PANDOL SONS v. UNITED FARM WORKERS OF AMERICA AFL CIO (1978)

Court of Appeal, Fifth District, California.

PANDOL & SONS, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest.

Civ. 3446.

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, and Linton Joaquin, Salinas, for real party in interest.

OPINION

On September 30, 1975, United Farm Workers of America, AFL-CIO (UFW), filed two unfair labor practice charges with the Agricultural Labor Relations Board (Board). On October 2 the Fresno regional director ordered the cases consolidated and issued a complaint against petitioner, alleging that by various acts it had violated Labor Code section 1153, subdivision (a).¹ An administrative law officer (ALO) held a hearing on October 13, 1975, and rendered his decision on October 12, 1976. The ALO found that petitioner had committed unfair labor practices by denying UFW organizers access to its property on September 29 and 30, 1975. On April 5, 1977, the Board adopted the ALO's findings in part and issued a modified order. On May 5, 1977, the petitioner filed a petition for review of the order pursuant to Labor Code section 1160.8.

The Board's finding of unfair labor practices is predicated upon events which occurred at petitioner's premises in September 1975 when the UFW was engaged in an organizational campaign among petitioner's employees. The ALO found very little conflict in the testimony and no dispute as to what occurred. UFW organizers had entered petitioner's property to talk with the workers as permitted by the access rule (Cal.Admin.Code, tit. 8, s 20900). The organizers wore UFW buttons as identification. On one occasion they distributed leaflets to the workers. Matt Pandol, one of the petitioner's partners, had the organizers arrested.

DISCUSSION

Petitioner's challenge to the constitutionality of the adjudicative powers of the Board under Labor Code section 1160.3 and the review provisions of Labor Code section 1160.8 has been answered in Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Board (5 Civ. 3395) 144 Cal.Rptr. 149.

Petitioner makes two additional arguments that also have been answered in Tex-Cal Land Management, Inc., supra. It contends there is no evidence that employee rights were interfered with since there is no evidence that the employees desired to speak with UFW organizers. As discussed in Tex-Cal Land Management, Inc., supra, this is not the law. The test is whether the employer's conduct by its very nature tends to interfere with employee rights. (Joy Silk Mills v. National Labor Relations Board (1950) 87 U.S.App.D.C. 360, 371-372, 185 F.2d 732, 743-744; see National Labor Relations Board v. Link Belt Co. (1941) 311 U.S. 584, 588, 61 S.Ct. 358, 85 L.Ed. 368.)

Petitioner also disputes the Board's view that the giving of UFW pamphlets to employees falls within the access rule. As explained in Tex-Cal Land Management, Inc., supra, the Board's interpretation of its own access rule is reasonable and cannot be overturned by this court. We pointed out that under the rule union organizers may not engage in conduct “disruptive of the employer's property or agricultural operations, including injury to crops or machinery . . . ” (Cal.Admin.Code, tit. 8, s 20900, subd. (e)(4)(C).) There is no evidence in the record that the distribution of pamphlets caused any disruption of petitioner's farming operations such as might occur if the employees read the pamphlets during work hours or leave them on the premises.

Petitioner's main argument is that the remedies fashioned by the Board are improper, excessive, and cumulative. The Board ordered the petitioner to post, mail, and read a notice; to provide the UFW with a list of the names and addresses of all employees for each payroll period; and to allow the UFW access to its fields without regard to either the number limitations in the access rule or the date of certification.

The posting, mailing, and reading requirement is well within the Board's province. (See 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.) The ALO premised the mailing requirement on the scattered nature of the work force, the literacy and language problems, and the employer's coercive influence. Petitioner's argument that the Board relied upon facts not in the record to support its findings and that these facts were gleaned from other cases is answered by the United States Supreme Court, which addressed identical arguments under the NLRA:

“It is urged, however, that no evidence in this record supports this back pay order; that the Board's formula and the reasons it assigned for adopting it do not rest on data which the Board has derived in the course of the proceedings before us. But in devising a remedy the Board is not confined to the record of a particular proceeding. ‘Cumulative experience’ begets understanding and insight by which judgments not objectively demonstrable are validated or qualified or invalidated. The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process.” (National Labor Relations Bd. v. Seven-Up Bottling Co. (1953) 344 U.S. 344, 348-349, 73 S.Ct. 287, 290, 97 L.Ed. 377; see also Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 414-417, 128 Cal.Rptr. 183, 546 P.2d 687.)

Nor can we interfere with the Board's order that petitioner provide the UFW with a list of the names and addresses of all employees for each payroll period. We perceive no undue burden on petitioner in this regard. It is only when the record shows an abuse of discretion by the Board in ordering an affirmative act by the petitioner that this court may strike the remedy. (National Labor Relations Bd. v. Seven-Up Bottling Co., supra, 344 U.S. 344, 346-347, 73 S.Ct. 287, 97 L.Ed. 377.) The Board must be given relatively free reign in determining which remedy will best effectuate the policies of the act. (See Fibreboard Paper Products Corp. v. N.L.R.B. (1964) 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed.2d 233; Republic Aviation Corp. v. National Labor Rel. Bd. (1945) 324 U.S. 793, 798, 65 S.Ct. 982, 89 L.Ed. 1372.) As the Supreme Court stated in Phelps Dodge Corp. v. National Labor Relations Bd. (1941) 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271:

“Because the relation of remedy to policy is peculiarly a matter of administrative competence, courts must not enter the allowable area of the Board's discretion and must guard against the danger of sliding unconsciously from the narrow confines of the law into the more spacious domain of policy.” (See also Fibreboard Paper Products Corp. v. N.L.R.B., supra, 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed. 233.)

Nevertheless, there is one remedy ordered by the Board which cannot be enforced granting the UFW the right to access without restriction as to the number of organizers. The order provides that this right of access shall encompass four 30-day periods within the 12 months following the Board's decision and shall be effective without regard to the date of certification of the results of the election.

The Board purported to order this remedy under its authority to order such “affirmative action, . . . as will effectuate the policies of (the act).” (Lab.Code, s 1160.3.) This accords with the federal law which gives the NLRB authority to devise remedies to further the policies of the NLRA. (See Fibreboard Paper Products Corp. v. N.L.R.B., supra, 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed. 233.) Expanded access to compensate a union for the employer's denial of access has been held a proper remedy. (See International Union of Electrical, R. & M. Wkrs. v. N.L.R.B. (1967) 127 U.S.App.D.C. 303, 305, fn. 4, 383 F.2d 230, 232, fn. 4; cf. N.L.R.B. v. H. W. Elson Bottling Co. (6th Cir. 1967) 379 F.2d 223, 226.)

However, the Board's order granting access unlimited as to the number of UFW organizers is contrary to the policies of the ALRA and the access regulation itself.² Access without restriction might result in interference with petitioner's farming operations and create a volatile situation. It also could result in undue coercion of employees. Obviously, the number of organizers allowed on an employer's premises must bear some reasonable relationship to the number of employees on the premises. Thus, the Board should have specified the number of additional organizers it believed necessary to compensate the UFW for the denial of access. If this had been done, we could review the propriety of the order.

The portion of the order allowing access without regard to the date of election certification also is contrary to the rationale of the access rule to allow unions to organize employees with the aim of being elected and becoming their certified bargaining agents. As petitioner points out, this portion of the order serves no purpose and conflicts with the Board's regulation barring access shortly after the election ballots are counted. (Cal.Admin.Code, tit. 8, s 20900, subd. (e)(1)(C).)

Accordingly, the order is modified by striking the unlimited access remedy and the remedy of access without regard to the date of election certification. As modified the order is enforced. Let a decree of enforcement be entered.

FOOTNOTES

1.  Labor Code section 1153 provides: “It shall be an unfair labor practice for an agricultural employer to do any of the following: (a) To interfere with, restrain, or coerce agricultural employees in the exercise of the rights guaranteed in section 1152. . . . ” Section 1152 guarantees employees 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.”

2.  The access regulations (Cal.Admin.Code, tit. 8, s 20900, subd. (e)(4)) provides that the number of union organizers allowed on an employer's property is two for every 30 employees and one additional organizer for each additional 15 employees.

FRANSON, Associate Justice.

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