AGRICULTURAL LABOR RELATIONS BOARD OF STATE v. United Farm Workers of America, etc. et al., Defendant and Respondent. (1981)

The issue presented here is whether it is abuse of discretion for a trial court to issue a preliminary injunction granting union representatives limited access to an agricultural employer's property during a strike, for the purpose of meeting and talking with nonstriking farm workers.

On January 23, 1979, respondent United Farm Workers of America, AFL-CIO (UFW) began picketing the operations of appellant California Coastal Farms, Inc. (Coastal Farms) in Monterey County. The UFW represented the union employees of Coastal Farms. The picketing followed a breakdown in collective bargaining negotiations over a successor contract. On February 1, 1979, the UFW filed an unfair labor practice charge against appellant Coastal Farms with the Salinas Agricultural Labor Relations Board (ALRB), alleging that one of appellant's supervisors brandished a handgun at certain pickets. On February 16, 1979, appellant filed an unfair labor practice charge against the UFW with the ALRB, alleging that UFW members on several occasions unlawfully entered the company's fields, threatened nonstriking workers and forced them to stop work, threw rocks at appellant's vehicles, and destroyed certain irrigation machinery on company premises.

The ALRB filed complaints pursuant to Labor Code section 1160.2 against both appellant and the UFW. Then, on February 23, 1979, the ALRB filed in Superior Court in Monterey County a complaint for injunction pursuant to Labor Code section 1160.4. Both appellant and the UFW were named as defendants. The complaint alleged that both parties had engaged in unfair labor practices, and requested both a temporary restraining order and a preliminary injunction. Attached to the complaint were numerous declarations by appellant's personnel and law enforcement officers describing various incidents when groups of UFW workers ran onto appellant's ranch and threatened nonstrikers. There were also declarations from other agricultural employees describing the pistol incident involving appellant's supervisor.

On that date the court issued a temporary restraining order. In part the order restrained the UFW from entering upon or trespassing on appellant's property, and limited the number of pickets permitted at entrances and gates of appellant's premises. Appellant was restrained from brandishing weapons in the presence of picketers, UFW's employees, agents, or representatives. During the hearing on the temporary restraining order, there was discussion of the propriety of granting union representatives limited access to appellant's property to communicate with nonstrikers.

On February 27, 1979, a hearing on the access question was held. The court modified the temporary restraining order, granting limited access to union representatives. A preliminary injunction was subsequently granted, incorporating the access provision.

Coastal Farms appeals from that portion of the preliminary injunction granting limited access. Both the ALRB and the UFW are respondents in this action.

The access granted was to a limited number of union representatives to enter upon the employer's property for a specified time before work and during lunch periods. The language of the injunction is based upon regulations by the ALRB governing access to employers' properties for the purpose of organizing a union. That regulation was found constitutional in Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 128 Cal.Rptr. 183, 546 P.2d 687. All parties here agree, however, that at the time the court issued the injunction in the instant case no regulation had been promulgated by the ALRB granting any form of access to an employer's property during a strike for the purpose of talking to nonstriking employees.

The Agricultural Labor Relations Act of 1975 (ALRA) (Lab. Code, s 1140 et seq.) was enacted to provide for collective bargaining rights for agricultural employees. (Lab. Code, s 1140.2.) Chapter 4 of the act characterizes a variety of acts by either employers or unions as unfair labor practices. (Lab. Code, s 1153 et seq.) Section 1152 enumerates the rights of agricultural employees: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of continued employment as authorized in subdivision (c) of Section 1153.” It is an unfair labor practice for either an employer or a labor organization to restrain or coerce agricultural employees in the exercise of their rights guaranteed in section 1151. (Lab. Code, s 1153, subd. (a), 1154, subd. (a)(1).)

The ALRB is the state administrative agency charged with implementation of the act, including adjudication of unfair labor practice charges. (See Lab.Code, ss 1160-1160.9; Agricultural Labor Relations Bd. v. Laflin & Laflin (1979) 89 Cal.App.3d 651, 656, 152 Cal.Rptr. 800.) When it is charged that any person has engaged in or is engaging in an unfair labor practice as set forth in chapter 4, the ALRB has power to issue an unfair labor practice complaint and conduct a hearing to adjudicate the charge. If the board finds the party to have committed an unfair labor practice, it may order that practice stopped, and may order other appropriate relief. (Lab.Code, ss 1160.2, 1160.3.) In addition, when the board issues an unfair labor practice complaint, it has power to petition to the superior court for “appropriate temporary relief or restraining order,” pending the board's adjudication of the complaint. The court has jurisdiction to grant to the board such temporary relief as the court deems “just and proper.” (Lab.Code, s 1160.4.) It is the form of relief ordered by the court in response to the ALRB's injunction complaint which is at issue here.

The ALRA is derived from the National Labor Relations Act (NLRA). (29 U.S.C. s 151 et seq.; Belridge Farms v. Agricultural Labor Relations Bd. (1978) 21 Cal.3d 551, 556, 147 Cal.Rptr. 165, 580 P.2d 665.) Section 1160.4 was derived from NLRA section 10(j) (29 U.S.C. s 160(j);¹ Agricultural Labor Relations Bd. v. Laflin & Laflin, supra, 89 Cal.App.3d at p. 665, 152 Cal.Rptr. 800.) Section 1148 directs the ALRB to follow applicable precedents of the NLRA, and the Laflin court notes that federal decisions under NLRA section 10(j) have developed a two-part test for determining the propriety of temporary injunctive relief: (1) whether there is probable cause to believe that the unfair labor practice being prosecuted by the board has in fact occurred, and (2) whether the injunctive relief requested is equitably necessary or, in the words of the statute, “just and proper.” (Laflin, at p. 671, 152 Cal.Rptr. 800, and federal cases cited therein.)

The scope of appellate review of a section 10(j) proceeding, as here, is limited to a determination of whether the trial court's finding that there is reasonable cause to believe an unfair labor practice has been committed is clearly erroneous, and whether the trial court abused its discretion in granting injunctive relief. (Boire v. International Brotherhood of Teamsters, etc. (5th Cir. 1973) 479 F.2d 778, 792-793; see also Hendrix, etc. v. International U. of Operating, etc. (8th Cir. 1979) 592 F.2d 437, 443.) The sole question is whether the access relief ordered was an abuse of discretion.

The standing of Coastal Farms to appeal

Initially, the ALRB and the UFW contend that appellant has no right to appeal from that portion of the preliminary injunction granting strike access. The federal cases interpreting section 10(j) of the NLRA, upon which Labor Code section 1160.4 was modeled, hold that the charging party in an unfair labor practice case is not a party litigant when the board initiates the suit for temporary injunctive relief. (Squillacote v. International U., United A., A. & A. I. W. (D.C. 1974) 383 F.Supp. 491.) The parties do not contend that the law of California is otherwise. They disagree, however, as to the status of Coastal Farms. Respondents argue that the portion of the injunction granting strike access arose out of the unfair labor practice complaint filed by Coastal Farms against the UFW. They point out that after the UFW filed its unfair labor practice charge against Coastal Farms, Coastal Farms filed an unfair labor practice charge against the UFW, charging in part that UFW members unlawfully entered its property and coerced nonstrikers. The court enjoined the UFW and its representatives from entering upon the employer's property, except as permitted by the terms of the injunction itself. Therefore, respondents argue, as to that part of the injunction which included the access order, appellant was the charging party, not a party litigant.

However, although respondent UFW and appellant each filed separate unfair labor practice charges, and the ALRB filed two separate unfair labor practice complaints, the ALRB then filed in superior court a single complaint for injunctive relief pursuant to Labor Code section 1160.4, naming both appellant and the UFW as defendants. Coastal Farms was named as a party litigant in the ALRB's action for injunction and was aggrieved by the judgment. Appellant objected to the access order throughout the hearings on the temporary restraining order and the preliminary injunction, arguing that the court was without authority to make such an order. As an aggrieved party it has the right of appeal from an adverse judgment. (Code Civ.Proc., s 902; County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737, 97 Cal.Rptr. 385, 488 P.2d 953.)

Limited access order

All parties concede that the ALRB has not promulgated any rule or regulation authorizing the kind of access ordered here. We conclude that absent such a valid rule or regulation the court abused its discretion when it ordered appellant to permit union representatives to enter its property during this strike.

Both the United States Supreme Court and the California Supreme Court have recognized that federal or state labor law may grant unions rights to conduct activities on an employer's property. (Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317, 328, 158 Cal.Rptr. 370, 599 P.2d 676.) Federal law resolves access questions by National Labor Relations Board adjudication, on a case-by-case basis. (See Hudgens v. NLRB (1976) 424 U.S. 507, 523, 96 S.Ct. 1029, 1038, 47 L.Ed.2d 196; Labor Board v. Babcock & Wilcox Co. (1956) 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975.) In contrast, in California agricultural union organizers have been granted a qualified right of access to growers' property by an administrative regulation of general applicability. (Cal.Admin.Code, tit. 8, s 20900.) Adopted by the ALRB pursuant to its rule-making power, this regulation grants union organizers limited access during the period prior to an election by farm workers to determine their representative union for bargaining purposes, and for a short period thereafter. The regulation explicitly limits the time and place of access, and specifies that its purpose is meeting and talking with employees to solicit their support.

Subsection (d) of that regulation states: “The legislatively declared purpose of bringing certainty and a sense of fair play to a presently unstable and potentially volatile condition in the agricultural fields of California can best be served by the adoption of rules on access which provide clarity and predictability to all parties. Relegation of the issues to case-by-case adjudication or the adoption of an overly general rule would cause further uncertainty and instability and create delay in the final determination of elections.”

In Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 128 Cal.Rptr. 183, 546 P.2d 687, the Supreme Court rejected an argument that this regulation unconstitutionally deprived growers of property rights without due process. Relying on Labor Board v. Babcock & Wilcox Co. (1956) 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975, among other cases, the court held that when employees' rights of self-organization are in irreconcilable conflict with employers' property rights, it is the property rights which must give way. (Id., 16 Cal.3d at p. 406, 128 Cal.Rptr. 183, 546 P.2d 687.)

The court also held that although federal policy is to adjudicate the need for access on a case-by-case basis, that approach is not constitutionally mandated. The ALRB's decision to regulate pre-election access by a rule of general application was therefore not unconstitutional, even though there might be individual instances in which access might in fact be unnecessary for effective communication. Furthermore, the court held the decision to regulate access by means of a detailed and specific regulation was consistent with the terms of the ALRA itself. The court in part justified the decision to regulate access by rule rather than on a case-by-case determination by emphasizing factual findings on which the ALRB predicated its rule and which enumerate factors unique in California agriculture. (See ALRB v. Superior Court, supra, at pp. 414-415, 128 Cal.Rptr. 183, 546 P.2d 687.)

However, the ALRB has adopted a slightly different approach to the question of post-certification access by union representatives. In O. P. Murphy (1979) 4 ALRB No. 106, the UFW was certified as bargaining representative for employees of O. P. Murphy. After the union and Murphy commenced contract negotiations, a UFW organizer entered company property to inform employees about the negotiations. The employer threatened to arrest her for trespass, and the UFW filed an unfair labor practices charge. After a hearing, the administrative law officer found the bargaining representative had no legal right to enter. The ALRB disagreed. The board stated that although the access regulation had no specific provision for post-certification access by bargaining representatives, the regulation did acknowledge that post-certification access rights can come into play. In subsection (e)(1)(C), the access rule provides: “Nothing herein shall be interpreted or applied to restrict or diminish whatever rights of access may accrue to a labor organization certified as a bargaining representative.” The board then held that a certified bargaining representative is entitled to take post-certification access at reasonable times and places for any purpose relevant to its duty to bargain collectively as the exclusive representative of the employees in the unit. In so holding the board recognized the need for post-certification access has a different origin than does the need for pre-election access. After certification the exclusive representative needs access to carry out its rights and duties to bargain on behalf of all employees it represents. The board concluded that “(b)ecause of the different interests involved after certification, and because of our limited experience with the effect of post-certification access on the negotiating process, we will evaluate the extent of the need for such access on a case-by-case approach.” (O. P. Murphy, supra, at p. 8.)

In San Diego Nursery Co. v. Agricultural Labor Relations Bd. (1979) 100 Cal.App.3d 128, 160 Cal.Rptr. 822, an access issue arose in a different context. After the UFW filed notice of intention to take pre-election access to an employer's premises, the employer refused to comply with ALRB regulations requiring the furnishing of employee names and addresses. Pursuant to a “policy of external education” which the court describes as “of ad hoc origin, not formalized in any ALRB regulation or rule, nor provided for in the ALRA,” the ALRB sought to take access itself to advise employer and workers of their rights and obligations under the ALRA. The employer denied access, and sought injunctive relief against any ALRB entry. The trial court found that absent express, statutory authorization for access, the ALRB should be enjoined from entering. The ALRB appealed.

Relying on ALRB v. Superior Court, supra, 16 Cal.3d 392, 128 Cal.Rptr. 183, 546 P.2d 687, the appellate court held that a duly promulgated administrative regulation authorizing an unconsented but limited entry upon a grower's work premises by an ALRB representative, in performance of duties imposed by the act, would “transgress no constitutional command.” (100 Cal.App.3d at p. 135, 160 Cal.Rptr. 822.) The court also held that an appropriately tailored rule authorizing such pre-petition access for a limited purpose would not be prohibited by the ALRA itself, and that the administrative agency would not exceed the authority conferred on it by statute in engaging in such rule making. (Id., at p. 141, 160 Cal.Rptr. 822.) The San Diego Nursery Co. court went on to disapprove the board's efforts to take unconsented access on an ad hoc basis rather than pursuant to duly promulgated rules. The value of rule-making over a case-by-case determination was discussed, and the court noted that regulations are adopted after full public consideration and lead to more responsible and certain administrative action.

Notwithstanding the ALRB's opinion in O. P. Murphy decreeing case-by-case adjudication of the need for post-certification access, the decisions in both ALRB v. Superior Court and San Diego Nursery Co. v. ALRB express a clear preference for the resolution of access problems in the agricultural area by rule-making. Indeed, in another context, the Supreme Court has said, “While union organizer presence on employer property in violation of the access regulation is unlawful, it is not necessarily always a violation of section 1154, subdivision (a)(1).” (Belridge Farms v. ALRB, supra, 21 Cal.3d 551, 559, 147 Cal.Rptr. 165, 580 P.2d 665, emphasis added.)

We reiterate the words of the ALRB itself, cited with approval by the Supreme Court in ALRB v. Superior Court, supra, 16 Cal.3d at page 416, 128 Cal.Rptr. 183, 546 P.2d 687. “The legislatively declared purpose of bringing certainty and a sense of fair play to a presently unstable and potentially volatile condition in the agricultural fields of California can best be served by the adoption of rules on access which provide clarity and predictability to all parties.” We recognize that statement was made to justify rules applicable to the pre-election period. Nonetheless, assuming only for the sake of argument that a limited right to strike access is constitutionally permissible, we see the need to regulate access by rule as even greater during a strike, when increased tension among grower, striker, and nonstriker exacerbates the possibility of violent confrontation.² If no rule mandates strike access, how is the grower to know whether he commits an unfair labor practice by denying union representatives permission to enter his property during a strike? Without a rule, how is the union representative to know whether he risks committing an unfair labor practice when he attempts to take strike access?

Respondents argue that the NLRB decision on remand in Scott Hudgens (1977) 230 NLRB No. 73, is precedent for this strike access order. However, that case is readily distinguishable factually as well as procedurally. The access approved in Hudgens was onto a privately owned shopping center, to enable picketing in front of a store within the center. The NLRB explained that it was “simply subjecting the businesses on the Mall to the same risk of Section 7 activity as similar businesses fronting on public sidewalks now endure. (P) It is clear then, that by our holding here we do no more than assure that employees of employers doing business in such malls will be afforded the full protection of the Act. In our view, the national labor policy requires that such employees be afforded that protection. A contrary holding would enable employers to insulate themselves from Section 7 activities by simply moving their operations to locations on private malls, and would thereby render Section 7 meaningless as to their employees.” (230 NLRB 73, at p. 418, emphasis added.) In contrast, in this case, with its injunction, the court subjected appellants to strike-related activity more intrusive than and unlike that endured by other businesses. The effect of the decision in Hudgens was that the struck store would have pickets outside its premises, picketing on property to which the general public was invited by its owners. The effect of the injunction here is that the struck grower has union representatives within its premises, which are not open to the general public.

We return to the critical question here: did the trial court, authorized by section 1160.4 to grant “just and proper” temporary relief, abuse its discretion when it ordered this unprecedented strike access?

Respondents emphasize that the court must consider the need for an injunction to prevent frustration of the basic purpose of the Labor Relations Act. (Squillacote v. Local 248, Meat & Allied Food Wkrs. (7 Cir. 1976) 534 F.2d 735.) Respondents focus on the Legislature's statement that in enacting the ALRA, it intended to “ensure peace in the agricultural fields” (Note to s 1140, citing Stats.1975, Third Ex. Sess. Deering's Anno.Codes, c. 1), and argue that the access order was necessary to ensure that peace. However, it is also clear that temporary injunctive relief in an unfair labor practice case is intended as a means to preserve or restore the status quo as it existed before the onset of the allegedly unfair practices. (Squillacote, supra.) Here it was alleged that UFW strikers were unlawfully entering appellant's property and threatening workers. The status quo before the onset of any such conduct was that without the grower's consent, union representatives could not lawfully enter a grower's property during a strike. The court's injunction did not maintain or restore that status quo; rather, it significantly altered the situation by requiring appellant to permit union representatives to enter its premises three times a day to meet and talk with nonstriking workers.

We conclude that “just and proper” temporary relief as permitted by Labor Code section 1160.4 does not include the granting of even limited strike access to a grower's property absent a valid rule or regulation permitting such access.

We acknowledge that Division Two of this court has recently held that mandamus will not lie to compel the ALRB to adopt regulations of general applicability concerning residential picketing. The court held that the ALRB has the discretion to choose between proceeding against unfair labor practices either by general rule or by ad hoc adjudication. (California Coastal Farms v. Agricultural Labor Relations Bd. (1980) 111 Cal.App.3d 734, 168 Cal.Rptr. 838.) We do not quarrel with the proposition that the board may elect to handle many, even most, unfair labor practices by way of ad hoc adjudication. However, we disagree with the sweep of the court's language insofar as it suggests that the ALRB always has discretion to pursue remedies unauthorized by regulation as it carries out its mandate to control unfair labor practices. The propriety of a strike access order absent an authorizing regulation was not before the court in California Coastal Farms v. Agricultural Labor Relations Bd., and “an opinion is not authority for a proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2, 39 Cal.Rptr. 377, 393 P.2d 689.)

Judgment is reversed.

I respectfully dissent.

The majority opinion reasons that (1) although the ALRA is patterned on the NLRA and the ALRB must follow the applicable precedents of the NLRB (Lab.Code, s 1148), the ALRB may decline to follow the procedures of the NLRB, which decides questions of “access” on a case-by-case basis, and may instead proceed by general rule (ALRB v. Superior Court (1967) 16 Cal.3d 392, 412-414, 128 Cal.Rptr. 183, 546 P.2d 687),¹ (2) the ALRB has elected to proceed by general rule so far as basically “pre-certification” access is concerned (8 Cal.Admin.Code, s 20900), (3) the ALRB has held that “post-certification” access will be determined on a case-by-case basis (O. P. Murphy (1978) 4 ALRB No. 166, p. 8), (4) an intermediate appellate court has held that post-certification access by ALRB agents for the purpose of notifying employer and employee of their rights and obligations, which is not governed by a general rule, is unauthorized (San Diego Nursery Co. v. Agricultural Labor Relations Board (1979) 100 Cal.App.3d 128, 160 Cal.Rptr. 822),² (5) the Administrative Code and the ALRB v. Superior Court and San Diego Nursery decisions express a preference for proceeding by general rule, (6) a general rule would be preferable because with it the employer, when he denies access, and the union, when it takes access, would know whether or not they were committing an unfair labor practice,³ (7) there is no precedent for an order for strike access into the actual work area,⁴ (8) the order did not serve the traditional purpose of preserving or restoring the status quo ante the alleged unfair labor practice (see Squillacote v. Local 248, Meat & Allied Food Wkrs. (7th Cir. 1976) 534 F.2d 735, 744),⁵ but altered it in favor of the union, and (9) therefore, access by a union to a grower's property during a strike is not authorized “absent a valid rule or regulation permitting such access.” (Ante, p. 222.)

I submit that this conclusion does not follow from these premises. It certainly does not follow from the fact that the ALRB may proceed by rule that it cannot proceed on a case-by-case basis. Nor does it follow from the fact, if it is a fact, that because it would be preferable to proceed by rule that it is unlawful to proceed on a case-by-cases basis. Of course, “the lack of a precedent (for) doing something is hardly a precedent that it may not lawfully be done.” (Bamberger v. Clark (D.C. Cir. 1968) 390 F.2d 485, 488.) The other considerations advanced in support of the conclusion are not persuasive, for reasons set forth in the foregoing footnotes.

The first question is whether ordering access is per se an impermissible infringement of the constitutional rights of the property owner. That it is not is clearly established. (Labor Board v. Babcock & Wilcox Co. (1956) 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975; Sears Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317, 158 Cal.Rptr. 370, 599 P.2d 676), and I do not understand the majority to suggest otherwise. Given on the one hand, that strike access is not prohibited and granted on the other hand, that there was no ALRB rule providing for strike access, the crux of matter becomes this: Could strike access be ordered by the trial court?

The authority for the issuance of the order herein is Labor Code section 1160.4.⁶ The standard which the trial court must follow in issuing a restraining order is whether there is probable cause to believe that an unfair labor practice has occurred or is occurring and whether the order requested is “ ‘just and proper.’ ” (See ALRB v. Laflin & Laflin, supra, 89 Cal.App.3d at p. 671, 152 Cal.Rptr. 800; Boire v. International Brotherhood of Teamsters, etc. (5th Cir. 1973) 479 F.2d 778.) What is “just and proper” encompasses what is necessary “immediately and temporarily to put an end to conduct ... which (the) Board has reasonable cause to believe constitutes an unfair labor practice and which, if continued during adjudication of the unfair labor practice charges, might undermine or frustrate the purposes of ALRA.” (ALRB v. Laflin & Laflin, supra, at p. 670, 152 Cal.Rptr. 800; see Solien v. Merchants Home Delivery Service, Inc. (8th Cir. 1977) 557 F.2d 622, 626, and cases cited). A fundamental purpose of the ALRA is to keep “the labor peace.” (San Diego Nursery Co. v. ALRB, supra, 100 Cal.App.3d at p. 142, 160 Cal.Rptr. 822.)

The standard on our review is whether the trial court has abused the discretion reposed in it by Labor Code section 1160.4. (See Boire v. International Brotherhood of Teamsters, etc., supra, 479 F.2d at p. 793.) In this case, the record shows that there was probable cause to believe that union members had committed unfair labor practices by running onto the fields to communicate with replacement workers. The trial court noted the undoubted right of the union to communicate with the nonstrikers and expressly considered the lack of practical alternative means of doing so. It was aware of the great potential for violence occasioned by unlawful attempts to communicate, which, in another county but as part of the same strike activity, had resulted in the killing of a striker. Substantial evidence supported the court's finding that this unlawful practice had been curbed and the danger of disorder reduced by an earlier order permitting the union limited access for the purpose of communicating with the nonstrikers.

The order from which the appeal is taken permitted access in a manner structured in time and place and in terms similar to the terms in which pre-certification access is permitted by regulation. (Cal.Admin.Code, s 20900.) It balanced the employer's right to the possession of its property and the conduct of its business against the right to communicate with the replacement workers, which the employer but not the union had previously been able to exercise. It also served to protect the nonstrikers from unwanted attempts at communication. I agree with the court below that the order was a “reasonable proper method of handling it, not simply waiting for the blood to flow as each attempts to take access or to stop access.” The order was a “just and proper” means of controlling the unfair labor practice (Lab.Code, s 1160.4) and of “prevent(ing) frustration of the basic remedial purposes of the Act.” (Solien v. Merchants Home Delivery Service, Inc., supra, 557 F.2d at p. 626.) In my opinion, there was no abuse of discretion.

I would affirm the judgment.

FOOTNOTES

1.  Section 10(j) provides in pertinent part: “The Board shall have power, upon issuance of a complaint ... charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court ... for appropriate temporary relief or restraining order.... (T)he court shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.”

2.  We express no opinion on the constitutionality of such a rule should it be adopted.

1.  Cited by the Supreme Court as one of the more important reasons why the ALRB is not bound to follow NLRB procedure is that the Legislature presumably “intended to abide by the well-settled principle of administrative law that in discharging its delegated responsibilities the choice between proceeding by general rule or by ad hoc adjudication ‘lies primarily in the informed discretion of the administrative agency.’ (Citations.)” (16 Cal.3d at p. 413, 128 Cal.Rptr. 183, 546 P.2d 687.)

2.  The reasoning of San Diego Nursery seems to be that, because such access is an invasion of property rights, it should be subject to reasonable limitations, and to proceed by rule would serve the interests of clarity, predictability, an opportunity for all concerned persons to be heard, and responsiveness to public needs, whereas an “ad hoc” approach may lead to confrontation and disruption of the labor peace, contrary to the purposes of the ALRB. (100 Cal.App.3d at p. 142, 160 Cal.Rptr. 822.) Whatever may be the validity of such reasoning, it is of limited applicability to the present case, because here we are concerned with a precise order, made after ample opportunity to be heard, which demonstrably contributed to the labor peace.

3.  There is no contention that appellant was committing an unfair labor practice when it denied strike access to the union, nor did the trial court find such an unfair labor practice. Rather, the trial court sought to fashion an order that would minimize the potential for physical strife without doing violence to the rights of the employer and the union. After the order was issued, there was no uncertainty regarding the rights and obligations of the parties as to access.

4.  The majority opinion distinguishes Scott Hudgens (1977) 230 NLRB No. 73, on the ground that the strike access ordered there was more limited i. e., permitted entry into private property for some of the same purposes that entry is sought here, but only into an area open to the general public and not into the work area itself. It may be pointed out that in the parent case, Hudgens v. NLRB (1976) 424 U.S. 507, 522, 96 S.Ct. 1029, 1037, 47 L.Ed.2d 196, the Supreme Court had held that in accommodating the union employer organization rights and the property owner's rights, “the locus of that accommodation ... may fall at differing points along the spectrum depending on the nature and strength of the respective ... (organizational) rights and private property rights asserted in any given context.” In the Hudgens context, access to the front of the store within the private shopping mall was sufficient for the communication of the union's message to nonstriking employees. In the agricultural context, for the reasons reviewed by ALRB v. Superior Court, supra, 16 Cal.3d at page 415, 128 Cal.Rptr. 183, 546 P.2d 687, personal access into the fields is essential for effective communication. Thus, it is a matter of where on the spectrum the line is drawn, and in the present case, it is reasonable to draw it closer to the work area (and it was drawn not in the cultivated fields themselves but in the margins of the field, referred to as “headlands”).

5.  Squillacote observes that “courts should consider such factors as the need for an injunction to prevent frustration of the basic remedial purpose of the ... (NLRA) and the degree to which the public interest is affected by a continuing violation as well as more traditional equitable considerations such as the need to restore the status quo ante or preserve the status quo.” (534 F.2d at p. 744; emphasis added; see ALRB v. Laflin & Laflin (1979) 89 Cal.App.3d 651, 666, 152 Cal.Rptr. 800.) Thus, an order directed at the prevention of an unfair labor practice is not confined to the traditional objectives of a restraining order.

6.  Labor Code section 1160.4 provides:“The board shall have power, upon issuance of a complaint as provided in Section 1160.2 charging that any person has engaged in or is engaging in an unfair labor practice, to petition the superior court in any county wherein the unfair labor practice in question is alleged to have occurred, or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition, the board shall cause notice thereof to be served upon such person, and thereupon the court shall have jurisdiction to grant to the board such temporary relief or restraining order as the court deems just and proper.”

SCOTT, Associate Justice.

WHITE, P. J., concurs.