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Court of Appeal, Fifth District, California.


Civ. F 003150

Decided: February 21, 1985

Seyfarth, Shaw, Fairweather & Geraldson, Kenwood C. Youmans, Los Angeles, for petitioner. Manuel M. Medeiros, Sol. of the Board, Daniel G. Stone, Chief Deputy Sol., Michael G. Lee, Deputy Sol., Agricultural Labor Relations Board, Sacramento, for respondent. Daniel A. Garcia, Dianna Lyons and Wendy Sones, Sacramento, for real party in interest.


In this case, the Agricultural Labor Relations Board (the ALRB or Board) has conceded that workers were discharged for refusing to comply with an ordinary, facially valid work order, and that refusal to comply with a facially valid work order, while continuing to work, is not “protected” concerted activity under the Agricultural Labor Relations Act (ALRA).   Nevertheless, the Board has ruled that the employer did not have the right to discharge workers who repeatedly refused to follow the work order, and who continued to work on their own terms, because the employer had an illicit motive for promulgating the order in the first instance.

 We hold that an employer has the right to discharge workers who refuse to comply with facially valid work orders, and that workers who wish to rely on the protections of the ALRA must make use of the procedures it recognizes for the resolution of grievances.   In this regard, we recognize an analogy between the employer's right to discharge workers who refuse to comply with a facially valid work order and a long line of cases upholding an employer's right to discharge workers for “partial strikes” and “slowdowns.”   We also distinguish a number of cases where employees have been found to have a right to disregard facially invalid “no solicitation rules.”

In the second part of this opinion, we consider the evidentiary foundation for the Board's determination that this employer had an illicit motive for the work order involved.   Applying established principles of appellate review, we find that this factual finding is not supported by substantial evidence in light of the whole record.   This finding is in agreement with the opinion of the administrative law judge (ALJ) who heard the witnesses below.


Petitioner is a wholesale nursery.   It produces stone fruit trees, roses and other products on a wholesale basis.   This case involves its deciduous trees department.

Wholesale production of fruit trees involves many different operations on an annual cycle.   The trees must be planted, “budded,” “stripped,” “suckered,” cultivated, irrigated, staked and harvested.

Each of these operations must be carried out in a distinctive way to maximize production and efficiency and to avoid needless loss of trees.  “Suckering” is done in the spring.   It involves trimming back the new growth on a tree to make it develop correctly.   In prior years suckering was done by rows, with each worker in a crew working on a row.   While working in rows workers tend to stay together, and can talk and listen to radios while they work.   Other operations, such as harvesting and planting, have traditionally been done “by spaces.”   When an operation is done “by spaces,” the field is divided up by the crew leader, and each worker goes across the field in his space, working up and down the rows in his space on his own.

Working by rows, the workers stay together.

Working by spaces, the workers are separated.

Each method has advantages and disadvantages.   In piece-work operations, when a worker's pay depends on the amount of work done, it is easier to keep track of work done by the row.   In “budding,” for example, workers are paid by the row.   When a field needs to be immediately irrigated, however, it is more efficient to work by spaces because each row must be completed before water can be run into the row, and rows must be irrigated in consecutive blocks.   When workers are working by rows, they may leave pieces incomplete at the end of the day, preventing irrigation of that row and all others farther down the field.   When they work by spaces, each row is completed consecutively across the field, so even if pieces are left, they are in the last work done.   The earlier work results in a section of consecutive rows which are completed and irrigable.   The first rows can be watered then, without waiting for the slower workers to finish their rows.   Also, when working by rows, workers tend to work at the same pace so they can stay together.   When working by spaces, they are already 40 or 50 feet apart, so it is more difficult for them to socialize while they work.   Some operations, like “staking” must be done by rows to avoid dragging stakes across the rows.   Others, like “suckering,” can be done either way.

In April 1981, suckering by spaces was initiated, and done without objection for a time, but the crew in question returned to its practice of working by rows.   Several days later another order to work by spaces was promulgated.   This time, nine workers refused to work by spaces and continued to work by rows.   After three layers of management talked to them, they continued to work by rows, so they were discharged.   This complaint followed.

The ALJ who heard their complaint determined that they were discharged for insubordination, an unprotected activity.   Under his analysis of the case, the company's motivation for the order to work by “spaces” was irrelevant, but he determined that it was not an illicit motive.   He also resolved a separate charge involving “bonus payments” in favor of the employer.

The Board reversed part of the ALJ's decision, holding that the order to work by spaces was motivated by a desire to prevent the workers from discussing unionization, and thus, the order was a violation of Labor Code section 1153, subdivision (a).2  The ALRB reasoned that discharges for violating an order which was made in violation of section 1153, subdivision (a), “necessarily” violated section 1153, subdivisions (a) and (c), and ordered reinstatement with make-whole remedies.3

The Board did not make a finding that the discharged workers' refusal to comply with the order to work “by spaces” was protected conduct.   The Board now admits that the refusal to work by spaces was not protected conduct in itself.   The Board found that there had been substantial protected activity in the preceding months, specifically, the UFW filed notice of intent to take access in January 1981, a union organizer visited with workers on one or two occasions in February and March, and workers discussed unionization during February, March and April.   The most important protected activity noted by the Board was a confrontation on April 17 between two supervisors and about sixty workers over the piece rate pay schedule for the “stripping” operation.   This occurred about two weeks before the discharges.   Two of the dischargees spoke up at that meeting, but neither one was the chief spokesman for the workers.   The dispute was settled, and the workers received a pay increase.   The Board did not find that the discharges were in fact caused by this protected activity and not the later insubordination.   It reasoned that its conclusion regarding the motivation for the work rule “necessarily” led to its legal conclusion regarding the discharges.


 There is a clear line of authority holding that “partial strikes” and other concerted activities short of a protected strike that interfere with production are unprotected.  (See Annot., Interference With Production by Concerted Action of Employees, Short of Formal Strike, As Affected by Labor Relations (1952) 25 A.L.R.2d 315, § 4;  National Labor Relations Bd. v. Montgomery Ward & Co. (8th Cir.1946) 157 F.2d 486, 496–497.)

In Montgomery Ward, supra, three employees in the Kansas City plant refused to process Chicago orders because the Chicago plant was on strike and they thought they were being used to defeat the strike.   They were discharged, and the NLRB's order to reinstate them was reversed.   The court stated:

“It was implied in the contract of hiring that these employees would do the work assigned to them in a careful and workmanlike manner;  that they would comply with all reasonable orders and conduct themselves so as not to work injury to the employer's business;  that they would serve faithfully and be regardful of the interests of the employer during the term of their service, and carefully discharge their duties to the extent reasonably required.   [Citation.]  Any employee may, of course, be lawfully discharged for disobedience of the employer's directions, in breach of his contract.   [Citations.]  While these employees had the undoubted right to go on a strike and quit their employment, they could not continue to work and remain at their positions, accept the wages paid to them, and at the same time select what part of their allotted tasks they cared to perform of their own volition, or refuse openly or secretly, to the employer's damage, to do other work.  [Citations.]


“․ The Board was in error in holding that by refusing to process the Chicago orders these employees engaged in lawful assistance of their union, protected by Section 7 of the Act.   They were not on a strike;  they did not leave the premises nor the employment.   There being an implied obligation on the part of the employees to obey the reasonable instructions of the employer while the employment continued, their refusal to do so was proper ground for their discharge, and having been properly discharged there was no duty on the part of respondent to reinstate them.  [Citations.]”  (157 F.2d 486 at pp. 496–497.)

In Home Beneficial Life Ins. Co. v. National Labor Rel. Bd. (4th Cir.1947) 159 F.2d 280 (cert. den. (1947) 332 U.S. 758, 68 S.Ct. 58, 92 L.Ed. 344), the employees refused to comply with a rule requiring them to report to their offices each day.   They were in the process of collective bargaining and communicated their intent to disobey the rule, but not to strike.   They were discharged and the company refused to reinstate them even after an unconditional offer to return was made.   The NLRB's order finding that these workers were discharged in violation of NLRA section 8(a)(1) and (3) was remanded to determine which ones had gone out on strike and which ones had simply failed to comply with the rule.   The latter group could be legally discharged.

In Liberty Mut. Ins. Co. v. N.L.R.B. (1st Cir.1979) 592 F.2d 595, the discharge of an employee who refused to follow an employer's rules but tried to continue to work on his own conditions was upheld following Home Beneficial and Montgomery Ward.   In Liberty Mut. Ins. Co., supra, as in this case, the motivation for the employee's insubordination may have been his desire to organize a union, but when he went beyond legitimate organizing behavior and did not comply with his employer's work standards he “cast off the protective mantle” of the labor law “and exposed himself to the disciplinary rigors of his employer.”  (592 F.2d at p. 604;  see also C.G. Conn v. N.L.R.B. (7th Cir.1939) 108 F.2d 390.)

The ALRB has also upheld discharges based on unprotected refusals to work overtime (Sam Andrew's Sons (1979) 5 A.L.R.B. No. 68) and an attempt to countermand management directives to work in wet fields (S. & F. Growers (1977) 4 A.L.R.B. No. 58).   It is clear that the worker's concerted refusal to comply with the order to work by spaces was not protected if that refusal is considered in isolation.

The ALRB agrees that employees may be lawfully fired for engaging in concerted activity when the activity is not “protected.”   The Board also agrees that the refusal to comply with the “spaces” order was not protected activity.   It takes the position that this distinction does not matter when the employer has an unlawful motive for making the order.   The rule applied by the ALRB would encourage workers to disregard orders whenever they consider the employer's motive unlawful.   This would lead workers to ignore remedies available under the ALRA in favor of “self help,” subverting the ALRB's mission of supporting peace in the fields.

The Board's decision relies on Republic Aviation Corp. v. Board (1945) 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372, Republic involved the discharge of an employee who violated a “no-solicitation rule” generally prohibiting union solicitation by employees on the employer's premises.   The rule was presumed invalid because it applied to nonwork time.  Republic Aviation held that discharging an employee for violating a presumptively invalid work rule was also discriminatory, in violation of NLRA section 8(a)(3).  (§ 1153, subd. (c).)

Republic Aviation's holding does not reach this case.   Here there was a presumptively valid order which directly involved the employer's operations.   If the order to work by spaces was illegal, it was so only because of the employer's motivation.   This order only controlled the way work was to be done.   It could not affect employees on their own time.   It was not an overbroad restriction on employee's right to organize.   The “spaces” order was not presumptively invalid.   It only controlled employees during a part of their work time and had no effect on their ability to organize during other types of work, at breaks, at lunch or otherwise.   Violating a presumptively valid work order (even when it may turn out to be invalid due to the employer's suspected motive) is quite different from violating a presumptively (and finally) invalid work rule.   When invalidity of the rule turns on facts which may not be known by the employee, like management's motives, permitting such “self help” risks disruption and discharges in cases where the rule or order disobeyed is valid.   When invalidity of the rule is facially apparent, such risks are minimized.

 This distinction is analogous to one employed by the California Supreme Court in injunction cases.   Where an injunction is void for lack of or excess of jurisdiction, one may challenge the injunction by disobedience.   But if the injunction is facially correct and within the court's jurisdiction, contempt may be punished even though the order turns out to have some nonjurisdictional defect.  (In re Berry (1968) 68 Cal.2d 137, 65 Cal.Rptr. 273, 436 P.2d 273.)   Under Republic Aviation, if an employer's order is presumptively (jurisdictionally) invalid, a worker can ignore the order and sue for his resulting discharge on that basis.   If an order is presumptively valid, the worker must comply with the order and challenge it within the system by filing an unfair labor practice charge with the ALRB or by going on strike.   Simply refusing to comply with a presumptively valid order short-circuits the ALRB's mandate to settle agricultural labor disputes peaceably and openly invites escalation of the dispute through discharge.

Texas Instruments, Inc. v. N.L.R.B., supra, 599 F.2d 1067, 1072, does contain language supporting the ALRB's position.   But this language is dicta, and depends on an expansive reading of Republic Aviation Corp., supra:

“If the rule requiring summary discharge for wilful dissemination of ‘strictly private’ material, as applied to employees distributing innocently obtained, classified wage survey data in an organizing leaflet, is held invalid, under § 8(a)(1) of the Act, a discharge based on such rule would be in violation of § 8(a)(3).   See Republic Aviation Corp. v. NLRB, 324 U.S. 793, 805, 65 S.Ct. 982 [989], 89 L.Ed. 1372 (1945).   This is so because the employer's asserted motivation—i.e., enforcement of a rule—must be in support of a rule not prohibited by labor law.   If it is not it could not support a discharge even if the motivation to enforce the rule, a neutral not an anti-union objective, were the employer's only motivation for that discharge.”

This dicta is ambiguous because it refers to “rule[s] not prohibited” without distinguishing rules that are presumptively valid and rules that are facially overbroad.   The context and the citation to Republic Aviation Corp., supra, demonstrate that the “invalidity” mentioned was facial invalidity, not invalidity derived from analysis of the employer's motive in issuing the rule.   The Board did not face the task of assessing motive until it determined that the rule itself was valid.  (Texas Instruments Inc. v. N.L.R.B. (1st Cir.1981) 637 F.2d 822, 827.)

The UFW argues that federal courts have adopted a position like the ALRB's, citing N.L.R.B. v. Porta Systems Corp. (2d Cir.1980) 625 F.2d 399.   But Porta Systems involved a discriminatory pattern of discharges for absenteeism, not a simple nondiscriminatory discharge for violating the contested rule.   There is no evidence of a discriminatory pattern of enforcement in this case.   Everyone who received the order to sucker by spaces and refused to comply with the order was discharged.   No exceptions were made.

The UFW argues that a form of “causation analysis” they find in Superior Farming Company v. Agricultural Labor Relations Board (1984) 151 Cal.App.3d 100, 198 Cal.Rptr. 608 leads to the conclusion that the discharges were illegal because they were caused by protected activity.  Superior Farming, supra, does use an expansive formulation of causal analysis to uphold a Board decision.   It involved a case where a crew leader made an unreasonable mistake.   After conveying his crew's protected request for higher wages, and having it refused, he mistakenly told crew members that they, and he, had been fired.   His mistake was attributed to the employer and this court held that the crew leader's mistake and the discharges that followed, would not have occurred “but for” the crew's protected request for higher wages.  (Id., at p. 116–118, 198 Cal.Rptr. 608.)

The Board, however, has not made a finding that the workers in this case were discharged because of their protected activities.   The last protected activities described in this record occurred over two weeks before these discharges, and these dischargees were not the principal actors at that time.   It would be completely implausible for the Board to find that these discharges were caused by this two-week-old wage dispute when they were precipitated by the worker's direct refusal to follow a supervisor's work order.   The Board has not done so.   The “but for” analysis of causation used in Superior Farming, supra, does not literally apply and has not been applied to the discharges by the board.   If we were to apply it now, we would be making a highly questionable factual finding ourselves, not simply accepting the “plausibility” of those made by the Board.

The UFW and the Board also mischaracterize Anderson Plumbing and Heating Company (1973) 203 N.L.R.B. 18, 83 LRRM 1026.   The UFW argues that the NLRB found that discharges for violating illegally promulgated work rules were also illegal, implying that they established a general rule to that effect.   But Anderson turned on a factual inference in its own special circumstances, not the general rule espoused by the ALRB opinion below.   The employer in Anderson Plumbing briefly posted, then took down, rules that violated section 8(a)(1) of the NLRA.   This step was in retaliation for a pro-union vote by the employees.   Later that day, he refused to allow employees to work because he thought they had joined the union.   He then posted the illegal rules again and allowed the employees to come back to work.   The employees refused to comply with the new rules and were discharged, and all but one were offered reinstatement the next day.   The ALJ found as a matter of fact that the discharges tended to discourage union membership.   The NLRB agreed, but made a point of making this another finding of fact, not a general rule that would make any discharge for violating an illegal rule an automatically illegal discharge.  (203 N.L.R.B. at p. 18, fns. 2, 3.)

The Board justified its failure to find a discriminatory motive for the discharges themselves by mischaracterizing Anderson Plumbing, supra, and two other cases.   These cases, Florida Steel Corp. v. N.L.R.B. (5th Cir.1976) 529 F.2d 1225, and Liberty House Nursing Homes (1979) 245 N.L.R.B. 1194 are characterized by the Board as holding that “where anti-union animus and discriminatory motivation for a rule change are established, discharges for a violation of the new rule are a fortiori violative of the Act.”   But Florida Steel simply finds a no-solicitation rule vague and overbroad (like Republic Aviation, supra) and therefore disapproves a reprimand given to an employee who disobeyed the overbroad rule.   The Florida Steel court, however, approved the employee's discharge for negligent operation of equipment, even though the company admitted that the discharge was based in part on his violation of the illegal no-solicitation rule.  (529 F.2d 1225 at p. 1235.)

Liberty House, supra, is helpful in our analysis because of its contrasting facts and law.   In that case, during protected activity, the worker ultimately discharged told another, apparently antiunion employee, “ ‘well you know, if you don't vote yes for this Union and I do, and they are voted in, and you do something I don't like, I can go over your head and have you fired.’ ”   (Liberty House Nursing Homes, supra, 245 N.L.R.B. at p. 1202.)   The statement was held to be a tolerable part of protected argument.   The employee was discharged solely because of the protected statement.   The issue then became one of determining the tolerable limits of employee misconduct while engaged in protected concerted activity.

 In Liberty House, the discharge was attributed solely to a statement made during protected activity.   In our case the discharge was precipitated by unprotected conduct, and followed several attempts to obtain compliance with the space work order.   So Liberty House cannot support the Board's position in this case.   The employees' recourse to unprotected concerted activity—refusal to comply with a facially valid work order and insistence on continuing work according to their own preferred method—was a patent assumption of management discretion.   The employer might have let the nine employees continue to work rows, perhaps with minimum economic consequences.   However, to do so would be a signal that routine work orders need not be followed no matter how reasonable the orders appear to the employees.   Some abusive employee conduct must be expected and tolerated when it occurs during protected concerted activity, as Liberty House illustrates.   This does not mean that unprotected responses to employer work orders must be similarly tolerated.

 For these reasons we find it inappropriate to apply a “but for” analysis to shield employees from the consequences of their unprotected concerted activity which defies facially valid work directions.



Insofar as the Board decision determines the ALJ properly disposed of the budding crew bonus claim (in favor of Armstrong Nurseries, Inc.), the order is affirmed;  in all other respects it is annulled.


2.   All references will be to the Labor Code unless otherwise noted.

3.   Section 1153, subdivision (a):  “To interfere with, restrain, or coerce agricultural employees in the exercise of the rights guaranteed in Section 1152.”Section 1153, subdivision (c):  “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.”

FOOTNOTE.   See footnote 1, ante.

WOOLPERT, Associate Justice.

GEO. A. BROWN, P.J., and BEST, J., concur.

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