Agricultural Labor Relations Board, Petitioner v Superior Court of Riverside County, Respondent, Ben T. Lalin et al., Real Parties in Interest.

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

Agricultural Labor Relations Board, Petitioner v Superior Court of Riverside County, Respondent, Ben T. Lalin et al., Real Parties in Interest.

No. 19156.

Decided: January 30, 1978

Petitioner Agricultural Labor Relations Board (hereinafter ALRB or Board) seeks a writ of mandate to require the Riverside Superior Court to issue orders to real parties in interest compelling obedience to administrative subpoenas duces tecum issued by ALRB.   We issued an alternative writ.1

ALRB was created by the Agricultural Labor Relations Act of 1975 (Lab.Code, § 1140 et seq. [hereinafter ALRA] ) 2 adopted to provide for collective bargaining rights for agricultural employees (§ 1140.2;  see Agricultural Labor Relations Bd. v. Superior Court, 16 Cal.3d 392, 398–399 [128 Cal.Rptr. 183, 546 P.2d 687].)   Pursuant to chapter 5 of ALRA (§§ 1156–1159), ALRB has certain powers and responsibilities relating to the conduct and certification of representation elections.   Chapter 6 of ALRA (§§ 1160–1160.9) empowers ALRB to prosecute unfair labor practices.   In chapter 2 of ALRA (§ 1144), ALRB is authorized to make “such rules and regulations as may be necessary to carry out the provisions of [ALRA].”

Ostensibly under its rule-making power, effective December 1, 1976, ALRB promulgated a regulation designated section 20910 of title 8 of the California Administrative Code.   So far as is here pertinent, regulation 20910 provides in substance that any labor organization that has filed a valid notice of intent to take access on a designated employer may file a notice of intention to organize the agricultural employees of the same employer signed or accompanied by authorization cards signed by at least 10 percent of the current employees of the designated employer and that, within 5 days thereafter, the employer must furnish to ALRB an employee list as described in section 20310, subdivision (a)(2) of ALRB's regulations.   Upon verifying that the notice of intention to organize was signed or accompanied by authorization cards signed by at least 10 percent of the current employees of the employer, ALRB shall make a copy of the employee list available to the filing labor organization.   The employee list thus required has come to be known as a “pre-petition employee list.” 3  Regulation 20310, subdivision (a)(2) describes an employee list as “[a] complete and accurate list of the complete and full names, current street addresses, and job classifications of all agricultural employees ․ in the payroll period immediately preceding the filing of the petition.”

ALRB's subpoena power is found in section 1151, subdivision (a) which provides in substance that, in connection with its investigative powers, Board may, upon application of any party to the proceedings, issue a subpoena or subpoena duces tecum to compel testimony or the production of evidence relating to any matter under investigation.

Section 1151, subdivision (b) provides for court enforcement of subpoenas issued by ALRB.  “In case of contumacy or refusal to obey a subpoena issued to any person, any superior court in any county within the jurisdiction of which the inquiry is carried on ․ shall, upon application by the board, have jurisdiction to issue to such person an order requiring such person to appear before the board ․ there to produce evidence if so ordered, or there to give testimony touching the matter under investigation or in question․”

Under section 1151, subdivision (b), Board applied to respondent Riverside Superior Court for orders compelling obedience to two subpoenas duces tecum issued by it to real parties in interest Laflin and Carian.   The application alleged that Laflin and Carian are each agricultural employers as defined by section 1140.4, subdivision (c);  that United Farm Workers of America, AFL–CIO filed notices of intention to take access and filed and served notices of intention to organize the agricultural employees of Laflin and Carian, respectively, accompanied by authorization cards purportedly signed by 10 percent of their current employees;  that thereafter Laflin supplied Board a purported employee list, a copy of which is attached to the application, but that it is inadequate in that “[o]f the 68 employees named in the list submitted, 30 lacked the required street address and the addresses for an additional two listed employees are not current” (original italics);  that Carian furnished a purported employee list, a copy of which is attached to the application, but that it is inadequate in that “[o]f the 207 employees named in the list submitted by the employer, 54 contained only post office box addresses, an additional 92 had only addresses outside of the Coachella Valley and no job classifications were provided”;  that, thereafter, pursuant to section 1151, subdivision (a) 4 ALRB issued subpoenas duces tecum to Laflin and Carian commanding them to appear at ALRB's Coachella field office and produce an employee list as described in regulation 20310, subdivision (a)(2) or, in the alternative, specified records (including all payroll records, books, ledgers, tax forms, memoranda, letters, writings, etc.) “evidencing the names, addresses ․ or job classifications of all agricultural employees in the bargaining unit ․”;  that Laflin and Carian failed to appear and produce the writing described in the subpoenas duces tecum and that the employer lists sought are “relevant and material to the issues properly before the Board pursuant to the above-described ‘Notice of Intention to Organize’ ” and unfair labor practice charges based upon real parties' failure to provide the employee lists.5

The superior court issued to real parties orders to show cause why enforcement orders should not issue.   Real parties filed declarations and, at the hearing on the order to show cause, presented the testimony of one witness.   After hearing the court denied Board's applications for enforcement orders.   The court issued a two-page minute order setting forth 14 reasons for its ruling, including that real parties had complied with the subpoenas

In the petition, return and traverse the parties debate a number of issues including whether ALRB exceeded its delegated authority in promulagating regulation 20910, whether the regulation unconstitutionally violates real parties' employees' constitutionally protected right to privacy, whether ALRB's subpoena power extends to investigations preceding the filing of a petition for certification under section 1156.3 and whether, in fact, the subpoenas in question were issued in the course of any investigation.   However, we have concluded the trial court's determination that real parties complied with the subpoenas 6 is dispositive of this application for writ of mandate.

In reviewing an order made on declarations involving the determination of a question of fact, an appellate court is bound by the same rule that controls the resolution of a factual issue on oral testimony;  those averments favoring the prevailing party must be accepted as true and the facts stated therein must be considered established.  (Trapasso v. Superior Court, 73, Cal.App.3d 561, 568 [140 Cal.Rptr. 821];  Stevens v. Stevens, 268 Cal.App.2d 426, 429 [74 Cal.Rptr. 54];  Roberts v. Roberts, 245 Cal.App.2d 637, 642 [54 Cal.Rptr. 223];  Fuller v. Lindenbaum, 29 Cal.App.2d 227, 230 [84 P.2d 155].)

The Laflin declaration filed in response to the order to show cause avers:  “I have furnished to the Petitioner [ALRB] two pre-petition employee lists pursuant to the Notice of Intention to Organize referred to in the petition on file.7  The name, current street address and job classification of each employee as set forth thereon contains all the information supplied to me by my employees.  [¶]  I have caused the information to be requested from each employee and have supplied all information that each employee has supplied to me.   Where any full and complete mane of an employee or any current street address of an employee has not been furnished to the Petitioner, it was because the employee refused to supply that information to me.  [¶]  I have no further information or records which would supply the information requested.”

The Carian declaration avers:  “I have filed three pre-petition employee lists with the Petitioner [ALRB] in the above matter, including the two lists which are attached to this declaration, marked Exhibit ‘A’ and incorporated by reference herein.  [¶]  The second of the lists which covered employees through the payroll period ending April 22, 1977, was a list filed in an effort to up-date previous lists filed and attempted to correct information not previously available to me.8  The information on these lists was secured from payroll applications furnished me by my employees and is the complete information relating to their names and current street addresses in my possession.   I have no information in my possession other than what I have furnished to the Petitioner ․”

Board filed no declarations and called no witnesses.

Crediting real parties' declarations, the court could conclude Laflin and Carian had furnished ALRB the employee lists specified in the respective subpoenas and that they had, therefore, complied with the subpoenas to the extent it was possible to do so.   Admittedly, both Laflin and Carian furnished employee lists containing the names of all their agricultural employees.   The lists furnished show a job classification (see fn. 8, ante ) and an address set forth opposite the name of each employee.   The only respect in which the lists furnished arguably failed to meet the description of an employee list found in regulation 20310, subdivision (a)(2) (see text following fn. 3, ante ) is that for some employees the addresses given were post office box addresses or street addresses outside Coachella Valley rather than “current street addresses.”

The trial court could conclude that the employee lists furnished by real parties were not deficient in this respect.   Real parties' declarations state in substance that they furnished Board all their employees' current street addresses obtainable and all such street addresses in their possession.   The trial court impliedly found that to be true.   Board states that what it means by “current street address” is a designation of the place the employee is actually living while working for the employer.   The Board would accept as a “current street address” the information that an employee is staying at “farm labor camp number 17.”   Thus it appears there is a substantial ambiguity in the term “current street address” as used in regulation 20310, subdivision (a)(2) incorporated into the subpoenas.   Many farm labor camps are, of course, on private property and do not have street addresses.   If a farm laborer is staying at such a camp his only street address, and thus his “current street address,” may be the address of his permanent residence, which, of course, may be outside Coachella Valley or even in Mexico.   Indeed, since many of the agricultural employees are migrants, it is quite possible, even probable, that some will have no street addresses at all.   As the trial court said in its order, “․ the obtaining of some home [current street] addresses are [sic ] impossible because of the migratory nature of farm laborers ․”  Thus the trial court could find the employee lists furnished by real parties set forth the current street addresses of their agricultural employees to the extent such existed and were obtainable.

We do not suggest it is the function of the court rather than ALRB to designate the information the employer must provide.   On the contrary that is the prerogative of ALRB.   However, since ultimately, ALRB's subpoenas duces tecum are enforced by exercise of the court's contempt power (§ 1151, subd. (b)), the information required must be described in reasonably unambiguous language sufficiently precise in meaning to inform both the employer and the court what will constitute compliance.   The court, as in any case involving a writing, statute or regulation, must necessarily resolve any ambiguity in the language used.

The suggestion that real parties failed to comply with the subpoenas duces tecum by not producing the records alternatively demanded is not well founded.   Since the trial court impliedly found the employee list furnished by real parties set forth their employees' current street addresses to the extent they existed and were obtainable, the subpoenas duces tecum were fully complied with by the production of those lists and the alternative demand never became operative.

Board's contention that real parties are required by section 1157.3 to maintain records containing the subpoenaed matter is either irrelevant or incorrect or both.   To the extent it is directed at the records alternatively demanded by the subpoenas the contention is irrelevant, for, as we have just observed, the alternative demand never became operative.   Insofar as it constitutes an assertion that section 1157.3 requires maintenance of records containing the specific information required by regulation 20310, subdivision (a)(2) to be included in an employee list, it is incorrect.   Section 1157.3 reads:  “Employers shall maintain accurate and current payroll lists containing the names and addresses of all their employees, and shall make such lists available to the board upon request.” 9  It does not specify street addresses as distinguished from post office box addresses nor local addresses as distinguished from home addresses.   It says nothing at all about job classifications.   Real parties furnished Board the names of all their agricultural employees and an address for each such employee.   It is not shown that they are in any way in violation of section 1157.3.10

Board argues that if the court may refuse to issue an enforcement order on the basis of an employer's self-serving declaration that he does not have the information or matter subpoenaed, regulation 20910 will be rendered unenforceable and ALRB impotent.   We are not persuaded.

In the first place, real parties' declarations say much more than that real parties do not have the information subpoenaed.   They establish that real parties furnished all the street addresses obtainable which, given the ambiguity in the term “current street addresses” previously discussed, gives rise to an inference that other street addresses were nonexistent.

Secondly, the assertion that regulation 20910 will be rendered unenforceable discloses a basic misconception of the proper function of a subpoena.   Assuming the validity of regulation 20910 and the existence of an authority investigation or inquiry (discussed, infra ), several applicable federal decisions (infra ) indicate that ALRB may subpoena an employee list.   (NLRB v. Wyman–Gordon Co., 394 U.S. 759, 768–769 [22 L.Ed.2d 709, 716, 89 S.Ct. 1426];  NLRB v. Q–T Shoe Manufacturing Co., 409 F.2d 1247, 1250.)   Nevertheless, it is perfectly clear from the language of section 1151, subdivision (a), the source of ALRB's subpoena power, that subpoenas and subpoenas duces tecum were intended to be investigative tools, not tools for the enforcement of ALRB's regulations.11

Third, ALRB is by no means at the mercy of an employer who files a self-serving declaration.   It has a ready, effective means to disprove an employer's assertion that the records subpoenaed are not within his possession or control if that assertion is false.   Section 1151, subdivision (a) gives ALRB two important powers in addition to the subpoena power:  the right to inspect and copy an employer's records if they relate to any matter under investigation or in question and the right of access to all places of labor for the purpose of conducting such an inspection.  (See fn. 11, ante.)   By exercising its power of inspection, Board would be in as good a position as the employer to prove to the court the records and information the employer has.12  In addition, chapter 6 of ALRA gives the Board significant power in the prosecution of unfair labor practices.   Indeed, Board's applications for enforcement orders disclose that it has instituted such prosecutions against real parties in this very case based upon their failure to furnish the required employee lists.

Finally, citing a number of federal court decisions claimed to be applicable precedents, Board contends the trial court erred in determining the question of real parties' compliance with the subpoenas duces tecum at the hearing on the order to show cause for enforcement orders;  it urges litigation of that issue should have been delayed until trial of any ensuing contempt proceedings.   With respect to a number of questions that might be subsumed under the word “compliance,” Board's contention might have some merit.   We do not decide the general question.   But where, as here, the contention is that all the subpoenaed matter in the possession of the person subpoenaed and all that obtainable and existent has been furnished, there is no error in litigating the question at the hearing on the order to show cause for an enforcement order.

It is fundamental that judicial subpoena duces tecum is properly issued only as to matter in the possession or under the control of the person or entity to which the subpoena is directed.  (Flora Crane Service, Inc. v. Superior Court, 234 Cal.App.2d 767, 784–785 [45 Cal.Rptr. 79];  see Code Civ.Proc., § 1985.)   The same is true of an administrative subpoena duces tecum.  (See Interstate Commerce Commission v. Brimson, 154 U.S. 447, 476–477 [38 L.Ed. 1047, 1057, 14 S.Ct. 1125];  Fielder v. Berkeley Properties Co., 23 Cal.App.3d 30, 42 [99 Cal.Rptr. 791].)   Obedience to an enforcement order is compelled through exercise of the court's contempt power.  (§ 1151, subd. (b).)  It is a prerequisite to an adjudication of contempt for failure to obey an order that the contemner had it within his power to perform the act ordered.  (In re Wells, 29 Cal.2d 200, 202 [173 P.2d 811];  In re Johnson, 9 Cal.App.2d 473, 477 [50 P.2d 452].)   A person to whom a subpoena duces tecum is issued cannot, of course, produce the subpoenaed matter if it is nonexistent or not in his possession or control.   It would be improvident to require a court to issue an enforcement order it could not enforce.

Noting that section 1151, subdivision (b) of ALRA is substantially identical to section 11, subdivision (b) of the National Labor Relations Act (29 U.S.C. § 161(2)), Board urges federal court decisions pertaining to the enforcement of subpoenas issued by the National Labor Relations Board under the federal act constitute applicable precedents.   As may be inferred from our previous citation of several such federal court decisions, we agree they have precedential value.  “When legislation has been judicially construed and a subsequent statute on the same or an analogous subject is framed in the identical language, it will ordinarily be presumed that the Legislature intended that the language as used in the later enactment would be given a like interpretation.   This rule is applicable to state statutes which are patterned after federal statutes.”  (Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen, [41 LC ¶ 50,055] 54 Cal.2d 684, 688–689 [8 Cal.Rptr. 1, 355 P.2d 905];  Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at pp. 413–414.)

It is true the scope of inquiry on an application for an order to enforce a subpoena is limited.  (NLRB v. Frederick Cowan and Company, Inc., [77 LC ¶ 11,015] 522 F.2d 26, 28;  NLRB v. C.C.C. Associates, Inc., 306 F.2d 534, 538.)   But a proceeding for judicial enforcement of a subpoena involves more than an automatic issuance of the order.  (NLRB v. United Aircraft Corporation, 200 F.Supp. 48, 50.)   In such a proceeding the person to whom the subpoena duces tecum was directed may contest whether the underlying administrative investigation was within the authority of the agency, whether issuance and service of the subpoena were procedurally regular, whether the records subpoenaed are identified with sufficient particularity, whether the records sought are relevant to the administrative inquiry or investigation and whether the demand for production is overbroad, unreasonably burdensome, or oppressive.  (see United States v. Morton Salt Co., 338 U.S. 632, 652–653 [94 L.Ed. 401, 416, 70 S.Ct. 357];  Okla. Press Pub. Co. v. Walling, 327 U.S. 186, 208 [90 L.Ed. 614, 629, 66 S.Ct. 494, 166 A.L.R. 531];  Labor Board v. Duval Jewelry Co., 357 U.S. 1, 8–9 [2 L.Ed.2d 1097, 1102, 78 S.Ct. 1024] [conc. opn. of Mr. Justice Whittaker];  NLRB v. Rohlen, 385 F.2d 52, 58;  NLRB v. C.C.C. Associates, Inc., supra, 306 F.2d at p. 538;  National Labor Relations Board v. Duval Jewelry Company of Miami, Inc., 257 F.2d 672;  Jackson Packing Co. v. National Labor Relations Board, 204 F.2d 842, 844;  NLRB v. United Aircraft Corporation, supra, 200 F.Supp. at pp. 50–51.)

Manifestly, a subpoena duces tecum demanding production of nonexistent or unobtainable matter in the possession or under the control of the person to whom it is directed is overbroad, unreasonable and oppressive.   If a court at the hearing on an application for an enforcement order may determine whether a subpoena duces tecum is overbroad, unreasonably burdensome or oppressive even where it aappears the subpoenaed matter exists and is in the possession or under the control of the person to whom the subpoena was directed.   (National Labor Relations Board v. Duval Jewelry Company of Miami, Inc., supra, 257 F.2d at p. 673;  Jackson Packing Co. v. National Labor Relations Board, supra, 204 F.2d at p. 844;  NLRB v. United Aircraft Corp., supra, 200 F.Supp. at pp. 51–52;  see also Labor Board v. Duval Jewelry Co., supra, 357 U.S. at pp. 8–9 [2 L.Ed.2d at p. 1102] ), there can be no doubt a court may adjudicate at such a hearing a claim the subpoena duces tecum is overbroad, unreasonably burdensome or oppressive because it demands production of nonexistent or unobtainable matter not in the possession or under the control of the person to whom it was directed.

Board also places some reliance on cases decided under sections 11180 through 11191 of the Government Code giving the power of subpoena to the heads of departments of state government.   Government Code section 11188 which provides for court enforcement of such subpoenas reads in pertinent part:  “Upon the filing of the petition the court shall enter an order directing the person to appear before the court at a specified time and place and then and there show cause why he had not attended or testified or produced the papers as required․  If it appears to the court that the subpoena was regularly issued ․ the court shall enter an [enforcement] order ․”  (Italics added.)   This language is, of course, considerably more restrictive than the language of section 1151, subdivision (b):  “In case of contumacy or refusal to obey a subpoena ․ [the] superior court ․ shall, upon application by the board, have jurisdiction to issue ․ an order ․”  (Italics added.)

Notwithstanding this significant difference in statutory language, the cases decided under Government Code section 11188 are instructive.   Substantially the same inquiries permitted in an enforcement proceeding by the federal decisions are permitted at the order to show cause for enforcement prescribed by Government Code section 11188.  (See Brovelli v. Superior Court, 56 Cal.2d 524, 529–531 [15 Cal.Rptr. 630, 364 P.2d 462];  Fielder v. Berkeley Properties Co., supra, 23 Cal.App.3d at pp. 39–43;  People v. West Coast Shows, Inc., 10 Cal.App.3d 462, 470–471 [89 Cal.Rptr. 290].)   In Fielder the court took pains to note that the subpoenas duces tecum there in question required the production of “[o]nly such records as were in the custody and control of appellants.”  (23 Cal.App.3d at p. 42.)   In responding to a contention that the statute was unconstitutional, the court in People v. West Coast Shows, Inc., pointed out that Government Code section 11188 provides for an order to show cause hearing on the application for an enforcement order which “provides an opportunity for adjudication of all claimed constitutional and legal rights before one is required to obey the command of a subpoena duces tecum issued for investigative purposes.”  (10 Cal.App.3d at p. –470.)  (Italics added.)

The hearing on an application by ALRB for an order to enforce a subpoena under section 1151, subdivision (b) serves precisely the same function as the order to show cause proceeding prescribed by Government Code section 11188.

It is true no defense going to the merits of the underlying administrative proceeding or inquiry may be raised at the hearing on an application for a judicial enforcement order.  (Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 [87 L.Ed. 424, 430, 63 S.Ct. 339];  N.L.R.B. v. C.C.C. Associates, Inc., supra, 306 F.2d at p. 538.)   However, real parties' contentions in the trial court that the employee lists furnished by them set forth the current street addresses of their agricultural employees to the extent such existed and were obtainable and that they had in their possession no other street addresses did not constitute any defense to the underlying administrative proceeding or inquiry, if indeed there was any underlying administrative proceeding or inquiry.13 .  The conclusion to the contrary found in the dissenting opinion is mistaken.   It is based on the premise that the administrative proceedings with respect to which the subpoenas duces tecum were issued were the unfair labor practice charges filed by Board against real parties.   That premise is erroneous.

First, Board does not contend the unfair labor practice proceedings constituted the investigation or inquiry in respect to which the subpoenas duces tecum were issued.   It is true that in its applications to the trial court for enforcement orders the Board alleged that the employee lists sought were relevant and material to issues properly before the Board in connection with both United Farm Workers' notice of intention to organize and the unfair labor practice complaints Board had filed.   However, there is no suggestion in either Board's petition for writ of mandate or its traverse that the investigative purpose was in any way related to the unfair labor charges.   Moreover, we addressed a letter to the parties in which we requested them to respond to several questions, including whether Board was in fact engaged in an investigation when it issued the subpoenas and, if so, the nature of the investigation.   At oral argument, in response to these questions, counsel for Board responded only that until the employee list is obtained, it is often impossible to know what issues are to be investigated.   Subsequent to oral argument, we received a letter from Board's counsel dated November 4, 1977, in which a further attempt was made to answer our questions.   While it mentions other possible investigative purposes, the letter makes no mention whatever of the unfair labor practice proceedings.

Secondly, the hearings in the unfair labor practice charges against real parties were commenced and completed before the trial court ruled on Board's applications for enforcement orders.   The administrative law officer issued his decision in the unfair labor practice proceedings on June 6, 1977, the same date the trial court made its order denying enforcement orders.   The unfair labor practice proceedings were concluded, of course, more than a month before Board filed its petition for writ of mandate to compel the trial court to issue enforcement orders.   If Board's subpoenas were issued in connection with the unfair labor practice proceedings, it would be nonsensical for Board to seek to compel issuance of orders to enforce those subpoenas more than a month after the proceedings were completed.

The conclusion is inescapable that the subpoenas duces tecum were not issued by Board in connection with the unfair labor practice proceedings.14

We conclude that on the facts before it, the Riverside Superior Court did not abuse its discretion in denying Board's applications for enforcement orders.15

At oral argument ALRB requested that, even if we found the foregoing issue dispositive, we nevertheless pass on the question of the validity of regulation 20910.   We fully appreciate Board's desire for an adjudication of this question, but we must respectfully decline to pass upon it.   We recognize that when an appeal has become moot, the court may still render a decision under appropriate circumstances.  (People v. West Coast Shows, Inc., supra, 10 Cal.App.3d at p. 468 and cases there cited.)   That, of course, is not precisely the problem we confront.   Having decided an issue which is dispositive of the case, the disposition of other issues is unnecessary.   Any pronouncements we might make would have no binding precedential value and would constitute no more than an advisory opinion.  (see Young v. Three for One Oil Royalties, 1 Cal.2d 639, 647–648 [36 P.2d 1065];  6 Witkin, Cal.Procedure (2d ed.) Appeal, § 223, pp. 4212–4213.)   We are aware that courts have on occasion departed from the general rule that questions unnecessary to the decision will not be resolved.  (See 6 Witkin, Cal.Procedure (2d ed.) Appeal, § 225, pp. 4214–4215.)   However, we do not approve the practice.

The petition for writ of mandate is denied.   The alternative writ heretofore issued is discharged.

I respectfully dissent.

I am of the opinion that a peremptory writ of mandate should issue commanding the respondent Superior Court of Riverside to set aside its previous order and to enter an enforcement order pursuant to Labor Code section 1151, subdivision (b), requiring real parties in interest to appear and produce documents in obedience to the administrative subpoenas duces tecum issued by the ALRB.

The subpoenas commanded the custodian of records of real parties to appear before the ALRB and to bring an employee list as defined in section 20310, subdivision (a)(2), of the Agricultural Labor Relations Board regulations (Cal.Admin.Code, tit. 8, § 20310, subd. (a)(2)), or in the absence thereof, any and all payroll and other designated employee records.

The real parties in interest did not comply with the subpoenas.   The trial court's finds that they did is not supported by the evidence.

The evidence cited in support of the contention that real parties had complied consists of the declarations of Laflin and Carian quoted in the majority opinion.   They will not be repeated here.   Although both declarations make the statement that declarant furnished to petitioner pre-petition employee lists, the remainder of each of the declarations makes it clear that the employee lists that were furnished did not contain the information described in the subpoenas, i.e., a “complete and accurate list of the complete and full names, current street addresses,1 and job classifications of all agricultural employees․”  (Italics added.)

Whether Laflin and Carian had, in furnishing these lists, furnished all of the information they had is immaterial.   The effect of the declaration showing that the information had not been furnished was to make operative the alternative portion of the subpoenas, to wit, that, in the absence of the complete, accurrate, and current employee lists, the parties were commanded to appear to testify and to produce “Any and all payroll records, books, ledgers, W–2 forms, W–4 forms, memoranda, letters, employment application forms, employee information forms, unemployment insurance records, workmen's compensation records, and any other writings of whatever nature evidencing the names, addresses (including but not limited to current street addresses) or job classifications of all agricultural employees employed in the bargaining unit described above, ․”

In N.L.R.B. v. Frederick Cowan & Company, Inc. (E.D.N.Y.1974) 378 F.Supp. 325, the district court was asked to enforce a subpoena duces tecum, analogous to those at bar, directing an employer to produce and make available to the Board the employer's books and records or, in lieu thereof, a list of the names and addresses of all employees eligible to vote in a union certification election.   The court denied the Board's motion except to the extent that the employer was directed to produce the names of all, and addresses of consenting, eligible employees.   The Court of Appeal reversed the order on the ground that the district court had exceeded the extremely limited inquiry involved in passing upon a request for enforcement of a subpoena pursuant to 29 United States Code section 161(2), and remanded the matter with instructions to enforce the subpoena.  (NLRB v. Frederick Cowan and Company, Inc. (2d Cir.1975) 522 F.2d 26.)   Clearly, both the district court and the Court of Appeal interpreted the subpoena to require a complete list of the names and addresses of all employees or, alternatively, the records specified.  (See also, NLRB v. Beech–Nut Life Savers, Inc. (2d Cir.1968) [59 LC ¶ 13,105] 406 F.2d 253, which declares at p. 260 that accuracy, completeness, and opportunity for scrutiny all are necessary if the policies underlying Excelsior lists, analogous to the lists at bar, are to be fulfilled.)

Even if the designated records did not contain all of the requested information as to each and every employee, the subpoenas imposed upon real parties the duty to appear and produce such records as they had evidencing information of the kind described in the subpoenas.

The records were not produced.   There was a total failure to comply with the subpoenas, and the trial court's finding to the contrary was clearly erroneous.

Furthermore, under the facts of this case, the refusal of the trial court to issue orders enforcing the subpoenas on this ground exceeded the court's authority.

Since the applicable provisions of the ALRA are identical with the provisions of the National Labor Relations Act, we look to analogous precedents under the NLRA.   From these precedents it is clear that a court, passing upon a request for enforcement of a subpoena pursuant to Labor Code section 1151, subdivision (a),2 may undertake only an extremely limited inquiry.  “No defense relating to the administrative proceedings can be raised and the agency need not even show probable cause to believe the law has been violated.”   (NLRB v. Frederick Cowan and Company, Inc., supra, 522 F.2d 26, 28, in which the Court of Appeal reversed the trial court's refusal to enforce a similar subpoena, discussed ante, p. 264;  see also NLRB v. C.C.C. Associates, Inc. (2d Cir.1962) 306 F.2d 534, 538.)

In NLRB v. Williams (7th Cir.1968) 396 F.2d 247, 249, the court said:  “Duly issued subpoenas are to be enforced if the agency is seeking information ‘not plainly incompetent or irrelevant to any lawful purpose.’   [Citation.]  And, the essential requirement for both the issuance and enforcement of a National Labor Relations Board subpoena is that the production of the evidence or the giving of the testimony called for by the subpoena must relate to a ‘matter under investigation or in question.’ ”

Clearly the information sought in this case, the employee records, was relevant to matter under investigation.   Unfair labor practice charges based upon real parties' failure to provide the employee lists had been filed against both Laflin and Carian at the time the subpoenas issued.3  In determining that the real parties had complied in providing the lists, the court was passing upon the real parties' potential defense in the administrative proceeding without benefit of any evidence other than self-serving declarations of the parties against whom the charges had been filed in the administrative proceeding.

Even if charges had not been filed, the information sought by the subpoenas was competent and relevant to a lawful purpose, to wit, the exercise of the Board's investigatory function to determine whether real parties are in violation of the requirements of section 1157.3 of the Labor Code.   Section 1157.3 provides:  “Employers shall maintain accurate and current payroll lists containing the names and addresses of all their employees, and shall make such lists available to the Board upon request.”

Section 1157.3 is found in chapter 5, the chapter commencing with section 1156.   Therefore, the subpoena is clearly within the scope of the Board's authority under section 1151.   Section 1151 gives the Board, “[f]or the purpose of all hearings and investigations, which, in the opinion of the board, are necessary and proper for the exercise of the powers vested in it by Chapters 5 (commencing with Section 1156) and 6 (commencing with Section 1160)” 4 two separate powers.  (Italics added.)   Under the first sentence of section 1151, subdivision (a), the Board may, without recourse to a subpoena, examine and copy evidence of “any person being investigated or proceeded against,” and under the third sentence, the Board is given the power to issue subpoenas “requiring the attendance and testimony of witnesses or the production of any evidence in such proceeding or investigation ․”  (See Link v. NLRB, supra, 330 F.2d at p. 439.)   The majority suggests that by exercising its power of inspection the Board is in a position to prove to the court the records the employer has.   I submit that the subpoena may properly be used to obtain the same information.   It is for the Board not the court to determine which power to use.   Once the Board has elected to seek the information by subpoena, the court is limited in its inquiry to a consideration of whether the underlying investigation is within the Board's authority, whether the records sought are relevant to the investigation, and whether issuing and service of the subpoena were procedurally regular, whether the records subpoenaed are sufficiently identified and whether the demand is overbroad, unreasonably burdensome, or oppressive.  (See cases cited in majority opinion, p. 259.)

Having concluded that the court's determination that the real parties had complied with the subpoenas was erroneous, it is necessary for me to consider briefly whether any other cause exists for denying the enforcement order.   I find none.

I disagree with the trial court's determination that regulation 20910 is invalid as being in excess of the Board's powers.   In Excelsior Underwear, Inc., [1966 CCH NLRB ¶ 20,180] 156 NLRB 1236, the NLRB adopted a requirement that after an election has been directed, an employer must file with the NLRB a list containing names and addresses of all the eligible voters to be transmitted to the unions involved in the election.   The United States Supreme Court upheld the validity of the disclosure requirement on the ground that such requirement furthers the objective of insuring the fair and free choice of bargaining representatives.  (NLRB v. Wyman–Gordon Co. (1969) 394 U.S. 759, 767 [22 L.Ed.2d 709, 716, 89 S.Ct. 1426, 1430].)   Regulation 20910 serves the same objective.   In my opinion regulation 20910 is a valid exercise of the Board's regulatory power.

The subpoenas were not overly broad;  as we have previously noted the records being subpoenaed clearly relate to “matter under investigation or in question.”  (NLRB v. Williams, supra, 396 F.2d at p. 249;  see also Cudahy Packing Co. v. National Labor Relations Board (10th Cir.1941) 117 F.2d 692, 694.)   Even if the subpoenas were overly broad, as the trial court determined, the court had a duty to modify and enforce as modified, not to quash the subpoenas or deny enforcement.  (See NLRB v. Duval Jewelry Co. (5th Cir.1958) 257 F.2d 672, 673;  National Labor Relations Board v. Anchor Rome Mills, supra, 197 F.2d 447, 449.)

Finally, in my opinion the trial court erred in seeking to usurp the function of the Board in determining how best to protect the rights of the employees.   The court volunteered as one reason for denying the subpoenas that “Employees possess the inalienable right to privacy guaranteed by Articel [sic] 1 Sec. 1 of the California Constitution.   This reaches and covers the right to be left alone at ones residence by not disclosing it.”   In the first place this assumes as a fact a matter not proved, i.e., that the employees had refused the information.   Secondly, the Legislature has granted to the Board (not the court) wide discretion to insure the fair and free choice of bargaining representatives.  “The disclosure requirement furthers this objective by encouraging an informed employee electorate and by allowing unions the right of access to employees that management already possesses.   It is for the Board and not for this Court to weigh against this interest the asserted interest of employees in avoiding the problems that union solicitation may present.”   (NLRB v. Wyman–Gordon Co., supra, 394 U.S. at p. 767 [22 L.Ed.2d at p. 716, 89 S.Ct. at p. 1430];  see also, NLRB v. Frederick Cowan and Company, Inc., supra, 522 F.2d at p. 28.)

I would grant the peremptory writ.

FOOTNOTES

1.   Board directed its petition for writ of mandate to the California Supreme Court.   That court transferred the petition to this court for appropriate action.In its petition for writ of mandate Board also sought to require the superior court to issue mandatory preliminary injunctions to these real parties and others in separate but related proceedings to compel production of material identical to that sought by the subpoenas duces tecum.   We declined to direct the alternative writ to the injunction case.   Board sought a hearing in the California Supreme Court, but hearing was denied.A substantial part of the large volume of exhibits lodged with us relates to the injunction case.   We, of course, have limited our consideration of the exhibits to those pertaining to Board's application for orders enforcing its subpoenas.

2.   All statutory references are to the Labor Code unless otherwise indicated.

3.   The earlier and still-existing regulation (Cal.Admin.Code, tit. 8, § 20310, subd. (a)(2)) provides that the employer must furnish such an employee list after the filing and service of a petition for certification (see § 1156.3;  Cal.Admin.Code, tit. 8, §§ 20300, 20305) signed by or accompanied by authorization cards signed by a majority of the currently employed employees of the designated employer.

4.   Section 1151, subdivision (a) provides in pertinent part:  “The board ․ shall upon application of any party to such proceedings, forthwith issue to such party subpoenas․”  (Italics added.)   The subpoenas in question were not issued to or on the application of a party but on declarations of attorneys for the Board.   However, real parties do not make an issue of this.

5.   The applications contained no allegation of the relevancy or materiality of the records alternatively specified.

6.   Only brief mention of this issue is found in the petition, return and traverse.   However, the parties were invited to submit supplemental points and authorities by letter and to address themselves to this issue at oral argument.

7.   Originally the second list furnished by Laflin was not included in the exhibits.   At our request Board has furnished us a copy thereof.   It, like the first list, gives only post office box addresses for a substantial number of employees.

8.   Although not originally included in the exhibits, copies of the two additional employee lists suppled by Carian have been furnished us by Board.   They include a job classification for each employee listed but the addresses given for a number of employees are only post office box addresses and for others only a street address in Mexico is listed.

9.   The payroll lists referred to in section 1157.3 would appear to relate to the provisions in two closely preceding sections.   Section 1156.7, subdivision (d)(1) indicates that the number of agricultural employees currently employed by the employer is to be determined from his “payroll immediately preceding the filing of the petition.”   Section 1157 provides in part that the agricultural employees of the employer eligible to vote in a representation election shall be those whose names appear “on the payroll applicable to the payroll period immediately preceding the filing of the petition.”

10.   Regulation 20910 by reference to regulation 20310, subdivision (a)(2) does, of course, specify current street addresses and job classifications, but it, unlike section 1157.3 does not purport to require the maintenance of records;  it requires only that the specified information be supplied upon the filing of a notice of intention to organize supported by 10 percent of the employer's current employees.

11.   In relevant part, section 1151 reads:For the purpose of all hearings and investigations, which, in the opinion of the board, are necessary and proper for the exercise of the powers vested in it by Chapters 5 ․ and 6 ․ of this part:“(a) The board, or its duly authorized agents or agencies, shall at all reasonable times have access to, for the purpose of examination, and the right to copy, any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question․  The board or any member thereof, shall upon application of any party to such proceedings, forthwith issue to such party subpoenas requiring the attendance and testimony of witnesses or the production of any evidence, in such proceeding or investigation requested in such application․”  (Italics added.)

12.   Contrary to the suggestion contained in the dissenting opinion.   Board may not attempt to prove what information or records an employer has by issuing a subpoena duces tecum and, in response to the employer's declaration the information or records are nonexistent, seeking a judicial enforcement order.   A subpoena duces tecum is not properly issued for the production of nonexistent records, and a court will not issue an enforcement order for the production of nonexistent records.  (See discussion and authorities, infra.)

13.   The trial court concluded ALRB was not in fact engaged in any investigation.   We do not reach this question except as it relates to the investigatory purpose asserted in the dissenting opinion as the foundation for the conclusion real parties were asserting a defense to an underlying administrative proceeding.

14.   The alternative suggestion in the dissenting opinion that the subpoenas were issued in connection with an investigation by Board to determine whether real parties were complying with section 1157.3 is similarly ill-founded.   Board has never contended any such investigation was the basis for issuance of the subpoenas and for good cause.   There is nothing whatever in the record indicating there was any such investigation.

15.   The suggestion in the dissenting opinion that the superior court might have modified the subpoenas and enforced them as modified is not sound.   Having found real parties had complied with the subpoenas insofar as it was possible to do so, no modification and enforcement of the subpoenas as modified would have been appropriate.

1.   While the majority suggests that “current street addresses” is ambiguous and that this may explain some of the deficiencies of respondents' list, I think, in light of the manifest purpose of requiring the addresses (i.e., to enable the Board and unions, confronted with few effective alternative channels of communication with farmworkers, to communicate with employees where they reside while working for the employer) and assuming a good faith effort on the part of respondents to comply with the subpoenas and the law, “current street addresses” is adequate to apprise them of what is expected of them.

2.   Corresponding section of NLRA is 29 United States Code, section 161(2).

3.   An unfair labor charge was filed against Laflin on April 6, 1977, and the subpoena was issued on April 6, 1977, for Laflin to appear on April 11, 1977.   The unfair labor charge was filed against Carian on April 5, 1977, and the subpoena was issued on April 13, 1977, for Carian to appear on April 19, 1977.   The fact that the Board did not issue its unfair labor practice complaint against Laflin until April 14, 1977, is immaterial.   Investigation of a charge before issuance of a complaint is entirely proper.  (Link v. NLRB (4th Cir.1964) [49 LC ¶ 18,894] 330 F.2d 437, 439–440;  National Labor Relations Board v. Anchor Rome Mills (5th Cir.1952) 197 F.2d 447.)

4.   Chapter 5 provides for “Labor Representatives and Elections” and chapter 6 provides for “Prevention of Unfair Labor Practices and Judicial Review and Enforcement.”

Kaufman, J.

GARDNER, P.J., concurred.