ANDREWS v. AGRICULTURAL LABOR RELATIONS BOARD (1980)

This is a proceeding pursuant to Labor Code section 1160.8, to review a final decision of the Agricultural Labor Relations Board (Board). We issued the writ of review to consider petitioners' contention that the Administrative Law Officer (ALO) erred when he denied petitioners' motion to disqualify him for bias. Having concluded that petitioners' contention is well taken, we confine our recitation of facts to those germane to the question of the ALO's disqualification.

The hearings at which the ALO presided evolved out of proceedings initiated by the Board's General Counsel who filed complaints pursuant to Labor Code section 1160.2 alleging that during October and November, 1975, petitioners committed unfair labor practices within the meaning of Labor Code section 1153 by allegedly discharging and demoting 9 of their employees, engaging in unlawful surveillance and interrogation of employees and otherwise restraining and interfering with their employees' rights under the Agricultural Labor Relations Act (ALRA). Also at issue in the hearings was a petition filed by the United Farm Workers of America (UFW), pursuant to Labor Code section 1156.3(c), seeking to set aside, because of petitioners' alleged misconduct, an election in which petitioners' employees had cast a majority of votes for the UFW's then rival, the Teamsters Union.

The evidentiary hearings in the instant matter were conducted in December 1975 and January 1976. At the time of the hearings, disqualification of administrative law officers was governed by Board regulation 20230.4 which provided.

“Disqualification of Administrative Law Officer When Conducting a Hearing An administrative law officer may withdraw from a proceeding whenever he deems himself disqualified. Any party may request the administrative law officer at any time following his designation, and before filing of his decision, to withdraw on ground of personal bias or disqualification by filing with him promptly upon the discovery of the alleged fact, a timely affidavit setting forth in detail the matters alleged to constitute grounds for disqualification. If, in the opinion of the administrative law officer such affidavit is filed with due diligence and is sufficient on its face, he shall forthwith disqualify himself and withdraw from the proceeding. If the administrative law officer does not disqualify himself and withdraw from the proceeding, he shall so rule upon the record, stating the grounds for his ruling and proceed with the hearing, or, if the hearing has closed, he shall proceed with issuance of his decision, and the provisions of section 20220.2 with respect to review of rulings of administrative law officers, shall thereupon apply.”¹

The hearings were scheduled to begin on December 8, 1975. Approximately one hour prior to the start of the hearing, counsel for petitioners first learned the identity of the ALO and further learned that he was not a permanent employee of the Board or of the state, but rather an attorney in private practice with Public Advocates, Inc. in San Francisco, who had been hired by the Board as a temporary hearing officer.

Petitioners moved for a recess so that they might prepare and file an affidavit of prejudice against the ALO. That request was denied, but the ALO, recognizing that petitioners, through no fault of their own, had had no previous opportunity to prepare an affidavit, gave them permission to make an oral affidavit. Counsel for petitioners sought to inquire into the specific areas of law in which the ALO practiced. This request was refused. Counsel was then sworn and made the following oral affidavit:

“MR. BROWN: My affidavit would be this that I understand that Mr. Menocal is employed by Public Advocates which is a firm that I understand does a good deal of work in the area of employment discrimination. I believe they also do work on behalf of labor unions. It is my understanding that they do not do work on behalf of employers. I understand the Hearing Officer is presently involved in an employment discrimination case in part involving race, involving Blacks, Orientals and Mexican-Americans against the J. C. Penney Company, that Mr. Menocal has been involved in that case in the Spring of 1974, and on those grounds and other grounds which I am sure I could possibly find out with further inquiry into the specific cases which Public Advocates is now handling that there is certainly the appearance of bias, and I do not feel that my client can get the type of unbiased hearing that he is entitled to.”

The ALO denied the motion to disqualify him, ruling that it was not sufficient on its face and declaring that he had never represented the UFW, the Teamsters or any other union. He further stated that a “race discrimination case involving employment is not the same thing as a labor union dispute such as we have here and is not solely a suit against management.”

Thereafter, for reasons unrelated to the issue of the ALO's disqualification, and pursuant to stipulation by all counsel, the hearings were continued until December 15, 1975. In the interim, petitioners appealed the ALO's decision on the disqualification motion to the Board, received an adverse ruling, and filed a petition for writ of certiorari in the Court of Appeal, Fourth Appellate District² (4 Civ. 14731). That petition was summarily denied on December 12, 1975.³

When the hearings resumed on December 15, 1975, petitioners renewed their motion to disqualify the ALO by filing the following written declaration of counsel:

“1. I am an attorney licensed to practice law in the State of California and represent SAM ANDREWS' SONS in the above matters.

“2. I believe Armando Menocal, the hearing officer in the within matters, has a personal and professional bias and therefore, is not qualified within the meaning of Regulation Section 20230.4 to act as the hearing officer for the following reasons:

“(a) Mr. Menocal informed me on December 8, 1975, that he is presently employed with Public Advocates, a San Francisco law firm.

“(b) The 1974 and 1975 Docket sheets for Public Advocates, true and correct copies of which are attached hereto and incorporated herein as Exhibits A, B, and C establish that Public Advocates regularly represent Spanish-surnamed persons and farm workers against agricultural employers, other private employers, as well as governmental agencies in law suits and other legal matters challenging a variety of employment practices including national farm labor policies. Attention is called to 250 Farm Workers vs. Secretary of Labor and the comments attached thereto as set forth at page 12 of Exhibit ‘C.’

“(c) On December 8, 1975, Mr. Menocal informed me that since 1974 he has been involved in representing Spanish-surnamed persons in a suit challenging the employment practices of J. C. Penney Company. Reference is hereby specifically made to the comments on Sebastian v. J. C. Penney Company, Inc. as set forth at item 12 of Exhibit ‘A’ attached hereto.

“I declare under penalty of perjury that the foregoing is true and correct.

“Executed at Los Angeles, California, on December 11, 1975.”

The docket sheets referred to contained lists of Public Advocates, Inc's. active cases for the years 1974 and 1975. The cases were broken down into the categories of: education; employment discrimination; women's rights; prisoners' rights; environment, housing and land use planning; rights of aliens; voters' rights; rights of the elderly; grand jury proceedings; consumer affairs; and right to counsel's fees in public interest litigation. Amongst the employment discrimination cases, in addition to Sebastian v. J. C. Penney Co., Inc. referred to above, were others entitled: NAACP, Chicano and Women's Coalition v. 28 Largest Fire & Police Departments; 144 Spanish-Speaking Telephone Subscribers v. Pacific Telephone & Telegraph; Confederacion de la Raza Unida v. Brown ; and 250 Farmworkers v. Secretary of Labor Brennan.

Paragraph 12 of Exhibit “C,” referred to in counsel's declaration contained the following comments by Public Advocates with reference to 250 Farm Workers v. Secretary of Labor Brennan, which are particularly relevant to the issues before us:

“This case was filed in Federal District Court charging the Labor Department with refusing to enforce its own regulations protecting farmworkers. It also charged the State Department of Human Resources Development with operating a grower oriented and dominated farm labor service across the State.

“Status: This case was dismissed without prejudice on August 13, 1973, based on Federal Judge Ritchie's affirmative decision in our companion case, NAACP v. Brennan. As part of the agreement for our dismissal without prejudice, the Labor Department initiated the nation's largest investigation into farm labor areas of California. Subsequently, in the companion case of NAACP v. Brennan, the Secretary of Labor voluntarily dismissed his appeal from the preliminary relief granted our clients on November 19, 1973, and has agreed to cooperate with our clients to alter national farm labor policies.”

The ALO once again denied the disqualification motion, stating that he did not find it, or the supporting exhibits, sufficient to show “bias or disqualification.” The hearings were held from December 15, through December 19, 1975, and from January 5 through January 8, 1976. Written briefs were filed by petitioners in January 1976. The ALO did not file his written decision until March 17, 1977. In it he ruled against petitioners on all major issues.⁴ Petitioners thereafter filed with the Board exceptions to the ALO's findings and a lengthy supporting brief, 29 pages of which were devoted to the issue of the ALO's disqualification. On June 10, 1977, the Board issued its final decision in which it essentially adopted the ALO's findings and recommendations. The decision totally ignored the issue of the ALO's disqualification.

The instant petition was filed June 8, 1977. We postponed consideration of it until after the Supreme Court had rendered its decision in Tex-Cal Land Management v. ALRB, 24 Cal.3d 335, 156 Cal.Rptr. 1, 595, P.2d 579. Having reviewed the records according to the standards enunciated in Tex-Cal, supra, we concluded that the issue of the ALO's disqualification warranted full scale consideration and accordingly issued a writ of review and calendared the matter for oral argument.

Petitioners contend that section 20230.4, Supra, was analogous to section 170.6 of the Code of Civil Procedure and gave them an automatic right to disqualify the ALO upon the filing of a technically sufficient affidavit. The Board and the UFW dispute that section 20230.4 provided for a peremptory challenge of administrative law officers. We agree that section 20230.4 was not fully equatable with Code of Civil Procedure section 170.6. Rather, we concur with the position of UFW that section 20230.4 partakes of aspects of both Code of Civil Procedure section 170.6 and Code of Civil Procedure section 170, subdivision (5). Section 170.6 provides for disqualification upon the filing of a conclusory affidavit that the judge, commissioner or referee is prejudiced against a party or his attorney. Section 20230.4, by contrast, required that the facts alleged to constitute bias or disqualification be set forth in detail. Section 20230.4 was, in this respect, far closer to section 170, subdivision (5) of the Code of Civil Procedure than to section 170.6 of that code. Procedurally, on the other hand, section 20230.4 differed from section 170, subdivision (5). The latter section, which provides for disqualification of a judge “(w)hen it is made to appear probable that, by reason of bias or prejudice . . . a fair and impartial trial cannot be had before him,” permits the judge to deny the allegations of bias or prejudice. If he does so, the issue of his disqualification is referred to another judge for decision.

Section 20230.4 did not refer the question of disqualification to another impartial ALO for decision. Rather, section 20230.4 required the ALO to disqualify himself if he found the affidavit sufficient on its face. Thus a party to an ALRA hearing was, under section 20230.4, entitled to the automatic disqualification of the ALO upon a prima facie showing of bias. He was not required to prove his allegations and the ALO was not permitted to contest them. The key question for purposes of our deliberations is, therefore, what constitutes a showing of bias “sufficient of its face.”

Code of Civil Procedure section 170 is the basic statute in this state governing disqualification of judicial officers for cause. The term “bias” as used in subdivision (5) of section 170 has been interpreted many times. The Board, in promulgating section 20230.4 used the term bias without defining it. Given the frame of reference provided by Code of Civil Procedure section 170, subdivision (5), we must assume that the Board intended the term bias to have the same meaning in section 20230.4 as it has in the Code of Civil Procedure section 170, subdivision (5).

Bias, for purposes of Code of Civil Procedure section 170, subdivision (5), has been held to consist of a mental attitude or disposition of the judge towards a party to the litigation “sufficient to impair the judge's impartiality so that it appears probable that a fair trial cannot be held.” (Ensher, Alexander & Barsoom v. Ensher, 225 Cal.App.2d 318, 322, 37 Cal.Rptr. 327, 329; Evans v. Superior Court, 107 Cal.App. 372, 380, 290 P. 662, 665.) “ ‘Bias' is particular influential power which sways the judgment the inclination of mind toward a particular object and is not synonymous with ‘prejudice.’ A man cannot be prejudiced against another without being biased against him, but he may be biased without being prejudiced. (Citation omitted.)” (Evans v. Superior Court, supra, 107 Cal.App. 372, 380, 290 P. 662, 665.) The bias must be against the party who moves for disqualification, but it is not necessary that the judge be biased against the party as an individual, it is sufficient that he be biased against a class of which the moving party is a member. (Adoption of Richardson, 251 Cal.App.2d 222, 59 Cal.Rptr. 323.)

Finally, and most importantly, it is not only the fact of bias which leads to disqualification under Code of Civil Procedure section 170, subdivision (5), but the appearance of bias as well. (Pratt v. Pratt, 141 Cal. 247, 252, 74 P. 742; Pacific etc. Conference of the United Methodist Church v. Superior Court, 82 Cal.App.3d 72, 88, 147 Cal.Rptr. 44.) Indeed the need to guard against even the appearance of impropriety on the part of judges, lawyers, and administrative agencies has been stressed in a number of recent decisions. (See, e. g., Solberg v. Superior Court, 19 Cal.3d 182, 193, fn. 10, 137 Cal.Rptr. 460, 561 P.2d 1148, Comden v. Superior Court, 20 Cal.3d 906, 145 Cal.Rptr. 9, 576 P.2d 971; Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488; Wood v. City Civil Service Commission, 45 Cal.App.3d 105, 119 Cal.Rptr. 175.) In enacting the ALRA the Legislature declared: “This enactment is intended to bring certainty and a sense of fair play to a presently unstable and potentially volatile condition in the state.‘ (Sec. 1, Stats.1975, 3rd Ex.Sess, C.1, p.4013.) If “bias‘ under section 20230.4 were not held to include the appearance of bias, the “sense of fair play‘ for which the Legislature was striving would be seriously undermined.⁵

It is in this context that we examine the factual showing made in the present case. In doing so we find three factors coalescing which lead us to conclude that the ALO should have disqualified himself. The first of these and the one of preeminent importance is the fact that the ALO was a temporary state employee with a full time outside law practice. The second factor is that the area of law in which the ALO practiced was politically sensitive in nature. The third factor is that the underlying dispute which the ALO was called upon to adjudicate arose in an area which was also politically controversial. While one of these factors standing along would not have compelled disqualification, their combined effect was too potent to overlook.

The Legislature did not enact the ALRA in a vacuum, nor do we adjudicate in one. Passage of the ALRA followed many years of struggle by the UFW, sometimes in competition with the Teamsters, to organize farm workers. That struggle spread beyond the fields, polarizing the public at large and forming one of the major political controversies in the state of California in the 1970's. The hearings in this case took place less than six months after the ALRA became effective, when the political controversies between growers on the one hand and the UFW on the other were at their peak.

As is demonstrated by the docket sheets submitted in evidence below, Public Advocates, Inc. has a specialized practice the primary purpose of which appears not so much to be obtaining monetary damages for individual clients, but achieving broad political, social and economic changes through the medium of class action litigation. Given the atypical nature of Public Advocates, Inc.‘s practice, it is only reasonable to assume that its staff attorneys are not merely “hired guns,” but that they share, or at least sympathize with, the political, social and economic goals of the firm and its clients. As noted, those goals included the overhauling of state and national farm labor policies for the greater protection of farm workers.

There is no gainsaying the fact that Public Advocates, Inc. performs a valuable service by making legal services available to groups and individuals long excluded from the judicial system for financial reasons and by facilitating the peaceful resolution of class and societal grievances. But however commendable in the abstract we might regard the function of Public Advocates, Inc. and other public interest law firms, it in no way benefits society to force a litigant, who justifiably perceives the interests of the firm and its attorneys as adverse to his own, to litigate before an associate of the firm sitting in a temporary capacity as an ALO.

Labor Code section 1145 provides that the Board may appoint such ALO's “as it may from time to time find necessary for the proper performance of its duties.” While we understand this delegation of powers to be broad enough to encompass the appointment of temporary ALO's, in evaluating the possible bias of such temporary Board employees it is important to bear in mind that we are not concerned merely with attitudes developed and expressed in past employment, as is the case with full time administrative or judicial officers. We are concerned with the ALO's current and continuing outside loyalties and allegiances, loyalties and allegiances upon which the major source of his livelihood may depend. In the instant case, the potential for the exertion of subtle but improper influences on the ALO's decision making was enhanced by the fact that fourteen months elapsed between the time the hearings concluded and the time he filed his report,⁶ a period during which he presumably pursued his private practice.

In Gibson v. Berryhill, supra, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488, the Supreme Court held that the question of whether licensed optometrists could be employed by business corporations could not be decided by an optometry board composed of licensed optometrists who were independent contractors. The Court reasoned that if employment of optometrists by corporations were outlawed, the members of the board might acquire some of the business which had previously gone to the corporations. It was held that this potential for additional business gave the board members a sufficient personal interest in the matter to render them biased. Holding that the laws concerning disqualification for interest applicable to judicial officers apply with equal force to administrative adjudicators, and that “interest” need not be a direct financial stake in the outcome of the litigation (411 U.S. 579, 93 S.Ct. 1689), the Court stated that the standard was not whether the board members were actually biased, but whether the facts indicated a possible temptation toward bias for the average man sitting as a judge. (411 U.S. 571, 93 S.Ct. 1689.)

We cite Gibson v. Berryhill, supra, because the facts before us lead us to speculate as to whether a decision by the ALO favorable to petitioners would have had a negative impact on Public Advocates, Inc.‘s relationships with its clients, or upon the ALO's relationship with his firm. Obviously we cannot say that such would have been the case, the point is, that where such questions can be raised, the appearance of bias exists and infects the proceedings.

Although the ALO could not perceive the justification of petitioners' position, it seems patently clear to us that an attorney, employed by Public Advocates, Inc. in 1975 or 1976, would be perceived as biased against employers generally in disputes against unskilled low paid Spanish-surnamed workers,⁷ asserting a community of interests and that he would particularly appear to be biased against an agricultural employer in a dispute with the UFW.

4 The Board argues, again for the first time on petion for rehearing, that it is the Board, not the ALO, which determines the case and that there was no showing that the apparent bias of the ALO infected the board's decision. The Board implicitly recognized that biased ALO's would taint or impede the Board's own decision making when it enacted section 20230-4. Both typically and in the instand case, the crucial issues entrusted to the ALO are questions of credibility in the face of conflicting evidence. Although the law reposes final responsibility for resolving such factual disputes in the Board, the written record which the Board reviews will rarely be more persuasive than the ALO's assessment based on his presence at the hearing. Thus as a practical matter, as was the case here, the board will normally adopt the ALO's decision in matters of credibility. Yet it is in just this area that the potential for bias is most easily implemented and least easily discerned. A litigent who establishes the appearance of bias at the outset of the hearing should not then be required to trace its effects throughout the proceedings to redress a wrong that consisted of the ALO's refusal to disqualify himself at the start.

Let a decree issue reversing the order of the Board.

FOOTNOTES

1.  Section 20230.4 was superseded by section 20263 effective October 19, 1976. The latter section is not here in issue.

2.  The hearings were being conducted in El Centro, within the territorial jurisdiction of the Fourth Appellate District. Petitioners live within the jurisdiction of the Second Appellate District, hence our jurisdiction over the instant matter.

3.  The denial of the petition having been issued at a preliminary stage of the proceedings, having been decided on only a portion of the record before us, and having been summary in nature, cannot be considered a decision on the merits and the issue is still open.

4.  The UFW attempted to have this court review certain minor issues on which it lost. It was, however, too late. See United Farm Workers v. Agricultural Labor Relations Board (1977) 74 Cal.App.3d 347, 141 Cal.Rptr. 437.

5.   For the first time on a petition for rehearing, the Board belatedly contends that section 20230.4 has a federal parallel, National Labor Relations Board (NLRB) regulation section 102.37 (29 CFR § 102.37), and that, pursuant to Labor Code, section 1148, the term bias must be deemed to have the same meaning under section 20230.4 as it does under the National Labor Relations Act (NLRB). The Board further asserts that under federal case law, the NLRB and the courts have required a showing that actual bias infected the proceedings before the hearing officer before ruling that the hearing officer was disqualified. These arguments are not well taken. In the first place, the California Supreme Court twice (Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. 24 Cal.3d 335, 351, 156 Cal.Rptr. 1, 595 P.2d 579; Agricultural Labor Relations Bd. v. Superior Court, 16 Cal.3d 392, 412, 128 Cal.Rptr. 183, 546, P.2d 687) has held that Labor Code section 1148 does not apply to procedural rules which section 20230.4 certainly was. Secondly, none of the federal cases which the Board cites deal with a situation in which a conflict of interest arises out of the hearing officer's current outside employment. They are thus factually inapposite to the case before us and would not, in any event, constitue applicable federal precedents.

6.   This was in violation of Board regulation section 20279 which required the ALO to file his decision within 20 days after the evidence was closed. No explanation for the delay appears on the record.

7.   In all fairness it must be noted that so far as appears from the record, not only all of petitioners' employees, but their supervisory personnel, also, were Spanish-surnamed.

STEPHENS, Associate Justice.

KAUS, P. J., and ASHBY, J., concur. Hearing granted; BIRD, C.J., did not participate.