TEX CAL LAND MANAGEMENT INC v. UNITED FARM WORKERS OF AMERICA AFL CIO

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Court of Appeal, Fifth District, California.

TEX-CAL LAND MANAGEMENT, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest.

Civ. 3395.

Decided: February 21, 1978

Joseph Herman, George E. Preonas, Bette Bardeen, Karen Garver, Keith A. Hunsaker, Jr., Seyfarth, Shaw, Fairweather & Geraldson, Los Angeles, for petitioner. Harry J. Delizonna, Gen. Counsel, Manuel M. Medeiros, Davis, Marian Kennedy, Staff Counsel, Edwin F. Lowry and Gary Williams, Legal Counsel, Sacramento, for respondent. Jerome Cohen, Sanford N. Nathan, Thomas Dalzell, III, Deborah Wiener Peyton, W. Daniel Boone, Glenn Rothner, E. Michael Heumann, II, Linton Joaquin, Salinas, for real party in interest.

OPINION

INTRODUCTION

This review has its genesis in events which occurred at petitioner's agricultural properties in Kern County between September 15, 1975, and October 3, 1975. The United Farm Workers of America, AFL-CIO (UFW), filed several unfair labor practice charges against petitioner with the Agricultural Labor Relations Board (Board) alleging that petitioner had denied access to UFW organizers on several occasions, had assaulted organizers lawfully attempting to take access to petitioner's property and had included certain employees in a layoff because of their support for the UFW union. Four of the charges were consolidated into a complaint issued by the Board's Fresno regional director on November 7, 1975. A hearing was held before an administrative law officer (ALO) of the Board on December 1 through December 4, 1975.

On February 11, 1976, the ALO issued his decision and recommendation to the Board finding that petitioner had committed various unfair labor practices and had not committed others. Both petitioner and the general counsel for the Board filed exceptions to the ALO's decision. On February 15, 1976, the Board issued its decision adopting the ALO's findings, conclusions, and recommendation in part and overruling them in part. Based upon its findings, the Board ordered petitioner to cease and desist from engaging in the unfair labor practices found to have occurred and ordered petitioner to take certain affirmative actions to remedy the effects of its unlawful conduct.

Before we can review the merits of the Board's order, we must decide two fundamental issues going to the very heart of the agricultural labor relations law: (1) the constitutionality of the adjudicative powers vested in the Board by virtue of Labor Code section 1160.3, and (2) the constitutionality and nature of the judicial review of Board orders provided by Labor Code section 1160.8. Because these are questions of first impression, an extended discussion is called for.

CONSTITUTIONALITY OF THE ADJUDICATIVE POWERS OF THE BOARD

The Agricultural Labor Relations Act (ALRA) (Lab. Code, s 1140 et seq.) is a legislative attempt to regulate labor-management relations at California farms in much the same way as the National Labor Relations Act (NRLA) (29 U.S.C. s 141 et seq.) governs its industrial counterparts. The ALRA is a comprehensive labor relations statute which seeks “. . . to ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations” and “. . . is intended to bring certainty and a sense of fair play to a presently unstable and potentially volatile condition in the state” (Stats.1975 (Third Ex. Sess.) ch. 1, s 1, p. 4013).

Labor Code section 1140.2 expresses the policy behind the act:

“It is hereby stated to be the policy of the State of California to encourage and protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing, to negotiate the terms and conditions of their employment, and to be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. For this purpose this part is adopted to provide for collective-bargaining rights for agricultural employees.”

The Legislature modeled the ALRA on the NLRA. The ALRA requires the Board to follow “applicable precedents” of the NLRA (Lab. Code, s 1148). Chapter 2 of the California act creates the Board. Chapter 6 empowers the Board to adjudicate claims of unfair labor practices. Section 1160.2 authorizes the Board to issue complaints stating charges; the person charged is entitled to file an answer and appear in person and give testimony. The Board may take further testimony or hear argument (Lab.Code, s 1160.3). If the preponderance of the testimony indicates that the charge is true, the Board is to state its findings of fact and issue a remedial order (id.).1

It is clear from the provisions of chapter 6 that the Board is empowered to act as a judicial tribunal so far as its right to adjudicate agricultural labor disputes. Its findings are like those of a court. (Cf. People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 632, 268 P.2d 723; Southern Calif. Edison Co. v. Railroad Com. (1936) 6 Cal.2d 737, 749, 59 P.2d 808.) The specified procedure, the determination of controverted facts between private litigants, and the decision based thereon all underscore the judicial character of the Board. (Cf. People v. Western Air Lines, Inc., supra, 42 Cal.2d at p. 631, 268 P.2d 723; Pacific Telephone, etc., Co. v. Eshleman (1913) 166 Cal. 640, 650, 137 P. 1119.)

The California Constitution provides:

“The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” (Art. III, s 3.)

“The judicial power of this State is vested in the Supreme Court, courts of appeal, superior courts, municipal courts, and justice courts. All except justice courts are courts of record.” (Art. VI, s 1.)

Under these sections the Legislature is powerless, in the absence of a constitutional provision authorizing the same, to confer judicial functions upon a statewide administrative agency. (Standard Oil Co. v. State Board of Equalization (1936) 6 Cal.2d 557, 559, 59 P.2d 119; Laisne v. Cal. St. Bd. of Optometry (1942) 19 Cal.2d 831, 834, 123 P.2d 457.) Thus, only a constitutionally authorized administrative agency can exercise judicial power. We therefore must look to the state Constitution to see if the Legislature was authorized to create the Board and to vest it with judicial power.

We find such authority in article XIV, section 1. It provides: “The Legislature may provide for minimum wages and for the general welfare of employees and for these purposes may confer on a commission legislative, executive, and judicial powers.” (Emphasis added.) This provision seems clear and unambiguous. It literally authorizes the Legislature to enact any law which it seems necessary for the general welfare of employees a carte blanche grant of power over employees in the context of employment relations in California. Since it cannot be disputed that the collective bargaining purpose of the ALRA fits squarely within the “general welfare” language of the amendment, this should end the constitutional inquiry.

Petitioner, however, challenges this interpretation of article XIV, section 1, by arguing that the history of the amendment shows that the framers intended only to give the Legislature power to authorize a commission to enact minimum wage laws and to regulate hours and conditions of work and did not intend to confer authority on the Legislature to enact laws pertaining to self-representation and collective bargaining by employees. In short, petitioner asserts that the ALRA is outside the original intent of the framers of article XIV, section 1.

Article XIV, section 1, was enacted in 1970 as a revision of former article XX, section 171/2 which provided:

“The Legislature may, by appropriate legislation, provide for the establishment of a minimum wage for women and minors and may provide for the comfort, health, safety and general welfare of any and all employees. No provision of this Constitution shall be construed as a limitation upon the authority of the Legislature to confer upon any commission now or hereafter created, such power and authority as the Legislature may deem requisite to carry out the provisions of this section.” (Emphasis added.)

Article XX, section 171/2 was adopted in 1914. The reasons for its adoption are set forth in the California Constitutional Revision Commission Background Study No. 3, October 1968, at page 8, as follows:

“In 1913 a statute was passed in California creating the Industrial Welfare Commission. There were indications that the Commission would recommend minimum wages for women and children. Concern arose as to the constitutionality of the minimum wage provision, probably as conflicting with the article IV special law provisions and as contrary to the rule against delegation of legislative or judicial power. A number of other states had enacted somewhat similar legislation which was being tested in the courts. To assure that the minimum wage provision would not conflict with the Constitution this Section was placed on the ballot and adopted by the electors in 1914.”

The 1914 ballot literature shows that article XX, section 171/2 was intended by the electors to give constitutional authority to the Legislature to enact laws pertaining to wages paid, hours worked, conditions of work, and the general welfare of the women and children employed in industry.

In 1970 as the result of the work of the Constitutional Revision Commission, article XX, section 171/2 was reworded without change in meaning other than to extend the benefits of the amendment to all employees in California. Finally, in 1976 article XX, section 171/2 was renumbered article XIV, section 1, and relocated under a new title, “Labor Relations.”

From the history of the amendment, it is fairly certain that the framers did not contemplate that the amendment would be used by the Legislature some 60 years later as a springboard for the enactment of a far-reaching agricultural labor relations law giving farm workers collective bargaining rights and creating an administrative board having power to adjudicate labor disputes between workers and their employers. From this fact, petitioner argues that the ALRA is outside the amendment, i. e., that we must limit the broad language of the amendment to the narrow purpose of the framers in 1914. Petitioner's contention must fail.

When the explicit meaning of language used in a constitutional provision is broader (i. e., more extensive) than the actual intent of the framers of the provision, we must accept the explicit meaning of the language used. This conclusion necessarily follows from the fundamental principle that in construing a constitutional provision “we may not be governed by what the framers of the amendments meant to say. We are of necessity controlled by what they did say.” (Pacific Telephone, etc., Co. v. Eshleman, supra, 166 Cal. 640, 657, 137 P. 1119, 1124.) “(W)here a constitutional provision is so clear and unambiguous as to leave no doubt as to its meaning, the courts are not at liberty to alter the meaning so expressed by resort to other considerations, and the intent of the people in adopting the provision, which is necessarily the governing factor, must be determined solely by the language they have used.” (Emphasis added. Western Metal Supply Co. v. Pillsbury (1916) 172 Cal. 407, 420, 156 P. 491, 497 (conc. opn. of Angellott, J.).)

When the framers included the phrase “and general welfare of any and all employees” in conjunction with the authority to enact laws pertaining to “minimum wages” and for the “comfort, health, safety” of employees, the door was opened to the Legislature to enact any law which it deemed to be of benefit to employees. Just as the amendment's language cannot be restricted to industrial employees to the exclusion of agricultural employees, it cannot be restricted to wages, hours, and conditions of work to the exclusion of self-representation and collective bargaining rights of employees. After all, a primary goal of collective bargaining is to improve wages, hours, and conditions of work.

Another fundamental rule is that constitutional provisions must receive a liberal, practical, common-sense construction and where possible should be construed to meet changed conditions and the growing needs of the people. (Los Angeles Met. Transit Authority v. Public Util. Com. (1963) 59 Cal.2d 863, 869, 31 Cal.Rptr. 463, 382 P.2d 583.) “ ‘A constitution is intended to meet and be applied to any conditions and circumstances as they arise in the course of the progress of the community. The terms and provisions of constitutions are constantly expanded and enlarged by construction to meet the advancing affairs of men. While the powers granted thereby do not change, they do apply in different periods to all things to which they are in their nature applicable.’ ” (People v. Western Air Lines, Inc., supra, 42 Cal.2d 621, 635, 268 P.2d 723, 731.)

In Home Building & Loan Assn. v. Blaisdell (1934) 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, the United States Supreme Court was faced with a Minnesota mortgage moratorium law which provided that the state courts on application of the mortgagor could extend the redemption period after judicial foreclosure. The mortgagee contended that this law interfered with the obligation of the mortgage contract in violation of article I, section 10, of the United States Constitution. In upholding the constitutionality of the state statute, the Supreme Court said:

“When the provisions of the Constitution, in grant or restriction, are specific, so particularized as not to admit of construction, no question is presented. . . . But, where constitutional grants and limitations of power are set forth in general clauses, which afford a broad outline, the process of construction is essential to fill in the details. That is true of the contract clause. The necessity of construction is not obviated by the fact that the contract clause is associated in the same section with other and more specific prohibitions.” (Id. at pp. 426-427, 54 S.Ct. at p. 235.)

“It is no answer to say that this public need was not apprehended a century ago, or to insist that what the provision of the Constitution meant to the vision of that day it must be to the vision of our time. If by the statement that what the Constitution meant at the time of its adoption it means to-day, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning: ‘We must never forget, that it is a constitution we are expounding’ (McCulloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579); ‘a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs' (citation). When we are dealing with the words of the Constitution, said this Court in Missouri v. Holland (252 U.S. 416, 433, 40 S.Ct. 382, 383, 64 L.Ed. 641) (citation) ‘we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters . . . . The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.’ ” (Id. at pp. 442-443, 54 S.Ct. at p. 242.) (Original emphasis.)

We learn from these cases that regardless of the actual intent of the framers in 1914, we must broadly construe the language of article XIV, section 1, in the light of the social conditions of today. The Legislature's recognition of the need “. . . to ensure peace in the agricultural fields” and to bring “stability in labor relations” by giving collective bargaining rights to farm workers must be deemed to be within the scope of the amendment. Any other interpretation would render the “general welfare” phrase meaningless; this we cannot do because we are required to give full force and effect to every portion of a constitutional provision. (Smith v. State Board of Control (1932) 215 Cal. 421, 429, 10 P.2d 736; In re Quinn (1973) 35 Cal.App.3d 473, 482, 110 Cal.Rptr. 881.)

Two other well-settled rules of constitutional construction support our interpretation of article XVI, section 1.

First, all intendments favor the exercise of the Legislature's plenary authority. In Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 97 Cal.Rptr. 1, 488 P.2d 161, the Supreme Court examined the 1969 Health Facility Construction Loan Insurance Law, which provided insurance for construction loans for hospitals. The director of public health had refused to enforce the new law, claiming that it violated Constitution article XVI, section 1, which limited the permissible methods of incurring a state debt in excess of $300,000. The court rejected the contention that the Legislature was not entitled to construe the “insure or guarantee” language in the constitutional provision on which the legislation was based (art. XIII, s 21.5, repealed in 1974), as permitting the issuance of debentures in the amount of the unpaid loan balance on default. In reaching its conclusion the Supreme Court stated, “ ‘If there is any doubt as to the Legislature's power to act in any given case, the doubt should be resolved in favor of the Legislature's action. Such restrictions and limitations (imposed by the Constitution) are to be construed strictly, and are not to be extended to include matters not covered by the language used.’ (Citations.) Conversely, a constitutional amendment removing those restrictions and limitations should, in cases of doubt, be construed liberally ‘in favor of the Legislature's action.’ ” (Emphasis added. Id. at p. 691, 97 Cal.Rptr. at p. 5, 488 P.2d at p. 165.)

Second, there is a strong presumption in favor of the Legislature's interpretation of a provision of the Constitution. In San Francisco v. Industrial Acc. Com. (1920) 183 Cal. 273, 279, 191 P. 26, 28, it is said:

“(W)here a constitutional provision may well have either of two meanings, it is a fundamental rule of constitutional construction that, if the legislature has by statute adopted one, its action in this respect is well nigh, if not completely, controlling. When the legislature has once construed the Constitution, for the courts then to place a different construction upon it means that they must declare void the action of the Legislature. It is no small matter for one branch of the government to annul the formal exercise by another and coordinate branch of power committed to the latter, and the court should not and must not annul, as contrary to the Constitution, a statute passed by the Legislature, unless it can be said of the stature that it positively and certainly is opposed to the Constitution. This is elementary. But plainly this cannot be said of a statute which merely adopts one of two reasonable and possible constructions of the Constitution.”

Although more often than not the assertion of judicial power by an administrative agency is explicitly authorized by a constitutional provision (e. g., art. XX, s 22 (Dept. of Alcoholic Beverage Control); art. XII, s 1 (P.U.C.)), this need not be the case. A constitutional provision can leave for the Legislature the task of creating an agency to effectuate its mandate. (E. g., Workers' Comp. Appeals Bd., created by art. XIV, s 4, and Lab. Code, s 111; see Marcus v. Workmen's Comp. Appeals Bd. (1973) 35 Cal.App.3d 598, 602, 111 Cal.Rptr. 101; see also Kleps, Certiorarified Mandamus: Court Review of California Administrative Decisions (1939-49) 2 Stan.L.Rev. 285, 293.)

Article XIV, section 1, is such a provision. It created no agency to implement it but left that task to the Legislature's discretion. To this end the Department of Industrial Relations was created, empowered to assist the United States Department of Labor in enforcing minimum wage laws (Lab. Code, s 50.6) and to “foster, promote, and develop the welfare of the wage earners of California, to improve their working conditions, and to advance their opportunities for profitable employment.” (Lab. Code, s 50.5.) The judicial function of the Division of Industrial Accidents (formerly Industrial Accident Commission) has been upheld under this provision for cases involving an employment relation (see Pacific G. & E. Co. v. Industrial Acc. Com. (1919) 180 Cal. 497, 501, 181 P. 788). Therefore, it follows that the Legislature is also authorized by the same provision to create the Board.

THE CONSTITUTIONALITY AND NATURE OF JUDICIAL REVIEW UNDER LABOR CODE SECTION 1160.8

Labor Code section 1160.8 provides in pertinent part:

“Any person aggrieved by the final order of the board granting or denying in whole or in part the relief sought may obtain a review of such order in the court of appeal having jurisdiction over the county wherein the unfair labor practice in question was alleged to have been engaged in, or wherein such person resides or transacts business, by filing in such court a written petition requesting that the order of the board be modified or set aside. Such petition shall be filed with the court within 30 days from the date of the issuance of the board's order. Upon the filing of such petition, the court shall cause notice to be served upon the board and thereupon shall have jurisdiction of the proceeding. The board shall file in the court the record of the proceeding, certified by the board within 10 days after the clerk's notice unless such time is extended by the court for good cause shown. The court shall have jurisdiction to grant to the board such temporary relief or restraining order it deems just and proper and in like manner to make and enter a decree enforcing, modifying and enforcing as so modified, or setting aside in whole or in part, the order of the board. The findings of the board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall in like manner be conclusive.

“. . .

“If the time for review of the board order has lapsed, and the person has not voluntarily complied with the board's order, the board may apply to the superior court in any county in which the unfair labor practice occurred or wherein such person resides or transacts business for enforcement of its order. . . .”

Having determined that the Board is a constitutional agency, it follows that it is permissible for the Legislature to vest review jurisdiction in the Court of Appeal rather than in the superior court. Similar schemes of judicial review have been upheld with respect to decisions of other constitutional agencies. (See Loustalot v. Superior Court (1947) 30 Cal.2d 905, 186 P.2d 673; Pacific Telephone, etc., Co. v. Eshleman, supra, 166 Cal. 640, 137 P. 1119; Dept. of Alcoholic Bev. Control v. Superior Court (1968) 268 Cal.App.2d 67, 73 Cal.Rptr. 780.) The rationale for these decisions is that the status of these agencies as special judicial tribunals avoids the need for superior court consideration prior to review in the Court of Appeal. (See Kleps, Certiorarified Mandamus Reviewed: The Courts and California Administrative Decisions (1949-59) 12 Stan.L.Rev. (1960) p. 554.) It also follows that the “substantial evidence” standard of review provided in section 1160.8 is constitutionally valid. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 35, 112 Cal.Rptr. 805, 520 P.2d 29; Board of Trustees v. Munro (1958) 163 Cal.App.2d 440, 445, 329 P.2d 765; 2 Cal.Jur.3d, Administrative Law, s 274, pp. 524-525.)2

The next issue is the nature of the review provided by Labor Code section 1160.8. The jurisdiction of the courts of this state is limited by the California Constitution; the Legislature is without power to enlarge or abridge these limitations. (See Pacific Telephone, etc., Co. v. Eshleman (1913) 166 Cal. 640, 652, 137 P. 1119.) The federal Constitution, however, poses no such constraint. (See U.S.Const., art. III, s 1; art. I, s 8.)

Under the California Constitution, the Courts of Appeal are authorized to exercise appellate jurisdiction in appeals from judgments of the superior courts and in other causes prescribed by statute (art. VI, s 11). Courts of Appeal also are authorized to exercise original jurisdiction in habeas corpus proceedings and proceedings for “extraordinary relief in the nature of mandamus, certiorari, and prohibition.” (Cal.Const., art. VI, s 10.)3 “Original” jurisdiction means the initiation of a proceeding in an appellate court as opposed to the review of a cause initiated in a lower court. Article VI, section 10 makes it clear that all other forms of original jurisdiction are constitutionally vested in the superior courts, except those causes given by statute to municipal and justice courts. (See Judicial Council of Cal., Annual Rep. (1967) p. 75.)

Also of importance is California Constitution article VI, section 14, which requires that “(d)ecisions of the . . . courts of appeal that determine causes shall be in writing with reasons stated.” If we conclude that the petition for review is in the nature of a writ of review, the writ is discretionary and may be denied without an opinion. In this situation, the order of denial is not a decision of a “cause” within the meaning of article VI, section 14. Only when the appellate court issues an alternative writ or order to show cause does the matter become a “cause” which must be decided “in writing with reasons stated.” (See People v. Medina (1972) 6 Cal.3d 484, 490, 99 Cal.Rptr. 630, 492 P.2d 686; Funeral Dir. Assn. v. Bd. of Funeral Dirs. (1943) 22 Cal.2d 104, 106, 136 P.2d 785; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, ss 492, 493, pp. 4443-4444.)

The drafters of section 1160.8 copied its language almost verbatim from the federal statute governing review of orders of the NLRB (29 U.S.C., s 160, subd. (f)). There are, however, several important differences between the California and federal statutes. First, under the California statute the petition for review must be filed within 30 days of entry of the Board's order, thereby evidencing a legislative intent to expedite the review. Under the federal statute, there is no time limit for filing a petition for review. This difference may well stem from the Legislature's awareness of the difference between the agricultural and industrial labor settings. (See Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 414-417, 128 Cal.Rptr. 183, 546 P.2d 687.)

Second, there is no provision expressly authorizing the Board to seek enforcement of its orders from the Court of Appeal as in the federal statute. (Cf. Lab. Code, s 1160.8 with 29 U.S.C., s 160, subd. (e).) The only provision in the California statute permitting the Board to seek enforcement of its orders is for enforcement in the superior court “(i)f the time for review of the board's order has lapsed.” (Lab. Code, s 1160.8.) However, when a party aggrieved by the order seeks review, the Court of Appeal has jurisdiction “to make and enter a decree enforcing, modifying and enforcing as so modified, or setting aside in whole or in part, the order of the board.” (Id.)

The concept of affirmative relief by direct enforcement of the order in the Court of Appeal distinguishes the review contemplated by section 1160.8 from the statutory review in the nature of writs of review provided for the orders of other constitutional agencies in California. (See fn. 3, supra.) Under the review procedure applicable to these agencies, if the reviewing court exercises its discretion to review, it either enters a judgment affirming or annulling the board's order or it remands the cause for further proceedings before the board. (See, e. g., Bus. & Prof. Code, s 23090.3; Lab. Code, s 5953.) When the judgment becomes final, its enforcement is in all cases by way of an original proceeding in the superior court.

The third pertinent difference between the California statute and the federal statute is that even though the Legislature has evidenced a clear intent to expedite the review of Board orders (30 days for filing petitions for review, 10-day limitation for filing record), it contains no provision expressly expediting the review. This is to be contrasted with the federal statute, which provides that petitions for review of NLRB orders “shall be heard expeditiously, and if possible within ten days after they have been docketed.” (29 U.S.C., s 160, subd. (i).) Unless this omission was the result of legislative oversight, it suggests that the Legislature intended the 1160.8 review to be in the nature of an extraordinary writ proceeding in which the court may promptly decide the review, rather than an ordinary appeal with its inherent delay in reaching a final judgment. Moreover, section 1160.8 evidences a clear legislative intent that the review be in the nature of a writ and not an appeal. The statute uses the word “petition,” indicating that a writ was intended. This inference gains support from the fact that an unsuccessful version of the statute was introduced by one of the authors of the legislation expressly providing for an appeal “governed by those rules and regulations which apply to appeals from superior courts.” (Assem. Bill No. 1 (1974-1975 Reg. Sess.) introduced by Assemblyman Allatore.) Furthermore, it must be presumed that the Legislature was aware of the inherent delay in processing appeals. Since the statute gives no priority for hearing,4 an appeal would be antithetical to the legislative policy of prompt review.

We conclude that the federal procedure which gives judicial review of NLRB orders as a matter of right cannot be followed without violating the California Constitution. Since we have concluded that the Legislature intended section 1160.8 to create a writ proceeding, it must be in the nature of certiorari, prohibition, or mandamus (art. VI, s 10). However, these writs are by their very nature discretionary. The exercise of an original jurisdiction to give extraordinary relief presupposes a discretion in the court to deny relief. This does not mean that the discretion can be arbitrarily exercised as in the days when writs were issued in England by the exercise of the royal prerogative. It means only that a court must have discretion to deny the petition if it concludes it has no merit.

We have a solemn duty to construe section 1160.8 in a constitutional manner if reasonably possible. (See Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 60, 195 P.2d 1.) Once the overriding legislative intent has been ascertained, it must be given effect “ ‘ ”even though it may not be consistent with the strict letter of the statute.“ ‘ ” (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 769, 502 P.2d 1049, 1057.) It is clear that the overriding legislative intent in section 1160.8 is to place review of Board orders in the Court of Appeal. A secondary objective is to place enforcement of the orders in the superior court or Court of Appeal, depending upon whether the order is reviewed. To save the constitutionality of the statute, we construe it to provide discretionary review in the Courts of Appeal and for superior court enforcement when the petition for review is denied, the same as if the petition had not been filed.

Two other considerations aid us in our interpretation: First, the 1966 revision of article VI, section 10, was intended to broaden the constitutional authorization relating to jurisdiction of appellate courts insofar as procedures in writ proceedings. “The flexibility thus granted by this constitutional language leaves room for a modernization of the procedure followed in connection with those extraordinary writs.” (Judicial Council of Cal., Annual Rep., supra, p. 75.) Therefore, it is no longer possible to challenge procedural departures from traditional writs as unconstitutional. (5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, s 191, subd. (c), p. 3949.) Second, when statutory jurisdiction is conferred on a court, “all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.” (Emphasis added, Code Civ. Proc., s 187.) Thus, we are free to fashion rules of procedure necessary to carry out the Legislature's grant of jurisdiction to the Courts of Appeal to review Board orders.

We construe section 1160.8 as a proceeding in the nature of a discretionary writ of review. The fact that the record is automatically filed with the court does not foreclose this interpretation; the record simply provides the court with a more complete basis for deciding whether to deny the writ or formally review the matter by placing it on the calendar for argument and a written opinion. The petition for review need not be accompanied by points and authorities as required by California rule of court 56; the automatic filing of the record with the court renders the purpose of rule 56 inapplicable. A simple notice of petition for review will suffice.5 The parties must be given a reasonable time after the record is filed to prepare points and authorities.6 After reviewing the record and points and authorities, the court may deny the petition if it concludes it has no merit. However, if the court elects to set the matter on calendar for argument and written opinion, it will notify the parties of the calendar date and hear argument. It then will review the Board's order and enter a decree “enforcing, modifying and enforcing as so modified, or setting aside in whole or in part,” the order of the Board. This enforcement of the Board's order is an incident of the court's original jurisdiction to review the order. Pending the review, the court has jurisdiction to grant to the Board “such temporary relief or restraining order it deems just and proper.” (Lab. Code, s 1160.8.)

If the court denies the petition for a review, we construe the statute as authorizing the Board to apply to the superior court for enforcement, just as if “the time for review of the board order has lapsed, and the person has not voluntarily complied with the board's order, . . .” (s 1160.8.) The enforcement by the superior court will not include a review of the merits of the order. We believe this construction of section 1160.8 will most completely carry out the intent of the Legislature and bring the review and enforcement of Board orders into proper constitutional balance.

REVIEW ON THE MERITS

Petitioner challenges two of the Board's findings of unfair labor practices: (1) that on September 15, 1975, petitioner laid off certain employees because of their UFW sympathies; (2) that on four occasions between September 30 and October 5, 1975, petitioner assaulted and arrested UFW organizers who were asserting their rights to be on petitioner's property under the Board's access rule (Cal. Admin. Code, tit. 8, s 20900).7 Petitioner challenges the validity of the latter findings on the ground that the union organizers were distributing literature in violation of the Board's own access rule. Petitioner also contends that the removal of an organizer from petitioner's property on September 30 was justified because the number of organizers present exceeded the number authorized by the rule. Petitioner also disputes certain of the findings relating to the September 30 and October 3 incidents.

As to the first finding, there is substantial evidence in the record to support the Board's finding that petitioner laid off certain employees because of their union sympathies. Petitioner's brief manifests a fundamental misunderstanding of the substantial evidence test. The evidence that the layoffs were for valid business reasons merely created a conflict in the facts which was for the Board to decide. As a reviewing court we have no power to substitute our judgment for that of the Board.

Moreover, all credibility resolutions are for the Board to decide. (National Labor Relations Bd. v. International Union of Operating Engineers (1974) 500 F.2d 48, 49.) Since the ALO expressly found the testimony of the discriminatees to be more persuasive than the petitioner's evidence, its findings cannot be disturbed. He also concluded that the supervisor's testimony that she had selected the workers for their laziness was a pretext and in conflict with the showing that some of them had worked for her for years without complaint. A justifiable ground to lay off an employee is not a defense if it is merely a pretext. (John Klann Moving and Trucking Company v. N. L. R. B. (6th Cir. 1969) 411 F.2d 261, 263; Marshfield Steel Company v. N. L. R. B. (8th Cir. 1963) 324 F.2d 333, 337.)

The Board concluded that it inferred a discriminatory motivation from the totality of conduct including illegal interrogation, threats, denial of access, assaults, and an expressed anti-union stand. Since the conduct of a party is to be viewed in its total context (see National Labor Relations Bd. v. Virginia Electric & P. Co. (1941) 314 U.S. 469, 477, 62 S.Ct. 344, 86 L.Ed. 348), the Board's finding must stand.

The Board next found that petitioner committed unfair labor practices on four occasions by assaulting and having arrested UFW organizers who were asserting their rights to be on petitioner's property under the Board's access rule (Cal. Admin. Code, tit. 8, s 20900). There is substantial evidence to support these findings. In addition to the detailed testimony of the organizers, petitioner's employees testified that the company had instituted a no access policy about the end of August.

On all four occasions the UFW organizers were distributing literature when they were arrested. Petitioner claims that the access rule only authorizes organizers to “meet and talk with” employees, not to distribute literature to them. In support of this proposition, it urges this court to follow NLRA precedent which distinguishes between oral solicitation and distribution of literature at industrial work sites.

The Board held that distribution of union literature is conduct falling within its access rule. It expressly refused to follow the NLRA precedent, distinguishing the federal case-by-case approach from its own preference for rule making. (Cf. N. L. R. B. v. Wyman-Gordon Company (1969) 394 U.S. 759, 765, fn. 3, 89 S.Ct. 1426, 22 L.Ed.2d 709, with Cal. Admin. Code, tit. 8, s 20900.) The Board's interpretation of its own rule is entitled to great weight and this court cannot disagree with this interpretation unless it is clearly erroneous or unauthorized. (See Intoximeters, Inc. v. Younger (1975) 53 Cal.App.3d 262, 271, 125 Cal.Rptr. 864.) The Board's interpretation of this rule is reasonable in the context of agricultural work sites where the demarcation between working and nonworking areas is often unclear. (See Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d 392, 417, 128 Cal.Rptr. 183, 546 P.2d 687.) The alternative channels of reaching industrial workers in nonwork areas are not available for agricultural labor. (Cal. Admin. Code, tit. 8, s 20900, subd. (c).) The NLRB precedent only forbids distribution of literature in work areas. (See, e. g., Patio Foods v. N. L. R. B. (5th Cir. 1969) 415 F.2d 1001, 1002.)

In adopting the access rule, the board was well aware of the NLRB's rationale in barring distribution of literature in work areas disruption of the employer's business. Title 8, California Administrative Code, section 20900, subdivision (e)(4)(C) declares that the right to access does not include “conduct disruptive of the employer's property or agricultural operations, including injury to crops or machinery . . .” Moreover, the basic terms of the access rule are geared to minimal disruption by limiting access to one hour before work commences, one hour after it ends, and one hour when the workers are eating lunch. In light of this careful balancing of the conflicting interests, the Board's interpretation that its access rule encompasses the distribution of literature must stand, at least in the absence of any evidence that the distribution of literature caused a disruption of petitioner's business. No such evidence is present here.

Petitioner next contends that its conduct in removing organizers on September 30 was justified because the number of organizers exceeded the limitation specified in the access rule.8 The Board's decision negates any basis for this argument. In the first place, the Board expressed doubt whether the numerical limitations were in fact violated.9 However, it did not base its decision on this ground. It held that an employer confronted with such a violation must first notify the organizers of the facts giving rise to the violation and provide them a reasonable opportunity for voluntary compliance. Furthermore, it held that if the excess organizers then did not leave the property the employer could only seek removal of the excess organizers, not all of them. These Board interpretations of its own rule should be upheld because they are not “clearly erroneous or unauthorized.” (Intoximeters, Inc. v. Younger, supra, 53 Cal.App.3d 269, 271, 125 Cal.Rptr. 864.)

Petitioner offers a specious argument that the Board could not conclude that employee rights were interfered with since there was no evidence that any of them desired to speak with the organizers. This is not a correct statement of the law. Employees are often ignorant of their right to receive information or afraid to request it in the presence of their employers. The true test is much more objective whether the conduct was of a type tending to interfere with the free exercise of employee rights under the act. (See National Labor Relations Board v. Link-Belt Co. (1941) 311 U.S. 584, 588, 61 S.Ct. 358, 85 L.Ed. 368; Joy Silk Mills v. National Labor Relations Board (1950) 87 U.S.App.D.C. 360, 371-372, 185 F.2d 732, 743-744.)

The Board expressly based its finding of unfair labor practices on all four dates on an alternative ground. It began by noting that the primal purposes of the act were “to ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers” and “to bring certainty and a sense of fair play to a presently unstable and potentially volatile condition in this state.” It further stated, “(I)t is our view that physical confrontations between union and employer representatives are intolerable under our Act. Absent compelling evidence of an imminent need to act to secure persons against danger of physical harm or to prevent material harm to tangible property interests, resort to physical violence of the sort revealed herein shall be viewed by this Board as violative of the Act. Such conduct has an inherently intimidating impact on workers and is incompatible with the basic processes of the Act.”

Although petitioner takes issue with this view of its conduct in removing organizers who it claims had violated the access rule, the law fully supports the Board's reasoning. Violence directed against union organizers in itself can constitute an unfair labor practice. (N. L. R. B. v. Gibbs Corporation (5th Cir. 1962) 297 F.2d 649, 651; N. L. R. B. v. McBride (10th Cir. 1960) 274 F.2d 124, 126-127.) The Board noted that each assault took place in the presence of employees. (See N. L. R. B. v. McBride, supra, 274 F.2d at p. 127.) The Board properly concluded that violation of the access rule even if proved did not justify petitioner's infliction of violence on the persons of the organizers.

Petitioner's final argument is similarly devoid of merit. It contends that its conduct in forcefully expelling an organizer on October 3 was justified because the ALO found that he and another organizer were blocking the movement of equipment and cars, i. e., “conduct disruptive of the employer's property or agricultural operations” within the meaning of the limitations set forth in the access rule. The Board weighed the fact that the vehicles were able to get around the organizers and disagreed with the ALO's conclusion that the organizers had disrupted the petitioner's farming operations. Again, the Board's determination of factual questions is binding on this court.

Moreover, the Board considered petitioner's claim that the organizers were disrupting its farm operations to be a mere “rationalization” when viewed with the petitioner's admitted blanket policy of denying all access to the union organizers. Conduct of a party is to be viewed in its proper context (see National Labor Relations Bd. v. Virginia Electric & P. Co., supra, 314 U.S. 469, 477, 62 S.Ct. 344, 86 L.Ed. 348). Such pretexts are not considered a valid defense. (See John Klann Moving and Trucking Company v. N. L. R. B., supra, 411 F.2d 261, 263; Marshfield Steel Company v. N. L. R. B., supra, 324 F.2d 333, 337.)

We conclude that the evidence supports the Board's findings that petitioner committed unfair labor practices by denying access to UFW organizers, assaulting them, and effecting their arrest.

The Board ordered various remedies in this case, including reinstatement of discriminatorily laid off employees and posting, distributing, mailing, and reading of a notice relating to the unfair labor practices. Petitioner challenges only the mailing and reading requirements. Petitioner cites NRLA precedent to show that reading of notices is a rare remedy reserved for special circumstances. However, even the NLRA allows reading of notices when a large segment of the work force is illiterate. (See, e. g., N. L. R. B. v. Bush Hog, Inc. (5th Cir. 1968) 405 F.2d 755, 758-759.) Petitioner complains that there was no evidence adduced at its hearing to demonstrate such illiteracy at its farm, that the Board relied on information gleaned from previous hearings and a prior case. There is no such constraint on the Board's use of its “cumulative experience.” (National Labor Relations Bd. v. Seven-Up Bottling Co. (1953) 344 U.S. 344, 348-349, 73 S.Ct. 287, 97 L.Ed. 377.) This conclusion is even stronger in California, where the Board has taken advantage of its rule making powers. Furthermore, the illiteracy pervasive among California agricultural workers has been recognized by this state's highest court. (Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d 392, 415, 128 Cal.Rptr. 183, 546 P.2d 687.)

The mailing directive, like the reading requirement, cannot be said to be “a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” (Virginia Electric & P. Co. v. N. L. R. B. (1943) 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568.) Moreover, federal courts have upheld NLRB mailing remedies. (See, e. g., International Union of Electrical, R. & M. Wkrs. v. N. L. R. B. (1967) 127 U.S.App.D.C. 303, 305, 383 F.2d 230, 232; N. L. R. B. v. H. W. Elson Bottling Company (6th Cir. 1967) 379 F.2d 223, 226.) Given the great discretion afforded to Board remedies, neither remedy should be disturbed. The NLRB has specifically been allowed discretion to order both of the remedies complained of here. (Food Store Emp. U., Loc. No. 347 Amal. Meat Cut. v. N. L. R. B. (1973) 155 U.S.App.D.C. 101, 104, 476 F.2d 546, 549.)

Partly in response to objections raised by petitioner, the Board recommends that its order be modified in several respects. Given the power of this court to modify Board orders under Labor Code section 1160.8 and the reasonableness of the specific changes urged, all of the Board's recommendations are accepted. The order is modified as follows:

1. No reinstatement should be ordered for Ofelia Diaz, who was rehired and subsequently quit, or Linda Perez, who refused work because she had another job. As to the other workers, the order should be changed to require reinstatement during the 1978 season when the crop activity in which they are qualified commences.

2. The reading should be required during the 1978 season.

3. The issuance of notices should be for the period of one year subsequent to this decision.

The order of the Board is affirmed as modified. Let a decree issue directing enforcement of the order as modified.

FOOTNOTES

1.  The Board does not have power to enforce its orders. If a person has not complied with the Board's order by the time the period for review has elapsed, the Board may apply to the superior court for enforcement of its order in the county in which the unfair labor practice occurred or where such person resides or transacts business. If, after a hearing, the superior court determines that the order was issued pursuant to procedures established by the Board and that the person refused to comply with the order, the court shall enforce the order by writ of injunction or other proper process (Lab. Code, s 1160.8).If a petition for review of the Board's order is filed with the Court of Appeal within the time specified in section 1160.8, then jurisdiction over the proceeding is vested in the Court of Appeal. The Court of Appeal may then grant to the Board such temporary relief or restraining order it deems just and proper and may make and enter a decree enforcing or modifying and enforcing the order of the Board. (Lab. Code, s 1160.8.)

2.  In determining whether the findings of the Board are supported by substantial evidence, the court must examine the entire record, including evidence which detracts from the Board's decision. (Universal Camera Corp. v. National Labor Rel. Bd. (1951) 340 U.S. 474, 487-488, 71 S.Ct. 456, 95 L.Ed. 456; Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144, fn. 10, 93 Cal.Rptr. 234, 481 P.2d 242; Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control (1970) 2 Cal.3d 85, 94, 84 Cal.Rptr. 113, 465 P.2d 1; LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432; Cal. Administrative Mandamus (Cont.Ed.Bar 1977 Supp.) s 5.75, pp. 66-67.) However, the Board's expertise is given great deference and its choice between two fairly conflicting views cannot be disturbed. (Universal Camera Corp., supra, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456.)

3.  For example, a petition for a writ of review (certiorari) is the method used to review the quasi-judicial decisions of constitutional agencies in California (cf. Bus. & Prof. Code, s 23090 et seq. Department of Alcoholic Beverage Control; Pub. Util. Code, s 1756 et seq. Public Utilities Commission; Lab. Code, s 5950 et seq. Workers' Compensation Appeals Board).

4.  See, for example, Code of Civil Procedure, section 44, giving priority to cases in which the people of the state are parties and to probate proceedings and contested election cases.

5.  Compare Form 3 used for review of NLRB orders, 28 U.S.C. Federal Rules of Appellate Procedure, appendix of forms.

6.  The Judicial Council in its rule making capacity should formulate a special rule governing review of Board orders and specifying the time and sequence for filing of its briefs and for other procedural matters in furtherance of the policies of the statute. Compare rule 57, “Review of Workers' Compensation Appeals Board Cases”; rule 58, “Review of Public Utilities Commission Cases”; rule 952, “Review of State Bar Proceedings” (formerly rule 59).

7.  The access regulation was amended in 1976; however, the changes are not relevant to this case.

8.  Title 8, California Administrative Code section 20900, subdivision (e)(4) (A) provides that access shall be limited to two organizers for each crew on the property, provided that if there are more than 30 workers in a crew, there may be one additional organizer for every 15 additional workers.

9.  In its decision, the Board noted that the rule authorizes one additional organizer for each additional 15 workers, or any part thereof. Thus, in the present case, a total of four organizers would have been permissible if between 46 and 60 workers were present in petitioner's field.

FRANSON, Associate Justice.

GEO. A. BROWN, P. J., and HARPER, J., concur. Hearing granted; BIRD, C. J., did not participate.

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