DAN TUDOR SONS v. UNITED FARM WORKERS OF AMERICA AFL CIO

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Court of Appeal, Fifth District, California.

DAN TUDOR & SONS, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest.

Civ. 3669.

Decided: December 31, 1979

Seyfarth, Shaw, Fairweather & Geraldson, George Preonas, Keith A. Hunsaker, Jr., John L. Zenor and Irene Norma Acland, Los Angeles, for petitioner. Harry J. Delizonna, Marvin J. Brenner, Thomas M. Sobel and Manuel Medeiros, Sacramento, for respondent. Jerome Cohen, Sanford N. Nathan, Tom M. Dalzell, III, Deborah Wiener Peyton, W. Daniel Boone, Glenn Rothner, E. Michael Heumann, II, and Linton Joaquin, Salinas, Marco E. Lopez, Keene, Carlos M. Alcala, Francis E. Fernandez, San Francisco, Carmen S. Flores, Salinas, and Dianna Lyons, Sacramento, for real party in interest.

OPINION

Petitioner, Dan Tudor & Sons, an agricultural employer, (Employer) seeks relief pursuant to Labor Code section 1160.81 from an order of the Agricultural Labor Relations Board (Board) determining the Employer was guilty of an unfair labor practice (§ 1153, subd. (a)) and ordering certain remedies.

The complaint by the Board's general counsel was instigated by the United Farm Workers (UFW) after it lost a representation election among Employer's agricultural employees. The complaint charged the Employer with 12 unfair labor practices. The administrative law judge (ALO) and all members of a three-member panel of the Board concluded that 11 of the charges were unproved. Two members of the panel2 determined that the Employer, through one of its foremen, violated section 1153, subdivision (a), by engaging in unlawful surveillance of UFW organizing activity on the Employer's premises on September 1, 1975—four days after the Agricultural Labor Relations Act (act) went into effect on August 28, 1975, and one day before the effective date of the Board's access regulation3 on September 2, 1975.

The events in question occurred at the Employer's vineyard when two UFW organizers visited the premises during the lunch break to talk to workers. One of them testified they were there for 10 or 15 minutes, during which a supervising foreman, Art Meza, was in their vicinity and followed them about as they tried to talk to employees.

The Employer contends that the finding of unlawful surveillance (see Hendrix Manufacturing Company v. N.L.R.B. (5th Cir. 1963) 321 F.2d 100, 104–105, fn. 7—for a definition of unlawful surveillance) is not supported by substantial evidence. (See § 1160.8 and Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 346, 156 Cal.Rptr. 1, 595 P.2d 579 for an exposition of the substantial evidence rule by which this court is bound.) Given the nature and extent of the alleged illegal surveillance and the time frame within which it took place, the Employer's arguments are not without substance. However, on the reasoning that the Employer under the circumstances was not guilty of unlawful surveillance because, among other things, the incident took place before the effective date of the access rule, the substantial evidence issue need not be reached.4

The Board and the UFW argue that the organizers had the right of access to the Employer's property before the adoption of the access rule, citing National Labor Relations Board v. Babcock & Wilcox Co. (1956) 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975. That landmark case authorized nonemployee union organizers access to the employers' premises during nonworking hours to carry on organizing activity only where there is a showing that there was no reasonable alternative means of contacting the employees. Normally this has been held to be the situation where the employees both live and work on the employer's premises. (See, for example, N.L.R.B. v. S. & H. Grossinger's, Inc. (2d Cir. 1967) 372 F.2d 26, 29–30.) In Babcock & Wilcox Co. the court further held that a finding of the board in this regard is, if supported by substantial evidence, binding on the court. (See 351 U.S. at pp. 112–113, 67 S.Ct. 679.)

In the case at bench in dealing with charges that the Employer ‘promulgated a no-solicitation rule which was invalid in that it prohibited solicitation during non-working time and during non-working hours,’ the ALO and Board found, ‘As to the issue of whether the Respondent's stated access policy as set forth above was overly broad and in conflict with the United States Supreme Court's decision in Babcock & Wilcox Co. . . . and its . . . progeny, it must be noted that the evidence presented by the General Counsel during this hearing was devoid of meaningful testimony establishing the absence of alternative means of access available to the two competing labor organizations for meeting and talking with the Respondent's employees.’ The record supports this determination in that one of the Tudor crews lived in company-provided housing and UFW organizers had free access to the housing camp and they regularly visited the housing camp, while the remaining employees lived in the nearby town of Delano and were, of course, accessible at home as well as on public roads going to and from their place of work.

In the face of this finding there is no alternative but to conclude that prior to the adoption of the access regulation by the Board there was no right of access under NLRB case law.5

The Board and UFW next argue that the record demonstrates that the organizers were on the property with the Employer's consent, which justifies their presence without excusing the unlawful surveillance.

The ALO and Board found that prior to the effective date of the access rule the Employer had adopted a policy in writing that no access to their fields would be permitted at any time, but that with respect to nonworking periods the policy was not strictly enforced and organizers were grudgingly6 permitted to visit during lunch breaks.7 It must be concluded, therefore, that the organizers were on the premises with the implied consent of the Employer.

The ultimate issue, therefore, resolves itself into whether the conduct of the foreman in observing the activities of the union organizers on the Employer's premises can be held to have amounted to unlawful surveillance, considering that the organizers were on the premises only with the Employer's implied consent and had no other legal basis for being there.

No case or other authority directly on point has been found,8 but it is basically inconsistent to find that an employer has impliedly allowed nonemployee union organizers to enter his premises for organizing purposes and in the same breath to find him guilty of unlawfully interfering with the very activities he has allowed to take place and which in the circumstances could lawfully take place only with his consent. The Employer had the right to qualify the consent given by imposing a condition that organizing activities carried on pursuant to the consent would not be assured of privacy from the eyes and ears of foremen on the premises. Since the consent given is only implied—i. e., reasonably inferable from the Employer's conduct in this and similar instances, the scope of the consent can be no greater than that which also is reasonably inferable. Just as the foreman's conduct is imputed to the Employer for liability purposes, such conduct also is imputable to the Employer for purposes of defining the scope of the implied consent. Thus the foreman's acts of openly observing the organizing activities, although they might be deemed unlawful surveillance in other circumstances, must be considered as a determinative factor in defining the scope of the Employer's implied consent to the organizers' presence and activities. When the Employer caused or permitted the surveillance to take place the action was by implication the imposition of a condition to the consent. It would be anomalous to find the Employer guilty of unlawful surveillance based simply on a foreman's presence in the vicinity of organizing activities on the Employer's premises and his nonsurreptitious observing of the activities, when the organizers were lawfully present only by virtue of an implied consent given by the employer. Accordingly, it is inappropriate that the Employer be held guilty of unlawful surveillance of organizing activities under these circumstances.

Lastly, the Board and UFW argue that the Employer is precluded from raising the issue in this court because it was not raised before the Board. However, as has been pointed out, all the factual conflicts necessary to dispose of the issue were resolved by the Board; the issue therefore is solely one of law. Where the facts are not in dispute and the issue merely raises a new question of law, it may be considered for the first time on appeal. (Tyre v. Aetna Life Ins. Co. (1960) 54 Cal.2d 399, 405, 6 Cal.Rptr. 13, 333 P.2d 725; Burdette v. Rollefson Construction Co. (1959) 52 Cal.2d 720, 725–726, 344 P.2d 307).

The order is annulled.

Upon a close reading of the record, I am of the opinion that there was no substantial interference with employees in the exercise of their rights under Labor Code section 1152 or organizational activity of the real party in interest in the case at bar.

The record shows that foreman Art Meza was legitimately present in the area where the organizers were talking to the employees during the lunch hour. Furthermore, it is equally evident that he did not intentionally interject his presence and listen to the conversations between the organizers and the employees.

The Board based its finding of unlawful surveillance on one organizer's uncorroborated assertion before the administrative law officer about Meza's presence. The organizer said that Meza was walking around and listening to what she and another person were saying to employees at the ranch. In particular, she indicated that Meza ‘kind of followed’ her around when she left his vicinity. The organizer testified that one employee appeared to be nervous when he talked to her near Meza, although conceding that the employee signed the organizational card. Nonetheless, she noted that employees were always nervous around supervisors and foremen.

It is clear that the burden rests on the party alleging illegal surveillance to present evidence to warrant the conclusion that the employer was present at a time when union organizers were attempting to talk to workers for the purpose of surveillance. (See Tomooka Brothers (1976) 2 ALRB No. 52.) Although two members of the Board panel found an unfair labor practice, the third member (Board Chairman Brown) penned a vigorous dissent, noting that Meza's activities did not amount to intentional surveillance and that he was legitimately present in the area when the organizers appeared. Because none of the recorded testimony demonstrates the requisite level of scienter for unlawful surveillance, I agree with Chairman Brown's assessment.

As indicated by Tomooka, the relevant inquiry is determining whether the employer (via his foreman) was present for the purpose of surveillance. In my opinion, the court in N.L.R.B. v. International Typographical Union (10th Cir. 1971) 452 F.2d 976, 978, clarified the proper test by stating that ‘creating an impression of surveillance ‘means wilful conduct and a justifiable impression’' (quoting from N.L.R.B. v. Simplex Time Recorder Company (1st Cir. 1968) 401 F.2d 547, 549). Nothing in the record before the ALO or Board demonstrates that the employer wilfully engaged in a pattern of surveillance. Moreover, there is no evidence that any justifiable impression of surveillance occurred in light of the actual signing of the authorization cards.

Although deference is usually accorded to the Board's findings, there is insufficient evidence to support the determination that Meza's nearby presence ‘did tend to adversely affect the Respondent's employees in the exercise of their rights.’ The organizer's testimony shows that the employee being solicited actually did sign the card. Furthermore, the organizer could not differentiate ‘chill’ from the employee's natural nervousness about the authority possessed by foremen. The Board attempted to support its finding of surveillance by noting that ‘Respondent made no attempt to explain Meza's close proximity to Ms. Mascarinas [the organizer] while she was talking with the Respondent's employees.’ The absence of such an explanation, however, is unavailing as evidence of surveillance since the general counsel, rather than employer, bears the burden of proving that his presence was for ‘the purpose of surveillance.’ (Cf. N.L.R.B. v. Huntsville Manufacturing Co. (5th Cir. 1975) 514 F.2d 723, 724.) In defining the substantial evidence test for reviewing courts at the federal level, the United States Supreme Court in Universal Camera Corp. v. N.L.R.B. (1951) 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456, indicated that even though the scope of review for appellate courts is limited, they should deny enforcement to an order if, after a full review of the record, they are unable conscientiously to conclude that the evidence supporting the administrative agency's determination is substantial. The court also stated that ‘[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight.’ (Id., at p. 488, 71 S.Ct. at p. 464; see also Mueller Brass Co. v. N.L.R.B. (5th Cir. 1977) 544 F.2d 815, 817 and fn. 2.) Given the nature and extent of the alleged illegal surveillance revealed by the present record and the time frame within which it took place, I conscientiously conclude that insufficient evidence underpinned the unfair labor practice charged against the employer.

The dissenting opinion herein cites N.L.R.B. v. Mueller Brass Co. (5th Cir. 1975) 509 F.2d 704, 708, for the proposition that surveillance requires merely a general intent to keep watch on employees. This, in my opinion, effectively means that any type of surveillance—no matter how inadvertent—is a per se labor violation. I cannot believe that unlawful surveillance was intended to encompass innocent behavior by supervisors which coincidentally happens to make employees nervous. Instead of a broad standard which necessarily would condemn many innocuous actions of foremen, I am of the opinion that the proper test is the one enunciated in N.R.L.B. v. International Typographical Union, supra, which condemns only the deliberate and more culpable forms of surveillance.1

The dissent also suggests that an adverse inference can be drawn against the employer by Meza's failure to testify. This argument lacks merit in light of the fact that the organizer accompanying Ms. Mascarinas similarly did not corroborate the testimony about misconduct. Since Mascarinas' uncorroborated testimony is equally susceptible of a negative inference, this does not strengthen the sufficiency of the evidence used to support the charge.

Under the circumstances of the case at bar, I cannot presume that Meza was present in the field for the prohibited purpose of surveillance of union campaign activity. As the dissenting member of the Board stated below: ‘None of this testimony [by the organizer] amounts to more than a description of the inevitable problems that will emerge when organizing is conducted in the presence of supervisors; they will see what goes on, they will hear what goes on and they will most likely make both organizers and employees nervous.’

For the foregoing reasons, I concur in the result reached in this case.

I respectfully dissent.

Assuming, arguendo, that there was no right of access under Federal law, an issue which in view of the conclusion I reach on the matter of consent need not be decided, I do not agree that in the words of the principal opinion: ‘. . . it is basically inconsistent to find that an employer has impliedly allowed nonemployee union organizers to enter his premises for organizing purposes and in the same breath to find him guilty of unlawfully interfering with the very activities he has allowed to take place. . . .’ While prior to the adoption of the access rule by the Agricultural Labor Relations Board (hereinafter Board) the Employer may have had a right to qualify a consent to enter by imposing some condition thereon, there is nothing whatsoever in the record here to show that in fact a condition was imposed. Additionally, a condition on entry cannot be imposed (let alone be inferred) which conflicts with the statutory authority of the Agricultural Labor Relations Act (hereinafter ALRA) or with the exercise of constitutional rights of free speech (Cal.Const., art. I, § 2). The Employer by consenting to entry onto his land made his property for limited purposes a public forum for organizing activity much in the same manner as soliciting signatures for a petition to the government at a shopping center is an activity protected by the California Constitution (see Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (cert. granted by U.S. Supreme Ct. Nov. 13, 1979)). In my opinion the organizers were legally on the premises and had a right to carry on their activities free of unfair labor practices.

I turn to the other issues raised by petitioner.

Petitioner contends that, as a matter of law, no unlawful surveillance occurred in this case and that the Board's finding of unlawful surveillance is not supported by any credible evidence. As the United States Court of Appeals, Fifth Circuit, has said:

‘The only surveillance, or impression of surveillance, which the Act prohibits is that which tends to interfere with, restrain, or coerce Union activities. NLRB v. Southwire Co., 429 F.2d 1050 (5th Cir. 1970), cert. denied, 401 U.S. 939, 91 S.Ct. 932, 28 L.Ed.2d 218 (1971). As we stated in Hendrix Mfg. Co. v. NLRB, 321 F.2d 100 (5th Cir. 1963), ‘Surveillance becomes illegal because it indicates an employer's opposition to unionization, and the furtive nature of the snooping tends to demonstrate spectacularly the state of the employer's anxiety. From this the law reasons that when the employer either engages in surveillance or takes steps leading his employees to think it is going on, they are under the threat of economic coercion, retaliation, etc.’ 321 F.2d at 104–105, n. 7.' (N.L.R.B. v. Mueller Brass Co. (5th Cir. 1975) 509 F.2d 704, 708.)

Petitioner argues that surveillance must be intentionally designed to interfere with Employee rights in order to be wrongful and that it must also actually interfere with those rights. I conclude that the intent required is general intent to keep watch on employees rather than a specific intent to interfere with, restrain or coerce the employees in the exercise of their statutory rights (see N.L.R.B. v. International Typographical Union (10th Cir. 1971) 452 F.2d 976, 978 (wilful conduct); N.L.R.B. v. Simplex Time Recorder Company (1st Cir. 1968) 401 F.2d 547, 549 (no reference to an intentional design); Hendrix Manufacturing Co. v. N.L.R.B. (5th Cir. 1963) 321 F.2d 100, 105 (‘Violations . . . are not limited to threats made good. It is a question of whether, under the circumstances existing, the employees could reasonably conclude that the employer is threatening economic reprisals if they support the Union.’)). It is sufficient to establish that the employer was present for the purpose of surveillance. Scienter is not an element of this unfair labor practice. (International Ladies' Garment Workers Union v. Labor Board (1961) 366 U.S. 731, 739, 81 S.Ct. 1603, 6 L.Ed.2d 762.)

In any event, contrary to the argument of petitioner this is not a case of inadvertent presence of a supervisor who merely observed union activity from a position in which the supervisor is lawfully present. The majority of the Board concluded that Mr. Meza intentionally interjected in specific discussions and listened to the conversations between the organizers and the workers. ‘The findings of the board with respect to questions of fact if supported by substantial evidence on the record . . . shall . . . be conclusive.’ (Lab.Code, § 1160.8.) I believe there is substantial evidence on the record considered as a whole to support the conclusion of the majority of the Board. The assertion that there is no credible evidence to support the Board must be rejected. Credibility is for the Board and not this court. Inferences to be drawn are for the Board provided the ‘inference is within the range of reason, although not what [the court] would have chosen’ and the court may not substitute its own views for those of the Board. (National Labor Relations Board v. Pipefitters Local 638 (1977) 429 U.S. 507, 531, 97 S.Ct. 891, 905, 51 L.Ed.2d 1.)

The testimony of union organizer Mascarinas established that organizers Mascarinas and Morales came to petitioner's fields during the lunch break to talk to the workers in Mr. Meza's crew. As organizer Mascarinas was talking to a worker about signing an authorization card, Mr. Meza stood within earshot. The worker was reluctant to sign the card because of the presence of Mr. Meza. Organizer Morales engaged Mr. Meza in conversation in order to distract him. The worker signed the authorization card. When organizer Mascarinas moved to talk to to other workers, Mr. Meza followed her and appeared to be listening to the conversations. The organizers soon left the fields. The only witness who testified was organizer Mascarinas. Mr. Meza did not testify nor did any employee of petitioner.

The Board could, and did, reasonably draw the inference that testimony of Mr. Meza would have been adverse to petitioner. (Evid.Code, § 413; Witkin, Cal. Evidence (2d ed. 1966) § 1128, pp. 1043–1044; 4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 236(c), pp. 3052–3053.)1

Although organizer Mascarinas contradicted herself on minor matters, the administrative law officer believed her testimony as a whole. This court would not be warranted under the law or circumstances in rejecting that testimony as being incredible. Mr. Meza may have followed the organizers for some other reason than to keep watch on union activities. However, the inference that his purpose was unlawful is reasonable.

Petitioner also objects to the remedies ordered by the Board. The Board ordered petitioner to:

‘(1) Cease and desist from:

‘(a) Surveilling employees when they engage in protected activities.

‘(b) In any other manner interfering with, restraining or coercing employees in the exercise of rights guaranteed by Labor Code section 1152.

‘(2) Take the following affirmative action:

‘(a) [Posting copies of a specified notice as directed.]

‘(b) Mail copies of the notice in all appropriate languages, within 20 days from receipt of the order, to all employees employed during payroll periods including the 1975 and 1976 harvest seasons.

‘(c) A representative of [petitioner] or an A.L.R.B. agent shall read the notice in the four specified languages to the assembled employees of [petitioner] on company time [at specified times and places] Following the reading, the A.L.R.B. agent shall be given the opportunity, outside the presence of supervisors and management, to answer any questions employees may have concerning the notice or their rights under the Act. The regional director shall determine a reasonable rate of compensation to be paid by [petitioner] to all non-hourly-paid employees to compensate them for time lost in the reading and question and answer period.

‘(d) [Notice to ALRB of steps which have been taken in compliance with the order.]’

Petitioner argues that all of the remedies except the posting of the notice to the employees are unreasonable, overbroad and punitive. Petitioner asserts that the remedies ordered could hardly have been more broad had petitioner been found to have committed all 12 alleged unfair labor practices. I am not persuaded. Regardless of the number of violations there are some minimum remedies which the Board has the power to apply to any violation. Of course, the Board must keep within reasonable bounds. (Universal Camera Corp. v. Labor Board (1951) 340 U.S. 474, 490, 71 S.Ct. 456, 95 L.Ed. 456; J. R. Norton Company, Inc. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 160 Cal.Rptr. 710, 603 P.2d 1306.)*

Furthermore, the ALRA allows broader remedial relief than does the National Labor Relations Act.2

The purposes of the ALRA are set forth in Labor Code section 1140.2, which provides:

‘It is hereby stated to be the policy of the State of California to encourage and protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing, to negotiate the terms and conditions of their employment and to be free from the interference, restraint, or coercion of employees of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.’ (Emphasis added.)

Our role as a reviewing court is limited. Unless the Board's order cannot be said to fairly reflect ends which the Board was created by the Legislature to achieve, a remedy announced by the Board is not an abuse of discretion. The particular means by which the effects of unfair labor practices are to be expunged are matters for the Board, not the court, to determine. (Virginia Electric & Power Company v. Labor Board (1943) 319 U.S. 533, 539, 543, 63 S.Ct. 1214, 87 L.Ed. 1568). As the United States Supreme Court said in Phelps Dodge Corp. v. National Labor Relations Board:

‘Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board's discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.’ (Phelps Dodge Corp. v. Labor Board (1941) 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271.)

It has not been shown that the order here was ‘a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the [ALRA].’ (See Virginia Electric & Power Company v. Labor Board, supra, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568; Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 967, 157 Cal.Rptr. 476.) At some point in time an order of the Board may become oppressive and punitive in nature. I do not believe that the line has been crossed in this case. The remedies here are not beyond the purposes of the statute (although part of the cease and desist order should be stricken). These remedies do not attempt to achieve anything more than an effectuation of the policies of the ALRA. As the United States Supreme Court has said:

‘It is urged, however, that no evidence in this record supports this . . . order; that the Board's formula and the reasons it assigned for adopting it do not rest on data which the Board has derived in the course of the proceedings before us. But in devising a remedy the Board is not confined to the record of a particular proceeding. ‘Cumulative experience’ begets understanding and insight by which judgments not objectively demonstrable are validated or qualified or invalidated. The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process.' (National Labor Relations Board v. Seven-Up Bottling Co. (1953) 344 U.S. 344, 349–350, 73 S.Ct. 287, 290, 97 L.Ed. 377.)

Petitioner has no quarrel with, and would limit the order to, parts 1 (a) (cease and desist from surveillance) and (2)(a) (posting notice).

The mailing requirement, petitioner asserts, furthers no conceivable policy of the ALRA. I disagree. Education of, and information to, employees is well within the purposes of the ALRA. Mailing of copies of the notices to the employees is appropriate and assists in education and information about the ALRA. The employees here are transient and seasonal workers. They are interested parties who are entitled to know the results of the hearing on alleged unfair labor charges. In addition, the Board has determined that workers formerly employed by petitioner may be eligible to vote in other elections and the experience in the given election may influence their participation in future elections. (See Valley Farms and Rose J. Farms (1976) 2 ALRB 41, pp. 4–5 of slip opinion.)

The educational and informational value of the requirement of reading of the notice to employees and a questioning and answer period on company time appears to be appropriate in light of the low literacy level found by the Board to be among the characteristics of agricultural labor. (See Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 415, 128 Cal.Rptr. 183, 546 P.2d 687.) The requirement seems to be well within the Board's powers.

The contention by petitioner that part 1, subdivision (b), (re interfering, etc., with rights guaranteed by Labor Code section 1152) is overbroad has merit. Petitioner is required, of course, to follow the law and failure to comply with the ALRA may be an unfair labor practice. However, such a broad cease and desist order insofar as part 1, subdivision (b), is concerned is improper as a basis for possible contempt proceedings in the future. There is nothing in this record to indicate that petitioner has been found in the past to have committed unfair labor practices or that this episode is but one more in a series of such practices. Cease and desist orders must be narrowly drawn. I would strike part 1, subdivision (b), of the order. (See National Labor Relations Board v. Express Pub. Co. (1941) 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930, and Morrison-Knudsen, Inc. v. N.L.R.B. (9th Cir. 1959) 270 F.2d 864.)

Accordingly, I would strike part 1, subdivision (b), of the order (re cease and desist from interfering, etc., with rights guaranteed by Labor Code section 1152). In all other respects I would enter a decree enforcing the order of the Board.

FOOTNOTES

1.  All references are to the Labor Code unless otherwise indicated.

2.  The third member, Board Chairman Brown, dissented, expressing the view that none of the 12 charges was proven. Relying upon Tomooka Brothers (1976) 2 ALRB No. 52, he was of the opinion that the activity of the foreman, Art Meza, did not amount to intentional surveillance of employees engaged in protected activities in that ‘. . . Meza was legitimately present in the area where the organizers tried to talk to employees during the lunch hour.’ He further observed that [n]one of this testimony amounts to more than a description of the inevitable problems that will emerge when organizing is conducted in the presence of supervisors; they will see what goes on, they will hear what goes on and they will most likely make both organizers and employees nervous.'

3.  The access regulation is contained in California Administrative Code, title 8, section 20900, which authorizes limited numbers of union organizers access to the employers' premises for the purpose of engaging in organizing activities for limited periods before and after work and during the lunch period.The regulation, which later was upheld in Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 128 Cal.Rptr. 183, 546 P.2d 687, became effective upon its filing with the Secretary of State. (Gov.Code, § 11422, subd. (c).)Upon the Employer's motion pursuant to Evidence Code sections 451 and 459 we have taken judicial notice of the fact that the access regulation was filed with the Secretary of State on September 2, 1975.

4.  Nor need the Employer's contentions of other error pertaining to the remedial order be reached. In sum, those contentions are that paragraph 1(b) of the cease and desist order is too broad because it goes beyond the evidence supporting the unfair labor practice alleged (see National Labor Relations Board v. Expreged Publishing Co. (1941) 312 U.S. 426, 433–438, 61 S.Ct. 693, 698–701, 85 L.Ed. 930; Morrison Knudsen, Inc. v. N.L.R.B. (9th Cir. 1959) 270 F.2d 864; N.L.R.B. v. Simplex Time Recorder Company (1st Cir. 1968) 401 F.2d 547, 549) and that other parts of the ordered remedies were punitive rather than remedial and were unressonable and grossly disproportionate to the minimal violation. In addition, the question of whether the order should be remanded to the Board for further proceedings (see Pandol & Sons v. Agricultural Labor Relations Bd. (1979) 98 Cal.App.3d 580, 159 Cal.Rptr. 584) in light of the length of time and changed circumstanes since its entry and consequent anachronistic dates and events referred to need not be decided.

5.  It is appreciated that in adopting the ‘access rule’ as an emergency regulation, the Board made a finding that ‘. . . (3) Generally, unions seeking to organize agricultural employees do not have available alternative channels of effective communication. Alternative channels of effective communication which have been found adequate in industrial settings do not exist or are insufficient in the context of agricultural labor.’ (Cal.Admin.Code, tit. 8, § 20900, subd. 3.) Obviously, a specific finding in a particular case prevails over a condition ‘generally’ existing in the agricultural community.

6.  For example, the only testimony as to conversations between the organizers and the foreman whose conduct led to the surveillance charge was the following:‘Q. What was it he would be saying?‘A. He just said that, you know, we shouldn't be out here talking to the workers while they were working, and we should get permission to come on the property, and generally just following us around when we were talking to the workers.’‘Q. What did he say?‘A. He said that we shouldn't be on the property to talk to the workers.‘Q. And that's all he ever said?‘A. Yeah.’

7.  In the light of the widespread and well-publicized tension between agricultural employers and farm labor unions during this period, an employer's tolerating the intrusion is understandable when the alternative was ugly incidents of physical confrontation and force followed by lawsuits and other recriminatory action.

8.  Some Board decisions and at least one National Labor Relations Board decision have broadly hinted that if the organizer is illegally on the premises the employer cannot be guilty of wrongfully surveilling his activities. (See Souza & Boster, Inc. (1976) 2 ALRB 57, pp. 6–7, fn. 5; Tomooka Brothers (1976) 2 ALRB No. 52, pp. 4–5; Summit Nursing & Convalescent Home, Inc. (1973) 204 NLRB No. 19, pp. 70, 73.)

1.  It is interesting to note that the dissent herein cites Hendrix Manufacturing Company v. N.L.R.B. (5th Cir. 1963) 321 F.2d 100 as support for his general intent test of unlawful surveillance. Nevertheless, the Typographical Union court based its standard on the Simplex case, which cited Hendrix by analogy as the basis for its ‘wilful conduct-justifiable impression’ formulation. (See N.L.R.B. v. Simplex Time Recorder Company, supra, 401 F.2d at p. 549.) Thus, other federal circuit courts have interpreted Hendrix as requiring a level of scienter more elevated than mere general intent.

1.  There is a difference between Mr. Meza's failure to testify and the failure of organizer Morales to testify. The testimony of organizer Morales would have been, at best, cumulative. The testimony of organizer Mascarinas was sufficient in and of itself and did not require corroboration (see Evid.Code, § 411). On the other hand, Mr. Meza could have explained his own actions. Even if there be conflicting inferences, which is not the fact here, the choice would be initially for the Board and our only function regarding any inference chosen is to determine if it is a reasonable one. In addition, it should be noted that any inference re Mr. Meza has a specific foundation in the legislatively expressed inference set forth in Evidence Code section 413. The evidence is uncontradicted that Mr. Meza intentionally interjected in specific discussions and listened to the conversations between the organizers and the workers. This is far from innocent or inadvertent behavior.

FOOTNOTE.  LA 31027, slip opinion December 12, 1979, page 45.

2.  Section 10(c) of the National Labor Relations Act provides, in pertinent part:‘. . . [T]he Board . . . shall issue . . . an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act.’ The corresponding ALRA provision, Labor Code section 1160.3, provides in pertinent part that the Board shall issue:‘. . . an order requiring such person to cease and desist from such unfair labor practice, to take affirmative action, including reinstatement of employees with or without back and making employees whole, when the Board deems such relief appropriate, for the loss of pay resulting from the employer's refusal to bargain, and to provide such other relief as will effectuate the policies of this part.’ (Emphasis added.)

GEO. A. BROWN, Presiding Justice.

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