SAM ANDREWS SONS v. UNITED FARM WORKERS OF AMERICA AFL CIO (1985)

NATURE OF PROCEEDINGS:

Petition by agricultural employer Sam Andrews' Sons (ANDREWS) for review of decision of Agricultural Labor Relations Board (ALRB) finding that employer committed unfair labor practice, imposing certain remedial requirements on employer and compelling employer to pay costs and attorneys' fees of United Farm Workers' union (UFW).   We affirm that part of the decision finding an unfair labor practice.   We strike that part of the order awarding attorneys' fees.   We vacate the part of the order requiring affirmative action by Andrews relative to access as overly broad and remand the matter to the ALRB.

FACTS:

Andrews is an agricultural employer.   It maintains labor camps wherein its workers live.   Upon a strike by its Kern County employees, Andrews in an effort to protect its property and workers restricted access to both its camps and fields.   As a result (UFW), whose representatives and organizers were denied access to the camps and fields, filed several petitions with the ALRB charging Andrews with unfair labor practices.   It is unnecessary to detail all of the facts and particular circumstances of this case.   With but minor differences, the instant case before us is identical to the matter decided by another Division of this court in Sam Andrews' Sons v. Agricultural Labor Relations Bd. (1984) 162 Cal.App.3d 923, 208 Cal.Rptr. 812.  (Andrews I )  On appeal the court in Andrews I concluded the remedial order of the ALRB granting access to the United Farm Worker representatives without any limitation and undefined as to time and reasonable nature of the access was too broad.   That order was therefore vacated by that court.

Upon the same facts as here present Andrews I held that the record as a whole supported the ALRB finding of unfair labor practice by Andrews.   Additional issues in the present case before us involve the physical ejection of a union organizer, demands for the organizer's identification before admittance to the camp and whether the union complied with certain post-certification requirements.   These additional facts make no significant difference here.

DISCUSSION:

We follow the holding of the decision in Sam Andrews and Sons v. Agricultural Labor Relations Bd., supra, 162 Cal.App.3d 923, 208 Cal.Rptr. 812.   For the same reasons expressed in that decision we hold that upon review of the record as a whole the evidence supports the ALRB finding that the employer engaged in an unfair labor practice as defined by statute and decisional law, but we also conclude the ALRB's order is overly broad.

Although respectful to stare decisis, our result is not reached by blind and uncritical adherence to Andrews I.   Rather, as is our duty (Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456;  Sam Andrews' Sons v. Agricultural Labor Relations Bd. (1984) 162 Cal.App.3d 923, 208 Cal.Rptr. 812;  Agricultural Labor Relations v. Superior Court, Tulare County (1976) 16 Cal.3d 392, 128 Cal.Rptr. 183, 546 P.2d 687), we have examined the record as a whole.   The findings of the ALRB must “be set aside when the record before the Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of testimony of witnesses or its informed judgment on matters within its special competence or both.”  (Universal Camera Corp. v. Labor Bd., supra, 340 U.S. at p. 490, 71 S.Ct. at p. 465.)   This guiding precedent from the United States Supreme Court was followed in Andrews I, and is applicable here.  Labor Code section 1148 directs the ALRB to follow applicable precedents of the National Labor Relations Act as amended, and the California decisions have similarly followed applicable precedents relating to the NLRB in construing our act.  (Kaplan's Fruit & Produce Co. v. Superior Court (1979) 26 Cal.3d 60, 160 Cal.Rptr. 745, 603 P.2d 1341;  Sam Andrews' Sons v. Agricultural Labor Relations Bd., supra.)

 Thus examined the record discloses disruptive and violent acts of the UFW pickets including massive picketing.   For example, masses, at one time as many as 350, of UFW members and supporters picketed at Andrews' property.   Andrews could justifiably interpret this as intended not so much as exercise of free speech and protest but as threat and intimidation of other workers and camp residents.   There was vandalism to and destruction of Andrews' property by UFW pickets.   Great numbers of UFW members harassed non-union workers at night by loud noises, honking automobile horns, use of bull horns, shining spotlights into the sleeping quarters at all hours of the night and early morning.   UFW pickets assaulted and physically abused non-union workers.   In summary, the record as a whole justifies the efforts and business decisions by Andrews as to how best protect its rights and property, and to safeguard its employees.  “In the absence of union discrimination the administrative board lacks any control over an employer's business policies.”  (Martori Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 728, 175 Cal.Rptr. 626, 631 P.2d 60.)   In view of these acts the UFW and the potential for violence and harm during the strike, Andrews' acts of limiting access by non-employees and removing unauthorized persons do not seem unfair.   Nonetheless, whether its conduct constituted an unfair labor practice was primarily a question to be decided by the trier of fact, i.e., the administrative law judge, whose factual decision was accepted by the ALRB.

Labor Code section 1153(a) provides that in relevant part:  “It shall be an unfair labor practice for an agricultural employer to ․ interfere with, restrain or coerce agricultural employees in the exercise of the rights guaranteed in section 1152.”   The rights of employees under Labor Code section 1152 have been interpreted to include the right of union organizers to have reasonable access to the workers at their homes and places of work.   The NLRB has itself promulgated guidelines therefor.  (Cal.Admin.Code, tit. 8, ch. 9, § 29000.)   These guidelines have been held constitutionally valid.  (Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d 392, 128 Cal.Rptr. 183, 546 P.2d 687.)

Under essentially the same facts as here present the opinion in ANDREWS I answers with applicable federal and state case authority the same contentions and arguments presented by the parties here.   Its reasoning is equally applicable here.   For the sake of brevity we simply summarize the points of law therein:  (1.) The right of access by United Farm Workers to the employer's property is statutory and not necessarily dependent upon First Amendment rights.   The issue of the union's First Amendment rights need not be reached.  (2.) The Union's right of access is not unlimited.   It can be conditioned and in appropriate circumstances denied.  (3.) Access can be denied if other reasonable access to the workers and other available means of communication between the union representatives and workers exists.  (4.) There must be honest effort on the union's part to use other reasonable and available means.  (5.) The employer's efforts to protect other worker's privacy rights may not be used as justification for denying access.

 The reviewing court in Andrews I concluded that there were no alternate reasonably feasible methods of access or means of communication available to the union.   Accordingly that court concluded that the employer's restrictions and denial of access constituted an unfair labor practice.   Although it thus affirmed that part of the ALRB decision it vacated the remedial part of the ALRB order.   The same result is compelled here.   We find that under the applicable law the record supports the ALRB finding that the restrictions placed by employer Andrews upon the access rights resulted in an unfair labor practice.¹  Nonetheless we conclude that the remedial part of the present order is overly broad.

At bench the ALRB order in relevant part required that:  “Respondent Sam Andrews' Sons, its officers, agents, successors, and assigns, shall:

“1. Cease and desist from:

“(a) Preventing, limiting, or restraining any union organizers or agents from entering and remaining on the premises of Respondent's labor camps for the purpose of contacting, visiting, or talking to any agricultural employee on the premises.

“(b) Denying United Farm Workers of America, AFL–CIO (UFW) representatives access to bargaining unit employees, at reasonable times, on the property or premises where they are employed, for purposes related to collective bargaining between Respondent and the UFW.

“(c) In any like or related manner interfering with, restraining, or coercing any agricultural employee in the exercise of the rights guaranteed by section 1151 of the Agricultural Labor Relations Act (Act).

“2. Take the following affirmative actions which are deemed necessary to effectuate the policies of the Act:

“(a) At a time to be determined by the Regional Director, provide the UFW with access to its employees for one hour during regularly scheduled work time, for the purpose of talking with the employees about matters related to collective bargaining between Respondent and the UFW.   Access may be taken by two UFW representatives for every fifteen employees in each of Respondent's work crews.   After conferring with both the UFW and Respondent, the Regional Director shall determine the manner and most suitable time for the special access.   During the one-hour access period, no employee shall be required to be involved in the access activities.   All employees shall receive their regular pay for the time away from work.   The Regional Director shall determine an equitable payment to be made to nonhourly wage earners for their lost productivity.

“(b) Permit UFW representatives to meet and talk with Respondent's agricultural employees on the property or premises where they are employed, at times agreed to by Respondent or, in the absence of such an agreement, at reasonable times, for purposes related to collective bargaining between Respondent and the UFW.

Other parts of the order required notification to the employees and reading of the notices and order to the employees on company time.   Lastly paragraph “g” thereof provides as follows:

“(g) Reimburse the UFW for its fees and cost incurred in this matter.”

To illustrate the defects of the order, subparagraph (a) of Paragraph 1 of the order is overly broad in that it allows union representatives the unlimited right to enter at any time and remain on Respondent Andrews' premises for whatever time the union agent may choose, no matter how reasonable some limitation may be under a particular circumstance.   By contrast subparagraph (b) at least contains the limitation of “at reasonable times” for field access.   While this comparison may appear minor and may posit an abuse not intended by UFW it is but one of several aspects of the order which taken as a whole discloses the overbreadth and punitive effect.

Although the affirmative action part of the order (paragraph 2) has some specifics, i.e., it provides for access for two persons for every fifteen employees, and for one hour during regularly scheduled work time, it is nonetheless also similarly overly broad and subject to abusive interpretation.   Within the order there is no limit on the number of times the union could utilize the right of access.   Although it presumably refers to per day it is not expressly so limited.   But, even if it was intended to mean only once per day, the order is still excessive if it is interpreted to allow one hour visit every work day all year long, year in and year out, and always at company expense.   This latter feature of the expense has no support in the record as to why it is necessary and thus is purely punitive.   Moreover, the order exceeds the ALRB's own suggested guidelines promulgated in California Administrative Code, title 8, chapter 9, section 20900, supra, which provide for access by only two organizers or union representatives for each crew of 30 or less workers and one for each 15 additional workers in excess of 30.   Accordingly, although the record as a whole supports the ALRB's finding of an unfair labor practice, the remedial part of its order is too broad in that it would permit unlimited access.

That the company should pay for all the work hours used while the union representative meet and talk on company-paid-for time is unrelated and unnecessary to any assurance of access.   This is especially obvious in view of the ALRB's own prior administrative guidelines to which we have referred and which provide for union access to the workers before and after work, at the camps, at lunch breaks, in the fields and at the bus stops where the workers board to and from and at work.

Neither does the order indicate whether it is intended to implement, supplement or replace the ALRB's administrative rules which already provide union representative access for one hour per working day at lunch and one hour before and one hour after work and for four 30 day periods each year.  (Cal.Admin.Code, tit. 8, ch. 9, § 29000, supra.)   Although the ALRB is authorized and has broad discretion to fashion reasonable orders and remedies to carry out the purposes of the act (Nish Noroian Farms v. Agricultural Labor Relations Bd. (1984) 35 Cal.3d 726, 201 Cal.Rptr. 1, 677 P.2d 1170), the indefiniteness of term, as well as the amount of time (e.g. one additional hour per day access for any union-related purpose) featured here are too broad.   The matters to be carried out on company time are much more burdensome than for example the ALRB order which in Jasmine Vineyard, Inc. v. ALRB (1980) 113 Cal.App.3d 968, 170 Cal.Rptr. 510.   There the order required the employer to permit reading of the notices on company time.   As the Jasmine court observed, such reading takes only a few minutes.   Here in addition to its uncertainty and unnecessary breadth the order's requirement that the company pay for the additional hours used by the union during working time has no justification in the record as to its necessity and must therefore be deemed as punishment for the ALRB's perceived wrong-doing by Andrews.   The power of California's ALRB to command affirmative action is, like that of the NLRB, remedial not punitive.  (Sunnyside Nurseries v. Agricultural Labor Relations Bd. (1979) 93 Cal.App.3d 922, 940, 156 Cal.Rptr. 152;  Edison Co. v. Labor Board (1938) 305 U.S. 197, 236, 59 S.Ct. 206, 220, 83 L.Ed. 126;  Republic Steel Corporation v. Labor Board (1940) 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6.)

 The order of the ALRB requires petitioner Andrews to pay attorney fees to the UFW.   There is neither statutory nor decisional authority for this.   Rather it is contrary to the established policy and statute.

Except where attorneys' fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied of the parties.  (Code of Civ.Proc., § 1021.)

The ALRB was split on this issue.   The majority thereof and UFW and ALRB counsel here argue that though there are no federal appellate decisions by the Circuit Courts or the United States Supreme Court upholding an award of attorney fees, nonetheless the NLRB has frequently ruled that it has the authority to award fees as part of its power to make such orders as necessary to correct the misconduct of the wrongdoer.   The Board and UFW then suggest that in light of the directive of Labor Code section 1148 that the ALRB follow applicable National Labor Relations Act precedents, imposition of attorney fees should be sustained.   We are unpersuaded by this argument.

The imposition of attorney fees is unnecessary in this case.   There is no evidence that without such award the employer's conduct would go unredressed.   The conduct by Andrews was not unreasonable.   It thereby sought to protect its property and the rights of its workers, even though it may have been legally in error.   It is not like the cases of gross interference with the union's legitimate business, nor “union busting” efforts by threats, coercion or intimidation of employees.   Nor did Andrews file frivolous petitions and appeals calculated to hinder or delay.   Cases in which the NLRB has awarded fees are of such type.   Additionally, the fee award also is punitive rather than remedial in nature and thus contrary to the aims and policy of the law and beyond the power and authority of the “Board.”  (Sunnyside Nurseries v. Agricultural Labor Relations Bd., supra, 93 Cal.App.3d 922, 156 Cal.Rptr. 152.)

More importantly, however, there is paramount federal authority denying recovery of attorney fees in such cases, contrary to the ALRB decision here.   That authority is the United States Supreme Court's decision in Summit Valley Industries v. Local 112, etc., (1981) 456 U.S. 717, 102 S.Ct. 2112, 72 L.Ed.2d 511.   There courts held that nothing in the NLRB Act provides for or supports an award of attorney fees or an exception to the “American Rule” that attorney fees are not ordinarily recoverable by the prevailing party.

We are not required to follow the NLRA precedent if that precedent is inapplicable to the case before us or conflicts with our statutes.  (F. & P. Growers Assoc. v. ALRB (1985) 168 Cal.App.3d 667, 214 Cal.Rptr. 355.)   The NLRB decisions to award attorney fees are inapplicable because they conflict with California statutes expressly to the contrary (Code Civ.Proc. § 1021) and policy of this state.   The United States Supreme Court's decision on the other hand is applicable.   It is the ultimate authority on the correct interpretation and application of federal statutes.   It has decreed that the authority of the NLRB under the national act does not permit recovery of attorney fees contrary to the general “American Rule.”   That decision is agreeable with the statute and general rule of California and thus “applicable.”   In Summit Valley, supra, 456 U.S. 717, 102 S.Ct. 2112, 72 L.Ed.2d 511), the United States Supreme Court upheld the American rule even though it recognized there may be times when there are equitable exceptions.   The court so held even though the “losing party” had admitted an unfair labor practice, and although the prevailing party was allowed to recover other damages.   The court reasoned that such damages do not include attorney fees.   Moreover the court declared that under section 303 of the National Labor Relations Act there is no evidence of any congressional intent that attorney fees should be awarded or utilized to penalize or punish the losing party.   In its most recent decision on this subject the court remanded to the circuit court a case in which the circuit court had permitted recovery of attorney fees.   The U.S. Supreme Court directed the circuit court to reconsider its decision in the light of Summit Valley Industries.  (J.P. Stevens & Co., Inc. v. NLRB (1983) 458 U.S. 1118, 102 S.Ct. 3505, 73 L.Ed.2d 1381.)

CONCLUSION:

We find and order as follows:  (1) The decision and order of the ALRB under review here finding that petitioner Andrews committed an unfair labor practice is supported by the record and we affirm that part of the order.  (2) That part of the order awarding attorney fees is void and is stricken as void.  (3) Subparagraph (a) of paragraph 1 (the cease and desist portion) of the order is indefinite.   It is vacated and shall be corrected on remand.  (4) Subparagraph (a) of paragraph 2 (affirmative action part) of the order that the union representative shall have one hour of access during regularly scheduled work time for consultation and talking with Andrews' employees at employer's expense is vacated as indefinite and overly broad.   The requirement that the employer shall pay all employees for the time away is excessive and punitive and is stricken.   The order is vacated and the case remanded to the ALRB for the purpose of rewording its order to require the employer to permit reasonable access to the camp and/or places of work with specific provisions in detail, limiting the time, hours of the day or night, number of days per year, number of organizers or United Farm Workers Representatives and all in conformity with the views expressed herein.

FOOTNOTES

1.   Because of the violent and disruptive acts of the members of UFW a few of which acts we briefly described earlier, it was not unreasonable or unfair for Andrews to limit access and take steps to assure itself that the persons claiming lawful right to enter its properties had such right.   In our view the unfair labor practice finding results primarily, if not entirely, from the fact that the limitations and denials of access and ejection of one of the UFW representatives occurred after the massive picketing had reduced to picketing by about 15 to 20 persons and acts of union vandalism, harassment and threats for the most part had ended.

BEACH, Associate Justice.

ROTH, P.J., and COMPTON, J., concur.