constitutional question arising from the trespass that occurs when a labor organizer goes upon the employer’s—grower’s—work premises without his consent for the purpose of conducting organizational activities has been determined adversely to the growers by the California Supreme Court in ALRB v. Superior Court, supra, 16 Cal.3d 392 . There the California Supreme Court held the “access rule” promulgated by the ALRB (Cal. Admin. Code, tit. 8, §§ 20900-20901) was valid. Under the terms of the regulation, the right of access was specifically limited in purpose, in time and place, and in the number of organizers permitted to participate; and conduct is forbidden, other than speech, which is “disruptive of the employer’s property or agricultural operations, including injury to crops or machinery....” (Cal.

The growers contended the access regulation was unconstitutional—a deprivation of property rights without due process—a taking of those rights without just compensation. It was argued a balancing test should be employed by which the growers’ interest in preventing infringement of their property right would be shown to outweigh the state’s interest in permitting union access to the growers’ property. The Supreme Court found that a balancing test was inappropriate and instead applied the rule of judicial deference to legislative judgments where only property or economic rights were involved; a reasonable nexus between the regulation and the legitimate government purpose would satisfy substantive due process requirements. The Supreme Court said: “The real parties rely on decisions holding that when a statute or regulation impairs a fundamental personal liberty, the state has the burden of showing that the measure is necessary to promote a compelling governmental interest [citations] and that there are no reasonable alternative means of accomplishing that goal [citations]. That well-known principle, however, is not applicable here: for the reasons stated at the outset, the access rule is not a deprivation of ‘fundamental personal liberties’ but a limited economic regulation of the use of real property imposed for the public welfare. [Citation.]” (ALRB v. Superior Court, supra, 16 Cal.3d at p. 409; italics added.) The Supreme Court reasoned: “Early restraints on the unfettered use of private property—e.g., the doctrines of easement and nuisance—were few in number and narrow in scope. But modern social legislation has added many others—e.g., building codes, zoning restrictions, land use planning, and urban redevelopment—which are far more pervasive in their effect on the rights of property owners. Thus, an eminent authority on the law of property lists no less than 20 ways in which private property is today subject to governmental regulation [citation], and concludes that ‘the history of the law of private ownership has witnessed simultaneously a playing-down of absolute rights and a playing-up of social concern as to the use of property. ... Property rights have been redefined in response to a swelling demand that ownership be responsible and responsive to the needs of the social whole. Property rights cannot be used as a shibboleth to cloak conduct which adversely affects the health, the safety, the morals, or

To buttress these general principles and apply them in a labor dispute context, the California Supreme Court relied upon two “landmark” United States Supreme Court decisions: Republic Aviation Corp. v. Board, 324 U.S. 793 [ 89 L.Ed. 1372 , 65 S.Ct. 982 ] and Labor Board v. Babcock & Wilcox Co., 351 U.S. 105 [ 100 L.Ed. 975 , 76 S.Ct. 679 ] as constitutional authority for the principle that an employer’s right to control his property “‘“does not permit him to deny access to his property to persons whose presence is necessary there to enable the employees effectively to exercise their right to self-organization and collective bargaining,. ..”’” (ALRB v. Superior Court, supra, 16 Cal.3d at p. 405.)

After reviewing the federal authorities, the California Supreme Court concluded: “Thus the rule of Babcock & Wilcox, both as enunciated and as applied, is clear: if the circumstances of employment ‘place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property.’ (Italics added.) [Citation.] This language could not be plainer. We deem it dispositive of the issue of the federal constitutionality of access to agricultural property under the challenged regulation of the ALRB [citation], and of the claim of invalidity premised on the cited provisions of the California Constitution. [Citation.] In the present context we construe those sections to guarantee no greater rights to California property owners than do their federal counterparts.” (ALRB v. Superior Court, supra, at p. 409.)

Based upon the reasoning and authority of ALRB v. Superior Court (supra), it follows a fortiori, a duly promulgated administrative regulation authorizing an unconsented but specifically limited entry upon a grower’s work premises by an agent of the ALRB in performance of duties imposed by the Act would transgress no constitutional command.

Our conclusion that administrative regulations are not constitutionally invalid merely because they place a burden—authorize a trespass—

The validity of the “Excelsior list” disclosure requirement was upheld by the United States Supreme Court in NLRB v. Wyman-Gordon Co., 394 U.S, 759 [ 22 L.Ed.2d 709 , 89 S.Ct. 1426 ]. The Supreme Court declared that a direction to an employer to submit a list of the names and addresses of its employees, when incorporated in a board order to hold a representation election “is unquestionably valid” (id., at p. 766 [22 L.Ed.2d at p. 715]) since it was entered “in an adjudicatory proceeding” (i d., at p. 766 [22 L.Ed.2d at p. 715]); that the board has “a wide discretion to insure the fair and free choice of bargaining representatives” (i d., at p. 767 [22 L.Ed.2d at p. 716]); “[t]he disclosure requirement furthers this objective by encouraging an informed employee electorate and by allowing unions the right of access to employees that management already possesses” {ibid.; italics added); and “[i]t is for the Board and not for this Court to weigh against this interest the asserted interest of employees in avoiding the problems that union solicitation may present.” (Ibid.)

Furthermore, like its NLRA model, section 1151, subdivision (a) of the Act grants investigative powers to the ALRB which, “in the opinion of the board, are necessary and proper” (italics added) to carry out the statutory duties imposed in connection with the election processes and unfair labor practices procedures.

This language suggests that the Congress/Legislature did not envisage “a narrowly confined use” of the investigatory processes. (N.L.R.B. v. Rohlen (7th Cir. 1967) 385 F.2d 52 , 56.)

When defining the term “investigation,” the federal courts again eschewed any narrow construction of the NLRA. In N.L.R.B. v. Q-T Shoe Manufacturing Co., supra, 409 F.2d 1247 , the court said (p. 1253): “We are in agreement with the District Court to the extent that it held a representation proceeding to be an investigation within the purview of the Act.” ( 29 U.S.C. § 161 .)

This definition of the entire representation (election) process as an “investigation” within the meaning of the federal act has been accepted without dissent by the federal courts. (See British Auto Parts, Inc. v. N.L.R.B. (9th Cir. 1968) 405 F.2d 1182 , cert. den. 394 U.S. 1012 [ 23 L.Ed.2d 39 , 89 S.Ct. 1625 ]; NLRB v. Hanes Hosiery Division, supra (4th Cir. 1967) 384 F.2d 188 , 192, cert. den. 390 U.S. 950 [ 19 L.Ed.2d 1141 , 88 S.Ct. 1041 ]; N.L.R.B. v. Rohlen, supra, 385 F.2d 52 , 54-57; Kearney & Trecker Corp. v. National Labor Rel. Bd. (7th Cir. 1953) 209 F.2d 782 , 786; Inland Empire Dist. Council, etc. v. Millis, 325 U.S. 697 , 707 [ 89 L.Ed. 1877 , 1883-1884, 65 S.Ct. 1316 ].)

A similar contention of lack of authority in the Board to conduct an “investigation” prepetition filing was made in Henry Moreno, supra, 3 A.L.R.B. 40, where it was stated: “Respondent argues that because § 20910 applies to the period before a petition for certification is filed pursuant to Labor Code § 1156.3(a), the Board cannot have enacted this rule pursuant to the authority to conduct elections vested in it under Chapter 5 of the Act. We disagree. The purpose of the requirements set forth in Chapter 5 concerning the conduct of elections is to require the Board to conduct elections under certain circumstances....

“Nothing in this statutory scheme prohibits the Board from enacting regulations providing fbr such investigations as it deems necessary and proper to carry out the provisions of these chapters.... ”

Thus, the Board’s own rules and decisions have interpreted the statutory language to mean the election “investigation” commences before the filing of the petition for election. The ALRB is the agency entrusted with the enforcement of this Act and its interpretation of the Act is to be accorded “great respect by the courts and will be followed if not clearly erroneous.” (Bodinson Mfg. Co. v. California E. Com., 17 Cal.2d 321 , 325 [ 109 P.2d 935 ].)

Furthermore, the ad hoc disposition or impairment of rights of this magnitude and nature does not further the express purposes of the Act. The ad hoc approach to such an issue may—did—lead to confrontation, to disruption of the labor peace. Thus, one of the prime objectives of the Act is thwarted by an invasion of a property right without the opportunity of hearing and care and preciseness in adjudication of the various factors which are necessary to authorize a limited entry. The California Supreme Court in ALRB v. Superior Court, supra, 16 Cal.3d 392 , has detailed a variety of factors which must be considered in arriving at a rule of access and emphasizes .the careful delimitation of any such rule adopted. The Supreme Court stated: “‘The legislatively declared purpose of bringing certainty and a sense of fair play to a presently unstable and potentially volatile condition in the agricultural fields of California can best be served by the adoption of the rules on access which provide clarity and predictability to all parties. Relegation of the issues to a case-by-case adjudication or the adoption of an overly general rule would cause further uncertainty and instability and create delay in the final determination of elections.’” (Id., at p. 416.)

No better reasoning in support of these conclusions can be found outside the dissent of Justice William O. Douglas in NLRB v. Wyman-Gordon Company, supra, 394 U.S. 759 , where he stated: “The rule-making procedure performs important functions. It gives notice to an entire segment of society of those controls or regimentation that is forthcoming. It gives an opportunity for persons affected to be heard. Recently the proposed Rules of the Federal Highway Administration governing the location and design of freeways, 33 Fed.Reg. 15663, were put down for a hearing; and the Governor of every State appeared or sent an emissary. The result was a revision of the Rules before they were promulgated. 34 Fed.Reg. 727.

“That is not an uncommon experience. Agencies discover that they are not always repositories of ultimate wisdom; they learn from the sug

“This is a healthy process that helps make a society viable. The multiplication of agencies and their growing power make them more and more remote from the people affected by what they do and make more likely the arbitrary exercise of their powers. Public airing of problems through rule making makes the bureaucracy more responsive to public needs and is an important brake on the growth of absolutism in the regime that now governs all of us.

“Rule making is no cure-all; but it does force important issues into full public display and in that sense makes for more responsible administrative action.” (Id., at pp. 777-779 [22 L.Ed.2d at pp. 721-722].)

The foregoing considerations compel our disapproval of the Board’s efforts to proceed on an ad hoc “policy” basis to take unconsented access to the grower’s worksite.

Judgment affirmed.

Brown (Gerald), P. J., concurred.

Cologne, J., concurred in the result.