McANALLY ENTERPRISES INC v. UNITED FARM WORKERS OF AMERICA AFL CIO

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Court of Appeal, Fourth District, Division 2, California.

McANALLY ENTERPRISES, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent, UNITED FARM WORKERS OF AMERICA, AFL–CIO, Real Party in Interest.

Civ. 19624.

Decided: February 22, 1984

Best, Best & Krieger, Charles D. Field, Thomas S. Slovak, Meredith A. Jury, Riverside, and William J. Cahill, San Francisco, for petitioner. Harry J. Delizonna, San Jose, Dennis M. Sullivan, Daniel G. Stone, Marvin J. Brenner, Thomas M. Sobel, Sacramento, Edwin F. Lowry, Oakland, Ellen Lake, Manuel M. Medeiros, Sacramento, and Nancy C. Smith, Modesto, for respondent. Jerome Cohen, Keene, Sanford N. Nathan, San Francisco, Kirsten L. Zerger, Salinas, George C. Lazar, San Diego, James Rutkowski, Keene, Roy Cazares, Bonita, Ellen Greenstone, Los Angeles, Tom Dalzell, Salinas, Deborah Wiener Peyton, Salinas, W. Daniel Boone, San Francisco, Glenn Rothner, Los Angeles, E. Michael Heumann II, Keene, Linton Joaquin, Los Angeles, Dianna Lyons, Sacramento, Marco E. Lopez, Keene, Carlos M. Alcala, Sacramento, Francis E. Fernandez, Carmen S. Flores, Keene, William H. Carder, San Francisco, Daniel A. Garcia and Wendy Sones, Sacramento, for real party in interest. Byrd, Sturdevant, Nassif & Pinney, El Centro, and Scott A. Wilson, San Diego, for Imperial Valley Vegetable Growers Ass'n as amicus curiae in support of petitioner.

OPINION

Petitioner, McAnally Enterprises, Inc. (McAnally or petitioner), seeks review under Labor Code section 1160.8 1 of a decision of the Agricultural Labor Relations Board (ALRB or Board) determining that McAnally committed a number of unfair labor practices and the Board's remedial order based thereon.  (3 ALRB 82.)   We issued a writ of review and order to show cause.   (§ 1160.8;  see Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 347–352, 156 Cal.Rptr. 1, 595 P.2d 579.)

McAnally is an agricultural employer (§ 1140.4(c)) subject to the Agricultural Labor Relations Act (Lab.Code, § 1140, et seq. [hereafter ALRA] ).   It is a California corporation engaged in the business of poultry and egg production.   Its main office and ranch are in Yucaipa.   It also has a large production facility in the unincorporated area of Lakeview and another facility in New Mexico.   In one important respect, McAnally is not a typical California agricultural employer.   Its employees are neither seasonal nor migratory;  it has a stable, year round work force of some 300 employees at its California facilities.   The average tenure of its employees is 3.3 years.

In mid-August 1975, the United Farm Workers of America, AFL–CIO (UFW), a labor organization as defined by section 1140.4(f), began organizing at McAnally's Lakeview facility and the operative events pertinent to this case occurred principally in and around the Lakeview facility.   A number of events occurred, the particulars of which will be set forth in our discussion of the alleged unfair labor practices.   Between September 10 and October 30, 1975, UFW filed charges that McAnally had engaged in unfair labor practices.   The charges were ordered consolidated and a consolidated complaint and notice of hearing was issued by ALRB's General Counsel November 4, 1975.   An extensive evidentiary hearing was had before an administrative law officer (ALO) on November 24, 25 and 26, and December 3, 4, 5, 22, 23, 29 and 30, 1975.   After a hiatus of almost one and one-half years the ALO issued his recommended decision and proposed order on April 4, 1977.

In his recommended decision, the ALO found McAnally had violated section 1153, subdivisions (a) 2 and (c) 3 of the ALRA by:  (1) refusing to permit employees to distribute [union] literature during their non-working hours and in the non-working areas of its Lakeview facility;  (2) granting its employees increased wages and fringe benefits on August 29, 1975;  (3) conduct amounting to unlawful interrogation, threats of discharge and creating the impression of surveillance with respect to several employees;  (4) discharging Azucena Hernandez for union activity;  (5) discharging Manuel Vargas (whom the ALO found was not a supervisor);  (6) evicting Azucena Hernandez and Manuel Vargas from employer supplied housing;  (7) changing the working conditions of Conception Diaz;  and (8) preventing Azucena Hernandez from leaving the fenced-in facility for about one-half hour thus interfering with her union activity.   The ALO also found, however, that several charges of unlawful surveillance were not well founded;  that McAnally had not unlawfully denied access to UFW organizers;  and that the change in working conditions of Uvaldo Escalera Villa was based on a technological change that rendered his former duties no longer necessary and did not constitute an unfair labor practice.

All parties filed exceptions to the ALO's recommended decision and proposed order.4  On the basis of the existing record, on November 3, 1977, the Board issued its final decision and order which are the subjects of this review.

The Board's decision adopted the findings of the ALO to the extent that unfair labor practices were found, except that it concluded it was unnecessary to determine whether or not Vargas was a supervisor.   The Board also adopted the ALO's finding that the change in working conditions of Uvaldo Escalera Villa was not an unfair labor practice.   However, contrary to the determination of the ALO that McAnally had not unlawfully denied access to UFW organizers, the Board determined it had.

Based on its decision and without further hearing, the Board issued an extensive remedial order requiring McAnally to cease and desist from engaging in unfair labor practices and requiring McAnally to post, mail and read a prescribed notice concerning the outcome of the unfair labor practice hearings and to make available to UFW reasonable space on company bulletin boards during the ensuing 12 months.   In addition, insofar as is here pertinent, McAnally was ordered to reinstate Azucena Hernandez, Manuel Vargas and Conception Diaz to their former or substantially equivalent jobs without prejudice to their seniority or other rights and privileges and to make them whole for any losses they may have suffered as the result of their termination;  to offer to Azucena Hernandez and Manuel Vargas occupancy of their former, or of a substantially equivalent, home on company property and make them whole for any loss they may have suffered by reason of their eviction,5 including legal costs and fees in connection with an unlawful detainer action instituted by McAnally;  and provide UFW with “special access” to McAnally's employees during regularly scheduled work hours for two hours, during which time all employees would receive their regular pay, the UFW would be permitted to conduct organizational activities among the employees, no employee would be allowed to engage in work-related activities, but no employee would be forced to take part in the organizational activities.   In addition, McAnally was ordered to grant the UFW virtually unlimited “expanded” access rights:6 access without limit to the number of organizers during regular access hours, without regard to the normal limitation of four 30-day periods in one year, and without the usual requirement of the filing of a notice of intention to take access accompanied by signed authorizations from at least 10 percent of the grower's agricultural employees.   The Board's order also provided that during UFW's next organizational period McAnally must provide UFW with an updated list of its employees and their current street addresses [“pre-petition employee list” ] once a month, upon request, without the usual requirement of the filing of a notice of intent to organize accompanied by a 10 percent showing of employee support.

McAnally contends the unfair labor practices found by ALRB relating to the denial of access, termination of Hernandez, termination of Vargas, eviction of Vargas and Hernandez, and increase in employee benefits are contrary to law and not supported by substantial evidence on the whole record or by the findings.   It further contends that, even if those determinations are proper, the Board's order is punitive rather than remedial, not designed to effectuate the purposes of the ALRA and in excess of ALRB's authority insofar as it requires reinstatement of Vargas to employment, reinstatement of Vargas and Hernandez to company-owned housing, payment of Vargas' and Hernandez's litigation costs and fees in connection with the unlawful detainer action and insofar as it requires McAnally to permit expanded access by UFW without the normal limitations and to provide UFW with monthly updated employee lists.

During the pendency of this review proceeding Board has conceded its order is improper in two particulars relating to expanded access and overbreadth of its cease and desist orders and has consented to specified modifications.

 I. Scope of Review

Inasmuch as insufficiency of the evidence is claimed as to each contested unfair labor practice, we discuss at the outset the principles governing the scope of review.

Section 1160.8, the portion of the statute providing for judicial review of final Board orders, states in pertinent part:  “The findings of the board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall ․ be conclusive.”   This language was taken verbatim from the corresponding section of the National Labor Relations Act (NLRA) (29 U.S.C., § 160(f)), and federal decisions under the federal statute are of precedential value in construing section 1160.8.   (Belridge Farms v. Agricultural Labor Relations Bd. (1978) 21 Cal.3d 551, 557, 147 Cal.Rptr. 165, 580 P.2d 665;  Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (1979) 93 Cal.App.3d 922, 930, 156 Cal.Rptr. 152.)

We recently discussed the standard of review under section 1160.8 in George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1980) 111 Cal.App.3d 258, 265–268, 168 Cal.Rptr. 537.   We there observed in part:  “The leading federal decision discussing the ‘substantial evidence on the record considered as a whole’ standard of review is Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474 [71 S.Ct. 456, 95 L.Ed. 456] in which the history of section 10(f) of the NLRA, the demands for more extensive judicial review of NLRB decisions and the consequent amendment of the NLRA to provide for such review are thoroughly discussed.1  The court stated [in relevant part]:  ‘․  The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.   This is clearly the significance of the requirement in both statutes that courts consider the whole record․ [¶]  To be sure, the requirement for canvassing “the whole record” in order to ascertain substantiality does not furnish a calculus of value by which a reviewing court can assess the evidence.   Nor was it intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.   Nor does it mean that even as to matters not requiring expertise a court may displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.   Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view.’  (340 U.S. at pp. 478–488 [71 S.Ct. at pp. 459–464, 95 L.Ed. at pp. 467–468].)  [Accord Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 727–728, 175 Cal.Rptr. 626, 631 P.2d 60;  see also Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd., supra, 24 Cal.3d at p. 349, 156 Cal.Rptr. 1, 595 P.2d 579 and cases there cited.]

“Although it recognized the futility of attempting to articulate with precision the standard to be employed by the reviewing courts, the Supreme Court [in Universal Camera further] stated:  ‘The legislative history of these Acts demonstrates a purpose to impose on courts a responsibility which has not always been recognized․  [¶]  We conclude, therefore, that ․ courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past.   Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function.   Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds.   That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole ․’  (Universal Camera Corp. v. Labor Bd., supra, 340 U.S. at pp. 489–490 [71 S.Ct. at p. 465, 95 L.Ed. at p. 468];  accord:  Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd., supra, 93 Cal.App.3d at pp. 930–931 [156 Cal.Rptr. 152].)”

“1 The original Wagner Act provided:  ‘The findings of the Board as to the facts, if supported by evidence, shall be conclusive.’   This standard of review was subject to varying interpretations.   Eventually, however, many decisions, including several of the United States Supreme Court, employed the ‘any evidence’ standard.  (See Universal Camera Corp. v. Labor Bd., supra, 340 U.S. at pp. 477–478, [71 S.Ct. at p. 459, 95 L.Ed. at p. 462].)   ‘Criticism of so contracted a reviewing power reinforced dissatisfaction felt in various quarters with the Board's administration of the Wagner Act ․  The scheme of the Act was attacked as an inherently unfair fusion of the functions of prosecutor and judge.   Accusations of partisan bias were not wanting.   The “irresponsible admission and weighing of hearsay, opinion, and emotional speculation in place of factual evidence” was said to be a “serious menace.” ’  (Id., fns. omitted.)   This led to the 1947 amendment setting forth the present ‘substantial evidence on the record considered as a whole’ language.”

With respect to the Board's determination that McAnally committed an unfair labor practice in denying access to UFW, another question is presented relating to the proper scope of review.   With respect to the denial of access, the Board's findings, to the extent they exist,7 and its conclusions are contrary to the findings and determination of the ALO.   This brings into question the weight and effect, if any, to be given to the hearing officer's findings and determinations.   We also addressed this problem in George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd., supra, 111 Cal.App.3d at page 267, 168 Cal.Rptr. 537, stating:  “This problem, too, was considered in Universal Camera which held the findings of the hearing officer may be considered by the reviewing court in its determination whether the Board's determination is supported by substantial evidence on the record considered as a whole.   The court said:  ‘We do not require that the examiner's findings be given more weight than in reason and in the light of judicial experience they deserve.   The “substantial evidence” standard is not modified in any way when the Board and its examiner disagree.   We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board's than when he has reached the same conclusion.   The findings of the examiner are to be considered along with the consistency and inherent probability of testimony.   The significance of his report, of course, depends largely on the importance of credibility in the particular case.’  (340 U.S. at p. 496 [71 S.Ct. at p. 469, 95 L.Ed. at p. 472] [citations].)”  (Orig. emphasis;  see also N.L.R.B. v. Interboro Contractors, Inc. (2d Cir.1967) 388 F.2d 495, 499;  Penasquitos Village, Inc. v. N.L.R.B. (9th Cir.1977) 565 F.2d 1074, 1078.)

The rule established by Universal Camera and its progeny offers a significant check on the possibility of arbitrary administrative action, the danger of which has been most recently noted by the California Supreme Court in J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 33, 160 Cal.Rptr. 710, 603 P.2d 1306.   As we stated in our Arakelian Farms decision:  “The rule appears to us to be sound and fully consistent with the ALRA which provides that the recommended order of an ALO shall become the order of the Board 20 days after service upon the parties if no exception is filed thereto.  (§ 1160.3.)   The rule is also consonant with the precepts of the ALRB itself which has promulgated a regulation that provides:  ‘Where one or more parties take exception to the decision of the administrative law officer, the Board shall review the applicable law and the evidence and determine whether the factual findings are supported by a preponderance of the evidence taken.’  (Cal.Admin.Code, tit. 8, § 20286(b);  italics added.) 2”  (111 Cal.App.3d at pp. 267–268, 168 Cal.Rptr. 537, emphasis modified.)

“2 We also note as having some bearing on this issue recent decisions of the Supreme Court and Courts of Appeal holding that, at least with respect to some factual questions, ‘[w]hen a referee's finding ․ is supported by solid credible evidence, it is to be accorded great weight by the Board and should be rejected only on the basis of contrary evidence of considerable substantiality.’  (Lamb v. Workmen's Comp. Appeals Bd., supra, 11 Cal.3d [274] at p. 281 [113 Cal.Rptr. 162, 520 P.2d 978];  Garza v. Workmen's Comp. App. Bd., supra, 3 Cal.3d [312] at pp. 318–319 [90 Cal.Rptr. 355, 475 P.2d 451];  Robert G. Beloud, Inc. v. Workers' Comp. Appeals Bd. (1975) 50 Cal.App.3d 729, 737 [123 Cal.Rptr. 750];  Greenberg v. Workmen's Comp. Appeals Bd. (1972) 37 Cal.App.3d 792, 799 [112 Cal.Rptr. 626].)”

With these principles concerning the proper scope of review in mind, we turn to the several unfair labor practices found by the Board.

 II. Denial of Access

 The ALRA went into effect August 28, 1975.  (Stats.1975, Third Ex.Sess., ch. 1, § 1.)   ALRB's access regulation (Cal.Admin.Code, tit. 8, § 20900) was adopted as a part of ALRB's emergency regulations and was declared to be effective on August 29, 1975.8  However, various superior courts around the state issued orders enjoining ALRB from enforcing the access rule.   These orders remained in effect until stayed by the California Supreme Court on or about September 29, 1975.9  Thereafter, on October 1, 1975, asserting that UFW's taking access posed a serious threat of irreparable injury in the form of catastrophic poultry disease,10 McAnally obtained from the Riverside Superior Court a temporary restraining order prohibiting the exercise of access by UFW at McAnally's Lakeview facility.   Because the temporary restraining order was obtained ex parte, it was dissolved October 10, 1975, by force of the decision of the California Supreme Court in United Farm Workers of America v. Superior Court (1975) 14 Cal.3d 902, 122 Cal.Rptr. 877, 537 P.2d 1237.

On October 10, 1975, ALRB was permitted to intervene in the Riverside Superior Court injunction action.   On October 23, 1973, after hearing, the court issued a preliminary injunction against UFW taking access to the Lakeview facility, and to some extent, distributing organizational materials to McAnally employees at the Lakeview facility.   The preliminary injunction did not entirely prevent access to the Lakeview facility.   It allowed UFW access to and along a private road owned by McAnally running parallel to the northerly property line of the Lakeview ranch.   Similarly, distribution of organizational materials to employees was not completely prohibited.   The injunction purported only to prevent such distribution to employees while they were entering the Lakeview ranch at the commencement of work.   At the end of the workday, UFW was allowed the unrestricted right to distribute organizational materials to McAnally employees upon their leaving the ranch.11  The injunction suit is still pending;  the preliminary injunction was not appealed;  nor has it been vacated.

Thus, although the access regulation took effect August 29, 1975, its operation was enjoined until September 29, 1975, by the various court orders around the state, and in accordance with the Board's position at the time, it was stipulated below that any denials of access until September 29, 1975, would not be the basis for findings of an unfair labor practice.   Additionally, from October 1 to October 10, 1975, the Riverside Superior Court temporary restraining order was in effect, although that order was later determined to be void for lack of notice, and on October 23, 1975, the Riverside Superior Court preliminary injunction was issued and remains extant.

UFW began its organizing activities at McAnally's Lakeview facility in mid to late August 1975 prior to the effective date of the ALRA.   Even prior to the effective date of the access regulation, August 29, UFW organizers successfully gained access to the Lakeview facility.   The facility was unguarded and unfenced, and apparently they just walked in.   After the effective date of the access regulation but while its operation was enjoined, UFW sought and gained access apparently on two occasions.   Before the last occasion, which was apparently September 18, 1975, McAnally posted an unarmed private security guard at the entrance to the Lakeview facility.   On September 18, the guard apparently allowed the organizers to enter.12  It was apparently on this occasion that some organizational literature was left on the premises and confiscated by McAnally.   Apparently sometime after September 18 and prior to September 29, 1975, McAnally erected a fence at the Lakeview facility with a gate at the entrance where the security guard was stationed.13  McAnally stipulated that at all times after September 29, 1975, it attempted to prevent UFW access inside the fenced area of the Lakeview facility.   It is uncontroverted, however, that at all times McAnally permitted UFW representatives access to its property outside the fence in an area immediately adjacent to the Lakeview facility as well as in the front portion of a parking lot and driveway area outside the fenced area adjacent to the gate.

It was McAnally's position at trial that it erected the fence around the Lakeview facility and denied UFW access because of a very real threat of catastrophic poultry disease posed by access to outsiders, including union organizers, to poultry ranches, particularly the brooder facilities and chickenhouses.   It asserted this was consistent with the access rule itself which provided in pertinent part:  “The right of access shall not include conduct disruptive of the employer's property or agricultural operations, including injury to crops or machinery.”  (Cal.Admin.Code, tit. 8, § 20900(5)(e) (1975).)

At the hearing, McAnally presented the testimony of two expert witnesses who testified in substance that the transmission of devastating poultry disease by outsiders coming onto the poultry ranches was a real problem.   Both experts testified that the risk of disease was most acute when outsiders come in direct physical contact or close physical proximity to the chickens themselves—i.e., when they go into the chickenhouses.   They further testified to the significant risk of poultry disease transmission caused by persons traveling from one chicken ranch to another in the same day without taking appropriate safety precautions.   Their testimony indicated that various safety precautions could be taken to significantly reduce the risk of transmitting poultry disease.   Some of these precautions included the wearing of protective clothing, visiting the various parts of a poultry ranch in a specified order of progression, the use of disinfectant pans, and supervision of all visitors while they remain on the ranch facilities.   They also testified to the particular importance of adequate disease prevention practices in the Southern California area due to the large concentration of production facilities in Riverside and San Bernardino Counties.   It appears these two counties are the number one and number two poultry production counties nationwide and as a result of the close proximity between production facilities the potential for the spread of disease between facilities and the catastrophic effect of such a disease outbreak is of great concern (see fn. 10, ante ).

Dr. Joseph Dunsing, a doctor of veterinary medicine and an avian pathologist of many years' standing, testified that the denial of access to union organizers or any other third parties was consistent with good disease prevention practice and a common rule in the poultry industry.   He testified it is well proven that disease agents can be, and are, transmitted by humans in a mechanical or physical way, e.g., on clothing, shoes, equipment, tools, etc.   He also testified that “humans can, for a very short period of time—maybe a few days—actually carry the virus in their upper respiratory tract and spread it in that manner.”

Mr. Carl Nall, Executive Director of the Pacific Egg and Poultry Association, testified as to standard disease prevention measures:  “A very common one is that they simply do not allow access unless there is an absolute understanding as to what the privilege of access may be.   That would include what facilities are involved;  it would include the very specific requirements as to what the individual must do, in the wearing of protective clothing or in relation to where he may visit, and also as to who may accompany him in relation to his visit.”   He further testified that while he had been on hundreds of poultry ranches, he himself had never been in the “brooder house on any operation” and that he had never been allowed into the “grow areas” inasmuch as both of those areas are where the birds are most susceptible to the types of diseases that can destroy a poultry farm.   He testified that another primary rule with respect to access to poultry ranches is that visitors are always accompanied by supervisory personnel.   He stated he was never allowed on a poultry ranch if he had been to another poultry ranch that same day.

The evidence established that McAnally had instituted disease prevention practices which had been in effect for a long time prior to any union presence.   Although there were occasional departures, the prescribed practices included restriction of access to visitors and supervision of visitors;  prohibition against persons living together or riding to work together if they worked on different ranches;  the use of disinfecting pans in grow and brooder areas;  and sanitation measures with respect to workers and equipment.   Visits by industrial safety inspectors had always been circumscribed.   They were allowed to visit only one ranch per day;  they were not allowed in “brooder” and “grow” areas;  and they were always accompanied by supervisory personnel.

UFW representatives were aware in September 1975 of McAnally's concern that access to the chicken ranch facilities would substantially increase the risk of transmitting poultry disease.   McAnally's attorney offered to provide UFW organizers with pertinent information concerning the transmission of poultry diseases.   The Riverside Superior Court temporary restraining order was served on UFW representatives on either October 1 or 2, 1975.   Thereafter, apparently on October 3, 1975,14 a meeting took place at McAnally's Yucaipa facility for the express purpose of working out a compromise:  allowing UFW to conduct organizing activities while at the same time protecting McAnally's poultry operation from the risk of catastrophic poultry disease.   These compromise negotiations broke down, and the unfair labor charges followed.

The cause for breakdown in negotiations is the crux of the denial of access issue.   The ALRB and the UFW (collectively, respondents) take the position that UFW representatives offered to take sanitary measures recommended by McAnally, such as wearing protective shoes and clothing and limiting visits to other chicken ranches within a time span likely to increase the risk of contamination, but that McAnally's representatives, contrary to their promise to consider this proposal, never in fact did so.   McAnally's position is that it offered access to certain areas near the fence and near the lunch area and offered to insure that supervisors and foremen would stay out of the area during the time organizers were on the property but that this proposal was rejected by UFW because it insisted on unfettered access to all areas where employees worked including the chickenhouses where a couple of employees were allowed to eat their lunches.   Further, UFW was unwilling to have organizers accompanied by McAnally personnel to insure that safety precautions were observed.   After summarizing the evidence in considerable detail, the ALO determined the denial of access issue as follows:

“It appears from the evidence noted above and from the record as a whole that the permitting of individuals to wander freely about Respondent's premises, including inside the chicken houses, as demanded by the union organizers would create very harmful, potential health hazards to Respondent's poultry.   Dr. Dunsing and Carl Nall's testimony clearly indicated that.  [Emphasis added.]

“The testimony also indicated that when Respondent met with the union organizers to try and work out a compromise, Respondent did offer certain areas near the fence and near the lunch area to be used for union organizing, and it offered to insure that supervisors and foremen stayed out of the area during the time that the organizers would be on the property.   This was not acceptable to the Union as they wanted unfettered access to all areas where employees worked.   The Union offered to wear protective clothing and to follow legitimate safety precautions when entering Respondent's premises but the Union continued to insist that the organizers be given access to every part of the ranch including the chicken houses.   Respondent would not compromise on the access to the chicken houses and the attempts to reach a compromise then broke down.  [Emphasis added.]

“․

“It appears in the instant case that Respondent sought to reach an accommodation with the Union to permit some type of access while at the same time protecting its poultry against potentially catastrophic losses, the type of which it had suffered several years ago.   I do not find persuasive the argument that because Respondent was not heretofore rigidly enforcing all disease preventative practices, it was not foreclosed from instituting some more stringent procedures when faced with a potentially hazardous situation:  (i.e. unfettered access by strangers).   It also appears from the testimony that this ‘potential’ hazard is a real hazard rather than some mere abstract possibility for if the potential harm was very small or dubious then the balance would weigh more heavily in favor of the Union.

“․ [I]t appears from the evidence that the risk inherent in entering the chicken houses far exceeded the need for the union organizers to enter that area for there is no showing that any workers, other than a couple, ever ate in that area.   Certainly Respondent would not have been correct in denying union organizers' access to most of the portions of the ranch, but it appears as a result of the negotiations, that access continued to be denied because the organizers continued to represent that they would go into the chicken houses.   [Emphasis added.]

“Despite of the fact that there was some animus directed against the union, I cannot find that the General Counsel has sustained its burden in demonstrating that Respondent denied access and violation of the Emergency Regulation.   Rather it appears that Respondent denied access in order to protect itself against the possible spread of disease through contamination in the chicken houses․”

In reversing the ALO's determination that McAnally had not violated the access regulation, the Board made no express findings.   It stated:  “Having reviewed the record, we adopt the law officer's findings, conclusions and recommendations to the extent they are consistent with this opinion.”   It then stated the essence of its determination on the access issue as follows:

“If the Respondent had denied access solely to its chicken houses, its defense might be credible.   But the Respondent denied access everywhere on the ranch inside the fence.   Organizers could not get inside the gate even to meet with employees in their own houses.   The Respondent based its total denial of access beyond its gates upon the UFW's insistence on entering the chicken houses.   The union insisted on its right to meet with workers during their lunch hour.   The Respondent allowed some workers to eat their lunch in chicken houses.   The regulation in effect at this time 1 permitted access to the areas where employees congregated before and after work and where they ate their lunch.   New regulations reflecting the Board's concern with the transmittal of chicken disease were adopted in 1976.2  This addition prohibits access to chicken houses unless employees are permitted to remain there during the three hours of daily access granted to organizers.   It does not prohibit access by union organizers to other parts of a poultry ranch, and in fact would permit access to chicken houses during the lunch hour if workers were allowed to eat their lunches there.

“The employer's denial of access went beyond what was necessary for disease prevention purposes.   We find the Respondent violated Section 1153(a) in denying access to its property.”

“1 8 Cal.Admin.Code Section 20900 (1975).”

“2 See 8 Cal.Admin.Code Section 20901 (1976).”  (See fn. 16, infra, and accompanying text.)

The Board's determination is not supported by substantial evidence on the record viewed as a whole.   With respect to its statement that organizers could not meet with employees in their own houses, the only testimony on that issue was by UFW representatives who testified that UFW never attempted to contact employees at their homes on the ranch facility.15  More importantly, the implication that UFW's insistence on unfettered access to all parts of the Lakeview facility including the chickenhouses was justified by the fact that employees ate their lunches in the chickenhouses, contrary to the determination by the ALO, is unwarranted by the evidence.

The evidence is uncontroverted that only a few (the ALO said a couple) employees sometimes ate their lunches in the chickenhouses, and in view of the real threat of catastrophic poultry disease posed by unfettered access to the chickenhouses, the only reasonable conclusion to be drawn from the evidence is that it was the union's insistence on unfettered access that caused the breakdown in negotiations and resulted in the denial of all access inside the fence.   That was the ALO's conclusion on the basis of his evidentiary findings, many of which were not disapproved in the Board's opinion, and that is the only reasonable inference that can be drawn from the evidence.

The testimony of union organizers who had been present at the negotiation meeting on October 3, 1975, establishes that Mr. Sudran, the chief union spokesman, indicated to the management of McAnally that it was UFW's position not to compromise in any way the right of organizers to visit the workers at the place where they normally worked and ate.   One union organizer, Ms. Demontt, stated, “He [Sudran] was pretty definite about the fact that we wanted to see the workers in their lunch area, where they worked.”  (Emphasis added.)   Mr. Sudran's own testimony was, “What I said was that we couldn't agree to not having the right to meet with workers where they normally eat lunch is the most important thing, to go where they normally eat lunch.”   As the ALO pointed out, McAnally did offer access to certain areas near the fence and near the lunch area to be used for union organizing and offered to insure that supervisors and foremen stayed out of the area during the time the organizers were on the property.   And, of course, it was stipulated that McAnally permitted access at all times to various areas on its property outside the fence.

On the whole record the evidence establishes that the union's insistence on going into the chickenhouses posed a real and serious threat of catastrophic poultry disease and such access was unauthorized by the access regulation which provided in pertinent part:  “The right of access shall not include conduct disruptive of the employer's property or agricultural operations, including injury to crops or machinery.”  (Cal.Admin.Code, tit. 8, § 20900(5)(e) [1975].)

In essence, by insisting on unfettered access to the chickenhouses because “a couple” of employees sometimes ate lunch there, it was UFW which denied itself access to the other parts of the Lakeview facility within the fence, and the Board's implied determination that denial of access to all areas inside the fence was unnecessary and, therefore, a pretext on the part of McAnally is unsupported by the evidence.

On review, general counsel attempts to justify the Board's determination by pointing to a number of other facts in the record which we will treat briefly.

First, general counsel points to the events involving the arrest of union organizers outside the fenced area on one occasion.   This evidence is not probative on the access issue.   General counsel stipulated at the hearing that at all times McAnally permitted access to the Lakeview facility outside the fence.

Second, general counsel points to a number of instances in which McAnally failed to enforce strictly its own disease prevention rules.   These isolated instances posed nowhere near the serious disease threat posed by unfettered access to the chickenhouses by numerous unaccompanied union organizers and do not support a reasonable inference that McAnally used disease control as a pretext to deny access.   The ALO found that McAnally had taken extensive disease prevention measures for many years, including prohibiting access to the chickenhouses even to government inspectors and not admitting unsupervised visitors.   This finding was overwhelmingly supported by the evidence and the Board made no contrary finding.

General counsel calls attention to the testimony of two clergymen concerning a meeting between the clergymen and McAnally representatives in which McAnally indicated it would permit access to the ranch facilities by the clergymen for the purpose of administering to the employees' spiritual needs, but that access would not be allowed if the purpose was to organize the employees under the ALRA.   This evidence was all but irrelevant.   The clergymen's testimony indicated only that they would be granted access to “the facility.”   There was no evidence McAnally would permit them into the chickenhouses or that they would be given unsupervised access for any reason.   Indeed, on cross-examination Father Gonzales testified Mr. McAnally had said that he would be permitted to talk to the workers “within designated areas on his property.”   Father Guillen testified that access to “homes” was specifically mentioned, but otherwise there was no discussion as to “where that access would be” and that he “was interpreting that [he] would be allowed to minister extreme unction to a man that would have had a heart attack, be it wherever it was.”   He acknowledged, “maybe I was stretching it, but I don't think so.”   Assuming that Father Guillen was correct, suffice it to observe that McAnally's willingness to have a priest enter to administer extreme unction to a dying man hardly proves any unlawful motive in denying access to union organizers who insisted they would go into the chickenhouses if permitted to enter the fenced area.

The remainder of general counsel's arguments revolve around testimony of the expert witnesses that by wearing protective clothing, using disinfectant pans and taking other proper sanitation measures, the danger of spreading disastrous poultry disease could be so minimized that McAnally's denial of access on that basis was unjustified.   The evidence does not reasonably support that conclusion.   There was testimony that by taking precautions the risk could be substantially lessened, but the overall testimony fully supports the ALO's findings “that the permitting of individuals to wander freely about Respondent's premises, including inside the chicken houses ․ would create very harmful, potential health hazards to Respondent's poultry” and “that this ‘potential’ hazard is a real hazard rather than some mere abstract possibility․”  The Board's “findings” are not inconsistent with these findings.   In fact, in stating that if McAnally had denied access solely to its chickenhouses, its defense “might be credible,” Board impliedly recognized the real and serious risk involved.

Moreover, in 1976 ALRB amended its regulations by adding section 20901 (Cal.Admin.Code, tit. 8, § 20901 16) which it referred to in its decision.   This regulation recognizes the very real danger of transmission of poultry disease and generally prohibits access in “covered and enclosed areas of the farm ․ in which the chicks and poults are maintained” or “in which the poultry is housed or otherwise maintained.”   It is true that the last paragraph of subdivision (a) (see fn. 16, ante ) purports to impose upon the employer a waiver of the prohibitions against access if it permits employees to remain in those areas during their lunch period.   That, however, is beside the point here which is that the ALRB has recognized in its own regulation that the danger of catastrophic poultry disease by access is real and significant and cannot realistically be remedied merely by wearing protective clothing and taking similar sanitary precautions.

We conclude the Board's determination that McAnally committed an unfair labor practice in denying access is not supported by substantial evidence on the whole record.

 III. Increase in Benefits

On August 29, 1975, one day after the ALRA's effective date, McAnally announced, by attaching written notices to employees' paychecks, that it was implementing an across-the-board plan of increased wages and insurance benefits, plus additional holiday and vacation leave.   The ALO determined that in so doing McAnally had violated section 1153(a) of the Act.   The Board made no specific findings concerning this charge in its decision, so the findings and determination of the ALO are deemed among those adopted by the Board.

McAnally contends the determination is not supported by the findings and the findings are not supported by substantial evidence on the whole record.17  We do not reach the question of substantial evidence, because the determination is not supported by the findings.   The ALO stated his findings as to the increase in benefits as follows:  “From my observation of the witnesses and from my evaluation of the evidence as a whole, I find that the increase in benefits was in fact influenced by the organizing activities of the Union and was implemented with the hope of thwarting the union's organizing activities.”   The ALO then specified the evidence upon which these findings were based.

 Under the applicable legal standard the findings made (see § 1160.3) are insufficient to establish a violation of the Act (see Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 511–517, 113 Cal.Rptr. 836, 522 P.2d 12).   Once the employer has come forward with affirmative evidence of proper business justification for an increase in benefits (see fn. 17, ante ), to constitute an unfair labor practice, it must appear the increase in benefits was primarily motivated by an antiunion purpose.  (N.L.R.B. v. Hasbro Industries, Inc. (1st Cir.1982) 672 F.2d 978, 988–989;  N.L.R.B. v. Gotham Industries, Inc. (1st Cir.1969) 406 F.2d 1306, 1309–1310, including fn. 5;  Jervis Corporation, Bolivar Division v. N.L.R.B. (6th Cir.1967) 387 F.2d 107, 113, fn. 4;  N.L.R.B. v. Crosby Chemicals, Inc. (5th Cir.1960) 274 F.2d 72, 74, fn. 5.)   The Board made no findings on this charge aside from those of the ALO and the ALO made no finding the increase in benefits resulted primarily from an antiunion purpose.   Findings that the employer's decision was “influenced” by organizing activities “and was implemented with the hope of thwarting the union's organizing activities” are not equivalent to a finding that employer's decision was primarily motivated by an antiunion purpose.  (Cf. Parker-Robb Chevrolet, Inc. (1982) 262 NLRB 402, 404, [110 LRRM 1289, 1291].)

 IV. Azucena Hernandez and Manuel Vargas:  Discharge, Reinstatement and Make-Whole

Background

Although not formally married, Azucena Hernandez and Manuel Vargas were living as husband and wife together with their three children in a house owned by McAnally and located on the Lakeview facility.   The house was furnished to Manuel Vargas by McAnally as a benefit of his employment as a foreman.   Ms. Hernandez was an egg picker and housing was not a benefit of her employment.

On September 28, 1975, supervisor Andres Vargas, Manuel Vargas' brother, had a conversation with Azucena Hernandez the content of which is in dispute but which the ALO and the Board found to constitute a discriminatory discharge of Ms. Hernandez.   About two weeks later, on October 14, Manuel Vargas was discharged assertedly for engaging in union activity.   It was McAnally's position that Mr. Vargas was a supervisor excluded from coverage by section 1166.2 of the ALRA 18 and that his discharge for union activity was therefore not unlawful.   The ALO, however, found Manuel Vargas was not a supervisor and concluded his discharge on the asserted ground of his union activity constituted a violation of section 1153, subdivision (c), of the Act.   Further, the ALO found that Mr. Vargas was discharged primarily on account of Azucena Hernandez's union activity 19 and that his discharge on that basis constituted a violation of both subdivisions (a) and (c) of section 1153 regardless of whether or not he was a supervisor.

The Board did not adopt the ALO's finding that Manuel Vargas was not a supervisor.   It agreed with and adopted the ALO's finding that Mr. Vargas was discharged on account of Azucena Hernandez's union activity and concluded that that constituted an unfair labor practice even if Vargas was a supervisor, which question it therefore did not decide.

Following the termination of Vargas' employment, McAnally served on Vargas and Hernandez a notice to quit by October 31 in conformity with its written housing policy, a copy of which Vargas had signed.   On October 22 the UFW filed with the ALRB an unfair labor practice charge alleging that McAnally had discharged Vargas and was evicting him in retaliation for his and Hernandez's union activities.   Thereafter, on November 3, Vargas and Hernandez having failed to vacate the premises, McAnally instituted an unlawful detainer action in the Riverside Municipal Court.   On November 4, ALRB's Regional Director for the Riverside area issued a formal unfair labor practice complaint against McAnally based on Vargas' and Hernandez's termination and eviction, and on November 24 a hearing on those charges and the other consolidated charges commenced before the ALO.

On December 4, Vargas and Hernandez moved in the municipal court for a dismissal or stay on the ground that the lawfulness of the termination of their employment was currently pending before the ALRB.   On December 22 the court denied the motion, but it did not set the matter for immediate trial;  rather, it set the trial for January 22, 1976, a month later.   Thereafter the ALRB sought and was granted leave to file a complaint in intervention in the unlawful detainer proceeding, which in part requested the court to stay the unlawful detainer action pending the rendition of the Board's decision on the unfair labor practice charges.   On February 26, McAnally filed a demurrer to the complaint in intervention.

On March 4, four months after the unlawful detainer action had been filed, the court heard argument on the Board's request to abate the unlawful detainer action pending its decision on the unfair labor practice charges.   At that point the administrative hearing had been concluded more than two months, but the ALO had not yet submitted his recommended decision and it was entirely unclear as to when, if ever, the ALRB would be able to render a decision, because during that period the ALRB had exhausted its initial funding and a political controversy had arisen over the allocation of additional funds.   (See Vargas v. Municipal Court (1978) 22 Cal.3d 902, 909, 150 Cal.Rptr. 918, 587 P.2d 714.)   In that factual setting the municipal court sustained McAnally's demurrer to the ALRB's complaint in intervention and ordered the unlawful detainer action to trial on March 11.   On March 10 the ALRB unsuccessfully sought a writ of prohibition from the Riverside County Superior Court to restrain the municipal court from proceeding with the trial of the unlawful detainer action.

At trial in the unlawful detainer action Vargas and Hernandez attempted to introduce evidence that their termination from employment and the attempted eviction were unlawful because McAnally had undertaken those measures in retaliation for their engaging in statutorily protected union activity.   McAnally objected to the introduction of such evidence, contending the ALRB had exclusive jurisdiction of the asserted violation of rights based on provisions of the ALRA.   The court agreed with McAnally and excluded the evidence.   At the conclusion of trial McAnally was awarded judgment for possession of the premises and $980.49 in damages.   On appeal the Appellate Department of the Riverside Superior Court affirmed the judgment and this court thereafter refused certification of the case.

In the unfair labor practice proceeding both the ALO and the Board found the eviction of Vargas and Hernandez constituted an independent violation of the Act.

Subsequently Vargas and Hernandez instituted in the California Supreme Court a writ proceeding to compel the municipal court to vacate its judgment.   Pending review of the unfair labor practice determination in this court, on December 21, 1978, the Supreme Court issued its decision holding that enactment of the ALRA did not oust the municipal court of jurisdiction to hear and determine the unlawful detainer action because the ALRB lacked authority to restore McAnally to possession of the premises if the Board should find in its favor on the unfair labor practice charges.   The court further held the municipal court showed proper deference to the primacy of the ALRB's jurisdiction over unfair labor practice charges by postponing trial in the unlawful detainer action for a reasonable period pending the administrative proceedings.   It further held, however, that the municipal court erred in excluding the proffered evidence of unlawful termination and retaliatory eviction.   It therefore mandated the municipal court to vacate its judgment “and to proceed with the trial of the unlawful detainer action in accordance with the views expressed herein.”   (Vargas v. Municipal Court, supra, 22 Cal.3d 902, 917, 150 Cal.Rptr. 918, 587 P.2d 714.)   The record is silent with respect to any later proceedings in the municipal court.

As a part of its remedial order the Board required McAnally to reinstate both Azucena Hernandez and Manuel Vargas to their former or substantially equivalent jobs without prejudice to their seniority or other rights and privileges and to make them whole for any losses they may have suffered as the result of their termination;  to offer to both Hernandez and Vargas occupancy of their former, or of a substantially equivalent, home on company property and make them whole for any loss they may have suffered by reason of their eviction, including legal costs and fees in connection with their defense of the unlawful detainer action including costs of appeal and all amounts paid as a result of any judgment against them.

Petitioner contends with respect to Azucena Hernandez:  (1) the finding she was discharged on account of her union activity is not supported by substantial evidence and therefore those portions of the order requiring her reinstatement to employment and that she be made whole for any loss of earnings are erroneous;  (2) the portion of the order requiring that she be reinstated to company housing is erroneous in any event because company housing was not a benefit of her employment, but, rather, resulted from her relationship with Manuel Vargas and was wholly dependent on his right to continue to occupy company housing;  (3) her eviction through a proper unlawful detainer action did not constitute an unfair labor practice;  and (4) the portion of the order requiring she be reimbursed for her legal costs and fees in connection with the unlawful detainer action was both erroneous and in excess of the authority of the ALRB.

With respect to Manuel Vargas petitioner contends:  (1) the evidence proves Manuel Vargas was a supervisor, that supervisors are not “employees” under the ALRA and that therefore his termination was not violative of the Act;  (2) uncontradicted evidence proves that Vargas was terminated on account of his own union activity but even if he was terminated on account of the union activity of Ms. Hernandez, his discharge was not a violation of the ALRA;  (3) even if his discharge could be considered to be a violation of the Act, because Vargas himself engaged in union activity by his own admission, petitioner may not be ordered to reinstate him to his supervisorial position and company housing nor to reimburse him for lost earnings or his litigation costs and attorney fees in the unlawful detainer action;  (4) that its filing the unlawful detainer action in a court determined by the California Supreme Court to have jurisdiction and to have properly proceeded to trial did not constitute an independent violation of the ALRA;  and finally, (5) that regardless of all else, the order requiring it to reimburse Mr. Vargas for his expenses and litigation costs including attorney fees in the unlawful detainer action was in excess of the authority of the ALRB.

Respondents contend to the contrary in each instance.

Obviously several of the contentions are overlapping and the need to discuss some potential issues will depend on how others are resolved.   We have concluded the finding that Ms. Hernandez was discriminatorily discharged is supported by substantial evidence on the whole record and those portions of the order requiring that she be reinstated to employment and made whole for any loss of earnings resulting from her discharge are valid.   However, the evidence establishes as a matter of law that housing was not a benefit of her employment and that her co-occupancy of the house furnished by McAnally to Manuel Vargas was a product of her personal relationship with him.   Thus, the order requiring petitioner to restore her to the same or equivalent housing is improvident and must be set aside.   We have further concluded the evidence establishes as a matter of law that Manuel Vargas was a supervisor and the determinations that his discharge and eviction were in violation of the ALRA are not supported by the findings and are contrary to law;  that even were it otherwise, the orders requiring his reinstatement to employment and housing and that he be made whole are inconsistent with the ALRA's exclusion from coverage of supervisorial employees.   Finally, since Vargas' discharge and eviction were not in violation of the Act and since Ms. Hernandez's right to occupy company housing was wholly dependent upon Vargas' right to continue to occupy company housing, we conclude the order requiring petitioner to reimburse Mr. Vargas and Ms. Hernandez for their legal costs and fees in connection with the unlawful detainer action is erroneous.

Discharge of Azucena Hernandez

 McAnally's version of the termination of Ms. Hernandez's services is that she voluntarily quit.   It points to the testimony of supervisor Andres Vargas that her employment as an egg collector at the Lakeview facility was temporarily unnecessary as the result of the chickens going into a “moult,” a process in which chickens lose their feathers and go out of production;  that on September 28, 1975, Hernandez was offered an option between being transferred to a different facility or taking a 30-day leave of absence;  that her response to Vargas was so unreasonable he did not attempt to discuss the matter with her further that day;  that she failed to show up for work the following day;  and that when she returned to McAnally's office for the purpose of being rehired on October 28, 1975, she was not rehired because she had quit.

There was, however, considerable evidence indicating Ms. Hernandez did not voluntarily quit but, rather, that she was fired as the result of her union activities.   September 28, 1975, the day she was assertedly offered the so-called option, was only a few days after she had attended a union meeting at the home of another employee of which McAnally had learned.   Manuel Vargas testified that Elias Parraz, one of McAnally's supervisors, informed him that McAnally was aware of those employees who had signed union cards and that they would be fired.   Hernandez testified that she went to the McAnally office on September 29, 1975, in order to secure a statement that she could return to her employment at the end of the month and that was refused.   She also testified that she was later told her union activities were “ ‘making it necessary’ ” that Manuel Vargas be discharged also.   There was also testimony that Manuel Vargas was told on several occasions that Hernandez's continued union activity was hurting his job.

Faced with this conflicting evidence as to the cause of Hernandez's termination, the ALO specifically addressed the conflict as follows:  “In viewing the witness' testimony in light of the overall case, it appears that some of their testimony was either self-serving, vague or at times inconsistent and that one could easily point to parts of each witness['] testimony and find some discrepancies or inaccuracies.   However, in viewing the testimony in context of the entire case and upon my observation of the demeanor of the witnesses I have credited the testimony of Azucena Hernandez[,] Manuel Vargas and Ascension Diaz with regard to the statements attributed to Andres Vargas, Elias Parraz and Frank Campbell.”   It is the crediting of this testimony to which McAnally takes exception.

Where, as here, the challenge is primarily to the hearing officer's credibility resolutions involving numerous witnesses for each side, the employer's burden is particularly heavy.  (Barrus Construction Company v. N.L.R.B. (4th Cir.1973) 483 F.2d 191, 197;  see also Penasquitos Village, Inc. v. N.L.R.B., supra, 565 F.2d 1074;  United Ass'n of Journeymen & A., etc. v. N.L.R.B. (9th Cir.1977) 553 F.2d 1202, 1205.)   To be sure there were numerous inconsistencies in the testimony, but these inconsistencies were expressly recognized by the ALO and taken into account in making his credibility resolution.   Some of the supervisors' statements testified to by Ms. Hernandez were not denied and her testimony was in part corroborated by other testimony as well as the surrounding circumstances.

We conclude the Board's determination that Azucena Hernandez was discriminatorily discharged is supported by substantial evidence and the order that she be reinstated to employment and made whole for loss of earnings is valid.

Discharge of Manuel Vargas

Section 1166.2 of the ALRA (see fn. 18, ante ) excludes from “employees” who are protected by the Act “individuals defined herein as supervisors.” 20  The NLRA contains a parallel provision.  (29 U.S.C., § 152(3).)   Thus supervisors are excluded “from the protection afforded rank-and-file employees who engage in concerted activity for their mutual benefit.  [The] purpose [of the exclusion] was to assure management of the undivided loyalty of its supervisory personnel by making sure that no employer would have to retain as its agent one who is obligated to the union.  Florida Power & Light Co. v. IBEW, 417 U.S. 790, 808–809, 94 S.Ct. 2737, 2746–2747, 41 L.Ed.2d 477, 490–91 (1974).   Supervisors fired for engaging in the same activity have no remedy under the Act.  Id., 417 U.S. at 811, 94 S.Ct. at 2748, 41 L.Ed.2d at 492.   See also Beasley v. Food Fair of North Carolina, 416 U.S. 653, 660, 94 S.Ct. 2023, 2027, 40 L.Ed.2d 443, 450 (1974).”  (N.L.R.B. v. Southern Plasma Corp. (5th Cir.1980) 626 F.2d 1287, 1294;  accord Automobile Salesmen's Union v. N.L.R.B. (D.C.Cir.1983) 711 F.2d 383, 386;  N.L.R.B. v. Nevis Industries, Inc. (9th Cir.1981) 647 F.2d 905, 910;  Oil City Brass Works v. N.L.R.B. (5th Cir.1966) 357 F.2d 466, 470.)

Status of Manuel Vargas:  Supervisor or Employee

 The ALO specifically determined that Manuel Vargas was not a supervisor as defined in subdivision (j) of section 1140.4 (see fn. 20, ante ).   The Board, however, declined to adopt that finding.   It determined that even if (i.e., assuming) Manuel Vargas was a supervisor as defined in the Act, his discharge on account of Azucena Hernandez's union activity was a violation of the Act.   Thus, for purposes of decision, the Board assumed that Vargas was a supervisor and on review we might do the same.   However, we have concluded the evidence establishes as a matter of law that Manuel Vargas was a supervisor and no useful purpose would be served by our leaving that question open to further litigation.

The unrebutted testimony was that Manuel Vargas was hired as a foreman to supervise the work at the Krumas and Sensendorff ranches, collectively known as the Cherry Valley Ranch;  he was classified as a supervisor by petitioner and given supervisory vacation and insurance benefits;  it was on account of his foreman status that he was provided the use of a house on the Lakeview Ranch property and a company pickup truck which remained in his possession at all times and which he parked at his home.   Vargas himself admitted in his testimony that he assigned workers at the Cherry Valley Ranch;  that if an employee wanted a raise they could come to him to request it and he would take it up with higher level management;  that he was held responsible if other workers on the two ranches did not do their jobs;  and that he supervised the work of the others who worked at the two ranches to see that “․ they did what they [were] supposed to do, because they would come back against me.”   Additionally, Vargas had signed at least one employee termination card as foremen were required to do;  on at least one occasion he told a person he could take a vacation;  and he regularly conveyed to other workers at the Cherry Valley Ranch orders from higher level management.

Although at the hearing Mr. Vargas denied that he considered himself a foreman or a supervisor or that he had ever considered himself such, in a pretrial statement made to an ALRB agent he stated he was a foreman and in a sworn declaration filed in support of his federal civil rights action against McAnally, he stated he was a foreman and he believed that on that account he was ineligible to vote in a representation election.   Moreover, twice at the hearing when asked whether a management letter about foremen not joining the union had been read to him, he responded that it had and that that was why he had not joined the union.

The ALO recognized that Mr. Vargas met many of what were referred to as “the secondary criteria” for a supervisor, but concluded that because he had not actually exercised any of the functions referred to as “the primary criteria” set forth in subdivision (j) of section 1140.4 (see fn. 20, ante ), he could not be classified as a supervisor as defined in the Act.   In so concluding, the ALO was incorrect.   First, the unrebutted evidence established that Mr. Vargas had and exercised “the responsibility to direct” the other workers on the Cherry Valley Ranch.   As the court held in the recent case of Iowa Elec. Light and Power Co. v. N.L.R.B. (8th Cir.1983) 717 F.2d 433, “Authority to do only one of these listed acts is enough to make an employee a supervisor.   NLRB v. St. Mary's Home, Inc., 690 F.2d 1062, 1065 (4th Cir.1982);  NLRB v. Sayers Printing Co., 453 F.2d 810, 814 (8th Cir.1971).”  (At pp. 434–435.)   Secondly, the statute does not require actual performance of the actions or functions mentioned in subdivision (j) of section 1140.4;  the statute includes in the definition of a supervisor “any individual having the authority ․ effectively to recommend such action ․”  (§ 1140.4, subd. (j) [see fn. 20, ante ].)

On the entire record there is no substantial evidence Manuel Vargas was anything other than a supervisor;  put the other way, on the whole record the evidence establishes as a matter of law that he was.   The Board erred in not so finding because even if his discharge as a supervisor could be held to constitute an unfair labor practice, his supervisorial status would affect the question of the propriety of his reinstatement to employment and housing.

Reason for Discharge

 Petitioner asserts that the uncontradicted evidence establishes, indeed Manuel Vargas admitted, that Vargas was involved in union activity, handing out union authorization cards and encouraging employees to sign them and that, thus, Vargas was discharged on account of his own involvement in union activity rather than on account of the union activity of Azucena Hernandez.   Petitioner's premise is sound, that is, Vargas was involved and did admit his participation in union organizing activity in the manner described.   However, petitioner's conclusion that the reason for Vargas' discharge must have been his own union activity does not follow.   The Board's adopted finding that Vargas was discharged primarily on account of Azucena Hernandez's union activity (see fn. 19, ante ), is supported by substantial evidence.

Manuel Vargas testified to being informed by Elias Parraz around the 26th of September 1975 that McAnally was aware of Hernandez's attending union meetings.   Subsequently, following the discharge of Azucena Hernandez, Manuel Vargas was informed by Parraz that his failure to restrain Hernandez from speaking with union organizers was hurting his job.   Manuel Vargas was also told by his brother, Andres Vargas, that he should control the union activities of Hernandez.   When Manuel told his brother that he could not control these activities, Andres responded, “She is hurting you in your work, your job.”   Finally, on the 13th of October 1975, Vargas was asked by Frank Campbell what Azucena thought of the union.   Manuel responded, “ ‘I think she thinks pretty good.   That's why she's fighting for the cause.’ ”   Campbell then said, “ ‘Well, for all the time you've been working, we've never had any problems with you, but you'd better start looking for another job․  I'm not firing you, I'm just telling you what's coming behind.’ ”   Finally, Azucena Hernandez testified that while she was attempting to talk with union organizers at the gate Frank Campbell told her, “ ‘You are making it necessary that we let your husband [Manuel Vargas] go ․’ ”  Although Parraz in substance denied the statements attributed to him, the statements attributed to Frank Campbell went unrefuted as he did not testify.   And Andres Vargas admitted speaking to his brother about Hernandez's union activity although he characterized his statements as brotherly advice rather than threats.

The evidence was in conflict;  the ALO and the Board credited the testimony of Manuel Vargas and Azucena Hernandez and there is no basis for upsetting those credibility assessments.   Thus, the finding that Manuel Vargas was discharged primarily because of the union activity of Azucena Hernandez is supported by substantial evidence.

Was Vargas' Discharge a Violation of the Act?

Both Board and the ALO relied on NLRB decisions (Consolidated Foods Corporation (1967) 165 NLRB 953;  Golub Bros. Concessions (1962) 140 NLRB 120 [51 LRRM 1575] ) in reaching the conclusion that Vargas' discharge on account of Hernandez's union activity constituted a violation of the Act.   As we shall explain, neither of the cited cases constitute authority for that conclusion and while there are some exceptional situations in which the discharge of a supervisor may be found to constitute an unfair labor practice, neither the findings nor the evidence here bring the discharge of Manuel Vargas within any of the recognized exceptions, and the recent federal decisions are contraindicative.   It should be said, perhaps, that the governing law has been considerably clarified during the pendency of this review and that the controlling decisions of the Court of Appeals and, indeed, of the NLRB itself were not available to the ALO or the ALRB at the time of their respective decisions.

In support of his determination that Manuel Vargas' discharge on account of Azucena Hernandez's union activity constituted a violation of the act, the ALO stated:  “Putting aside the employment status of Manuel Vargas, the evidence demonstrated that Manuel Vargas was terminated because of his wife, Azucena Hernandez's union activity․  [¶] The discharge of a supervisor because of the Union activities of his or her spouse has been held to be a violation of the National Labor Relations Act.  Consolidated Foods Corporation, 165 NLRB 953;  Golub Bros. Concessions, 140 NLRB 120.   On the basis of the foregoing, assuming arguendo that Vargas was a supervisor, I would thus find that the Respondent [McAnally] violated Section 1153(a) and (c) of the Act when it discharged Manuel Vargas.”

After concluding that McAnally had not established its awareness of Vargas' own union activity, a conclusion we need not review, the Board's opinion stated:  “Moreover, we agree with the hearing officer that Vargas was fired for his wife's union activity, not his own.   Even if Vargas was a supervisor, his firing is a violation of Section 1153(a) of the Act.   The firing of a supervisor for the union activities of a spouse has an intimidatory effect on other employees.  Golub Bros. Concessions, 140 NLRB 120, 51 LRRM 1575 (1962).”  (Emphasis added.)

Thus, the only findings made in support of the determination that Vargas' discharge constituted a violation of the Act were that Vargas was discharged primarily on account of Hernandez's union activity;  Hernandez and Vargas maintained a spousal relationship;  and the firing of a supervisor-spouse has an intimidatory effect on other employees.

It is doubtful it ever was the law that the firing of a supervisor-spouse could be held to be an unfair labor practice simply because of its possible intimidatory effect on the employee-spouse.  Consolidated Foods Corporation, supra, 165 NLRB 953, might have been so read, but on review the Court of Appeals declined to enforce the decision, finding no substantial evidence to support the Board's conclusion that the supervisor-spouse was discharged on account of the employee-spouse's union activity and not reaching the question of whether if there had been substantial evidence, the discharge of the supervisor-spouse could constitute a violation of the Act.  (Consolidated Foods Corporation v. N.L.R.B. (6th Cir.1968) 403 F.2d 662, 664.)

Golub Bros. Concessions is still good law but it does not stand for the proposition that the discharge of a supervisor-spouse on account of the union activity of an employee-spouse constitutes a violation of the Act simply because of the intimidatory effect on the employee-spouse.   In Golub Deborah Lapp was the chargewoman (supervisor) engaged by the employer to operate the soft drink and candy concession at the Shubert Theater in New York.   She was authorized to employ such helpers as she deemed necessary.   Mrs. Lapp had been the chargewoman of the concession for some six years and during that time had employed as helpers her husband, Louis Lapp, and her son, Sanford Lapp.   The NLRB found that Mrs. Lapp was discharged solely on account of the union activity of her husband, Louis Lapp, and that the employer's real purpose for discharging her was to terminate Louis Lapp's employment because of his union activism.   While the Board's decision states flatly:  “We agree with the Trial Examiner that the Respondent violated Section 8(a)(1) of the Act by discharging Deborah Lapp, a supervisor, because of her husband Louis Lapp's union activities, ․” the reasoning for the decision appears in the Trial Examiner's opinion as follows:  “The record compels the conclusion that, absent the agreement [among management] not to reemploy Louis Lapp, the latter would have been hired by his wife ․  By discharging her in March 1962, Respondents also permanently terminated the services of her husband at the Shubert Theater.   Having found that she was discharged because of Louis Lapp's union activities, it must likewise be, and is, found that Louis Lapp was deprived of further employment at the Shubert Theatre for the same reason.”  (Golub Bros. Concessions, supra, 140 NLRB 120, at pp. 120, 129.)

Thus, it was not the fact that Deborah Lapp was Louis Lapp's wife that was critical in the decision, but that she was the supervisor who had discretion to employ him and that Louis was, therefore, effectively discharged by the employer's discharging her.

The Golub decision stands on exactly the same footing as the seminal decision in Pioneer Drilling Co. v. N.L.R.B. (10th Cir.1968) 391 F.2d 961, in which the court upheld an NLRB determination that it was an unfair labor practice to discharge an oil well driller for the purpose of terminating the employment of the pro-union crew employed by him.  (391 F.2d at pp. 962–963.)   The court noted:  “It is accepted practice in the industry that when a driller is hired, he selects his own crew and when he is discharged or terminates his employment, his crew is automatically terminated.”  (391 F.2d at p. 962.)

The discharge of a supervisor as a pretext for terminating the pro-union crew he has hired is one of the three well-recognized exceptions to the rule that the discharge of a supervisor cannot be violative of the Act.  (See Automobile Salesmen's Union v. N.L.R.B., supra, 711 F.2d at p. 386;  N.L.R.B. v. Nevis Industries, Inc., supra, 647 F.2d at p. 910;  N.L.R.B. v. Southern Plasma Corp., supra, 626 F.2d at pp. 1294–1295.)

International Union of Operating Engineers, Local 400 (1982) 265 NLRB No. 168 [112 LRRM 1079], cited by respondents exemplifies the same exception although it too happened to involve a husband and wife.

After the Golub and Pioneer Drilling decisions, some decisions of the Board and even some decisions of the Court of Appeals extended the rationale of these decisions to cases in which it was concluded that the discharge of the supervisor was “an ‘integral part’ of a plan or part of a ‘pattern of conduct’ designed to interfere with an employee's section 7 rights.”  (Automobile Salesmen's Union v. N.L.R.B., supra, 711 F.2d at p. 386, and cases there cited;  Parker-Robb Chevrolet, Inc., supra, 262 NLRB 402 [110 LRRM 1289].)   There were also a number of decisions of the Board and the Court of Appeals in which the question as to whether the discharge of a supervisor violated the Act was said to depend upon the employer's motivation.  (See Automobile Salesmen's Union v. N.L.R.B., supra, 711 F.2d at p. 387, and cases there cited;  Parker-Robb Chevrolet, Inc., supra, 262 NLRB 402, 404 [110 LRRM 1289, 1291];  Consolidated Foods Corporation v. N.L.R.B., supra, 403 F.2d at p. 664.)

These decisions met with considerable adverse criticism in view of the express exclusion of supervisors from the statutory definition of employees (see, e.g., Automobile Salesmen's Union v. N.L.R.B., supra, 711 F.2d at pp. 386–387, and cases cited;  N.L.R.B. v. Southern Plasma Corp., supra, 626 F.2d at p. 1295), and in 1982 in Parker-Robb Chevrolet, Inc., 262 NLRB 402, 403–404 [110 LRRM 1289, 1290], the NLRB reviewed its earlier decisions concerning the legality of the discharge of supervisors and disapproved these lines of decisions.  (See also Automobile Salesmen's Union v. N.L.R.B., supra, 711 F.2d at p. 387.)   In respect to the “integral part” or “pattern of conduct” cases the Board stated:  “No matter how appealing from an equitable standpoint, the ‘integral part’ or ‘pattern of conduct’ line of cases disregards the fact that employees, but not supervisors, are protected against discharge for engaging in union or concerted activity.   The results must be the same under the Act whether the supervisors engage in union or concerted activity by themselves or along with employees.”  (Parker-Robb Chevrolet, Inc., supra, 262 NLRB 402, 404 [110 LRRM 1289, 1291].)

In respect to the “employer motivation” cases the Board stated:  “As noted above, the Board has found that when a supervisor is discharged for testifying at a Board hearing or a contractual grievance proceeding, for refusing to commit unfair labor practices or for failing to prevent unionization, the impact of the discharge itself on employees' Section 7 rights, coupled with the need to ensure that even statutorily excluded individuals may not be coerced into violating the law or discouraged from participating in Board processes or grievance procedures, compels that they be protected despite the general statutory exclusion.   In contrast, although we recognize that the discharge of a supervisor for engaging in union or concerted activity almost invariably has a secondary or incidental effect on employees, we believe that, when a supervisor is discharged either because he or she engaged in union or concerted activity or because the discharge is contemporaneous with the unlawful discharge of statutory employees, or both, this incidental or secondary effect on the employees is insufficient to warrant an exception to the general statutory provision excluding supervisors from the protection of the Act.   Thus, it is irrelevant that an employer may have hoped, or even expected, that its decision to terminate a supervisor for his union or concerted activity would cause employees to reconsider, and perhaps abandon, their own concerted or union activity.   No matter what the employer's subjective hope or expectation, that circumstance cannot change the character of its otherwise lawful conduct.”  (Parker-Robb Chevrolet, Inc., supra, 262 NLRB 402, 404 [110 LRRM at p. 1291], fns. omitted, emphasis added;  see also Automobile Salesmen's Union v. N.L.R.B., supra, 711 F.2d at p. 387.)

The current state of the law was correctly summarized by the court in N.L.R.B. v. Southern Plasma Corp., supra, 626 F.2d at pages 1294–1295:  “Courts have used reinstatement of a discharged supervisor as a remedy sparingly and in only narrowly defined circumstances.   Reinstatement has been approved as a remedy where the supervisor was discharged for refusing to aid his employer in committing an unfair labor practice, NLRB v. Talladega Cotton Factory, 213 F.2d 209 (5th Cir.1954);  Russell Stover Candies [v. NLRB], 551 F.2d 204 [ (8th Cir.1977) ];  where the supervisor was fired for giving testimony before the Board, NLRB v. Southland Paint Co., 394 F.2d 717 (5th Cir.1968);  Oil City Brass Works v. NLRB, 357 F.2d 466 (5th Cir.1966);  or where the discharge of a supervisor who hired his own crew was a pretext for the termination of his pro-union crew, Pioneer Drilling Co. v. NLRB, 391 F.2d 961 (10th Cir.1968).”  (Accord Automobile Salesmen's Union v. N.L.R.B., supra, 711 F.2d at p. 386;  N.L.R.B. v. Nevis Industries, Inc., supra, 647 F.2d at pp. 910–911;  Parker-Robb Chevrolet, Inc., supra, 262 NLRB 402 [110 LRRM 1289, 1290].)

The admonition of the court in Oil City Brass Works v. N.L.R.B., supra, 357 F.2d 466, 470, remains as cogent today as when it was given:  “Any time an employee, be he supervisor or not, is fired for union activity rank-and-file employees are likely to fear retribution if they emulate his example.   But the Act does not protect supervisors, it protects rank-and-file employees in their exercise of rights.   If the fear instilled in rank-and-file employees were used in order to erect a violation of the Act, then any time a supervisor was discharged for doing an act that a rank-and-file employee may do with impunity the Board could require reinstatement.   Carried to its ultimate conclusion, such a principle would result in supervisory employees being brought under the protective cover of the Act.”  (Accord Automobile Salesmen's Union v. N.L.R.B., supra, 711 F.2d at p. 387;  N.L.R.B. v. Southern Plasma Corp., supra, 626 F.2d at p. 1295.)

 The Board urges in its supplemental letter briefs that its determination that Vargas' discharge constituted an unfair labor practice should be upheld on the ground that Vargas was discharged because he refused to commit an unfair labor practice by curtailing or controlling Ms. Hernandez's union activities, thus bringing the case within one of the exceptions recognized by the decisions.   There was some evidence that Vargas was told by his brother and at least one other supervisor that his job was in jeopardy if he did not control Ms. Hernandez's union activities.   However, the question of whether or not that evidence would constitute substantial evidence on the whole record that Vargas was discharged because he refused to commit an unfair labor practice is not before us.   That issue was not raised in the Board proceedings, was not tried, and neither the ALO nor the Board made any finding that that was the cause of his discharge.   As previously pointed out, the only findings made concerning Vargas' discharge were that Hernandez and Vargas maintained a relationship equivalent to that of spouses, that Vargas was discharged primarily on account of Hernandez's union activity, and that the discharge of a spouse-supervisor has an intimidatory effect on other employees.

As the recent decisions make clear, the intimidatory effect on other employees that naturally results from the discharge of a supervisor because of his or her union activities and/or that of protected employees is not a sufficient basis for ignoring the legislative exclusion of supervisors from protection under the act.  (Automobile Salesmen's Union v. N.L.R.B., supra, 711 F.2d at pp. 386–387;  N.L.R.B. v. Nevis Industries, Inc., supra, 647 F.2d at p. 911;  N.L.R.B. v. Southern Plasma Corp., supra, 626 F.2d at pp. 1294–1295;  Oil City Brass Works v. N.L.R.B., supra, 357 F.2d at p. 470;  Parker-Robb Chevrolet, Inc., supra, 262 NLRB 402, 404 [110 LRRM 1289, 1291].)   And, although neither the Board nor the ALO found a specific intimidatory effect on Ms. Hernandez, the fact is she was herself discharged;  her discharge has been held to constitute a violation of the Act;  and her organizational rights are fully vindicated by the Board's order requiring that she be reinstated to employment without loss of seniority or other rights or privileges and that she be made whole for any loss of earnings she may have suffered.   She will not be restored to company housing, of course, but company housing was not a benefit of her employment and that loss is a concomitant not of her discharge but of her spousal relationship with a supervisor unprotected by the Act.

The rationale of the court on this point in N.L.R.B. v. Nevis Industries, Inc., supra, is instructive:  “In the instant case the Board ordered Nevis to reinstate Brewer [the supervisor] because his discharge was motivated by a desire to stifle employees' exercise of section 7 rights and was part of an overall scheme to achieve that result.  [Citations.]  The Board claims ․ [r]einstatement of Brewer was required ‘to fully dissipate this coercive effect.’  [Citation.]  [¶]  Congress has expressly chosen not to protect pro-union activities of supervisors.   Reinstating a supervisor whenever discipline might have a coercive effect on employees would tend to override the express will of Congress.  [Citation.]  [¶]  Reinstatement may be necessary where there is no other way to dissipate the coercive effect of an employer's actions.   Discipline of a supervisor used as a conduit for disciplining employees might be such a case.   See Pioneer Drilling Co., [supra ] 391 F.2d at 963.   In this case the coercive effect on employees can be eliminated by ordering reinstatement of the employees themselves.”  (647 F.2d at p. 911, emphasis added;  cf. Parker-Robb Chevrolet, Inc., supra, 262 NLRB 402, 404 [110 LRRM 1289, 1291].)

There exists in this case an additional factor making the cited decisions applicable a fortiori.   The uncontroverted evidence establishes that Vargas' own participation in union organizing activity constituted a sufficient lawful cause for petitioner to discharge him.   Given the purpose for the exclusion of supervisors from protection under the Act, so that employers may be permitted to demand undivided loyalty from supervisorial employees, an employer should not be required to reinstate a supervisor who has admittedly engaged in union organizing activity contrary to the express policy of the employer of which he was informed.  (N.L.R.B. v. Southern Plasma Corp., supra, 626 F.2d at pp. 1294–1295.)

We conclude that even if Vargas was discharged primarily on account of the union activity of Azucena Hernandez, his discharge was not violative of the Act and there is no basis for the order that he be reinstated to employment.   Once Vargas was so discharged, he was no longer entitled to company housing and having failed to vacate after proper notice, his subsequent eviction by lawful process did not constitute a violation of the Act.   Accordingly, those portions of the decision and order determining that his eviction constituted an independent violation of the Act and requiring that he be restored to housing and made whole for his legal costs and fees in connection with the unlawful detainer will be annulled.

 Azucena Hernandez's co-occupancy of Vargas' company housing was not a benefit of her employment.   The order requiring her restoration to company housing was therefore improvident in any event.   However, after Vargas was discharged, although Hernandez had the right to continued employment, she had no right to continue to occupy company housing because her co-occupancy was wholly dependent on Vargas' right to continue to occupy company housing, and her eviction along with Vargas by lawful process was not in violation of the Act.   Accordingly, those portions of the decision and order determining that her eviction constituted an independent violation of the Act and requiring that she be restored to company housing and made whole for her legal costs and fees in connection with the unlawful detainer action will be annulled.

 V. Disposition

Insofar as they determine that petitioner's discriminatory discharge of Azucena Hernandez constituted violations of the ALRA and require petitioner to reinstate Azucena Hernandez to employment and make her whole for any loss of earnings she may have suffered as a result of her discriminatory discharge, the decision and order of the Board are affirmed and the order for reinstatement to employment is ordered enforced.   Any enforcement of the order that she be made whole for lost earnings must await the determination of specifics in compliance proceedings.   Inasmuch as several violations were not contested on review and therefore stand affirmed, the matter is remanded to the Board for reconsideration and reformulation of an appropriate remedial order as to them.   On remand the Board may also undertake any further proceedings that may be appropriate with respect to the charge of unlawfully increasing benefits.

In all other respects the decision and order are annulled.

FOOTNOTES

1.   All statutory references will be to the Labor Code unless otherwise specified.

2.   Section 1153(a) provides it shall be an unfair labor practice “[t]o interfere with, restrain, or coerce agricultural employees in the exercise of the rights guaranteed in Section 1152.”   Section 1152 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.”

3.   Section 1153(c) provides in pertinent part that an employer may commit an unfair labor practice:  “By discrimination in regard to the hiring or tenure of employment, or any term or condition of employment, to encourage or discourage membership in any labor organization.”

4.   The ALO specifically declined to include in his proposed order requirements that Manuel Vargas and Azucena Hernandez be reinstated to company housing or that they recover their attorney fees and costs in the unlawful detainer action instituted by petitioner to remove them after they were discharged.   He also declined to recommend an award of litigation costs in favor of ALRB and the UFW and against McAnally, pointing out:  “General Counsel issued [the] complaint in this matter before it had given Respondent [McAnally] an adequate opportunity to cooperate and to give statements to the various Board agents who were initially investigating the case.”

5.   The Board considered ordering McAnally to pay Hernandez and Vargas damages for emotional distress, but none were ordered because the Board was “divided on this question.”

6.   Under ALRB's regulations, “normal” access “is 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.’ ”  (See Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 400, fn. omitted, 128 Cal.Rptr. 183, 546 P.2d 687.)   In general, access is limited to one hour before work, one hour during the lunch period and one hour after work;  the number of organizers is limited to two for each work crew on the property;  and access is available to any one labor organization for no more than four 30-day periods in any calendar year.   Each 30-day period commences when the labor organization files a written notice of intention to take access supported by the requisite 10 percent showing of interest by the employer's agricultural employees.  (See Cal.Admin.Code, tit. 8, §§ 20900, 20901.)

7.   Except for jurisdictional facts concerning the parties the ALO made no findings of fact that were labelled as such.   His factual determinations are intermixed with the reasoning and conclusions throughout his 20-page, single-spaced opinion.   The Board's decision set forth in slightly in excess of five double-spaced pages, adopts “the law officer's findings, conclusions and recommendations to the extent they are consistent with this opinion.”   The Board's decision contains no designated findings of fact and less than one full page of stated facts.   Thus, in respect to some of the ALO's factual determinations it is virtually impossible to ascertain whether they are consistent or inconsistent with the Board's opinion.

8.   “An emergency regulation automatically expires 120 days after its effective date unless the agency certifies during that period that it has complied with certain requirements of notice and hearing.   (Gov.Code, § 11422.1.)   The ALRB so certified on December 2, 1975․”  (Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at p. 400, fn. 3, 128 Cal.Rptr. 183, 546 P.2d 687.)

9.   The parties seem agreed on the date September 29, 1975.   However, the ALO stated the date was September 18.

10.   An outbreak of Newcastle disease in 1971–1972 required the extermination of over 12 million chickens.   McAnally itself lost approximately 92,000 birds.

11.   By the terms of the preliminary injunction, the Sheriff of Riverside County was ordered to enforce its prohibitory provisions.

12.   The evidence was conflicting whether the organizers identified themselves as such or concealed their true identity and purpose.

13.   The testimony of Mr. Sudran indicated that following the September 18 access, the next attempt took place on September 30.   In his subsequent testimony, Mr. Sudran indicated that the organizers first encountered the gate on their October 1, 1975 access attempt.   However, in a charge preferred against McAnally and filed with ALRB on September 29, 1975, Mr. Sudran declared under penalty of perjury, that UFW organizers were prevented from gaining access to McAnally's Lakeview ranch “on September 29, 1975, and at various times since September 18, 1975 ․”  Also in the same declaration Mr. Sudran refers to “a guard, who has been stationed at the gate ․”  Moreover, in another charge against McAnally filed with ALRB on October 22, 1975, by UFW a list of the dates, times, and places where UFW organizers were denied access by McAnally was included.   The list shows only three attempts to gain access to the Lakeview ranch, these on September 29, 1975, October 2, 1975, and October 20, 1975.   There is no mention of attempted access to any of McAnally's facilities on September 30, nor on October 1.   Nonetheless, there is testimony and the ALO found that on October 1, 1975, the false imprisonment took place while Azucena Hernandez was attempting to speak with union organizers.Neither the ALO nor the Board made any findings specifying the dates on which access was denied, and the dates on which UFW attempted to gain access after September 18, 1975, are not satisfactorily established by the record.   There were apparently somewhere between four and six such attempts at access.

14.   From the record it is not altogether clear when the compromise meeting took place.   The testimony of Mr. Sudran, the chief union spokesman, places the date of the meeting as October 3.   However, the testimony of the two other union organizers, Ms. Demontt and Mr. Arballo, placed the date of the meeting as October 7, 1975.

15.   It is asserted in one of McAnally's briefs that the only employee-occupied residences inside the fence were that occupied by Azucena Hernandez and Manuel Vargas and those of two maintenance employees who were on 24-hour call.   Neither the Board nor the UFW controvert this assertion.

FN16. The regulation reads in pertinent part:“20901.  Limitation for Special Segments of Agriculture.“(a) Dairy, Poultry and Egg Segments of Agriculture:  We find that certain conditions exist in the dairy, poultry and egg segments of agriculture which set them apart from all other elements of the industry.   These conditions include:  (1) the possible transmission of animal disease, (2) possible product contamination, and (3) possible animal stress.   Because of these combined conditions, we deem non-employee access into the following limited areas to be prohibited:“(1) Dairy Industry:  The milk barn and the milk house.“(2) Poultry and Egg Industry:“(A) Hatcheries:  Those covered and enclosed areas of the farm in which the eggs are handled and incubated, and in which the chicks and poults are maintained.“(B) Poultry Production:  Those covered or enclosed areas of the farm in which the poultry is housed or otherwise maintained.“(C) Egg Production:  Those covered or enclosed areas of the farm in which the hens are housed or otherwise maintained.“The employer shall clearly mark and post areas of prohibited access, consistent with the above prohibitions.“To the extent that employees are permitted to remain in the prohibited areas established herein during their lunch period or during the period of one hour before the start of work and one hour after the completion of work as provided in Section 20900(e)(3), the employer shall be deemed to have waived the special limitations of this section and shall not prohibit access thereto.”.  FN16. The regulation reads in pertinent part:“20901.  Limitation for Special Segments of Agriculture.“(a) Dairy, Poultry and Egg Segments of Agriculture:  We find that certain conditions exist in the dairy, poultry and egg segments of agriculture which set them apart from all other elements of the industry.   These conditions include:  (1) the possible transmission of animal disease, (2) possible product contamination, and (3) possible animal stress.   Because of these combined conditions, we deem non-employee access into the following limited areas to be prohibited:“(1) Dairy Industry:  The milk barn and the milk house.“(2) Poultry and Egg Industry:“(A) Hatcheries:  Those covered and enclosed areas of the farm in which the eggs are handled and incubated, and in which the chicks and poults are maintained.“(B) Poultry Production:  Those covered or enclosed areas of the farm in which the poultry is housed or otherwise maintained.“(C) Egg Production:  Those covered or enclosed areas of the farm in which the hens are housed or otherwise maintained.“The employer shall clearly mark and post areas of prohibited access, consistent with the above prohibitions.“To the extent that employees are permitted to remain in the prohibited areas established herein during their lunch period or during the period of one hour before the start of work and one hour after the completion of work as provided in Section 20900(e)(3), the employer shall be deemed to have waived the special limitations of this section and shall not prohibit access thereto.”

17.   McAnally urges the ALO and the Board failed to take into account a substantial body of evidence indicating the increase in benefits was in no way tied to union activities.   It asserts the unrebutted evidence shows:  (1) individual wage requests during the early part of 1975 were consistently denied on the basis that the price of eggs was very low;  (2) in response to requests for wage increases McAnally promised employees that something would be done as soon as egg prices rose to a level which would justify an increase in wages;  (3) the testimony showed that as early as June 1975 the first proposal for increasing employee benefits was submitted and discussed by management;  (4) the minutes of McAnally's executive committee meeting on August 18, 1975, show that a salary committee had previously been appointed to study and make recommendations on employee wage increases and that during that meeting an across-the-board wage increase was recommended;  (5) the minutes of McAnally's board of directors meeting on June 2, 1975, shows the executive committee was directed to investigate wage increases;  (6) except for the wage increase which was not applicable to New Mexico because of an entirely different wage structure in that state, the increase in benefits was applicable to all of McAnally's facilities including that in New Mexico, not just the Lakeview facility where organizing activity was taking place;  and (7) the increase in benefits was keyed to an increase in the price of eggs which increase occurred on August 29, 1975.McAnally also argues that had it failed to grant the promised increase because the union had commenced organizing activities, it would have placed itself in jeopardy of an unfair labor practice claim on that account.   (See N.L.R.B. v. Otis Hospital (1st Cir.1976) 545 F.2d 252, 254–255.)The ALO expressed his suspicion of the bona fides of the documentation introduced into evidence by McAnally to verify its plans to increase wages, observing that minutes of other meetings and concerning other matters had either not been prepared or kept.   However, neither the ALO nor the Board made any finding that this evidence was fabricated or untrue.

18.   Section 1166.2 provides:  “Nothing in this part shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this part shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.”

19.   At one point in his opinion the ALO stated, “the evidence demonstrated that Manuel Vargas was terminated because of his wife, Azucena Hernandez's union activity.”   On the next page he stated, “I have found that Manuel was discharged primarily because of his wife's activities, ․”  (Emphasis added.)

20.   Section 1140.4, subdivision (j), reads:  “The term ‘supervisor’ means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if, in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”  (Emphasis added;  see discussion infra.)

KAUFMAN, Associate Justice.

MORRIS, P.J., and RICKLES, J. concur.