MEL-PAK RANCHES, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent, UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest.
Petitioner (Mel-Pak) seeks statutory review of a final order of the Agricultural Labor Relations Board (ALRB or Board) determining that Mel-Pak committed one of two charged unfair labor practices and ordering Mel-Pak to take specified affirmative action to effectuate the policies of Agricultural Labor Relations Act (ALRA) (Lab.Code, § 1140, et seq.). (All statutory references are to sections of the Labor Code unless otherwise specified; ALRA refers to the statute as codified.)
Mel-Pak is a general partnership engaged in the business of growing table grapes at Thermal and is an agricultural employer within the meaning of section 1140.4, subdivision (c). United Farm Workers of America, AFL—CIO (UFW) is a labor organization within the meaning of section 1140.4, subdivision (f). ALRB is the state agency charged with the administration of the ALRA, including the adjudication of unfair labor practice charges (see §§ 1160-1160.9; Belridge Farms v. Agricultural Labor Relations Bd., 21 Cal.3d 551, 557-558, 147 Cal.Rptr. 165, 580 P.2d 665.)
On or about February 15, 1977, pursuant to sections 11491 and 1160.22 on charges filed by UFW, ALRB's General Counsel filed an unfair labor practice complaint against Mel-Pak charging that it had committed two unfair labor practices by distributing two leaflets to its approximately 45 employees, the first on January 7 and the second on January 10, 1977.
The unfair labor practice charges were heard before an Administrative Law Officer (ALO) on March 21 and April 13 and 14, 1977, in Coachella. After considering the evidence and the post-hearing briefs of the parties, the ALO, applying decisions of the National Labor Relations Board (NLRB) under the National Labor Relations Act (NLRA)3 determined that the leaflet distributed January 7, 1977, did not constitute an unlawful interrogation of Mel-Pak's employees regarding their union preferences and was not therefore an unfair labor practice. The ALO also concluded that distribution of the second leaflet on January 10 constituted an exercise of Mel-Pak's right of free speech specifically protected by section 1155 of ALRA4 and, therefore, did not constitute an unfair labor practice, noting that language of the leaflet was directly drawn from Airporter Inn Hotel, 215 NLRB 824. Accordingly, on July 5, 1977, the ALO issued his proposed decision dismissing the complaint in its entirety.5
Both General Counsel and UFW filed exceptions to the ALO's proposed decision. More than 15 months later on October 23, 1978, Board rendered its decision and order reversing the ALO's proposed decision as to the leaflet distributed January 7, 1977, concluding that it constituted a coercive interrogation of Mel-Pak's employees. It upheld the decision of the ALO with respect to the leaflet distributed on January 10 to the extent it determined the leaflet was not shown to have been sufficiently coercive when considered in context to constitute an unfair labor practice, but rejected part of the reasoning of the ALO, relying instead on its own decision in Karahadian Ranches, Inc. (Case No. 77-CE8C [4 ALRB No. 69]). Having concluded that the distribution of the leaflet on January 7, 1977, constituted an unfair labor practice, the Board issued an order requiring Mel-Pak to take extensive affirmative action, purportedly to effectuate the policies of the ALRA.
Board's decision and order was signed and filed on October 23, 1978, and, according to a certificate attached thereto, was mailed to the parties including Mel-Pak and its attorney on that date. However, the decision and order was not received in the office of Mel-Pak's attorney until November 1, 1978. On November 24, 1978, the 32nd day6 following the filing and mailing of Board's decision and order, Mel-Pak filed in this court its petition for review pursuant to section 1160.8.7 At our request both Board and UFW filed preliminary responses in opposition to Mel-Pak's petition for review. In addition, Board and UFW filed motions to dismiss the petition as untimely filed. We issued a writ of review expressly reserving decision on the motions to dismiss.
Motions to Dismiss
Section 1160.8 authorizes an aggrieved party to seek review of a final order of ALRB by petition to the appropriate Court of Appeal. It provides that the petition must be filed with the court “within 30 days from the date of the issuance of the board's order.” (Emphasis added.) Equating “issuance” with “filing,” ALRB and UFW (hereafter collectively respondents) assert that Board's decision and order were “issued” on October 23, and that Mel-Pak's petition for review, filed 32 days thereafter, was untimely. Mel-Pak contends that “issuance” imports more than merely “filing” and includes service of the decision and order. Mel-Pak further contends that where service is effected by mail, Code of Civil Procedure section 10138 is applicable and extends by five days the period in which a timely petition for review may be filed. Since its petition for review was filed on the 32nd day following the filing and service by mail of Board's order and decision on October 23, Mel-Pak urges that its petition for review was timely. Mel-Pak's position is sound.
Respondents are correct that the statutory period in which a petition for review may be filed is jurisdictional. (United Farm Workers v. Agricultural Labor Relations Board, 74 Cal.App.3d 347, 350, 141 Cal.Rptr. 437; see also Jackson & Perkins Co. v. Agricultural Labor Relations Bd., 77 Cal.App.3d 830, 833-834, 144 Cal.Rptr. 166.) However, the jurisdictional nature of the time period does not answer the questions of the length of the statutory period or when it commences to run. Section 1160.8, of course, specifies that the period is 30 days from “issuance,” but if, as Mel-Pak contends, “issuance” imports the necessity of service and if the Board elects to effect service by mail making Code of Civil Procedure section 1013 applicable, the period for filing the petition for review in the Court of Appeal is by the terms of section 1013 extended five days. If section 1013 of the Code of Civil Procedure is applicable, its provisions are as fully a part of the legislative prescription as the provisions of section 1160.8.
Neither United Farm Workers v. Agricultural Labor Relations Board, supra, 74 Cal.App.3d 347, 141 Cal.Rptr. 437, nor Jackson & Perkins Co. v. Agricultural Labor Relations Bd., supra, 77 Cal.App.3d 830, 144 Cal.Rptr. 166, is to the contrary. In both cases the question before the court was whether the filing of a petition for reconsideration, authorized by regulations promulgated by ALRB, rendered the underlying decision and order of the Board “not final” during the pendency of the petition for reconsideration, thus extending the time in which to seek review in the Court of Appeal. In both cases, the courts concluded that the Board's underlying decision and order became final when issued notwithstanding the filing of a petition for reconsideration. In neither case was any question raised as to when the decision and order of the Board were “issued,” nor did either court consider or discuss that question or the applicability of Code of Civil Procedure section 1013. It is fundamental that decisions do not constitute precedent for propositions not presented or considered. (General Motors Accept. Corp. v. Kyle, 54 Cal.2d 101, 114, 4 Cal.Rptr. 496, 351 P.2d 768; Grant v. Murphy, 116 Cal. 427, 432, 48 P. 481; Hart v. Burnett, 15 Cal. 530, 598-599; Brokopp v. Ford Motor Co., 71 Cal.App.3d 841, 851, 139 Cal.Rptr. 888.)
Respondents' contention, if such it is, that Code of Civil Procedure section 1013 cannot apply because the service by mail here involved was not effected or to be effected by the adverse party but, rather, by the Board, must also be rejected. Code of Civil Procedure section 1013 is uniformly given a liberal interpretation to effect its purposes (see, e. g., California Accounts, Inc. v. Superior Court, 50 Cal.App.3d 483, 486-487, 123 Cal.Rptr. 304), and numerous decisions apply its provisions to situations in which service by mail is effected by an administrative tribunal (e. g., Industrial Indemn. Co. v. Ind. Acc. Com., 57 Cal.2d 123, 126, 17 Cal.Rptr. 821, 367 P.2d 413; Pesce v. Dept. Alcoholic Bev. Control, 51 Cal.2d 310, 311-313, 333 P.2d 15, disapproving cases to the contrary; McBride v. Alpha Realty Corp., 49 Cal.App.3d 925, 928-929, 123 Cal.Rptr. 270; Sinclair v. Baker, 219 Cal.App.2d 817, 822, 33 Cal.Rptr. 522).
We likewise reject the contention, if such it is, that the application of Code of Civil Procedure section 1013 will make unduly uncertain the date by which a petition for review must be filed. Our review of the cases cited by the parties discloses that in a great number of instances involving administrative tribunals, the time in which to seek judicial review commences to run upon the tribunal's making service or giving notice of its decision and order. (See, e. g., Pesce v. Dept. Alcoholic Bev. Control, supra, 51 Cal.2d at p. 311, 333 P.2d 15; Sinclair v. Baker, supra, 219 Cal.App.2d at p. 821, 33 Cal.Rptr. 522.) No greater uncertainty would be created by the application of Code of Civil Procedure section 1013 to decisions of the ALRB than obtains in the case of orders or decisions of many, if not most, administrative agencies in the state.
A recent decision of the Court of Appeal for the First District is virtually dispositive of the question of the meaning of the term “issuance” in section 1160.8. The court stated: “The Board's order was dated May 20, 1977, and was mailed to Sunnyside May 23, 1977. The Act, Labor Code section 1160.8, provides that the ‘petition shall be filed with the court within 30 days from the date of the issuance of the board's order.’ (Emphasis added.) The generally accepted meaning of the terms ‘issue’ and ‘issuance’ is to ‘send forth; to emit; to promulgate; … put into circulation; …’ (See Black's Law Dict. (4th rev.ed.1968) p. 964, col. 2; 22A Words and Phrases (1958) p. 530.) The legislative choice of the word ‘issuance’ reasonably indicates that something more than ‘signing’ or ‘filing’ of the Board's order was intended. We hold that ‘issuance’ of the Board's order occurred when it was mailed to Sunnyside. So construing Labor Code section 1160.8, Sunnyside's petition was timely filed.” (Orig. emphasis.) (Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd., 93 Cal.App.3d 922, 929, 156 Cal.Rptr. 152, 155.)
We agree with the Sunnyside Nurseries court. The conclusion it reached is supported not only by the rationale expressed by the court but by the fact that ALRB's regulations disclose that ALRB itself does not deem an order of the Board “issued” until it has been served upon the parties. The regulations promulgated by ALRB are published in title 8 of the California Administrative Code. Subdivision (a) of section 20286 provides that if no exceptions are filed, the decision of the ALO automatically becomes final “20 days after the date on which the decision of the administrative law officer is served on the parties.” Subdivision (c) of the same section authorizes in extraordinary circumstances a petition “for reconsideration or reopening of the record after issuance of the Board's final decision and order in the case.” (Emphasis added.) It specifies: “Any motion pursuant to this section shall be filed within 10 days after the service of the Board's final decision and order.” (Emphasis added.) The regulation found in section 20400 of title 8 of the California Administrative Code provides that orders of the Board may be served either personally or by registered or certified mail or by telegraph.
Board's reliance on Labor Code section 5950 and decisions under that statute for the proposition that “issuance” as used in section 1160.8 means “filing” is unjustified. Labor Code section 5950, prescribing the time in which a party may petition for review of an order of the Workers' Compensation Appeals Board after reconsideration has been granted or denied specifies two periods: “45 days after a petition for reconsideration is denied, or, if a petition is granted or reconsideration is had on the appeal board's own motion, within 45 days after the filing of the order, decision, or award following reconsideration.” (Emphasis added.) Manifestly, a petition for reconsideration is “denied” when the order is rendered, and an order is “filed” when it is entered in the official records of the tribunal. Not surprisingly, that is what the cases decided under Labor Code section 5950 hold. Contrary to Board's argument, the Legislature's specification that the time runs from the “filing of the order, decision, or award following reconsideration” (emphasis added) indicates that the Legislature is aware of the event of “filing” and must have meant something more than “filing” when it made the time in which to petition for review run from “issuance” in section 1160.8.
We conclude that the order and decision of the Board in the case at bench was issued on October 23, 1978, when service was effected by depositing the order and decision in the mail, that Code of Civil Procedure section 1013 was applicable extending by five days the time in which a petition for review could be filed, and that Mel-Pak's petition for review filed in this court on the 32nd day following October 23, 1978, was timely.
Mel-Pak Ranches grows table grapes on 500 acres of land. Its period of peak agricultural employment is harvest time at the end of May when some 250 to 400 workers are employed. In the late fall and winter approximately 45 persons are employed to prune the vines.
The hiring of agricultural employees is supervised by the ranch manager, Mr. Herbekian. Actual hiring is done by crew bosses in the fields. At the time they are employed, workers are asked to fill out cards (“white cards”) which have spaces for the worker's name, social security number and address. These cards are kept primarily for tax purposes (e. g., preparation of W-2 forms).
On December 6, 1976, UFW filed with ALRB a notice of intention to take access on Mel-Pak. Thereafter in January 1977, UFW filed with ALRB its notice of intent to organize Mel-Pak's agricultural employees, accompanied by signed authorizations from 10 percent of the employees. Within five days thereafter, Mel-Pak was required by a regulation of ALRB (Cal.Admin.Code, tit. 8, § 20910) to furnish to ALRB a list of its agricultural employees setting forth their full names, “current street addresses,” and job classifications (Cal.Admin.Code, tit. 8, § 20310(a)(2)).9
Shortly after UFW had filed its notice of intent to organize, Mel-Pak's attorneys composed the two leaflets here involved, apparently at Mel-Pak's request. The leaflets were received from the attorneys by Ralph Melikian, a partner in Mel-Pak. He asked ranch manager Herbekian to get the materials translated into Spanish and authorized distribution of the leaflets. Thereafter, on January 7 and January 10 the respective leaflets were distributed both in English and Spanish to Mel-Pak's approximately 45 employees. About one-half of the employees spoke a Filipino dialect, rather than Spanish, but neither leaflet was printed in that dialect.
Mel-Pak contends that Board's determination that its distribution of the January 7 leaflet amounted to a coercive interrogation and constituted an unfair labor practice is erroneous as a matter of law. Even were it not, Mel-Pak contends the affirmative actions required by Board's order are so disproportionate to the isolated incident of January 7 that the order is patently retributive and punitive rather than remedial. Even though Board upheld the ALO's determination that distribution of the January 10 leaflet did not constitute an unfair labor practice, Mel-Pak contends that Board's rejection of a portion of the ALO's reasoning and its reliance instead on the reasoning in its earlier Karahadian decision will have a chilling effect on the exercise by agricultural employers of their right to free speech expressly recognized by section 1155 of ALRB (see fn. 4, ante). It argues that an employer ought to be able to use language approved in NLRB decisions without having to risk costly unfair labor practice litigation every time it attempts to inform its employees of its position with respect to or its evaluation of unionization.
Respondents contend that inasmuch as Board's decision exonerates Mel-Pak with respect to the charged unfair labor practice based on distribution of the January 10 leaflet, Mel-Pak is not aggrieved by and may not therefore seek review of that portion of the decision. Respondents contend that the remainder of Board's decision and order is lawful and appropriate.
The January 10 Leaflet
The leaflet distributed on January 10 was in the form of a letter from Mel-Pak addressed to all employees stating in essence that inasmuch as Mel-Pak was required to send a list of their names and home addresses to ALRB, a copy of which would probably be furnished by ALRB to UFW, it was likely that UFW organizers would contact them at home to try to convince them to support the union; that the employees were not required to talk to the UFW organizers or to let them into their homes; and that they were under no obligation to sign a card or petition authorizing UFW to represent them. The letter then continued: “In fact, our advice to you is that you not sign a card. Refuse to sign a union card and avoid a lot of unnecessary trmoil [sic]. You will always do better with us without a union, which can't and won't do anything for you except jeapardize [sic] your jobs.”10
General Counsel asserted that the quoted language contained threats and implied threats against workers signing authorization cards for the UFW. The ALO found that the distribution of this leaflet constituted a legitimate exercise by Mel-Pak of its right to free speech, noting that the quoted language derived almost word for word from a similar communication found not to constitute an unfair labor practice in the Airporter Inn decision of the NLRB. Board upheld the determination of the ALO, but did so on the basis of its reasoning in its Karahadian decision (4 ALRB No. 69) in which it stated: “[W]e specifically reject any inference which might be drawn from the ALO's reliance on Airporter Inn Hotel … that a statement which is found to be non-coercive in one context has in effect received Board approval and may safely be utilized in other circumstances without regard to the considerations set forth in Gissel [NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547, which is generally cited for the proposition that the determination as to whether or not a particular communication is coercive must be determined on the basis of all of the facts and circumstances involved in the particular case] ․ [¶] Although we share the ALO's concern for the stabilizing effect on labor relations of delineating standards of appropriate speech under the ALRA, we do not consider it warranted to establish a per se rule concerning a particular statement which, in any case, would have to be considered in light of all the circumstances and evidence adduced at the hearing.” (4 ALRB 69 at pp. 2-3.)
Mel-Pak's complaint appears to be that because the language complained of was taken virtually word for word from the Airporter Inn decision of the NLRB, and since ALRB is required by section 1148 of ALRA to follow applicable precedents “of the National Labor Relations Act, as amended,” Board was bound to conclude, as had the NLRB in the Airporter Inn decision, that the quoted language was not coercive or threatening and could not be the basis of an unfair labor practice. We deem it unnecessary to pass upon respondents' contention that Mel-Pak is not aggrieved by this portion of Board's decision. We agree, however, with respondents that the question raised is not properly reviewable.
It is fundamental that the matter of concern on review is the decision and order made by the trial tribunal, not its reasoning. A decision and order correct in law will not be overturned on review even if the reasoning of the tribunal was unsound. (See D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 18-19, 112 Cal.Rptr. 786, 520 P.2d 10; Davey v. Southern Pacific Co., 116 Cal. 325, 329.) Thus, a contention that the reasoning of Board with respect to a particular issue was unsound or erroneous, in the absence of an attack on its decision of the issue, raises no cognizable issue on review.11
The January 7 Leaflet
The leaflet distributed January 7 read:
“To All Employees:
Under the regulations of the Agricultural Labor Relations Board (ALRB), we are required to submit a list of our employees' names and street addresses to the ALRB. The ALRB then will make this list available to union organizers, who may attempt to visit you in your homes. We recognize that many of you might not want to give out your street address to us, and we regret having to ask you for it. However, we believe we are required to ask you for your street address so that we can comply with the ALRB's regulations. Accordingly, if you have not already given us your street address, we are requesting that you write your name and street address at the bottom of this sheet and turn it in to our office. We believe that while we may be under a legal obligation to ask you for your street address, there is nothing in the law which requires you to give it to us now.
On the basis of “the entire record, including [his] observation of the demeanor of the witnesses,” the ALO determined that distribution of this pamphlet was not an unlawful interrogation under analogous NLRA decisions and did not constitute an unfair labor practice. Board, although it made no factual findings contrary to those of the ALO,12 concluded that Mel-Pak's distribution of this leaflet was a coercive interrogation and constituted an unfair labor practice. We have concluded that the ALO was correct in the first instance and that the decision of Board on this point is contrary to law.
To start with, Board's conclusion that the distribution of this leaflet amounted to an interrogation is questionable. Although General Counsel alleged in the amended complaint that Mel-Pak's actions constituted an interrogation “for the purposes of identifying employees inclined to support the union,” Board made no finding to that effect and, as the ALO expressly noted, no evidence was presented that would support a finding to that effect.
UFW having filed notice of its intent to organize, Mel-Pak was required by ALRB regulations to supply an employee list containing the employees' “current street addresses.”13 The unrefuted evidence was that the addresses supplied by Mel-Pak's employees on the “white cards” at the time they were first employed were a hodge-podge of all types of addresses, varying from post office box addresses in Texas and Mexico to street addresses in proximity, to the ranch. The ALO took express note of this evidence in his opinion, and apparently credited Mel-Pak's assertion that it distributed the pamphlet because it felt obliged to make an attempt to obtain “current street addresses” but at the same time felt it should inform its employees of their right not to disclose their “current street addresses,” as opposed to their mailing addresses, if they chose not to.14 (See discussion, infra.)
Moreover, as the ALO noted, employees were not required to make any response to the leaflet. They were free to read it, ignore it, take it home, throw it away, or fill in their name and street address and return it. This fact alone significantly distinguishes the leaflet here involved from the interrogation involved in Tenneco West, Inc., 3 ALRB No. 92, discussed at greater length, infra.
But even if the distribution of the January 7 leaflet could properly be said to constitute an interrogation, Board's conclusion that it was coercive and interfered with the free exercise of employee rights is erroneous and without evidentiary support.
Although General Counsel had the burden of proving that the interrogation was coercive or interfered with the free exercise of employee rights, not a single employee was called to testify that he or she felt restrained, intimidated or coerced by the leaflet nor was any other evidence introduced tending to prove that any employee was coerced or intimidated. As the ALO noted, there is no evidence at all as to what happened after the leaflet was distributed. There is no evidence as to how many of the leaflets were filled out and returned and how many not. The record would support an inference that the distribution of the leaflet resulted in Mel-Pak's obtaining a good many “current street addresses,” for it apparently did furnish to ALRB shortly thereafter a sufficient employee list; at least it is not asserted that Mel-Pak failed to submit an employee list complying with the regulations, and so far as the record indicates no unfair labor practice charges were lodged against Mel-Pak for failure to supply an adequate list.
Respondents assert that the fact that no employee was actually coerced or intimidated by the leaflet is immaterial, since the test established by the NLRA precedents is not whether the employees actually were intimidated, but whether the employer engaged in conduct which may reasonably be said tended to interfere with the free exercise of employee rights. Respondents' statement of the rule is correct. (See National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 599, 61 S.Ct. 358, 365, [85 L.Ed. 368, 379].) However, their conclusion that the absence of any evidence of actual intimidation or coercion is immaterial is incorrect. The best evidence that conduct of an employer may reasonably be said to have tended to be coercive would be that one or more employees was actually intimidated or coerced; the entire absence of any such evidence rather persuasively suggests that distribution of the leaflet by Mel-Pak was not reasonably likely to coerce its employees in the exercise of their rights. (See Stanislaus Imports, Inc., supra, 226 NLRB at p. 1192.)
Although perhaps not controlling,15 the decisions under sections 7 and 8(a)(1) of the NLRA (29 U.S.C., §§ 157, 158(a)(1)), after which sections 1152 and 1153(a) of ALRA are modeled, offer some guidance as to whether interrogation is or is not coercive. They establish that interrogation that is not itself threatening does not constitute an unfair labor practice unless it is coercive in light of all the surrounding circumstances. Some of the important circumstances to be considered are whether there is a history of employer hostility and discrimination, whether the information sought could lead to individual discrimination, how high in the hierarchy of the employer the interrogator was, the location of the interrogation and the atmosphere in which it was made, and whether there is evidence that the interrogation intimidated the employees. (N.L.R.B. v. Monroe Tube Co., Inc., supra, 545 F.2d at p. 1328; Sahara-Tahoe Corp. v. N.L.R.B., supra, 533 F.2d at p. 1126; Stanislaus Imports Inc., supra, 226 NLRB at p. 1192; Arvin Industries, Inc., supra, 226 NLRB at p. 925.)
Here, the language in the leaflet was not itself threatening in any way; there is no history of employer hostility or discrimination; Mel-Pak was not found to have committed any other unfair labor practice prior to or concurrent with distribution of the leaflet; the circumstances under which the leaflet was distributed were in no way coercive or threatening—there was no face-to-face confrontation accompanied by statements or acts which would color the factual and noncoercive tone of the leaflet; there was no evidence that Mel-Pak interfered in any way with UFW's exercise of its access rights; and there was no evidence that Mel-Pak in any way interfered with efforts by either Board or UFW to obtain home addresses from the employees by any other means. Under these circumstances, the decisions under the NLRA clearly indicate that the interrogation, if such it was, was not coercive, and did not constitute an unfair labor practice.
The situation here is readily and fundamentally distinguishable from that disclosed in Tenneco West, Inc., supra, 3 ALRB No. 92, upon which Board relied in its opinion. In Tenneco in apparently individual, face-to-face confrontations, supervisors or representatives of the employer told the employees “‘that if they wanted a Chavez union representative to visit them at their homes, to put down their address [sic] by their names. If they didn't want a Chavez union representative to visit their homes, to write “refuse” next to their name and to sign their name next to “refuse” on the same line.”’ (3 ALRB No. 92, at p. 7 of ALO's proposed decision.) Thus the employees were required to respond one way or the other, and the nature of the interrogation was decidedly more coercive than in this case. In addition there was specific evidence in Tenneco that the employer's actions did intimidate and coerce employees not to disclose their street addresses, that only three employees responded by giving their street addresses, and that the employer failed to furnish ALRB an employee list complying with the regulations.
In the final analysis, the only possible support for Board's determination is its conclusion that Mel-Pak's distribution of the January 7 leaflet gave its employees the Hobson's choice of making “an overt expression for or against the UFW” or foregoing their right to receive communications from labor organizers about the merits of union representation in a location other than on the employer's premises. However, Board's conclusion in this regard is unsound.
First, the Hobson's choice said to have been imposed upon the employees was, in fact, largely nonexistent. If an employee decided not to place his or her name and address on the form and return it, he or she did not necessarily thereby give up all opportunity for communicating with union representatives away from the employer's premises or even in his or her residence. Having filed its notice of intent to organize, UFW was entitled to and was taking access on Mel-Pak as provided in the access regulations. If an employee were interested in being visited at home or at some other place, all he or she would have to do is quietly so inform one of UFW's representatives taking access. In addition, UFW had already filed its notice of intent to organize accompanied by a showing of support of at least 10 percent of the employees. In a work force of only 45, 25 to 29 of whom were housed in the labor camp, it would be reasonable to conclude that an employee interested in doing so could arrange to talk privately with a union representative simply by mentioning his or her desire to do so to an employee already supporting UFW.
Nor did Mel-Pak call upon its employees to make an “overt expression for or against the UFW.” By placing his or her name and address on the form and returning it, an employee would signify only that he or she did not object to the union having his or her “current street address” and, possibly, that he or she would have no objection to a UFW organizer calling at his or her residence for the purpose of discussing the benefits of unionization and the merits of UFW. As was cogently pointed out in respect to similar conduct in Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd., supra, 93 Cal.App.3d at p. 938, 156 Cal.Rptr. 152, such conduct would show no more than a willingness to listen to the argument on both sides. An employee's failure to place his or her name and address on the form and return it would similarly not necessarily indicate that the employee held pro-management or anti-union views. It could as easily indicate that the employee simply chose to ignore the whole matter, including the leaflet.16
Secondly, and more importantly, Board's conclusion that “[b]y exacting this price and requesting an overt expression for or against the UFW, [Mel-Pak] has coercively interrogated its employees and interfered with their Section 1152 rights, in violation of Section 1153(a) of the Act” reveals a basic misconception on the part of Board of the rights guaranteed agricultural employees under section 1152 of ALRA.
It is undoubtedly true as respondents assert that under section 1152 employees have the right to receive communications and information from labor organizations if they want to, free from interference or restraint on the part of their employer. (See Central Hardware Co. v. NLRB, 407 U.S. 539, 542-543, 92 S.Ct. 2238, 2240, 2241, 33 L.Ed.2d 122, 126; NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767, 89 S.Ct. 1426, 1430, 22 L.Ed.2d 709, 716.) It is also unquestionably true that labor organizations have the right to communicate with employees and, to that end, visit their abodes if the employees are willing. (See Central Hardware Co. v. NLRB, supra, 407 U.S. 539, 542-543, 92 S.Ct. 2238, 2240, 2241, 33 L.Ed.2d 122, 126; NLRB v. Wyman-Gordon Co., supra, 394 U.S. 759, 767, 89 S.Ct. 1426, 1430, 22 L.Ed.2d 709, 716.) But employees also have a right not to be confronted on the doorsteps of their abodes by union organizers if that is their choice. (§ 1152; cf. Cal.Const., art. I, § 1; see Martin v. Struthers, 319 U.S. 141, 141, 143-144, 148, 63 S.Ct. 862, 862, 863, 865, 87 L.Ed. 1313, 1316, 1317, 1319.) Section 1152 of ALRA specifically provides: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of continued employment as authorized in subdivision (c) of Section 1153.” (Emphasis added.)
Respondents' assertion that a labor organization is entitled to exercise its right to communicate with an employee at the employee's doorstep is correct, provided, however, that the employee is willing to receive such visitation. There are, of course, a number of federal decisions dealing with an employer's refusal or failure to supply an “Excelsior list”17 that hold or say that compelling an employer to furnish the names and addresses of its employees does not infringe the employees' right of privacy. (E. g., N.L.R.B. v. Q-T Shoe Manufacturing Co. (3d Cir. 1969) 409 F.2d 1247, 1250; N.L.R.B. v. J. P. Stevens & Co. (4th Cir. 1969) 409 F.2d 1207, 1209-1210; N.L.R.B. v. Hanes Hosiery Division—Hanes Corporation (4th Cir. 1967) 384 F.2d 188, 191; N.L.R.B. v. British Auto Parts, Inc. (C.D.Cal. 1967) 266 F.Supp. 368, 373; cf. NLRB v. Wyman-Gordon Co., supra, 394 U.S. at p. 767, 89 S.Ct. at p. 1430, 22 L.Ed.2d at p. 716.) However, the instant case is not one arising out of an employer's failure or refusal to supply an employee list, and the question at hand is not whether the employer's transmittal of its employees' street addresses to ALRB for disclosure to UFW infringes its employees' right to privacy. The question here is whether it is one of the rights of an agricultural employee under section 1152 of ALRA to refrain from furnishing his or her “current street address” so as to avoid a nighttime confrontation with union organizers on the doorstep of his or her temporary abode if that is the employee's choice.
It may well be that the public interest in an informed electorate is sufficient to require that employees furnish some address at which a labor organization may communicate with them (cf., e. g., N.L.R.B. v. Q-T Shoe Manufacturing Co., supra, 409 F.2d at p. 1250; N.L.R.B. v. J. P. Stevens & Co., supra, 409 F.2d at pp. 1209-1210; N.L.R.B. v. Hanes Hosiery Division—Hanes Corporation, supra, 384 F.2d at p. 191; N.L.R.B. v. British Auto Parts, Inc., supra, 266 F.Supp. at pp. 372-373; Exelsior Underwear Inc., supra, 156 NLRB at pp. 1241-1242), but it is not sufficient to compel an unwilling employee to disclose to ALRB and through it, a campaigning labor organization, the street address of his or her temporary abode and to suffer a confrontation with union organizers on his or her doorstep.
Apparently ALRB recognizes that this is so, for while General Counsel alleged in the original complaint that Mel-Pak's statement to its employees that they were not required to furnish their “current street addresses” constituted a misrepresentation, that allegation was eliminated by subsequent amendment and Board does not assert that the statements in either pamphlet distributed by Mel-Pak were other than correct statements of the law.
Thus, Board's conclusion that distribution of the January 7 leaflet was a coercive interrogation was erroneous. Not only were the employees not presented with the Hobson's choice indicated by Board, but, giving full scope to employees rights under section 1152, the distribution of the January 7 leaflet served to promote the free exercise of employee rights. A request by Mel-Pak to its employees for “current street addresses” with no further explanation than that such information was required by ALRB would have given the employees the false impression that, because the information was wanted by an agency of the State of California, each employee must furnish it whether he or she wanted to or not. The leaflet correctly informed the employees that ALRB would supply the addresses to UFW and that, although Mel-Pak was required to transmit such “current street addresses” as were supplied to it by its employees, the employees were not required to furnish their “current street addresses” to Mel-Pak if they did not wish UFW to have them.
Having concluded that under the facts and circumstances disclosed by the record, Mel-Pak's distribution of the January 7 leaflet was not a coercive interrogation and did not constitute an unfair labor practice, it is unnecessary for us to reach Mel-Pak's contention that Board's order was retributive and punitive rather than remedial.
Board's order and that part of its decision determining the distribution of the January 7 pamphlet to be an unfair labor practice are vacated.
1. Section 1149 reads in part: “He [General Counsel] shall have final authority, on behalf of the board, with respect to the investigation of charges and issuance of complaints under Chapter 6 (commencing with Section 1160) of this part, and with respect to the prosecution of such complaints before the board.” (See Belridge Farms v. Agricultural Labor Relations Bd., supra, 21 Cal.3d at pp. 557-558, 147 Cal.Rptr. 165, 580 P.2d 665.)
2. Section 1160.2 reads in pertinent part: “Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the board … shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the board or a member thereof … not less than five days after the serving of such complaint.”
3. Section 1148 provides: “The board shall follow applicable precedents of the National Labor Relations Act, as amended.”
4. Section 1155 reads: “The expressing of any views, arguments, or opinions, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute evidence of an unfair labor practice under the provisions of this part, if such expression contains no threat of reprisal or force, or promise of benefit.”
5. The ALO's decision was actually rendered on May 27, 1977. However, due to a mistake, the post-hearing brief of one party was not timely received and considered. An order was therefore made reopening the proceeding so that the ALO could consider that brief, and the ALO rendered a supplemental proposed decision on July 5, 1977.
6. The 31st day was Thanksgiving Day, a holiday.
7. Section 1160.8 reads in pertinent part: “Any person aggrieved by the final order of the board … may obtain a review of such order in the court of appeal having jurisdiction over the county wherein the unfair labor practice in question was alleged to have been engaged in, or wherein such person resides or transacts business, by filing in such court a written petition requesting that the order of the board be modified or set aside. Such petition shall be filed with the court within 30 days from the date of the issuance of the board's order․” (Emphasis added.)
8. Subdivision (a) of Code of Civil Procedure section 1013 dealing with service by mail provides in pertinent part: “… The service is complete at the time of the deposit, but if, within a given number of days after such service, a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done, is extended five days if the place of address is within the State of California, .. but such extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 633a of this code or notice of appeal.”
9. The employee list required by regulation 20910 is known as a “pre-petition employee list.” Upon verifying that the requisite 10 percent showing of interest on the part of the employees has been satisfied, ALRB's regional director makes a copy of the employee list available to the filing labor organization and any other labor organization which files a notice of intent to organize on the same employer within 30 days. (See Cal.Admin.Code, tit. 8, § 20910.) One of the primary purposes to be served by ALRB's furnishing a copy of the list to filing labor organizations is to facilitate communication by union organizers with agricultural employees.
10. In a final paragraph the letter then stated: “It is unlawful for anyone to threaten you if you refuse to support a union. We will not tolerate such threats being made against our employees. If you or anyone in your family or friends are threatened by someone trying to ‘sell’ the union, report it immediately to your foreman or to the ALRB. The ALRB's telephone number is 398-0121. If you have any questions, let us know.”Originally General Counsel alleged that the reference to ALRB and its telephone number constituted a misrepresentation that ALRB endorsed the content of the letter. That allegation of the complaint, however, was subsequently deleted by amendment.
11. We by no means intend to imply that we disagree with Board's reasoning in Karahadian. On the contrary, we think it inescapable that the question whether or not a particular communication was coercive must be determined on the basis of the context in which it took place and the attendant facts and circumstances. That this is so is recognized by many of the very cases upon which Mel-Pak relies. (E. g., N.L.R.B. v. Monroe Tube Co., Inc. (2d Cir. 1976) 545 F.2d 1320, 1325, 1328; see Sahara-Tahoe Corp. v. N.L.R.B. (9th Cir. 1976) 533 F.2d 1125, 1126; Stanislaus Imports, Inc., 226 NLRB 1190 (1976); Arvin Industries, Inc., 226 NLRB 925 (1976).) To the extent that this may have a chilling effect on the exercise by agricultural employers of their right of free speech, it can only be said that would appear to be a necessary concomitant of the establishment of unfair labor practice remedies. In carrying out their obligation to exercise their authority in an objective and impartial manner, Board and General Counsel will no doubt consider the possible chilling effect of unsubstantiated unfair labor practice charges and decline to file complaints in unmeritorious cases. In 1978 the Legislature made express the duty of employees of both Board and General Counsel to “perform their duties in an objective and impartial manner without prejudice toward any party subject to the jurisdiction of the board.” (§§ 1145, 1149 [Stats.1978, ch. 1072, §§ 1, 2, pp. _, _].)
12. In its opinion Board states that it has considered the record and the decision of the ALO in light of the exceptions and briefs, “and has decided to affirm the rulings, findings, and conclusions of the ALO as modified herein …” However, no factual findings of the ALO were modified. Board simply disagreed with a portion of the ALO's analysis and ultimate conclusions.
13. What ALRB means by “current street addresses” is the location of the place in which each employee is abiding. Mailing addresses or post office addresses are insufficient, and the failure of an employer to list a “current street address” for each employee is held by Board to constitute an unfair labor practice. (See Agricultural Labor Relations Bd. v. Laflin & Laflin, 89 Cal.App.3d 651, 658, 152 Cal.Rptr. 800.)
14. In a footnote in its return, Board asserts that Mel-Pak's stated purpose for the leaflet is inconsistent with two facts established at the hearing, namely, (1) the fact that Mel-Pak already had an established procedure (the “white cards”) for obtaining its employees' addresses from which they could presumably have obtained the necessary addresses, and (2) that during the pruning season some 25 to 29 of Mel-Pak's employees were housed in its labor camp so that the distribution of the leaflet was entirely unnecessary. The first argument fails to distinguish between “addresses” (see § 1157.3) and “current street addresses” (see Cal.Admin.Code, tit. 8, § 20310(a)(2)). Further, it wholly ignores the uncontradicted evidence that the addresses contained on the “white cards” were a hodge-podge of addresses many of which would not have satisfied the requirement to provide “current street addresses” and would have subjected Mel-Pak to an unfair labor practice charge for failure to supply an adequate pre-petition employee list. The second point is similarly unmeritorious. It disregards the fact that some 40 percent of the employees were not housed in the labor camp and that Mel-Pak was obligated to furnish the “current street addresses” of all its employees. It further overlooks the fact that the unfair labor practice with which Mel-Pak is charged is not a failure to furnish an adequate employee list but, rather, coercive interrogation of its employees.
15. Since consent elections are not authorized by ALRA, the “polling” cases (e. g., Struksnes Construction Co., Inc., 165 NLRB 1062) are not strictly in point, because the justification for an employer “polling” its employees is frequently rested on the necessity of its ascertaining whether in fact a majority of its employees support the particular labor organizations seeking certification. However, we reject UFW's assertion that under ALRA an employer has no legitimate reason for making any inquiry into the sentiments of its employees with respect to unionization. An employer is entitled to resist unionization by legitimate means just as vigorously as a labor organization is entitled to seek it. If by noncoercive inquiry an employer learns that a substantial majority of its agricultural employees favors unionization and supports the labor organization seeking certification, the employer may well decide that further efforts on its part to resist unionization would be unproductive and, thereupon, cease its efforts to resist. This would, of course, serve the ALRA objective of enhancing harmony and stability in agricultural employer-employee relations (see Agricultural Labor Relations Bd. v. Superior Court, 16 Cal.3d 392, 398, 128 Cal.Rptr. 183, 546, P.2d 687).
16. One must wonder why in this day and age respondents consider the disclosure of union sympathies of an employee to the employer so horrendous. The decisions under the NLRA establish, as we have seen, that employer interrogation into employee sentiments concerning unionization that is not itself threatening is not considered coercive in the absence of other circumstances. (N.L.R.B. v. Monroe Tube Co., Inc., supra, 545 F.2d at p. 1328; Sahara-Tahoe Corp. v. N.L.R.B., supra, 533 F.2d at p. 1126; Stanislaus Imports, Inc., supra, 226 NLRB at p. 1192; Arvin Industries, Inc., supra, 226 NLRB at p. 925.) If an employee furnishes the requested “current street address,” and one or more union organizers appear on his doorstep after working hours, nothing prevents them from inquiring into the employee's pro-management or anti-union sentiments. We would not be prepared to take judicial notice that the revelation to an employer of union sympathies by writing one's name and street address on a piece of paper at a time and place of the employee's choosing, is more “coercive” than answering the inquiries of union organizers about pro-management sympathies in a face-to-face confrontation on the doorstep of the employee's temporary abode, presumably at night after work. The truth is that not all agricultural employers are Simon Legree types; not all union organizers are chivalrous knights on white chargers; and the question as to whether a particular communication is or is not coercive of employee rights should properly be determined on the basis of the evidence rather than unarticulated factual assumptions finding no support in the evidence.
17. See Excelsior Underwear Inc., 156 NLRB 1236.
KAUFMAN, Associate Justice.
GARDNER, P. J., and McDANIEL, J., concur.