CARIAN v. UNITED FARM WORKERS OF AMERICA AFL CIO

Reset A A Font size: Print

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

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

Civ. 20243.

Decided: July 27, 1983

David E. Smith and James W. Hall, Indio, for petitioner. Dennis M. Sullivan, Marvin J. Brenner, Thomas M. Sobel, Ellen Lake, Manuel M. Medeiros, Daniel G. Stone and Robert W. Farnsworth, Sacramento, for respondent. Jerome Cohen, Keene, Sanford N. Nathan, San Francisco, Kirsten L. Zerger, Salinas, Ellen Greenstone, Los Angeles, W. Daniel Boone, Keene, Thomas M. Dalzell, Salinas, Michael Heumann, Santa Monica, Linton Joaquin, Los Angeles, Dianna Lyons, Sacramento, Mary H. Mocine, Oakland, John Rice-Trujillo, Keene, Deborah Wiener, San Francisco, Marco E. Lopez, Keene, Carlos M. Alcala, Sacramento, Francis E. Fernandez, Carmen C. Flores, Keene, William H. Carder, San Francisco, and Daniel A. Garcia, Sacramento, for real party in interest.

OPINION

Harry Carian (petitioner or Carian) seeks statutory review of a final decision and order of the Agricultural Labor Relations Board (ALRB or Board) determining that petitioner committed two unfair labor practices and ordering petitioner to take specified affirmative action.  (All statutory references are to sections of the Labor Code unless otherwise specified;  the Agricultural Labor Relations Act as codified will be referred to ALRA.)

Facts

Carian is an agricultural employer engaged in growing table grapes in Riverside County.   It employs approximately 400 employees once or twice a year for up to a week each time.   Carian owns three labor camps which are operated by its working crews.

On March 28, 1977, United Farm Workers of America, AFL–CIO (UFW), an agricultural labor organization, served Carian with a notice of intention to organize.   Eight days later on April 6, purportedly in an attempt to comply with ALRB's “pre-petition employee list” regulation (Cal.Admin.Code, tit. 8, § 20910)1 petitioner furnished ALRB a list of some 207 employees (the first employee list).   This list specified no payroll period, nor did it set forth job classifications for the employees listed.   For some 54 employees the addresses listed consisted of post office boxes, for some 92 employees the addresses listed were outside Coachella Valley.   Approximately 50 percent of the employees listed were housed in one of the labor camps owned by Carian.   However, the addresses given for only about seven employees named one of these camps or a street location that might have been meant to designate one of the camps.

Having been apprised of the position of UFW and ALRB that the first employee list was insufficient, sometime after April 6, 1977, Carian commenced the practice of presenting to its employees an “employee information card,” requesting from the employee his or her full name, mailing address, “current street address,” social security number, and his or her birthdate if under the age of 18 years.   The card stated at the top:  “THE COMPANY MUST REQUEST THE FOLLOWING INFORMATION FROM EACH EMPLOYEE UNDER THE LAW OF THE STATE OF CALIFORNIA.   THIS INFORMATION MUST BE SUPPLIED TO THE AGRICULTURAL LABOR RELATIONS BOARD UNDER CERTAIN CIRCUMSTANCES AND MAY BE GIVEN BY THE AGRICULTURAL LABOR RELATIONS BOARD TO UNION ORGANIZERS.”   Following a space for the date the card contained the following pretyped recital:  “I AM NOT WILLING TO SUPPLY ANY INFORMATION THAT I HAVE NOT WRITTEN ON THIS CARD.”   This was followed by a space for the employee's signature.   The card was in both English and Spanish.

Thereafter on April 22 and May 2, 1977, petitioner submitted two additional employee lists to ALRB.   Neither list identified the payroll period to which it pertained.   The April 22 list (the second or supplemental list) set forth the names and addresses of 140 employees, giving as their job classification, “general labor.”   Thirty-one addresses listed were post office boxes, and a large number of addresses were outside Coachella Valley.   Three employees were listed for whom no address was stated.   The May 2 list (the third list) set forth the names of 207 employees, 182 of whom were the same as on the first employee list.   The third list provided only two additional “street” addresses where none had been supplied by the earlier lists.

Although the record does not disclose the dates, subsequently UFW filed a petition for certification accompanied by signatures or authorizations of at least 50 percent of Carian's agricultural employees, and an election was scheduled and held.   Whether or not UFW prevailed in the election is not disclosed by the record.   It is indicated that the validity of the election is being contested.

Pursuant to charges filed by UFW commencing April 5, ALRB's General Counsel issued a complaint which, after several subsequent amendments, alleged that petitioner had committed two unfair labor practices:  one by failing to supply a complete and accurate pre-petition employee list as required by regulations 20910 and 20310(a)(2);  the second by unlawfully interrogating employees, through use of the employee information cards, as to whether or not they preferred to be visited by union organizers.   Carian filed an answer denying the charging allegations of the complaint.   The case was joined with five other unfair labor practice cases in which three other agricultural employers were alleged to have committed similar unfair labor practices.2  Separate hearings were noticed and had in each case before an administrative law officer (ALO), but both the ALO and the Board rendered, respectively, only a single decision pertaining to all of the cases.3  The ALO concluded that petitioner had committed the two unfair labor practices alleged.   Considering petitioner's exceptions to the ALO's recommended decision and proposed order, the Board affirmed the rulings, findings and conclusions of the ALO “as modified” in its decision and adopted the proposed order as modified.   So far as we have been able to ascertain,4 the only modification of the rulings, findings and conclusions of the ALO to be found in Board's decision is its characterization of the unfair labor practice based on the employee information cards as an unlawful interrogation rather than an unlawful surveillance as the ALO had concluded.

Contentions and Discussion

Petitioner contends ALRB's promulgation of the pre-petition employee list regulation (Cal.Admin.Code, tit. 8, § 20910 [see fn. 1, ante] ) was in excess of its authority, a usurpation of the legislative function and not reasonably necessary to effectuate the purposes of ALRA.   Failing that, petitioner contends the decision in an earlier subpoena enforcement proceeding is res judicata on the question of petitioner's compliance with the regulation and, further, that Board's determination petitioner committed an unfair labor practice by using the employee information cards is contrary to law and not supported by substantial evidence on the record as a whole.   The latter contention is also made with respect to Board's determination petitioner committed an unfair labor practice by failing to furnish a full and complete pre-petition employee list.   Finally, petitioner contends that Board's order is overboard and so disproportionate to the conduct involved that it must be characterized as punitive and retributive rather than remedial.

We have concluded that the regulation is valid, that the decision in the subpoena enforcement proceeding is not to be given res judicata effect, that the finding of an unfair labor practice in respect to the pre-petition employee list is supported by substantial evidence on the whole record, that the finding of an unfair labor practice based on the employee information cards is not;  and that the order is, indeed, overbroad and defective in several respects.

Validity of the Regulation

 It is true, of course, that an administrative agency may not promulgate regulations that alter or amend the statute it administers or enlarge or impair its scope.  (J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 29, 160 Cal.Rptr. 710, 603 P.2d 1306;  Morris v. Williams (1967) 67 Cal.2d 733, 748, 63 Cal.Rptr. 689, 433 P.2d 697;  see California Sch. Employees Assn. v. Personnel Commission (1970) 3 Cal.3d 139, 143–144, 89 Cal.Rptr. 620, 474 P.2d 436.)   It is also true that an administrative regulation in conflict with a provision of the enabling statute or its purpose is invalid.  (Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 815, 114 Cal.Rptr. 577, 523 P.2d 617, passim.)   Further petitioner is correct that in considering the validity of an administrative regulation, it is proper for a court to determine whether the regulation is reasonably necessary to effectuate the purposes of the statute being administered.  (Gov.Code, § 11342.2;  Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 411, 128 Cal.Rptr. 183, 546 P.2d 687.)   However, administrative regulations come before a court “freighted with [a] strong presumption of regularity” (id., quoting Ralphs Grocery Co. v. Reimel (1968) 69 Cal.2d 172, 175, 70 Cal.Rptr. 407, 444 P.2d 79), and it cannot be concluded ALRB's pre-petition employee list regulation is in excess of its authority, in conflict with the ALRA or not reasonably necessary to effectuate its purposes.

 Petitioner's argument that promulgation of the regulation is unauthorized by any provision of the act discloses a misconception.   There is no requirement that there be specific statutory authority for a particular regulation.   Section 1144 of ALRA authorizes Board to promulgate “such rules and regulations as may be necessary to carry out the provisions of [ALRA].”  The authority conferred on ALRB is a broad one.  (See Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at pp. 399–400, 411–419, 128 Cal.Rptr. 183, 546 P.2d 687.)   Among the powers and duties of ALRB are the administration and certification of representation elections.  (§ 1156.3 et seq.;   see Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at p. 399, 128 Cal.Rptr. 183, 546 P.2d 687.)   Petitioner apparently takes the position that ALRB's authority to deal with representation elections commences only upon the filing of a petition for certification accompanied by a showing of support by 50 percent or more of the employer's employees in the unit.5  This restricted view of ALRB's powers is unwarranted.

 The ALRA and ALRB were modeled largely after the National Labor Relations Act (NLRA) and the National Labor Relations Board (NLRB), respectively, and the rule-making power conferred upon ALRB in section 1144 contemplated promulgation of regulations to insure fair representation elections and to promote the free exercise by agricultural employees of the rights enumerated in section 1152, including the right to self-organization and the right to bargain collectively through representatives of their own choosing.   In the exercise of these rights agricultural employees have the right to receive communications and information from labor organizations and labor organizations have the right to communicate with employees to discuss with them the asserted advantages of unionization and the merits of the particular labor organization.  (See Central Hardware Co. v. NLRB (1972) 407 U.S. 539, 542–543, 92 S.Ct. 2238, 2240, 33 L.Ed.2d 122, 126;  NLRB v. Wyman-Gordon Co. (1969) 394 U.S. 759, 767, 89 S.Ct. 1426, 1430, 22 L.Ed.2d 709, 716.)   The pre-petition employee list regulation was promulgated primarily to facilitate the free exercise of these rights  (See Henry Moreno (March 14, 1977) 3 A.L.R.B. No. 40.)

Secondarily, perhaps, the regulation was issued to permit the Board to obtain at an early date information that might be useful to it in its determination of periods of peak employment 6 (see §§ 1156.3, subsec. (a)(1), 1156.4) or its determination of the appropriate bargaining unit (see § 1156.2).   A representation election must be conducted not later than seven days after the filing of a petition for certification.  (§ 1156.3.)   Thus, the Board has very little time after the filing of a petition for certification in which to make determinations as to peak and appropriate bargaining unit if required, and it was its expectation that receipt of advance information by means of a pre-petition employee list would facilitate its determinations after the filing of a certification petition.

It is clear, therefore, that promulgation of the regulation was well within the authority conferred upon the Board by section 1144.

 Petitioner's contention that the regulation is invalid because it constitutes a fundamental policy determination, usurping the legislative function must be rejected.   It is true that an unconstitutional delegation of legislative power occurs when the Legislature confers upon an administrative agency the unrestricted authority to make fundamental determinations.   (Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at p. 419, 128 Cal.Rptr. 183, 546 P.2d 687;  Clean Air Constituency v. California State Air Resources Bd., supra, 11 Cal.3d at pp. 816–817, 114 Cal.Rptr. 577, 523 P.2d 617.)   However, in view of the decision in Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d 392, 128 Cal.Rptr. 183, 546 P.2d 687, ALRB's requiring employers to supply a pre-petition employee list as prescribed in the regulation (see fn. 1, ante ) cannot be classified as a fundamental policy determination.

In the cited case the argument was advanced that ALRB's promulgation of the access regulation (Cal.Admin.Code, tit. 8, §§ 20900–20901) involved a fundamental policy determination.   The argument was flatly rejected by the court, stating, “[T]he ‘fundamental policy determination’ was made by the Legislature when that body decided, after much study and discussion, to grant to agricultural workers throughout California the rights of self-organization and collective bargaining so long denied to them under federal law.   Seen in the perspective of that momentous decision, the board's qualified access provision appears much less important than the real parties would have us believe.   As a regulation which in essence merely implements one aspect of the statutory program—the holding of secret elections—it does not amount to a ‘fundamental policy determination’ within the meaning of the quoted rule.”   (16 Cal.3d at p. 419, 128 Cal.Rptr. 183, 546 P.2d 687.)   The access regulation, permitting nonconsensual entry of union organizers onto the employer's premises was far more intrusive and much more significant in terms of policy than is the pre-petition employee list regulation, and if the access regulation did not involve a fundamental policy determination, it cannot possibly be concluded that the regulation here in question involves a fundamental policy determination and is therefore invalid.

Petitioner's contention that the regulation is not reasonably necessary to effectuate the purposes of ALRA rests largely on the fact that one of the fundamental considerations relied upon by ALRB in promulgating the access regulation and the California Supreme Court in upholding its validity was that “many farmworkers are migrants;  they arrive in town in time for the local harvest, live in motels, labor camps, or with friends or relatives” so that “home visits, mailings, or telephone calls” would not constitute effective modes of communication by labor organizations with agricultural employees.   (See Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at pp. 414–415, 128 Cal.Rptr. 183, 546 P.2d 687.)   Petitioner observes with some cynicism that in support of the propriety of the pre-petition employee list regulation the Board asserts the very opposite, that home visits with agricultural employees are virtually essential to proper communication between labor organizations and agricultural employees.

It cannot be concluded, however, that the pre-petition employee list regulation is not reasonably necessary to effectuate the purposes of ALRA.   As already discussed, the regulation was promulgated to facilitate the free exercise of organizational rights by employees and post-petition determinations required of the Board.   The Board has determined that both the access and pre-petition employee list regulations are reasonably necessary to effectuate the purposes of ALRA, and in considering whether an administrative regulation is reasonably necessary, “the court will defer to the agency's expertise and will not ‘superimpose its own policy judgment upon the agency in the absence of an arbitrary and capricious decision.’ ”  (Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at p. 411, 128 Cal.Rptr. 183, 546 P.2d 687, quoting Pitts v. Perluss (1962) 58 Cal.2d 824, 832, 27 Cal.Rptr. 19, 377 P.2d 83;  Ralphs Grocery Co. v. Reimel, supra, 69 Cal.2d at p. 179, 70 Cal.Rptr. 407, 444 P.2d 79;  see Agricultural Labor Relations Bd. v. Laflin & Laflin (1979) 89 Cal.App.3d 651, 678–679, 152 Cal.Rptr. 800.)   The Board's determination that the pre-petition employee list regulation is reasonably necessary to effectuate the purposes of the ALRA cannot be said to be without rational basis.

 Petitioner points out that the NLRB has not found it necessary to require employers to furnish an employee list prior to the filing of a petition for certification.   That fact is of little consequence, however.   The NLRB does not face the stringent time limitations imposed upon ALRB in respect to conducting representation elections;  circumstances surrounding agricultural employment in California are significantly different from those surrounding industrial employment generally;  and ALRB is not required to follow the procedural precedents established under decisions pursuant to the NLRA (Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at pp. 412–417, 128 Cal.Rptr. 183, 546 P.2d 687);  and, in any event, the NLRB precedent here relied on is hardly a persuasive precedent.   The absence of a regulation is really more appropriately characterized as an absence of precedent.

We conclude the pre-petition employee list regulation is valid.

Unlawful Interrogation—Employee Information Cards

With respect to the determination that Carian's use of the employee information card constituted an unlawful interrogation, Board's opinion reads:  “These Respondents assert that the statement on the card, ‘I am not willing to supply any information that I have not written on this card’ is inserted only to protect the employer.   We consider this argument unconvincing.   California State law requires employers to keep accurate records of the addresses of its employees, so it is not optional with employees whether they wish to disclose their addresses to the employer.   Although we agree with the ALO's finding that the use of such cards was an attempt to ascertain which employees wished to be visited by union organizers, we do not agree with his conclusion that this constitutes surveillance.   Rather, we conclude that such conduct constitutes interrogation in violation of Section 1153(a) in that the workers were in effect being asked to disclose their attitudes for or against the union by giving or refusing to give their addresses.”  (Fn. omitted.)

The ALO had dealt with distribution of the employee information cards under the head “CONCLUSIONS OF LAW,” saying:  “I find that the use of such cards to be an altogether inappropriate means of gathering the employee information required by § 20310(a)(2) of the Regulations․  [¶]  The question remains, however, as to whether the utilization of these cards constitutes an unfair labor practice.   Notably, other state and federal statutes require that employers maintain particular records concerning their employees ․  No evidence was presented by Respondent Peters or Carian that they informed their employees when these or other similar records were prepared, of the uses to which the records might be put.   In addition, these Respondents might simply have chosen to fulfill their obligations under the Act by utilizing a more neutral, innocuous device.   The inference is quite strong, therefore, that by specifying that the information ‘may be given ․ to union organizers' and the employees might choose whether or not to divulge such information, these employers [see fn. 3, ante ] were attempting to ascertain which of their employees desired to be visited by union organizers, and thus were engaging in surveillance of their employees vis-a-vis their attitudes toward union organization.”   In a footnote following the last quoted word, the ALO stated:  “This inference is given added weight when it is considered that Respondent Peters solely utilized an English language card which might be susceptible of mis-interpretation by its Spanish speaking employees.” 7

 The conclusions of both the ALO and the Board with respect to the use of the employee information cards are based upon incorrect premises and are therefore erroneous.   The provisions of law relied upon by both the ALO and the Board as requiring employers to ascertain and maintain records of their employees' addresses are Labor Code sections 1157.3 and 1174, subsection (c).8  Those code sections, however, require only that an employer obtain from his employees their “addresses,” not their “street” addresses.   Inasmuch as Board distinguishes between “addresses” and “current street” addresses in respect to compliance with the pre-petition employee list regulation, its insistence that the word “addresses” found in the cited Labor Code sections is equivalent to “current street” addresses is inexplicable.   In any event, as Board itself recognizes, there is a considerable difference between “addresses” and “street” addresses 9 and petitioner's failure to inform its employees of the possible uses that might be made of mailing addresses obtained by it to satisfy the cited statutory provisions does not give rise to a necessary inference that its so informing its employees with respect to “current street” addresses was for the purpose of ascertaining their sentiments for or against the union.

Moreover, it is clear from their language that the decisions of the Board and the ALO were founded in substantial part upon the assumption that an employee has no right to refuse to furnish his “current street” address and that an employer has no right to inform employees that they may refuse to furnish that information.   Both these propositions are legally erroneous.

 The employee rights guaranteed by ALRA include both the right to organize and the right not to organize.  (§ 1152.)   Employees have the right to receive communications from labor organizations free from restraint on the part of their employer.  (See Central Hardware Co. v. NLRB, supra, 407 U.S. at pp. 542–543, 92 S.Ct. at p. 2240, 33 L.Ed.2d at p. 126;  see also NLRB v. Wyman-Gordon Co., supra, 394 U.S. at p. 767, 89 S.Ct. at p. 1430, 22 L.Ed.2d at p. 716.)   But employees also have the right not to be contacted at their homes or other living quarters by union organizers if that is their choice.  (§ 1152;  cf. Cal. Const., art. I, § 1;  Martin v. Struthers (1943) 319 U.S. 141, 143–144, 148, 63 S.Ct. 862, 863, 865, 87 L.Ed. 1313, 1316–1317, 1319.)   To that end an employee may decline to disclose the street address of his abode.10  The freedom to do so presupposes knowledge that the disclosure requested is not compelled.   Thus, an employer's informing employees of their right not to furnish their “current street addresses” dispels the impression that disclosure is mandatory because requested by a state agency and, in the absence of evidence of intimidation or coercion, serves to promote the free exercise of the employee rights guaranteed in section 1152 of ALRA.

 Finally, petitioner is correct that Board's determination that its use of the employee information cards constituted an unfair labor practice is unsupported by substantial evidence.   Even if it could be said that petitioner's conduct amounted to an interrogation as the Board concluded, the question would remain whether the interrogation constituted an unfair labor practice, that is, an interference with, restraint of or coercion of agricultural employees in the exercise of the rights guaranteed them by the ALRA.  (§ 1153, subsec. (a);  N.L.R.B. v. Monroe Tube Co., Inc. (2d Cir.1976) 545 F.2d 1320, 1328;  Sahara-Tahoe Corp. v. N.L.R.B. (9th Cir.1976) 533 F.2d 1125, 1126;  see Belridge Farms v. Agricultural Labor Relations Bd. (1978) 21 Cal.3d 551, 559, 147 Cal.Rptr. 165, 580 P.2d 665;  N.L.R.B. v. Mueller Brass Co. (5th Cir.1975) 509 F.2d 704, 708–709;  Stanislaus Imports, Inc. (1976) 226 N.L.R.B. 1190, 1192.)   Federal decisions under section 8(a)(1) of the NLRA (29 U.S.C. § 158(a)(1)), after which subsection (a) of section 1153 of ALRA was modeled, establish that interrogation that is not itself threatening does not constitute an unfair labor practice unless it is coercive in light of all the surrounding circumstances.  (E.g., N.L.R.B. v. Monroe Tube Co., Inc., supra;  Sahara-Tahoe Corp. v. N.L.R.B., supra;  N.L.R.B. v. Mueller Brass Co., supra, 509 F.2d at pp. 707–709;  Stanislaus Imports, Inc., supra.)

 Here, there is no evidence that the free exercise of rights by any employee was interfered with, restrained or coerced by distribution of the employee information cards.   It is true, of course, that General Counsel was not required to show actual interference, restraint or coercion, but only that petitioner engaged in conduct which may reasonably be said tended to interfere with the free exercise of employee rights.  (Pandol & Sons v. Agricultural Labor Relations Bd. (1979) 98 Cal.App.3d 580, 586, 159 Cal.Rptr. 584;  see Joy Silk Mills v. National Labor Relations Board (D.C.Cir.1950) 185 F.2d 732, 743–744, cert. den. 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350, citing National Labor Relations Board v. Link-Belt Co. (1941) 311 U.S. 584, 588, 61 S.Ct. 358, 361, 85 L.Ed. 368, 373.)   However, the complete absence of evidence that any employee was actually intimidated or coerced rather persuasively indicates that the interrogation, if such it was, did not reasonably tend to coerce, restrain or interfere with employees in the exercise of their rights.   (E.g., N.L.R.B. v. Monroe Tube Co., Inc., supra, 545 F.2d at p. 1328;  Sahara-Tahoe Corp. v. N.L.R.B., supra, 533 F.2d at p. 1126;  N.L.R.B. v. Mueller Brass Co., supra, 509 F.2d at pp. 708–709;  see Stanislaus Imports, Inc., supra, 226 N.L.R.B. at p. 1192;  cf. N.L.R.B. v. International Typographical Union (10th Cir.1971) 452 F.2d 976, 979.)

 Additionally, in the case at bench, no evidence was presented that any employee believed or even understood the card to be an interrogation as to his or her sentiments for or against the union.   In fact, the cards did not compel such a disclosure.   If an employee placed on the card his or her “current street address,” the most that could be rationally inferred from that act was that he or she had no objection to the union's being supplied with that information and possibly, had no objection to having a union representative come to his or her abode to discuss unionization.   That would indicate no more than a willingness to listen to the argument on both sides.  (Cf. Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (1979) 93 Cal.App.3d 922, 938, 156 Cal.Rptr. 152.)

There is no substantial evidence that petitioner's use of the card in these circumstances tended to interfere with, restrain or coerce an employee in the free exercise of rights guaranteed by the ALRA.

We conclude, therefore, that Board's determination that petitioner's distribution of the employee information cards constituted an unfair labor practice is erroneous.

Incomplete Pre-Petition Employee List

 The evidence clearly establishes that petitioner failed to supply a complete and accurate pre-petition employee list fully complying with the regulation.   An employee list is defined as “[a] complete and accurate list of the complete and full names, current street addresses, and job classifications of all agricultural employees ․ in the payroll period immediately preceding the filing of the petition.”  (Cal.Admin.Code, tit. 8, § 20310(a)(2).)   A pre-petition employee list is required to be furnished by the employer within five days after a proper notice of intent to organize has been filed with ALRB by an agricultural labor organization.   Even if Carian's three-day delay in furnishing the first employee list could be said to be inconsequential, and even if it were to be held that the list need not contain a specific designation of the payroll period it applied to because the regulation specifies that the period to be covered is the “payroll period immediately preceding the filing of the petition,” 11 and even if the job classification, “general labor,” subsequently furnished were to be deemed sufficient, many of the addresses listed by Carian for his employees were post office addresses or permanent home addresses outside the geographical area of Coachella Valley, whereas the regulation demands “current street addresses.”

Board rejected petitioner's argument that the phrase “current street address” contains a patent ambiguity.   However, the very reasoning employed by Board in rejecting the argument discloses its validity.   Said the Board:  “The phrase obviously refers to the place where the employee resides while working for the employer.   Common sense dictates that if an employee is living in a labor camp which does not have a street address, a statement that the employee is a resident of a specific labor camp, and giving the name and location of that labor camp would meet the requirement of the regulation [i.e., “current street address”].”  (Emphasis added.)   Thus, Board itself recognizes that many farm labor camps are on private property and do not have street addresses.   If a farm laborer is staying at such a camp his only “street” address, and thus his only “current street address” may be the street address of his permanent residence, which, of course, may be outside Coachella Valley, even in Mexico.   Indeed, since many agricultural employees are migrants, it is quite possible, even probable, that some will have no “street” addresses at all.   Significantly, rather than distinguishing between “current” and “non-current” street addresses, UFW in its brief distinguishes between “local” addresses and “nonlocal” addresses.

 Nevertheless, we agree with Board that there is no evidence that petitioner was misled by the ambiguity.   Of course, by this late date it is virtually inconceivable that any agricultural employer would not know what information ALRB demands by use of the phrase “current street addresses,” but in the case at bench there can be little question but that petitioner understood what was wanted even in April 1977.   Not only did it raise the ambiguity question belatedly, but petitioner itself utilized the expression “current street address” without explanation or amplification in the employee information card.

Next, petitioner apparently contends that a prior proceeding between it and the ALRB concerning the same prepetition employee list as is here in issue (see Agricultural Labor Relations Bd. v. Laflin & Laflin, supra, 89 Cal.App.3d at pp. 664–665, fn. 14, 152 Cal.Rptr. 800) is res judicata on the question whether or not it complied with the regulation.   Contemporaneously with the prosecution of the unfair labor practice charges, ALRB issued a subpoena duces tecum to petitioner to appear at ALRB's Coachella field office and produce an employee list as required by the regulation after UFW served its notice of intent to organize.   In response to the subpoena, petitioner furnished either the second or third employee list or both.   ALRB applied to the Riverside Superior Court for an enforcement order pursuant to section 1151, subsection (b).   Petitioner filed with the court a declaration stating in substance that he had filed three employee lists;  that the information on the lists was secured by it from payroll applications furnished by its employees and was all the information relating to their names and “current street addresses” in its possession.   Following a hearing, the court declined to issue an enforcement order for numerous reasons, one of which was that petitioner had complied with the subpoena.12  ALRB sought review of the trial court's order by filing a petition for writ of mandate in the California Supreme Court.   That court transferred the matter to this court which issued an alternative writ.   Ultimately this court denied the writ in a published opinion, thus affirming the order of the trial court.  (4 Civ. 19156, Jan. 30, 1978.)   On April 27, 1978, the California Supreme Court denied ALRB's petition for hearing but ordered this court's opinion nonpublished.

The Supreme Court's order that the opinion of this court be nonpublished, of course, did not alter the fact that the decision constituted a final judgment binding upon ALRB.   ALRB correctly asserts that the present unfair labor practice proceeding is a different proceeding from the subpoena enforcement proceeding.   It acknowledges, however, that if the same issue was decided adversely to it in the prior proceeding, the potential for application of the doctrine of collateral estoppel is here present.   However, it urges that the question decided by us on the former appeal was whether there was substantial evidence in the record before us to support the determination of the trial court, not whether Carian had complied with the regulation.   It is true that that was the question we as an appellate tribunal decided.   However, it is not our decision from which the collateral estoppel would arise but, rather, the decision of the superior court.   Our decision affirming the trial court's order only served to give it finality when the Supreme Court subsequently denied ALRB's petition for hearing.   What was decided by the superior court was that petitioner had complied with the subpoena to the extent it was able.   (See fn. 12, ante.)

 If the Riverside Superior Court's order were to be given the effect of collaterally estopping ALRB from asserting that petitioner failed to comply with the regulation to the extent of its ability to do so, there can be little question but that that would be dispositive of the unfair labor practice charge.   However, we agree with the Board that the determination in the subpoena enforcement proceeding is not to be given collateral estoppel effect in this unfair labor practice proceeding.

The decision of the United States Supreme Court in N.L.R.B. v. Denver Bldg. & Constr. T. Council (1951) 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 is instructive.   In that case under the NLRB, after unfair labor practice charges had been lodged with the NLRB but prior to the issuance of a complaint, the regional director of the NLRB applied to the United States District Court for the District of Colorado for an injunction to terminate the ongoing conduct alleged to constitute the unfair labor practice.   The court dismissed the petition finding that the activities complained of did not affect interstate commerce and that it lacked jurisdiction to afford injunctive relief.   Subsequently, the question of whether the conduct complained of affected interstate commerce arose in the unfair labor practice case, and it was asserted that the determination of the Federal District Court was res judicata.   The Supreme Court rejected the contention, stating:  “The District Court did not have before it the record on the merits.   It proceeded under § 10(1) which is designed to assist a preliminary investigation of the charges before the filing of a complaint․  Such proceeding is independent of that on the merits ․  There is a separate provision for securing injunctive relief after the filing of the complaint.   §  10(j).   Court review is authorized in § 10(e) and (f)․  [T]he very scheme of the statute accordingly contemplates that a decision on jurisdiction made in the independent preliminary proceeding for interlocutory relief ․ shall not foreclose a proceeding on the merits such as is now before us.”  (341 U.S. at pp. 681–683, 71 S.Ct. at pp. 947–49, 95 L.Ed. at p. 1292, fns. omitted.)

 So it is in the case at bench.   ALRB's authority to issue subpoenas, found in section 1151, subsection (a), is expressly related by the same section of the statute to ALRB's investigative and adjudicatory powers and duties.   Subsection (b) of section 1151 provides that in appropriate circumstances ALRB may apply to the court for an enforcement order.   A subpoena enforcement proceeding is preliminary and independent of an adjudication of the merits.   Indeed, as a general proposition defenses going to the merits of the underlying administrative proceeding or inquiry may not be raised in subpoena enforcement proceedings (Endicott Johnson Corp. v. Perkins (1943) 317 U.S. 501, 509–510, 63 S.Ct. 339, 343, 87 L.Ed. 424, 430;  N.L.R.B. v. C.C.C. Associates, Inc. (2d Cir.1962) 306 F.2d 534, 538).   Unfair labor practice proceedings are separately provided for in section 1160 et seq., of ALRA, and judicial review of a final order of the Board in such matters is provided for in section 1160.8.

 The Denver Bldg. decision is indistinguishable on any meaningful legal basis.   Moreover, under ALRA the ALRB is given primary responsibility for adjudicating unfair labor practice disputes (see § 1160.9;  Vargas v. Municipal Court (1978) 22 Cal.3d 902, 916, 150 Cal.Rptr. 918, 587 P.2d 714), and a holding that the order resulting from a subpoena enforcement proceeding is not res judicata of the issue of compliance in a subsequent unfair labor practice proceeding constitutes an appropriate accommodation of res judicata principles to the primacy of the ALRB's role in respect to unfair labor practice disputes.  (Cf. Vargas v. Municipal Court, supra.)

 Although the question is a close one, we reject also Carian's contention that there is no substantial evidence that its failure to timely supply an employee list interfered with or restrained or coerced any employee in the exercise of employee rights.   It is true that UFW was able to garner authorizations from at least 50 percent of Carian's agricultural employees because UFW subsequently filed a petition for certification and an election was held.   However, the finding of an unfair labor practice is not thereby precluded.   As previously indicated General Counsel was not required to prove actual interference, restraint or coercion but only that the employer engaged in conduct that might reasonably be said tended to interfere with the free exercise of employee rights under ALRA.  (Pandol & Sons v. Agricultural Labor Relations Bd., supra, 98 Cal.App.3d at p. 586, 159 Cal.Rptr. 584;  Joy Silk Mills v. National Labor Relations Board, supra, 185 F.2d at pp. 743–744, citing National Labor Relations Board v. Link-Belt Co., supra, 311 U.S. at p. 588, 61 S.Ct. at p. 361, 85 L.Ed. at p. 373.)   As we have previously pointed out agricultural employees have the right to communicate with and receive communications from agricultural labor organizations, and it must be concluded that an employer's furnishing a materially deficient pre-petition employee list will, under ordinary circumstances, naturally tend to interfere with those employee rights.   The fact that a labor organization was subsequently able to garner a majority of employee support and thus bring about an election does not conclusively demonstrate that the employees' rights to communicate with and receive communications from the labor organization were not interfered with.

We come finally to the question whether there is substantial evidence on the whole record to support Board's determination that petitioner committed an unfair labor practice in failing to comply with the pre-petition employee list regulation.   Preliminarily, we must ascertain whether this determination by the Board was based on a finding that petitioner's noncompliance was wilful or in bad faith or whether the Board purported to hold that any material failure to comply with the pre-petition employee list regulation constitutes an unfair labor practice per se, regardless of the cause for the deficiency.

In a pertinent passage in its opinion Board states:  “We note that Respondents raised the issue of a ‘patent ambiguity’ for the first time in their exceptions to the ALO's decision.   This defense to the inadequacy of the lists they provided was never raised at the unfair labor practice hearing, nor was any evidence presented to support it.   We also take administrative notice of the proceedings in [the subpoena enforcement proceedings].  In those cases we sought enforcement of subpoenas duces tecum seeking lists complying with our pre-petition list regulation or, in the alternative, payroll documents containing such information.   After being served with the subpoenas, neither Laflin nor Carian petitioned us to revoke the subpoena;  a course of action which would have raised the issue of a possible ambiguity to the Board.   We find that the Respondents' ‘patent ambiguity’ defense lacks merit and, when viewed in context, the timing of its advancement indicates that the Respondents' noncompliance with the pre-petition list regulation was in bad faith.   On the basis of the above and the entire record, we affirm the ALO's conclusion that Moreno, by its refusal to provide any pre-petition list, and Laflin, Peters, and Carian, by their supplying of inadequate lists, violated Section 1153(a) of the Act.”  (Emphasis added.)   We conclude Board's determination was based on a finding that petitioner's failure to supply the required information was deliberate and in bad faith.

 We need not consider the accuracy of Board's statement that no evidence of the patent ambiguity was presented at the unfair labor practice hearing nor petitioner's counter-contention that by definition there is no need to present evidence of a patent ambiguity.   It is clear that Board's finding, if such it was, that “Respondents' [see fn. 3, ante ] noncompliance with the pre-petition list regulation was in bad faith” derived from petitioner's raising the patent ambiguity defense for the first time in its exceptions to the recommended decision of the ALO and from its failure to petition the Board to revoke the subpoenas that had been issued.   Board's conclusion in this regard, however, is a non sequitur.   It may well be that Board could justifiably conclude that the presentation of the patent ambiguity defense was untimely and spurious, but it does not follow that petitioner's furnishing incomplete information weeks or months earlier was in bad faith.   Neither does petitioner's failure to attack the subpoena by petitioning the Board to revoke it support the Board's conclusion.   Petitioner successfully resisted Board's application for an enforcement order, and we determined in denying ALRB a peremptory writ to set aside the superior court's order that the procedure employed by petitioner was appropriate.   Petitioner's failure to use another procedure to resist Board's subpoena may reflect adversely on the ambiguity defense, but it does not rationally support the conclusion that petitioner acted in bad faith in failing to furnish the full information required by the pre-petition employee list regulation.   We conclude therefore that this finding by Board of bad faith is not supported by the evidence upon which it relied.

However, as previously observed, the Board affirmed and adopted the findings and conclusions of the ALO “as modified” in its decision (see fn. 4, ante, and accompanying text).   There is a good deal of language in the proposed decision of the ALO indicating that the ALO concluded that any material failure to comply with the regulation constituted an unfair labor practice per se, regardless of the cause of the deficiency.   He referred to the Board's holding in its Henry Moreno decision that the outright refusal to supply a pre-petition employee list interferes with employees' rights under section 1152 and stating that “[n]othing could be more clear than the explicit dictates of [§ 20910]” he concluded:  “Submitting a list which provides as addresses for many employees post office boxes or street addresses from which daily commuting to the situs of employment would be altogether impossible in no way furthers these ends [employee access to information, etc.] and in fact frustrates and impedes their realization.   I specifically hold that supplying the Board with lists of these types, as Respondents Carian, Laflin and Peters have done in the instant cases, is tantamount to refusing to provide any list at all, and constitutes per se ‘interference’ and ‘restraint’ ․ of employees in their exercise of their rights under Labor Code Section 1152.”   He further stated:  “Clearly, the lists submitted by the above named Respondents do not meet the requirements [of the regulation], as they were neither timely nor did they provide meaningful job classifications or ‘current street addresses.’  [¶] Violations of § 1153(a) of the Act flow naturally from this type of conduct.”   (Emphasis added.)

 If by these statements the ALO meant and if by affirming and adopting the ALO's findings and conclusions the Board meant to signify that regardless of an employer's inability to obtain “current street addresses” for all his agricultural employees after making a reasonable and good faith effort to do so, any material failure to supply “current street addresses” constitutes an unfair labor practice per se, the decision is erroneous.   To constitute an unfair labor practice an employer's failure to supply the complete information required by the regulation must be purposeful or at least without a reasonable, good faith effort to obtain and provide the information.  (Cf. N.L.R.B. v. International Typographical Union, supra, 452 F.2d at p. 978.)

However, the ALO also made a statement in his recommended decision concerning petitioner's bad faith in respect to the employee list requirement.   The pertinent part of the ALO's opinion reads:  “At the hearing, Respondent Carian stipulated that approximately fifty percent (50%) of the employees listed ․ were residents at one of the three labor camps owned by this Respondent.   Once again,[13 ] the bad faith of this Respondent is evident, as it would have been a simple matter for it to have set forth as current ‘street’ addresses the labor camp addresses [14 ] for the great bulk of its employees.”

Although we are not certain (see fn. 4, ante ) we believe the ALO intended the above-quoted statement to constitute a finding and that the Board meant to adopt the finding even though it specified an additional basis for its conclusion that petitioner acted in bad faith.   We are thus brought to the question whether the finding that Carian acted in bad faith is supported by substantial evidence.

 It was stipulated that approximately 50 percent of the employees were housed in one of the three camps owned by Carian.   The question is whether it may be inferred from that stipulation or other evidence in the record that Carian knew which employees were residing in the camp and knew that he should have supplied the location of the camp as those employees' “current street addresses.”   Although the record is not entirely satisfactory on this point, we conclude it will support an inference that petitioner or its representatives had that knowledge.

At the hearing it was stipulated by petitioner's counsel that petitioner “owns three labor camps which are operated by the crews which operate those labor camps.”   Subsequently there was a stipulation that “[a]pproximately 50 percent [of the employees listed on the first employee list] resided in one of the labor camps [owned by petitioner] at the time of submission of the first list.”   In the discussion leading up to that stipulation an attempt was made to have the stipulation cover the specific camp in which the employees were housed.   Counsel for petitioner was generally willing to enter into a stipulation but he stated:  “Well, I prefer to stipulate that they were residents of one of the camps.   I can't say which ones.”   Counsel for the Board then asked whether the stipulation also pertained to the additional employee lists supplied by petitioner.   Petitioner's counsel stated that he did not know about that.   Counsel for UFW then asked whether it was possible to find out about that, to which petitioner responded:  “I think the original list that was turned in I had that list gone through after it was sent back to me and I have that list marked with C or OS which means outside by—not by myself, but by those who did have knowledge of where they were actually residents at the time.  [¶] If you want, I can get my office to send this down here.”   Counsel for the Board said:  “That's a list which shows—”  Petitioner's counsel stated:  “That's a list—this is probably a list, one of the lists, probably the first one that was prepared that they went through later after it was submitted and put a C or an O opposite the person to identify whether they were camp or outside the camp.”  (Emphasis added.)

Thus, although the persons who had knowledge of the location at which the employees were housed were not identified, it is a fair inference from the statements of petitioner and his attorney that they were Carian's representatives.   Similarly, although the record does not indicate whether or not petitioner knew that the name and location of the camp would suffice as a “current street” address at the time he submitted the first list, he obviously became aware of that fact thereafter, but never submitted the information to ALRB.

 In view of our conclusion that substantial evidence supports the findings that petitioner was not misled by the ambiguity in the regulation and knew what information was wanted, we conclude that the ALO's finding that petitioner deliberately supplied incomplete information with respect to a good many of his employees is supported by substantial evidence.   It follows that the evidence is sufficient to support the conclusion that petitioner committed an unfair labor practice, for, while, as we have stated, an employee may refuse to furnish his “current street address” to the employer, an employer is not privileged to refuse to furnish to the Board employees' addresses known to him.  (See N.L.R.B. v. Q–T Shoe Manufacturing Co., supra, 409 F.2d at pp. 1249–1250;  N.L.R.B. v. Hanes Hosiery Division—Hanes Corporation, supra, 384 F.2d at p. 191;  N.L.R.B. v. British Auto Parts, Inc., supra, 266 F.Supp. at p. 373.)

Board's Order

 ALRB's power to make remedial orders in unfair labor practice cases derives from section 1160.3 which provides in part:  “If, upon the preponderance of the testimony taken, the board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, the board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, [and] to take affirmative action ․ when the board deems such relief appropriate ․”  The parallel provision of the NLRA (§ 10(c);  29 U.S.C. § 160(c)) is similarly worded, and California courts have treated federal decisions under that provision of the NLRA as persuasive precedent with respect to the propriety of remedial orders of the Board under ALRA.  (See, e.g., J.R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at p. 39, 160 Cal.Rptr. 710, 603 P.2d 1306;  Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 355, 156 Cal.Rptr. 1, 595 P.2d 579;  Pandol & Sons v. Agricultural Labor Relations Bd., supra, 98 Cal.App.3d at pp. 587–589, 159 Cal.Rptr. 584;  Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd., supra, 93 Cal.App.3d at p. 940, 156 Cal.Rptr. 152.)

The federal decisions as well as recent decisions of the California Courts of Appeal establish that because the relation of remedy to policy is peculiarly a matter of administrative competence, the Board must be given relatively free reign in determining which remedy would effectuate policies of the Act.   (E.g., Phelps Dodge Corp. v. National Labor Rel. Bd. (1941) 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271, 1283;  Pandol & Sons v. Agricultural Labor Relations Bd., supra, 98 Cal.App.3d at pp. 588–589, 159 Cal.Rptr. 584;  see Fibreboard Corp. v. NLRB (1964) 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233, 241–242.)   Nevertheless, the Board's discretion in ordering affirmative action to remedy unfair labor practices “is not unbounded.   It must be exercised reasonably by the Board whose ‘power to command affirmative action is remedial, not punitive, ․’ ”  (Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd., supra, 93 Cal.App.3d at p. 940, 156 Cal.Rptr. 152, quoting in part from Edison Co. v. Labor Board (1938) 305 U.S. 197, 236, 59 S.Ct. 206, 219, 83 L.Ed. 126, 143, emphasis in orig.)   When the order of the Board is so severe in comparison to the conduct involved in the unfair labor practice that it is clearly punitive in character, the order will be annulled.  (Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd., supra, 93 Cal.App.3d at p. 940, 156 Cal.Rptr. 152.)  “[I]t is not enough to justify the Board's requirements to say that they would have the effect of deterring persons from violating the Act.   That argument proves too much, for if such a deterrent effect is sufficient to sustain an order of the Board, it would be free to set up any system of penalties which it would deem adequate to that end.  [¶]  ․  [A]ffirmative action to ‘effectuate the policies of this Act’ is action to achieve the remedial objectives which the Act sets forth.”  (Republic Steel Corp. v. National Labor Rel. Bd. (1940) 311 U.S. 7, 12, 61 S.Ct. 77, 79, 85 L.Ed. 6, 10.)

 In view of our conclusion that Board's determination petitioner committed an unfair labor practice in using the employee information cards is contrary to law and not supported by substantial evidence, it is appropriate to remand the matter to the Board for redetermination of its order.  (See, e.g., J.R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at pp. 38–40, 160 Cal.Rptr. 710, 603 P.2d 1306;  Pandol & Sons v. Agricultural Labor Relations Bd., supra, 98 Cal.App.3d at pp. 589–591, 159 Cal.Rptr. 584;  Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd., supra, 93 Cal.App.3d at p. 941, 156 Cal.Rptr. 152.)   However, it is also appropriate that we discuss several problems posed by the present order so that they may be avoided in any new order Board should make.  (Cf. Code Civ.Proc., § 43.)

 In view of the remand, it is unnecessary to determine whether the order as a whole is punitive and retributive as petitioner contends.   However, we observe that Board's order with respect to Henry Moreno (see fn. 2, ante, and accompanying text) was far less severe than the order as to Carian despite the fact that Moreno's conduct was an outright refusal to supply any pre-petition employee list at all.   Board's explanation for the difference in the two orders was that in the case of Moreno, the union was successful in garnering the support of at least 50 percent of the employees so that it could file a petition for certification and eventually prevail in the election.   However, analysis reveals that the difference between the two cases cited by the Board in fact does not exist.   In the Carian case, too, the union was able to garner the support of at least 50 percent of the employees because here, too, it filed a petition for certification and an election was held.   That could not have happened without a showing of support by at least 50 percent of the employees.  (§ 1156.3.)   The fact that the union may or may not have prevailed in the election after having obtained sufficient support to permit it to file its petition for certification must be attributed to events following the filing of the petition for certification.   When a petition for certification is filed, the employer is required to furnish within 48 hours a post-petition employee list containing the complete names and “current street addresses” of its employees (Cal.Admin.Code, tit. 8, § 20310), and there is nothing in the record to indicate that Carian failed to supply a post-petition list complying with the regulation.   Absent a meaningful difference between the two cases, there is no apparent justification for the great disparity in the two orders.

 With respect to specific portions of the order we observe as follows.   Provision e. calls for either a representative of Carian or a “Board Agent” to read a prescribed notice in appropriate languages to the assembled employees on company time “at such times and places as are specified by the Regional Director.”   It is further specified that “[f]ollowing the reading, the Board Agent shall be given the opportunity, outside the presence of supervisors and management, to answer any questions employees may have concerning the Notice or their rights under the Act.”   Petitioner objects that no time limit is placed upon the question and answer period.   Inasmuch as the employees are to receive their regular pay during the period, petitioner points out that he is exposed to an open-ended liability by this provision in the order.   We agree.   We further observe that the number of readings is not specified and appears to be left to the uncircumscribed discretion of the Regional Director.

 Provision f. requires petitioner to provide the ALRB with an employee list forthwith as required by regulation 20910.   However, regulation 20910 does not require that any list be furnished unless and until a labor organization has filed a notice of intent to organize accompanied by a 10 percent showing of interest on the part of the employees.   If this provision is to be retained, it requires clarification to avoid being self-contradictory and contrary to ALRB's regulations.

Provision g. requires petitioner to provide the ALRB with an employee list as described in regulation 20910 if during the next growing season the UFW files a notice of intent to take access.   Unless the Board intended the requirement to be the supplying of a list upon the filing of a notice of intent to organize as opposed to a notice of intent to take access, the Board may wish to consider whether the requirement that a list be supplied without a showing of employee support of at least 10 percent is appropriate in light of the unfair labor practice committed.

 Section 1160.3 specifically authorizes the Board to order any person found to have committed an unfair labor practice “to cease and desist from such unfair labor practice.”   However, provision 1.d. orders petitioner to cease and desist from “[i]n any other manner interfering with, restraining, or coercing any employee in the exercise of rights guaranteed by [the ALRA].”  As Board now concedes, this portion of the order is impermissibly overbroad.   (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1980) 111 Cal.App.3d 258, 277, 168 Cal.Rptr. 537, and cases there cited.)

A number of other provisions in the order may present substantial questions, but inasmuch as we have no way of knowing whether or not any order formulated by the Board on remand will include such provisions, we think it inappropriate to attempt to resolve those questions in this proceeding.

Disposition

Insofar as it determines that petitioner committed an unfair labor practice by materially failing to supply a complete and accurate pre-petition employee list, the decision of the Board is affirmed.   In all other respects Board's decision and order are annulled, and the case is remanded to the Board for reconsideration and formulation of a new remedial order, if such is deemed appropriate by the Board, consistent with this opinion.   The parties shall bear their own respective costs on review.

FOOTNOTES

1.   So far as is here pertinent, regulation 20910 provides in substance that any labor organization that has filed a valid notice of intent to take access on a designated employer may file a notice of intention to organize the agricultural employees of the same employer signed or accompanied by authorization cards signed by at least 10 percent of the current employees of the designated employer and that, within 5 days thereafter, the employer must furnish to ALRB an employee list as described in section 20310(a)(2) of ALRB's regulations.   Upon verifying that the notice of intention to organize was signed or accompanied by authorization cards signed by at least 10 percent of the current employees of the employer, ALRB makes a copy of the employee list available to the filing labor organization and any other labor organization that files a valid notice of intent to organize within 30 days.   The employer is not required to furnish more than one such list in any 30-day period.The employee list thus required has come to be known as a “pre-petition employee list.”   Regulation 20310(a)(2) describes an employee list as “[a] complete and accurate list of the complete and full names, current street addresses, and job classifications of all agricultural employees ․ in the payroll period immediately preceding the filing of the petition.”   (Emphasis added.)

2.   The other agricultural employers involved were Laflin & Laflin aka Laflin Date Gardens, Richard Peters Farms, and Henry Moreno.   Laflin & Laflin and Richard Peters Farms are petitioners in companion review proceedings now pending in this court (4 Civ. 20242 and 20244).   Board's joint decision and order in all these cases is designated 4 A.L.R.B. No. 28.

3.   The recommended decision of the ALO commendably segregated the facts with respect to each case.   However, it is quite apparent from the reasoning and language in both the recommended decision and the Board's decision that the ALO and the Board, respectively, were influenced in each case by events that occurred in one or more of the other cases.  (See, e.g., text opposite fn. 7, infra.)   If a joint decision practice is to be followed, there must be scrupulous adherence to the principle that the evidence adduced in respect to one case concerning the commission of an unfair labor practice may not furnish evidentiary inferences for use in another case in which the evidence was not introduced and the respondent was permitted no opportunity for cross-examination or rebuttal.   We give no consideration to the problem in the case at hand because it has not been raised by petitioner.

4.   Although petitioner in this case has made no point of it, we observe that Board's practice of adopting or affirming the rulings, findings and conclusions of the ALO “as modified herein” or “to the extent consistent with this opinion” is quite unsatisfactory in many cases so far as a reviewing court is concerned.   In the recommended decisions of the ALO that have come before us, specific findings of fact other than the jurisdictional facts have generally not been made.   Rather, factual determinations have generally been scattered throughout the decision as part of the reasoning or conclusions.   The decisions of the Board that have come before us are in much the same form.   When the Board states that it adopts the findings of the ALO “consistent with” its decision or “as modified” in its decision, the task of determining which findings of the ALO were deemed by the Board “consistent with” or “modified by” its decision are relegated to the reviewing court.   That is undesirable both from the standpoint of the Board and the reviewing court.   Moreover, it brings into question the sufficiency of the findings as required by section 1160.3.

5.   Section 1156.3 provides in pertinent part:  “Upon receipt of such a signed petition [for certification], the board shall immediately investigate such petition, and, if it has reasonable cause to believe that a bona fide question of representation exists, it shall direct a representation election by secret ballot to be held, upon due notice to all interested parties and within a maximum of seven days of the filing of the petition.”

6.   A petition for certification is appropriate only at a time when the number of agricultural employees currently employed is not less than 50 percent of the employer's peak agricultural employment for the current calendar year.  (§ 1156.3, subsec. (a)(1).)

7.   See fn. 3, ante.

8.   Citing these two sections Board states in a footnote to its conclusions quoted above:  “This regulation adds nothing to the obligation already imposed by other portions of the Labor Code.”

9.   At the first oral argument in this case counsel for Board disavowed the position that the content of “addresses” as used in the statutory provisions is identical to “current street addresses” in the regulation.   As counsel correctly observed, however, Board's authority to promulgate the regulation does not depend upon section 1157.3 or the identity of the terms.

10.   It may well be that the public interest in an informed electorate is sufficient to require that employees furnish some address at which a labor organization may communicate with them (cf., e.g., N.L.R.B. v. Q–T Shoe Manufacturing Co. (3d Cir.1969) 409 F.2d 1247, 1250;  N.L.R.B. v. J.P. Stevens & Co. (4th Cir.1969) 409 F.2d 1207, 1209–1210;  N.L.R.B. v. Hanes Hosiery Division—Hanes Corporation (4th Cir.1967) 384 F.2d 188, 191, cert. den. 390 U.S. 950, 88 S.Ct. 1041, 19 L.Ed.2d 1141;  N.L.R.B. v. British Auto Parts, Inc. (C.D.Cal.1967) 266 F.Supp. 368, 373, cert. den. 394 U.S. 1012, 89 S.Ct. 1625, 23 L.Ed.2d 39;  Excelsior Underwear, Inc. (1966) 156 N.L.R.B. 1236, 1241–1242), but it is not sufficient to compel an unwilling employee to disclose to ALRB and through it, a campaigning labor organization, the street address of his or her temporary abode and thereby unwillingly suffer a personal confrontation with union organizers on his or her doorstep.

11.   The reference to “petition” derives from the fact that section 20310 deals with employee lists to be filed after the filing of a petition for certification.   In the case of a pre-petition employee list, however, no “petition” has been filed.   We take it that the period referred to with respect to a pre-petition employee list is the payroll period immediately preceding the filing of the notice to organize.

12.   Petitioner in its brief states that the court found that it “substantially complied” with the subpoena.   What the court actually found was that Carian complied with the subpoena insofar as it was able to do so.

13.   The introductory words “Once again” apparently refer to a conclusion found in the recommended decision that respondent Laflin acted in bad faith in dealing with the question of the submission of employee lists to the Board.   The earlier finding was based in part upon the fact that respondent Laflin “consulted an attorney before submitting this second list.”   We are constrained to observe that a person dealing with legal problems arising out of recently enacted legislation and recently promulgated administrative regulations, which, if not properly attended to, may result in serious economic consequences is fully privileged to consult his or her attorney prior to taking action of any kind and that his or her so doing does not give rise to a rational inference that he or she is acting in bad faith.

14.   The record does not support the implication in the ALO's statement that all three camps owned by petitioner had “addresses.”   In connection with the stipulation of the parties concerning the labor camps, it was indicated that camp number 1 is located on Avenue 50 in Coachella, that camp number 3 is located on Jackson Street.   The other camp was located in the town of Mecca, but whether it was located on or near a street the record does not disclose.

KAUFMAN, Associate Justice.

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