UNITED FARM WORKERS OF AMERICA AFL CIO v. SAM ANDREWS SONS

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Court of Appeal, Second District, Division 7, California.

UNITED FARM WORKERS OF AMERICA, AFL–CIO, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent, SAM ANDREWS' SONS, Real Party in Interest.

B018251.

Decided: April 08, 1987

Daniel A. Garcia and Dianna Lyons, Sacramento, for petitioner. Daniel G. Stone, Sol. of the Bd., and Cathy Christian, Deputy Sol., for respondent. Seyfarth, Shaw, Fairweather & Geraldson, and George E. Preonas, Los Angeles, for real party in interest.

In this case we must decide whether the Agricultural Labor Relations Board (ALRB or Board), although acting reluctantly under the compulsion of the Court's remand order in Sam Andrews' Sons v. Agricultural Labor Relations Bd. (1984) 162 Cal.App.3d 923, 927, 208 Cal.Rptr. 812 (“Andrews I ”), properly imposed limitations with respect to the number of and time when labor union representatives may enter the Lakeview labor camp.   We shall hold that restrictions imposed by the ALRB impinged on constitutionally protected speech rights.

This case arose when the United Farm Workers of America, AFL–CIO (UFW or union) filed an unfair labor practice charge against Sam Andrews' Sons (Andrews or Company), an agricultural grower and owner of the Lakeview labor camp (camp), alleging in pertinent part that Andrews violated section 1153, subdivision (a) of the Agricultural Labor Relations Act (ALRA or Act), by denying union representatives access to employees residing at the camp.   The ALRB ruled against Andrews and ordered the Company, inter alia, to cease and desist from “ ‘preventing, limiting, or restraining any union organizer or agents from entering and remaining on the premises of [the company's] labor camp for the purpose of contacting, visiting or talking to any agricultural employee on the premises.’ ”  (Andrews I, supra, 162 Cal.App.3d at p. 927, 208 Cal.Rptr. 812, quoting from 8 ALRB No. 87).

In Andrews I, Andrews petitioned this Court for review of the Board's order in 8 ALRB No. 87, pursuant to section 1160.8 of the Act.   Division Four of this Court vacated the order insofar as it permitted unrestricted access to the camp, but otherwise affirmed the order and remanded the case.  (Andrews I, supra, 162 Cal.App.3d at p. 938, 208 Cal.Rptr. 812.)   Division Four directed the ALRB on remand, “to reframe its order so as to require reasonable access to the camp, with specific detail as to time and number of organizers.”  (Id., at pp. 937–938, 208 Cal.Rptr. 812.)

Pursuant to the directions of the court in Andrews I, the ALRB on remand issued the modified order (11 ALRB No. 29) disputed herein.   The modified order states that access shall be granted to nonresident union representatives except in three circumstances:  (1) where the number of representatives present in a bunkhouse exceeds one for every ten employees residing therein;  (2) during an eight-hour sleep period, to be designated by the Regional Director;  and (3) where the number of representatives exceeds the number of employees present in the camp.  (11 ALRB No. 29, at pp. 11–12.)

The Union has petitioned for review of the modified order pursuant to section 1160.8 of the Act.

We address the following questions:  (1) whether the UFW waived its right to petition for review by failing to file a timely brief with the ALRB and by failing to address any of the issues before the ALRB on remand;  (2) whether we should reconsider issues decided in Andrews I notwithstanding the rule of law of the case, (3) whether the rule of National Labor Rel. Bd. v. Babcock & Wilcox Co. (1956) 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (“Babcock & Wilcox ”), is applicable to determining the union representatives' right of access to the camp, and (4) whether the Board's time and number restrictions violated the workers' and union representatives' free speech rights under the federal and state constitutions.   For the reasons that follow, we answer questions (1) and (3) in the negative, and questions (2) and (4) in the affirmative.

I

FACTS

The pertinent facts are set forth in Andrews I, from which we quote:

“Andrews, an agricultural employer, has a labor camp surrounded by a chainlink fence.   The compound contains two barracks that are in a separately fenced area.   The barracks house employees during the summer melon harvest and during the fall and spring lettuce harvests.   The entrance to the compound is a gate separating the compound from the parking area.   There is also an equipment storage area surrounded by barbed wire, and a separately fenced kitchen-dining facility.

“Each barrack contains 60 double bunks arranged in rows and divided into cubicles by open plywood dividers.   Each cubicle has four beds in it.   The aisle side of the cubicle is open.   Each barrack has a shower and toilet, and a ‘lounge area,’ containing tables, benches and trash cans.   The residents use the lounge area to play cards, watch T.V., and use a pay phone.

“Breakfast is served from 5:30 a.m. to 6 a.m.   A company lunch wagon makes its rounds to various crews on a staggered basis.   Evening meal is served in the dining facility from 6 p.m. to 6:30 p.m.   The workers go to the barracks, or the company park, and some go to town, although most do not have transportation to get to town.   The park area is primarily used by the company employees (not harvest employees) who live in the trailers, and the park is only rarely used by harvest employees.   However, other employees may use the park.

“In 1979 the Union became the collective bargaining representatives of Andrews' employees.   The company did not enforce its rule prohibiting nonemployees from visiting the barracks compound.   Andrews denied Union representatives access to the workers in the fields after the Union mounted a strike, and the company began to strictly enforce a rule barring visitors from entering the compound.   In 1981 the guards were told to find out to whom visitors wished to speak, to take the named worker to the visitor (assuming the worker wanted to see the visitor) and to let them meet outside the camp.   When the gates were locked, the workers depended on the cooperation of the guards to leave camp.

“Villarino, a Union representative, testified that more than once when he arrived at camp, the gates were locked and no guard was around.   A guardhouse was built in October 1981.

“Early in 1981 camp residents used to talk to UFW representatives through the chain link fence.   After the strike began, the company put up many yards of thick black tarp over the fence, making it impossible for workers and Union people to talk at the fence.   Villarino and other representatives were denied access to the camp.

“During a strike of tractor drivers and irrigation workers, some of the picketers engaged in loud protest activities, honking horns, and other loud disruptive behavior.   After the Union got a temporary restraining order permitting access to the workers in the field, the disruptive incidents by picketers discontinued.

“Villarino believed meeting with workers at the Union hall and during lunch breaks would be inadequate because the lunch breaks were too short and were monitored by company officials, and few employees had transportation to get to the Union hall 30 miles away.  [Fn. omitted.]”  (Andrews I, supra, 162 Cal.App.3d at pp. 927–929, 208 Cal.Rptr. 812.)

II

DISCUSSIONA. Waiver

Upon remand of the case after Andrews I was decided, the Union requested the Board to permit the parties to brief the “entirely new issues not yet argued or briefed during the course of this case or, it seems, any other ․ [concerning the Court's direction that the Board] determine what, if any, ‘reasonable restrictions' are necessary․”

Ironically, the Union did not file a timely brief;  its attorney claimed that she had not been served with notice of the briefing schedule.   The Board did, however, consider the Union's arguments in its motion for reconsideration.   The Board's order denying the motion noted that “the Union has mitigated any prejudice which may have resulted from the service by taking the opportunity to brief the issues in this motion.”

 Andrews contends that the Union waived its right to bring this petition by failing to file a timely brief with the ALRB on remand.   We reject this argument given the fact that the Board considered all of the Union's arguments in the motion for reconsideration.

 Andrews further contends that the Union waived its right to bring this petition by failing to address the issues before the Board on remand.   We disagree.   The argument raised by the Union in its motion for reconsideration was that “absent clear proof that access poses a threat of imminent harm to bona fide employer interests, no Board imposed restrictions are reasonable.”   The Union reasoned that because “Andrews has not demonstrated so much as a bona fide interest, much less an imminent threat of harm to such interest[,] [t]he Board, therefore, should rule that no restrictions are reasonable on the facts of this case.”   We find that the Union's argument squarely addressed the issue before the Board and this Court.   There was no waiver.

B. Law of the Case

Andrews argues that this court should not reconsider the issues already decided in Andrews I.   We disagree.

Our Supreme Court set forth the modern view of the doctrine of the law of the case in England v. Hospital of Good Samaritan (1939) 14 Cal.2d 791, 795, 97 P.2d 813:  “The doctrine of the law of the case is recognized as a harsh one [citation] and the modern view is that it should not be adhered to when the application of it results in a manifestly unjust decision.  [Citation.]  However, it is generally followed in this state.   But a court is not absolutely precluded by the law of the case from reconsidering questions decided upon a former appeal.   Procedure and not jurisdiction is involved.   Where there are exceptional circumstances, a court which is looking to a just determination of the rights of the parties to the litigation and not merely to rules of practice, may and should decide the case without regard to what has gone before.”   Exceptional circumstances do not exist when a court simply disagrees with the prior appellate decision:  “[J]udicial order demands there must at least be demonstrated a manifest misapplication of existing principles resulting in substantial injustice before an appellate court is free to disregard the legal determination made in a prior appellate proceeding.”   (People v. Shuey (1975) 13 Cal.3d 835, 846, 120 Cal.Rptr. 83, 533 P.2d 211;  cited with approval in Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 435, 212 Cal.Rptr. 466, 696 P.2d 1308.)

 We find that exceptional circumstances exist herein.   In our opinion, Andrews I misapplied existing principles by ignoring controlling decisions of the California Supreme Court, resulting in substantial injustice to the speech rights of the workers and the Union representatives.

Andrews I, adhering to Labor Code Section 1148's direction that the ALRB is to follow applicable precedents of the NLRA, applied NLRA precedent for determining work site access (Babcock & Wilcox, supra, 351 U.S. at p. 112, 76 S.Ct. at p. 684) to this case.  (Andrews I, supra, 162 Cal.App.3d at p. 929, 208 Cal.Rptr. 812.)   We find, however, that the Babcock & Wilcox rule is inapplicable to determining the question of residential, nonworking time access, because our Supreme Court has recognized (1) a federal and state constitutional right of access to labor camps (United Farm Workers of America v. Superior Court (William Buak Fruit Co.) (1975) 14 Cal.3d 902, 910, 122 Cal.Rptr. 877, 537 P.2d 1237), and (2) a statutory right of workers to be visited in their homes under the ALRA (Labor Code, § 1152;  Vista Verde Farms v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307, 317, 172 Cal.Rptr. 720, 625 P.2d 263;  Karahadian Ranches, Inc. v. Agricultural Labor Relations Bd. (1985) 38 Cal.3d 1, 9, 210 Cal.Rptr. 657, 694 P.2d 770).

Further, the Board should not have been directed on remand to impose restrictions on access.   While the owner of a labor camp may establish reasonable regulations that are necessary to protect legitimate property interests, Andrews has failed to raise any such legitimate property interests herein.  (Sam Andrews' Sons (1986) 11 ALRB No. 29, at pp. 5–7.)

Significant speech rights arising under the federal and state constitution are at stake.   It is clear under both federal and state law that the workers have a right to invite visitors into their homes, and that labor union representatives have a right to disseminate information to the workers.   In a pre-ALRA decision, the California Supreme Court in United Farm Workers of America v. Superior Court, supra, 14 Cal.3d 902, 122 Cal.Rptr. 877, 537 P.2d 1237, relying on federal precedents, held that a temporary restraining order barring union representatives from entering a migrant labor camp impinged upon First Amendment rights and rights protected under article I, section 2, of the California Constitution: 1  “Many courts have recognized a First Amendment right of access which belongs both to labor camp inhabitants and to union organizers and attorneys who seek to visit them.   We are persuaded by the reasoning of those decisions, and join in their reading of the First Amendment.  (Petersen v. Talisman Sugar Corporation (5th Cir.1973) 478 F.2d 73;  Velez v. Amenta (D.Conn.1974) 370 F.Supp. 1250;  United Farm Workers Union, AFL–CIO v. Mel Finerman Co. (D.Colo.1973) 364 F.Supp. 326;  Franceschina v. Morgan (S.D.Ind.1972) 346 F.Supp. 833;  Folgueras v. Hassle (W.D.Mich.1971) 331 F.Supp. 615;  but cf. In re Asociacion de Trabajadores Agricolas de Puerto Rico (D.Del.1974) 376 F.Supp. 357.)․   A labor housing facility is not, of course, the equivalent of a prison isolation block, impervious to visitation.”  (United Farm Workers of America v. Superior Court, supra, 14 Cal.3d at p. 910, 122 Cal.Rptr. 877, 537 P.2d 1237.)

While Andrews I expressly declined to reach the issue of whether the right to access was constitutionally protected (162 Cal.App.3d at p. 937, 208 Cal.Rptr. 812), that issue has already been decided in United Farm Workers of America v. Superior Court, supra, 14 Cal.3d 902, 122 Cal.Rptr. 877, 537 P.2d 1237, a case not mentioned in Andrews I.   Andrews I also failed to consider whether requiring the Board to impose restrictions on access would impinge on the Union's first amendment rights.   We shall find that restrictions impermissibly impinged on the Union's first amendment rights, because the record fails to establish the need for any restrictions.

Where a federal question arises under the United States Constitution or statutes, “no state court, not even our Supreme Court, can speak finally, and consequently none is a court of last resort.  [Citation.]”  (9 Witkin, Cal.Procedure (3d ed. 1986) Appeal, § 738, p. 708.) 2  We therefore conclude that these property and speech rights issues must be reconsidered notwithstanding Andrews I.

C. The Inapplicability of Babcock & Wilcox to the Determination of Labor Camp Access in California

As we stated above, Andrews I applied the Babcock & Wilcox standard because it was following the applicable precedents of the NLRB as required under Labor Code Section 1148.  (Andrews I, 162 Cal.App.3d at p. 933, 208 Cal.Rptr. 812.)   The Babcock & Wilcox standard requires a court to determine whether the union had other alternative means of communicating with the workers, other than on the employer's property:  “Organization rights are granted to workers by the same authority, the National Government, that preserves property rights.   Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other.   The employer may not affirmatively interfere with organization;  the union may not always insist that the employer aid organization.   But when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize.”  (Babcock & Wilcox, supra, 351 U.S. at p. 112, 76 S.Ct. at p. 684.)  “It is our judgment ․ that an employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer's notice or order does not discriminate against the union by allowing other distribution.   In these circumstances the employer may not be compelled to allow distribution even under such reasonable regulations as the orders in these cases permit.”  (Ibid.)

Applying the principles enunciated above, Andrews I found that the Union was entitled to access to the camp because there were no reasonable alternative means of communication.   The court explained that:  “In view of the company management's failure to respond to three other Board orders, and in view of the management's covering up the premises with tarp to prevent communication through the fence, the union herein has sustained its burden of showing there were no other reasonable, practical and effective alternative methods of communication.”  (162 Cal.App.3d at p. 934, 208 Cal.Rptr. 812.)

But by placing the burden on the Union to justify its need for access, Andrews I squarely contradicted controlling California law.   Although Andrews I correctly states that the Babcock & Wilcox rule was applied in Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 128 Cal.Rptr. 183, 546 P.2d 687, that decision is inapposite because it involved work site, not labor camp access.   Subsequent decisions of the California Supreme Court have clearly established that the rule of Babcock & Wilcox is inapplicable to the determination of labor camp access.

In Vista Verde Farms v. Agricultural Labor Relations Bd., supra, 29 Cal.3d 307, 172 Cal.Rptr. 720, 625 P.2d 263, the Court unequivocally held that labor camp access is statutorily guaranteed under the ALRA.   In its decision, the Court expressed its approval of a host of ALRB rulings that recognized a statutory right of access to labor camps:  “In addition, many ALRB authorities similarly confirm that the labor contractor interfered with the statutorily guaranteed rights of the workers when he barred the union organizers from communicating with such workers in their own homes.   Recognizing that such ‘communication at the homes of employees is not only legitimate, but crucial to the proper functioning of the Act’ (Silver Creek Packing Co. (1977) 3 A.L.R.B. No. 13, p. 4), the ALRB has held that ‘Section 1152 [3 ] guarantees the right of employees to converse with organizers at home, wherever that home is․  If an employee does not wish to speak with an organizer, that is, of course, his or her right.   The owner or operator of a labor camp cannot exercise that right for the worker.’  (Anderson Farms Co. (1977) 3 A.L.R.B. No. 67, pp. 21–22;  Merzoian Brothers Farm Management Co., Inc. [1977], supra, 3 A.L.R.B. No. 62, pp. 3–4;  Silver Creek Packing Co. [1977], supra, 3 A.L.R.B. No. 13;  see also United Farm Workers of America v. Superior Court (Buak Fruit Co.) (1975) 14 Cal.3d 902, 910 [122 Cal.Rptr. 877, 537 P.2d 1237].”  (Vista Verde Farms v. Agricultural Labor Relations Bd., supra, 29 Cal.3d at p. 317, 172 Cal.Rptr. 720, 625 P.2d 263.)

“Indeed, as the ALRB noted in this case:  ‘When an employer, or, as here, an employer's contractor, uses his power as landlord to dictate to employees that they cannot receive union visitors in their own homes, that action is in itself an awesome display of power which cannot but chill enthusiasm for union activity.   The normal effect of such a showing of control over employees' lives is to give workers a sense of futility and thereby restrain the exercise of self-organizational rights in violation of the Act.  [Fn. omitted.]’ ”   (Ibid.)

And more recently, the Supreme Court again reaffirmed its approval of Silver Creek Packing Co., supra, 3 ALRB No. 13, in Karahadian Ranches, Inc. v. Agricultural Labor Relations Bd., supra, 38 Cal.3d at page 8, 210 Cal.Rptr. 657, 694 P.2d 770, stating:  “Section 1152 recognizes the right of workers to be visited by union organizers at their homes, regardless of where their homes are located.”   Although Karahadian involved a coercive surveillance rather than denial of access, the Court noted that the union attorney was “lawfully present at the camp kitchen” (ibid.) at 10 or 10:30 p.m.

 Andrews I failed to consider either Vista Verde Farms or Karahadian Ranches, Inc. in reaching its conclusion that the Babcock & Wilcox standard applies to residential access questions.4  Vista Verde Farms is controlling precedent that we must follow under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.   We conclude therefore, that Andrews I incorrectly applied the Babcock & Wilcox standard to this case.   There is no doubt that the Union has a statutorily guaranteed right of access to the camp under Labor Code section 1152.  (Vista Verde Farms v. Agricultural Labor Relations Board, supra, 29 Cal.3d at p. 317, 172 Cal.Rptr. 720, 625 P.2d 263;  Karahadian Ranches, Inc. v. Agricultural Labor Relations Bd., supra, 38 Cal.3d at p. 8, 210 Cal.Rptr. 657, 694 P.2d 770;  Silver Creek Packing Co., supra, 3 ALRB No. 13, at p. 4.)

D. The Restrictions on Access are Invalid

According to Andrews I, under either National Labor Rel. Bd. v. Lake Superior Lumber Corp. (6th Cir.1948) 167 F.2d 147, or non-NLRA cases finding a First Amendment right of access (Petersen v. Talisman Sugar Corporation, supra, 478 F.2d 73;  United Farm Workers Union, AFL–CIO v. Mel Finerman Co., supra, 364 F.Supp. 326), the right of access is not absolute and is subject to reasonable regulations and rules.  (Andrews I, 162 Cal.App.3d at p. 936, 208 Cal.Rptr. 812.)   While we agree in principle with this broad statement, we part company with Andrews I over its conclusion that “the rules as to what type of access is reasonable is a question for the Board․”  (Ibid.)   Because the Board's previous order had provided for unrestricted access, the court in Andrews I remanded the case with directions to the Board to impose reasonable time, place and number restrictions.   We think this direction was improper.

As we stated previously, the worker's right to entertain visitors in his or her home, and the union representative's right to disseminate information to the workers, are both constitutionally protected (United Farm Workers of America v. Superior Court (William Buak Fruit Co.), supra, 14 Cal.3d 902, 122 Cal.Rptr. 877, 537 P.2d 1237), and statutorily guaranteed (Vista Verde Farms v. Agricultural Labor Relations Bd., supra, 29 Cal.3d at p. 317, 172 Cal.Rptr. 720, 625 P.2d 263).   As the following sections will show, however, the constitutionally protected right of speech is not absolute, for the owner of a farm labor camp is entitled to impose reasonable restrictions that are necessary to protect business interests.   We shall conclude that in this case, there are no facts in the record to support any such restrictions by the employer.   Hence the Board's imposition of restrictions was not only procedurally improper, but also unsupported by the record.   We hold that the restrictions, therefore, impinged on the union's constitutionally protected right of speech.

1. The Union's and the Employees' Speech Rights Are Not Absolute

Article I, section 2, subdivision (a), of the California Constitution states:  “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.   A law may not restrain or abridge liberty of speech or press.”   Our Supreme Court has held that California may provide greater protection than the First Amendment provides in protecting speech and petitioning in shopping centers that are privately owned.  (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910, 153 Cal.Rptr. 854, 592 P.2d 341.)   Nevertheless, the right to speak and petition must be “reasonably exercised.”  (Ibid.)  Robins recognized that the competing interest of the owner to protect property rights entitles the owner to adopt reasonable regulations “to assure that these [speech] activities do not interfere with normal business operations [citation]․”  (Id., at p. 911, 153 Cal.Rptr. 854, 592 P.2d 341.)

We are therefore not persuaded by the Union's argument that only employees may restrict access to the camp.  Franceschina v. Morgan, supra, 346 F.Supp. 833, on which the Union relies, involved access to a camp comprised of one and two room houses and barracks type buildings.   The court concluded that only the workers had a right to limit access:  “In short, the controlling status here is that the migrants are citizens of the United States, residing in their own homes, and are entitled to be treated as such.   By the same token, their would-be visitors have the constitutional right to visit them, subject to the discretion of the migrants and not of the company, its employees, and political auxiliary.   Cf. Martin v. Struthers [319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) ] supra;  Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938).”  (Franceschina v. Morgan, supra, 346 F.Supp. at pp. 838–839.)   We do not think that this blanket statement withstands scrutiny for the following reasons.

Martin v. Struthers, supra, 319 U.S. 141, 63 S.Ct. 862, which was cited in the above quoted passage, concerned the constitutionality of a municipal ordinance prohibiting the door to door distribution of any handbills, circulars or advertisements.   The Supreme Court struck down the ordinance, but clearly indicated that its opinion did not reach reasonable time and manner restrictions:  “Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved.”  (Id., at pp. 146–147, 63 S.Ct. at p. 865, italics added.)

Similarly, Lovell v. Griffin, supra, 303 U.S. 444, 58 S.Ct. 666, which was also cited in Franceschina v. Morgan, supra, 346 F.Supp. at page 839, did not concern reasonable time and manner restrictions.  Lovell dealt with the constitutionality of an ordinance that prohibited “the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the City Manager.”  (Lovell v. Griffin, supra, 303 U.S. at p. 451, 58 S.Ct. at p. 669.)   Thus, as the court noted, there was “no restriction in its application with respect to time or place.   It is not limited to ways which might be regarded as inconsistent with the maintenance of public order or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets.”  (Ibid.)

 We therefore find no support in either Martin v. Struthers, supra, 319 U.S. 141, 63 S.Ct. 862;  Lovell v. Griffin, supra, 303 U.S. 444, 58 S.Ct. 666;  or Franceschina v. Morgan, supra, 346 F.Supp. 833, for the Union's position that an owner may never impose reasonable time and manner restrictions on access.

Moreover, Folgueras v. Hassle, supra, 331 F.Supp. 615, which is cited in Franceschina v. Morgan, supra, 346 F.Supp. at page 839, and which is also relied on herein by the Union, is inapposite, at least with respect to the record in this case as it now stands.  Folgueras found that the labor camp residents were “tenants” under Michigan law, and that their “tenancy entitles them, their guests, and representatives of assistance organizations to full rights of ingress and egress to and from their dwellings.”  (Folgueras v. Hassle, supra, 331 F.Supp. at p. 624.)   The court reasoned that “One of the rights of tenancy with which the landlord may not interfere is the right to invite and associate with guests of the tenant's own choosing.”  (Id., at p. 625.)   But in Folgueras, the housing at issue consisted not of barracks, as in this case, but of “approximately 220 dwelling units, each 12 x 12 feet in dimension.”  (Folgueras v. Hassle, supra, 331 F.Supp. at p. 617.)   And unlike our case, there the record supported the factual finding that, “Once the migrant reaches the camp he takes exclusive possession of the dwelling so long as he works for the grower ․ Garza specifically told his crew this and Hassle said it was true in his deposition.”  (Id., p. 624.)

We are not prepared to adopt the Union's position that as a matter of law, based upon the record before us, the inhabitants of the Lakeview labor camp are “tenants” and thus entitled to unrestricted rights of ingress and egress.   We disagree with the Union's argument that California law compels this conclusion.   None of the authorities cited by the Union are on point.   Vargas v. Municipal Court (1978) 22 Cal.3d 902, 150 Cal.Rptr. 918, 587 P.2d 714, concerned an unlawful detainer action brought by an employer to evict two worker/tenants and their three children from a single family dwelling;  it obviously did not concern reasonable time and manner rules of a communal bunkhouse.   Similarly, Health and Safety Code section 17031.5 applies only to persons “operating a labor camp consisting only of permanent housing or permanent housing units within a labor camp”;  the term “permanent housing” refers to “single-family detached dwellings, mobile homes, [and] manufactured homes․”  (Health & Saf.Code, § 17010, subd. (d).)  And the Union's reliance on a footnote in Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 771–772, footnote 25, 195 Cal.Rptr. 651, 670 P.2d 305, is equally misplaced.   That footnote discusses the unrelated issue of the Board's power to enjoin the unfair practice of a retaliatory eviction brought by the owner in an attempt to combat or punish activities protected by the ALRA.  (Ibid.)

We therefore conclude that as a general rule, the privacy rights of the workers herein are not absolute.

2. The Owner, and not the Board, May Impose Reasonable Restrictions Necessary to Protect Business Interests

We do not believe that the authorities cited in Andrews I support the proposition that the ALRB is the proper entity to create, in the first instance, reasonable restrictions on access.   A careful reading of National Labor Rel. Bd. v. Lake Superior Lumber Corp., supra, 167 F.2d 147, a case involving work site access, reveals that it was not the NLRB who created the restrictions under review therein.  Lake Superior Lumber simply reaffirmed the principle that under the NLRA, the owner may impose reasonable restrictions on access to the work site, subject, of course, to review by the NLRB and the courts:  “The Board recognized in the present case, as is also recognized by the decisions above referred to, that such right [of access to an employer's property for the purpose of exercising rights guaranteed by the NLRA] of an employee or a union representative is not unlimited.   Reasonable rules by the employer limiting the exercise of this right, which are necessary in order to maintain production or discipline, will be upheld.”  (Id., at p. 151, italics added.)

Similarly, Petersen v. Talisman Sugar Corporation, supra, 478 F.2d 73, fails to lend support to the theory that the Board is the proper entity to create restrictions on access.   To the contrary, Petersen stands for the principle that the owner of a labor camp may impose reasonable restrictions necessary to protect its business interests:  “While we hold that Talisman must grant the plaintiffs access to the migrants in the labor camp, we nevertheless observe that the owner-employer may establish reasonable rules for granting access to prevent unnecessary interference with its business activities.”   (Id., at p. 82, italics added.)

Nor do we believe that United Farm Workers Union, AFL–CIO v. Mel Finerman Co., supra, 364 F.Supp. 326, adds any support to Andrews I's conclusion that the Board may impose restrictions on access.   In Finerman the court, without any citation to authority, imposed restrictions that it considered necessary to protect the competing interests of (1) the owner's right to maintain a labor camp, (2) the residents' right to be free of invasions of their privacy, and (3) the union's right to communicate with the residents.   Among other things, Finerman denied access to the bunkhouse in order to protect the privacy of the workers who had not invited the union representatives into the bunkhouse, despite the fact that the workers were not parties in the action.  (Id., at p. 329.)   It is clear under California law, however, that others cannot raise the privacy rights of the workers in order to justify restrictions on access.  “ ‘If an employee does not wish to speak with an organizer, that is, of course, his or her right.   The owner or operator of a labor camp cannot exercise that right for the worker.’   [Citations.]”  (Vista Verde Farms v. Agricultural Labor Relations Bd., supra, 29 Cal.3d at p. 317, 172 Cal.Rptr. 720, 625 P.2d 263.)

3. The Record in This Case Fails to Demonstrate That Restrictions Are Necessary

While reasonable restrictions on access to the work site during working hours may be necessary to protect the owner's business interests, restrictions on access to the home during nonworking hours are not readily justifiable, wherever the home may be located.   Our Supreme Court in Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at p. 405, footnote 6, 128 Cal.Rptr. 183, 546 P.2d 687, cited with approval Republic Aviation Corp. v. National Labor Relations Board (1945) 324 U.S. 793, 803–804, footnote 10, 65 S.Ct. 982, 988, footnote 10, 89 L.Ed. 1372, for the principle that such restrictions on access during nonworking hours are presumptively invalid:  “ ‘[T]ime outside working hours, whether before or after work, or during luncheon or rest periods, is an employee's time to use as he wishes without unreasonable restraint, although the employee is on company property.   It is therefore not within the province of an employer to promulgate and enforce a rule prohibiting union solicitation by an employee outside of working hours, although on company property.   Such a rule must be presumed to be an unreasonable impediment to self-organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline.’ ”

And as the Board stated in Merzoian Brothers Farm Management Company, Inc. supra, 3 ALRB No. 62, at page 4:  “The right of employees who are residents of a labor camp to receive visitors is akin to the rights of a person in his own home or apartment.   The owner or operator of a labor camp cannot exercise for the worker his right not to receive visits from union organizers.   Unlike our dissenting colleague, we recognize that accommodation must be made for the rights of not just the owner and the organizer, but also for the tenant who has a basic right to control his own home life.   It is our duty to balance these rights and a heavy burden will lie with the owner or operator of a camp to show that any rule restricting access does not also restrict the rights of the tenant to be visited or have visitors.”

 Here, the Board on remand found that Andrews' “proposed restrictions on labor camp access [5 ] do not even purport to be ‘necessary in order to maintain production or discipline.’ ”  (Sam Andrews' Sons, 11 ALRB No. 29, at p. 6.)   Andrews does not dispute this factual finding.6

We conclude that the Board, having found that none of Andrews' proposed restrictions were justifiable, should have reinstated its unrestricted access rule.   As the Board stated in its supplemental order:  “Lack of specific limitations [by the Board] as to time, place and number of organizers would clearly not operate to allow workers or union organizers to commit access abuses presenting actual threats to the property or operations of the employer or the personal property or privacy of the camp tenants.   Coercive tactics by visiting union organizers would remain subject to unfair labor practice charges and if not otherwise subject to this Board's exclusive remedial jurisdiction (see section 1160.9), to the full panoply of civil and criminal remedies.”  (Sam Andrews' Sons, supra, 11 ALRB No. 29, at pp. 5–6.)

DISPOSITION

The modified order of the Board (11 ALRB No. 29) is vacated.   The case is remanded and the Board is directed to reinstate its previous order permitting unrestricted access to the camp.   Each party is to bear its own costs.

FOOTNOTES

1.   United Farm Workers of America v. Superior Court, supra, 14 Cal.3d at p. 909, fn. 6, 122 Cal.Rptr. 877, 537 P.2d 1237.

2.   Petitions for hearing by the Union and the ALRB were denied in Andrews I, 162 Cal.App.3d at p. 938, 208 Cal.Rptr. 812.   While many appellate courts have found the denial of review to be significant (see, e.g., cases cited in 9 Witkin, Cal.Procedure, supra, Appeal, § 775, pp. 743–744), it has no weight when, as in this case, the appellate opinion is in conflict with the law as stated by the Supreme Court:  “Preliminarily we declare that our refusal to grant a hearing in a particular case is to be given no weight insofar as it might be deemed that we have acquiesced in the law as enunciated in a published opinion of a Court of Appeal when such opinion is in conflict with the law as stated by this court.   Our statements of law remain binding on the trial and appellate courts of this state [citations] and must be applied wherever the facts of a case are not fairly distinguishable from the facts of the case in which we have declared the applicable principle of law.   Our refusal to grant a hearing in any given case must not be deemed a sub silentio overruling of our prior decisions.”  (People v. Triggs (1973) 8 Cal.3d 884, 890–891, 106 Cal.Rptr. 408, 506 P.2d 232 disapproved on another point in People v. Lilienthal (1978) 22 Cal.3d 891, 896, 150 Cal.Rptr. 910, 587 P.2d 706.)

3.   Labor Code section 1152 provides in pertinent part:  “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities․”Labor Code section 1153 provides in relevant part that “[i]t shall be an unfair labor practice for an agricultural employer to [inter alia] ․ interfere with, restrain, or coerce agricultural employees in the exercise of the rights guaranteed in Section 1152.”

4.   Andrews I cited Vista Verde Farms, but solely for the principle that the owner of a labor camp cannot raise the workers' right to privacy as a justification for restricting access:  “The owner or operator of a labor camp cannot exercise the employees' rights for them if the employee does not wish to speak to a union representative.  (Vista Verde Farms v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307, 317 [172 Cal.Rptr. 720, 625 P.2d 263].)”  (Andrews I, supra, 162 Cal.App.3d at p. 937, 208 Cal.Rptr. 812.)

5.   The proposed restrictions, in part:  (1) limited access from 5:00 to 7:00 p.m.;  (2) limited access to the recreation park immediately adjacent to camp facilities and camp kitchen, and excluded representatives from the camp barracks;  (3) limited numbers to one union representative for each fifteen residents present at the time access is sought;  (4) required union representatives to identify themselves to Andrews or its agent, and to wear badges;  (5) prohibited certain disruptive conduct;  and (6) required written notice to Andrews of intent to seek access and required daily notice to Andrews' designated representatives before actually taking access.

6.   Andrews, while contending that the Board's restrictions should be affirmed as consistent with the law allowing owners to impose reasonable restrictions, admits that it would have preferred the Board to have left the matter of creating restrictions to itself, subject to the collective bargaining process.

THOMPSON, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.