The opinion
Filed 10/25/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
AGRICULTURAL LABOR RELATIONS BOARD, C081373
Petitioner, (Super. Ct. No.
34201580002100)
v.
THE SUPERIOR COURT OF SACRAMENTO
COUNTY,
Respondent;
GERAWAN FARMING, INC.,
Real Party in Interest.
ORIGINAL PROCEEDING in mandate. Stay issued. Petition granted. Timothy
M. Frawley, Judge.
Paul M. Starkey and Todd M. Ratshin for Petitioner.
None for Respondent.
Irell & Manella and David A. Schwarz; Barsamian & Mood and Ronald H.
Barsamian; Michael P. Mallery for Real Party in Interest.
1
Under the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act
(Lab. Code,1 § 1140; the Act), the Agricultural Labor Relations Board (§ 1141 et seq.;
the board) adjudicates administrative complaints of unfair labor practices committed by
agricultural employers, labor organizations, and their agents. (§§ 1153-1155.7, 1160-
1160.3.) The board’s general counsel (general counsel) serves as the prosecutor in those
administrative proceedings, with “final authority, on behalf of the board, with respect to
the investigation of charges and issuance of complaints [for unfair labor practices], and
with respect to the prosecution of such complaints before the board.” (§ 1149.) In one
area, however, the Act conveys a prosecutorial power with respect to unfair labor
practices upon the board, rather than upon general counsel; namely, the power to seek
injunctive relief in a superior court. (§ 1160.4.)
For some period of time before March 2015, the board had delegated plenary
authority to seek injunctive relief under section 1160.4 to general counsel. In March
2015, the board decided to change that delegation by requiring general counsel to obtain
case-specific approval from the board for every request for injunctive relief.
In May 2015, general counsel asked the board to approve a proceeding for
injunctive relief against Gerawan Farming, Inc. (Gerawan). The board gave its
conditional approval to that proceeding. When Gerawan asked the board to disclose the
communications between the board and general counsel regarding the matter under the
California Public Records Act,2 the board refused, claiming privilege. Gerawan brought
a writ proceeding in Sacramento County Superior Court seeking to force the board to
disclose the requested communications, and the court ordered disclosure. The board
brought the present writ proceeding in this court to challenge the superior court’s ruling.
1 All further section references are to the Labor Code unless otherwise noted.
2 Government Code section 6251.
2
For the reasons set forth hereafter, we conclude the superior court erred in
ordering disclosure of the communications between the board and general counsel
relating to the decision to seek injunctive relief against Gerawan because those
communications are protected by the attorney-client privilege. As we will explain, even
if due process concerns with respect to the pending administrative proceeding against
Gerawan are raised by the communications at issue, those concerns do not preclude the
attorney-client privilege from attaching to those communications, and because the
communications are privileged, they are exempt from disclosure under the Public
Records Act. Accordingly, we will direct that a writ of mandate issue ordering the
superior court to vacate its order requiring disclosure of those communications and enter
a new order denying Gerawan’s request for disclosure.
FACTUAL AND PROCEDURAL BACKGROUND
Before we set forth the facts underlying this mandate proceeding, we first address
a procedural matter, then provide some legal background that is necessary to a full
understanding of the underlying facts.
Procedural Matter
In response to the board’s petition for a writ of mandate, this court issued an order
to show cause. In response to the order to show cause, Gerawan filed a document labeled
a “response” that was in the form of an unverified legal brief that contained only
argument as to why this court should deny the board’s petition. This was improper. “If
the court issues an alternative writ or order to show cause, the respondent or any real
party in interest, separately or jointly, may serve and file a return by demurrer, verified
answer, or both.” (Cal. Rules of Court, rule 8.487(b)(1); see also Code Civ. Proc., § 1089
[when the court issues an alternative writ, “the party on whom the writ . . . has been
served may make a return by demurrer, verified answer or both”].)
Gerawan would do well to be more careful in the future. The submission of “a
return with a verified answer or demurrer is not a technicality, but is an integral and
3
critical step in the procedure for determining the merit of a petition for extraordinary
relief.” (Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1085.)
One possible consequence of filing a return that contains neither a demurrer nor a verified
answer is that the return will be stricken and not considered in determining the merits of
the mandate petition. (See Universal City Studios, Inc. v. Superior Court (2003) 110
Cal.App.4th 1273, 1287.) Indeed, that is what the board has asked us to do here.
Fortunately for Gerawan, there is a less catastrophic consequence available to us
that we deem more appropriate than striking Gerawan’s entire argument in opposition to
the board’s writ petition. “In the absence of a true return, all well-pleaded and verified
allegations of the writ petition are accepted as true.” (Bank of America, N.A. v. Superior
Court, supra, 212 Cal.App.4th at p. 1084; see also Titmas v. Superior Court (2001) 87
Cal.App.4th 738, 741; Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 996, fn. 2.)
Applying this rule, Gerawan’s “response” is treated as a return by demurrer, because a
demurrer admits the facts pleaded in a writ petition. (See Bay Area Rapid Transit Dist. v.
Superior Court (1995) 38 Cal.App.4th 141, 143.) This is appropriate since Gerawan, in
its response to the order to show cause, did not attempt to refute or contravene any of the
facts the board alleged in support of its petition, but instead only sought to argue why this
court should deny the board’s petition, i.e., why the trial court was correct in granting
Gerawan’s petition to require the board to disclose certain documents under the Public
Records Act. Thus, Gerawan’s “response” can be understood as essentially a
memorandum of points and authorities in support of a demurrer to the board’s writ
petition to this court. In light of that, we take the facts set forth hereafter from the well-
pleaded, verified allegations in the board’s writ petition.3
3 Because the board incorporated by reference in its petition before this court all
documents filed with the superior court, some of the facts that follow are drawn from the
pleadings in the superior court.
4
Legal Background
The Act “is designed to provide agricultural workers with protection of their
collective bargaining rights comparable to that provided nonagricultural workers by the
[National Labor Relations Act, 29 U.S.C. § 151 et seq. (the NLRA)]. To that end the
[Act] was patterned after the NLRA, with changes necessary to meet special needs of
California agriculture.” (Tex-Cal Land Management, Inc. v. Agricultural Labor
Relations Bd. (1979) 24 Cal.3d 335, 345.) As a result, “under traditional legal principles
[we], of course, look to established administrative and judicial interpretations of the
federal act as persuasive indicants of the appropriate interpretation of the state
legislation.” (Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848,
855.)
Under the Act, the five-member board is empowered (among other things) to
prevent agricultural employers, labor organizations, and their agents from engaging in
unfair labor practices. (§§ 1141, subd. (a) [number of board members], 1153 et seq.
[defining unfair labor practices], 1160 [empowering the board to prevent such practices].)
Generally, the board’s role is to adjudicate administrative complaints of unfair labor
practices. (§§ 1160-1160.3.) Additionally, however, the Act conveys upon the board the
power to seek injunctive relief in superior court. (§ 1160.4.) Specifically, the Act
provides that “[t]he board may, upon finding reasonable cause to believe that any person
has engaged in or is engaging in an unfair labor practice, petition the superior court in
any county wherein the unfair labor practice in question is alleged to have occurred, or
wherein the person resides or transacts business, for appropriate temporary relief or
restraining order.” (§ 1160.4, subd. (a).) This provision derives from a comparable
provision in the NLRA (see 29 U.S.C. § 160(j) (NLRA § 10(j)); Public Employment
Relations Bd. v. Modesto City School Dist. (1982) 136 Cal.App.3d 881, 895, fn. 6), the
purpose of which is “ ‘to protect the integrity of the collective bargaining process and to
preserve the [National Labor Relations Board’s] remedial power while it processes’ an
5
unfair labor practice complaint.” (Frankl ex rel. NLRB v. HTH Corp. (9th Cir. 2011) 650
F.3d 1334, 1341 (Frankl), quoting Miller v. California Pacific Medical Center (9th Cir.
1994) 19 F.3d 449, 459-460.)
In addition to creating the board, the Act also established the position of the
board’s general counsel. (§ 1149.) General counsel “exercise[s] general supervision over
all attorneys employed by the board (other than administrative law officers and legal
assistants to board members), and over the officers and employees in the regional
offices.” (Ibid.) In addition, “final authority, on behalf of the board, with respect to the
investigation of charges and issuance of complaints [for unfair labor practices], and with
respect to the prosecution of such complaints before the board” rests with general
counsel, rather than with the board itself. (Ibid.) “Where the [Act] is concerned, Labor
Code section 1149 provides for a general counsel of the ALRB with final authority to
investigate charges, issue complaints, and prosecute such complaints before the ALRB.
(Lab. Code, § 1149.) The statute requires that the duties be performed ‘in an objective
and impartial manner without prejudice toward any party.’ (Ibid.) The general counsel is
not selected by the ALRB itself, but is appointed by the Governor. (Lab. Code, § 1149.)
The general counsel acts autonomously, and is not an agent of the ALRB. [Citation.]
Only the general counsel, not the ALRB itself, is authorized to issue unfair labor practice
complaints.” (The Termo Co. v. Luther (2008) 169 Cal.App.4th 394, 411-412.) Like the
board’s power to seek injunctive relief in superior court, this separation of the
adjudicatory and prosecutorial functions with respect to unfair labor practice complaints
within the board’s purview derives from a comparable provision in the NLRA. (Tex-Cal
Land Management, Inc. v. Agricultural Labor Relations Bd., supra, 24 Cal.3d at p. 345
[“The [Act] incorporates procedural safeguards of the NLRA including the separation of
prosecutorial from adjudicatory functions”].)
The Act also provides that general counsel “shall have such other duties as the
board may prescribe or as may be provided by law.” (§ 1149.) As relevant here, one of
6
the duties the board has delegated to general counsel is the board’s power to seek
injunctive relief under section 1160.4. Prior to March 2015, it appears the board had
granted general counsel plenary authority to seek injunctive relief under section 1160.4
pursuant to the terms of a written agreement between the board and general counsel
dating from July 2010. For reasons not germane to the present dispute, however, in
March 2015 the board decided to require general counsel to obtain case-specific approval
from the board for every request for injunctive relief. To that end, the board adopted an
“internal management Memorandum” revising the terms of its delegation to general
counsel as follows:
“The General Counsel may initiate and prosecute injunction proceedings as
provided in Section 1160.4 only upon approval of the Board. In accordance with this
requirement, the General Counsel shall provide copies of the proposed complaint for such
relief and the papers in support thereof at least 24 hours prior to filing the application and
shall further provide copies of any and all papers filed in the case by any person, and any
orders of the court within 24 hours of their receipt. The requirement of Board approval
shall extend to the pursuance of any appeals or defenses to appeals that may follow the
initial filing in the superior court and Board approval must be sought at least 24 hours
before the date of filing. All complaints, appeals, or defenses to such appeals shall
include the representation that Board approval has been obtained. The General Counsel
shall report to the Board on the outcome of all court proceedings. The Board shall act
upon such requests for injunctive relief and all other related requests within 24 hours of
their receipt. The obligations under this paragraph shall not include the provision to the
Board of any facts or other information which would constitute prohibited
7
communications under sections 20700 and 20740 of the Board’s regulations. (Title 8,
Cal. Code Regs., sec 20700, 20740.)”4
It is this delegation that led to the events giving rise to the underlying dispute in
this case, as we now explain.
Underlying Facts
On April 27, 2015, Rafael Marquez Amaro filed a charge with the board’s Visalia
regional office (case No. 2015-CE-011-VIS) alleging that on or about April 24 he had
received a “written warning/suspension for whistling in retaliation for his union activity
and participation in an ALRB proceeding” from his employer, Gerawan. The regional
office began investigating the charge immediately. Three days later, on April 30, United
Farm Workers of America (the union) filed its own charge (case No. 2015-CE-012-VIS)
based on Marquez’s suspension and the subsequent termination of his employment by
Gerawan.
On May 6, the regional office asked Gerawan to identify the individual or
individuals who decided to suspend and terminate Marquez. On May 8, Gerawan
responded to the regional office. Noting the existence of the board’s March 2015
memorandum regarding the delegation of authority to seek injunctive relief under
section 1160.4, Gerawan asked that if general counsel decided to seek injunctive relief
against Gerawan in the Marquez matter, the regional office (among other things) provide
to Gerawan any papers submitted to the board in support of the request for permission to
seek injunctive relief. The regional director responded that same day, informing
4 As relevant here, section 20700 of title 8 of the California Code of Regulations
prohibits communications with employees of the board “about the disposition of [an]
action while the action is pending before the Board” and communications “which may be
expected to affect the interest of a party in a case.” Section 20740, subdivisions (a) and
(b) of title 8 of the California Code of Regulations identifies communications that are not
prohibited by section 20700, including communications of the type described in section
20700 to which all parties in the action are privy.
8
Gerawan that he did “not intend to give [Gerawan] notice of what we file with the Board
unless the regulations require us to.”
On the morning of May 12, Samantha Cooper, an assistant to the board’s
chairman, received a telephone call from a member of the team from the regional office
investigating the Marquez matter, who told her the board would be receiving a “TRO
packet” that day for the board’s review and decision and the declaration in the packet
contained “inaccuracies” and “statements . . . that were untrue.” Cooper immediately
reported the phone call to the board’s executive secretary, J. Antonio Barbosa, who
directed her to type up a statement of the conversation, while keeping the identity of the
caller confidential. That afternoon, Barbosa circulated Cooper’s statement to
representatives from the regional office and Gerawan pursuant to the board regulations
governing prohibited communications (Cal. Code Regs., tit. 8, § 20700 et seq.). Gerawan
immediately requested that the board provide Gerawan with “any documents submitted to
the Board by the General Counsel in support of its request to commence an enforcement
action against Gerawan.”
As the caller had predicted, on May 12 the board received a request from general
counsel for authorization to file a petition for a temporary restraining order (TRO) in the
Fresno County Superior Court in the Marquez matter. The board ruled on that request
later the same day by means of a letter to general counsel that conditionally authorized
commencement of a TRO proceeding. The board did not make the authorization letter
public but referred to it in an administrative order dated two days later, May 14.
The day after the board issued the administrative order, Gerawan requested a copy
of the authorization letter and any related documents pursuant to the California Public
Records Act and also renewed its request for “any documents submitted to the Board by
the General Counsel in support of her request for Board approval to file a petition for a
TRO.” On May 26, the board responded that the requested documents would not be
provided because they were exempt from disclosure on grounds of privilege.
9
A week later, on June 1, general counsel commenced the TRO proceeding in
Fresno. The next day, June 2, Gerawan filed a petition for a writ of mandate and
complaint for declaratory and injunctive relief against the board in the Sacramento
County Superior Court seeking to require the board to disclose the documents Gerawan
had requested under the California Public Records Act. (See Gov. Code, § 6259.)
On June 10, the court in Fresno denied the request for injunctive relief and the
regional director voluntarily dismissed the case in July 2015. Meanwhile, the mandate
proceeding went forward in Sacramento and was set for hearing in January 2016.5 (Pet.
at 13, ¶ 15) In opposition to the petition, the board argued the documents were
“privileged against disclosure because [they] are deliberative in nature, arise in the
context of litigation, concern litigation drafts and attorney work product, and/or concern
confidential communications between the Board and the General Counsel.”
On January 8, 2016, the superior court issued its ruling granting Gerawan’s
petition in part and denying it in part. Addressing the TRO packet and the board’s
authorization letter, the court first concluded that “[t]he documents are not attorney-client
communications or attorney-work product because the General Counsel was not acting as
the Board’s attorney.” The court took the view that once Marquez and the union filed
their charges against Gerawan, general counsel assumed the role of prosecutor in the
unfair labor practice case pending before the board, and general counsel could not,
consistent with constitutional due process principles, concurrently give legal advice to the
board in the same case. Because “recognizing an attorney-client relationship between the
5 The administrative charges against Gerawan have likewise proceeded, with the
regional director issuing a consolidated complaint in both cases at the end of June 2015.
(Apx 228-234) Gerawan sought disclosure of the requested documents in that proceeding
also, but the administrative law judge revoked Gerawan’s subpoenas for the documents
and the board denied Gerawan’s interim appeal from that ruling. In February 2016,
Gerawan sought review of the board’s ruling in the superior court in Fresno by means of
a petition for writ of mandate. That proceeding apparently remains pending.
10
Board and the General Counsel would raise serious due process concerns in the
administrative case,” the court decided that general counsel could not be acting as the
board’s attorney with respect to the decision whether to seek injunctive relief under
section 1160.4. Thus, instead of being “confidential or privileged communications,”
general counsel’s communications to the board regarding injunctive relief “were in the
nature of an ex parte request to the agency decisionmaker.” And “the Board’s response
to the General Counsel was not a confidential communication to counsel, but rather a
public ruling on the General Counsel’s request.”
The court also rejected the board’s argument that disclosure of the TRO packet
and the authorization letter “would invade the Board’s deliberative process privilege.”
With respect to the TRO packet, the court found that the board “failed to explain how
disclosing [documents] submitted to the Board by General Counsel -- a party advocate --
would impair the Board’s deliberative process or undermine the Board’s ability to
perform its functions” and “failed to show that the public interest in nondisclosure of the
TRO packet clearly outweighs the public interest in disclosure.” With respect to the
authorization letter, the court found it was “not a ‘predecisional’ communication that is
part of the ‘deliberative process.’ It is the result of the deliberative process: the Board’s
decision.”6
On February 8, 2016, the superior court filed its order and judgment granting
Gerawan’s requests to compel the board to make available to Gerawan (1) “all documents
submitted by the General Counsel in support of the General Counsel’s request for
6 The court did conclude that “documents relating to the ‘whistleblower claim’ ”
were except from disclosure and denied Gerawan’s petition to the extent it encompassed
those documents. The propriety of this aspect of the court’s ruling is not before us in this
proceeding, as the board’s writ petition here challenges only the court’s ruling pertaining
to the TRO packet and the authorization letter, and Gerawan did not seek relief from the
denial of disclosure of the “whistleblower” documents.
11
authorization to file a petition for a TRO, namely the ‘TRO Packet’ ” and (2) “the
Board’s communications to the General Counsel authorizing the filing of the petition for
a TRO, including the Board’s May 12, 2015 letter to the General Counsel granting
conditional authorization.” The court stayed enforcement of its order for 10 days to
allow the board to seek a stay from this court, which the board eventually did on
February 24, when it commenced the present proceeding by filing its petition for writ of
mandate and request for immediate stay. (See Gov. Code, § 6259, subd. (c) [providing
for appellate review of an order requiring disclosure of documents under the California
Public Records Act by writ petition].)
On February 26, this court issued a stay of the superior court’s February 8 order
and judgment and thereafter, on March 24, directed that an order to show cause issue.
DISCUSSION
“At the heart of the [Public Records Act] is the declaration that ‘every person has
a right to inspect any public record, except as hereafter provided.’ ([Gov. Code,] § 6253,
subd. (a).) In other words, all public records are subject to disclosure unless the
Legislature has expressly provided to the contrary.” (Williams v. Superior Court (1993)
5 Cal.4th 337, 346.) Here, there is no dispute that the TRO packet and the authorization
letter7 qualify as public records. The question is whether those documents fall within any
of the exemptions to disclosure contained in the Public Records Act.
Among the documents the Public Records Act exempts from disclosure are
“[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state
7 By these terms, we intend to encompass all of the documents the superior court
ordered the board to disclose to Gerawan: namely, “all documents submitted by the
General Counsel in support of the General Counsel’s request for authorization to file a
petition for a TRO” and “the Board’s communications to the General Counsel authorizing
the filing of the petition for a TRO, including the Board’s May 12, 2015 letter to the
General Counsel granting conditional authorization.”
12
law, including, but not limited to, provisions of the Evidence Code relating to privilege.”
(Gov. Code, § 6254, subd. (k).) “By its reference to the privileges contained in the
Evidence Code, . . . the Public Records Act has made the attorney-client privilege
applicable to public records.” (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 370.)
“The attorney-client privilege applies to communications in the course of
professional employment that are intended to be confidential. [Citations.] Under the
Evidence Code, a client holds a privilege to prevent the disclosure of confidential
communications between client and lawyer. (Evid. Code, § 954.)” (Roberts v. City of
Palmdale, supra, 5 Cal.4th at p. 371.) “ ‘[C]onfidential communication between client
and lawyer’ means information transmitted between a client and his or her lawyer in the
course of that relationship and in confidence by a means which, so far as the client is
aware, discloses the information to no third persons other than those who are present to
further the interest of the client in the consultation or those to whom disclosure is
reasonably necessary for the transmission of the information or the accomplishment of
the purpose for which the lawyer is consulted, and includes a legal opinion formed and
the advice given by the lawyer in the course of that relationship.” (Evid. Code, § 952.)
The dispute in this case focuses on the nature of the relationship between the board
and general counsel with respect to the decision whether to seek injunctive relief under
section 1160.4. In other words, when general counsel communicates with the board
requesting authority to file for injunctive relief in a given matter and when the board
communicates to general counsel in response to such a request, do the two parties have
the relationship of lawyer and client to each other, or do they have some other sort of
relationship? In the answer to that question lies the resolution of this case.
For purposes of the attorney-client privilege, a lawyer is “a person authorized, or
reasonably believed by the client to be authorized, to practice law in any state or nation”
(Evid. Code, § 950) and a client is “a person who, directly or through an authorized
13
representative, consults a lawyer for the purpose of retaining the lawyer or securing legal
service or advice from him in his professional capacity” (id., § 951).
According to the board, “[t]he trial court completely misconstrued the nature of
the Board’s statutory authority to seek injunctive relief, and its relationship with its
General Counsel when exercising such authority.” In the board’s view, “[t]he trial court
wrongly concluded that such determinations by the Board whether to seek injunctive
relief are adjudicative proceedings” when “[t]hey clearly are not.” Furthermore, the
board claims, “[i]n such matters, the General Counsel acts on behalf of the Board, and the
relationship between the Board and General Counsel is one of attorney-client.” For the
reasons that follow, we agree.
There are no California decisions addressing the nature of the relationship between
the board and its general counsel with respect to decisions to seek injunctive relief under
section 1160.4, but there are federal decisions addressing the nature of the relationship
between the National Labor Relations Board (NLRB) and its general counsel with respect
to decisions to seek injunctive relief under section 10(j) of the NLRA, and those
decisions support the board’s argument that the relationship here is one of attorney and
client. One of those federal decisions is Frankl, in which the Ninth Circuit Court of
Appeals addressed whether the district court had the power to issue an injunction under
section 10(j) of the NLRA where the NLRB had not individually approved the filing of
the proceeding. (Frankl, supra, 650 F.3d at p. 1340.) Frankl arose at a time when the
NLRB had delegated its authority to seek injunctive relief to its general counsel without
reserving any right to approve such a filing beforehand.8 (Id. at p. 1340.) On appeal
8 The Ninth Circuit explained the pertinent background in Frankl as follows:
“From 1935, when the NLRA was enacted, to 1947, the Board [was] responsible
for both the prosecution and the adjudication of all cases over which the Board had
jurisdiction. [Citations.] In response to criticism that the Board’s exercise of both
14
from the district court’s grant of an injunction under section 10(j), the appellants argued
that the NLRA itself “require[d] that petitions for § 10(j) relief be individually approved
by the [NLRB] before they are filed with a district court,” and “[b]ecause the Regional
Director did not obtain such approval, . . . he did not have authority to petition for the
injunction, and the District Court was without the power to grant it.” (Frankl, at
p. 1340.) In rejecting that argument, and concluding that Ҥ 10(j) does not direct the
[NLRB] to decide itself, on an individualized basis, whether to file petitions for interim
relief with district courts,” the court observed as follows: “No more than it requires the
prosecutorial and adjudicatory functions was improper, Congress established the position
of General Counsel of the Board and assigned the General Counsel the Board’s
prosecutorial functions, as well as other roles. . . .
“[¶] . . . [¶]
“[I]mmediately after the Taft-Hartley Act’s passage, . . . the General Counsel and
the [NLRB] entered into a ‘memorandum of understanding’ according to which the
‘General Counsel [was to] exercise full and final authority and responsibility on behalf of
the [NLRB] for initiating and prosecuting injunction proceedings as provided for in
Section[] 10(j).’ [Citations.]
“In 1950, however, the [NLRB] published a memorandum in the Federal Register
‘describ[ing] the statutory authority and set[ting] forth the prescribed duties and authority
of the General Counsel of the [NLRB].’ [Citation.] That memorandum provided that
‘[o]n behalf of the [NLRB], the General Counsel of the [NLRB] will[,] in full accordance
with the directions of the [NLRB], . . . initiate and prosecute injunction proceedings as
provided in section 10(j) . . . Provided, however, That the General Counsel will initiate
and conduct injunction proceedings under section 10(j) . . . only upon approval of the
[NLRB] . . . .’ [Citation.] In other words, the 1950 Memorandum authorized the General
Counsel to file § 10(j) petitions on the [NLRB]’s behalf, but required him to seek case-
specific authorization from the [NLRB] before filing them. The [NLRB] issued a new
memorandum in 1955 containing an assignment of litigation authority to the General
Counsel identical to that in the 1950 Memorandum. [Citations.] These two memoranda
set forth what was the [NLRB]’s standard, but not invariant, practice until . . . 2007,”
when the NLRB once again delegated unfettered authority to its general counsel to seek
injunctive relief under section 10(j) of the NLRA. (Frankl, supra, 650 F.3d at pp. 1343-
1344, fns. omitted.)
15
[NLRB]’s involvement in each decision relating to a § 10(j) petition does the language of
the statute require that the [NLRB] approve each individual petition. In other words,
nothing in the statute makes the individual petition the unit of analysis for determining
when the [NLRB] is exercising its § 10(j) power. Moreover, petitioning a court for relief
is a lawyerly function and the General Counsel is, after all, the supervisor of the
[NLRB]’s legal staff. [Citation.] So it seems quite natural that the [NLRB] could assign
to the General Counsel the duty to decide when to exercise its power to petition. (Frankl,
at pp. 1348, 1350, italics added.) The court then cited an ethics rule promulgated by the
American Bar Association recognizing that a “ ‘client may authorize the lawyer to take
specific action on the client’s behalf without further consultation.’ ” (Id. at p. 1350.)
At least implicitly, if not explicitly, the court in Frankl recognized that with
respect to requests for injunctive relief, the NLRB’s general counsel acts as the NLRB’s
lawyer -- performing the “lawyerly function” of “petitioning a court for relief” -- and by
delegating its authority to seek injunctive relief to its general counsel, the NLRB did
nothing more than authorize its lawyer to take action on the NLRB’s behalf without
seeking specific approval from the NLRB in each case. Thus, the court recognized the
existence of an attorney-client relationship between the NLRB and its general counsel in
this context.
What the Ninth Circuit at least implicitly recognized in Frankl, the NLRB itself
explicitly declared in Holland Rantos Co. (1978) 234 NLRB 726. There, the NLRB
rejected an employer’s claim that the NLRB’s general counsel had engaged in improper
ex parte communications with the NLRB in connection with seeking an injunction under
section 10(j), observing that “[t]he relationship between the General Counsel and the
[NLRB] in 10(j) proceedings is analogous to the attorney-client relationship with its
attendant privilege of confidentiality.” (Holland Rantos Co., at p. 726.) Relying on that
decision, the district court in United States ex rel. NLRB v. Electro-Voice (N.D. Ind.
1995) 879 F.Supp. 919, 924 concluded that “all communications regarding § 10(j)
16
matters between the General Counsel and the [NLRB] are attorney-client
communications, [citation], and therefore, are entitled to protection. Discovery as to such
communications will not be allowed.”
Gerawan contends: (1) these federal decisions are not binding on this court;
(2) Frankl did not “hold” that the NLRB and its general counsel were in an attorney-
client relationship; and (3) the NLRB’s decision in Holland Rantos Co. is not
“persuasive, given its conclusory dismissal of due process concerns.” These contentions
are unavailing.
As to Gerawan’s first point, the fact that the federal decisions are not binding on
us does not mean they are not persuasive to us. As to its second point, the fact that
Frankl did not hold that an attorney-client relationship existed between the NLRB and its
general counsel does not mean the court’s analysis of the point is any less convincing.
The Ninth Circuit recognized in Frankl that in addition to wielding the prosecutorial
functions of the NLRB, the NLRB’s general counsel serves as the supervisor of the
NLRB’s legal staff and thus functions, in that respect, as the NLRB’s lawyer. The Ninth
Circuit further recognized that the task of petitioning a court for relief is a “lawyerly
function” -- that is, it is a function that must be performed by a lawyer. Whether the
NLRB delegated its authority to seek injunctive relief under section 10(j) to its general
counsel, the NLRB could exercise that authority only by employment of an attorney.
(See Frankl, supra, 650 F.3d at p. 1347 [Ҥ 10(j) gives the Board the power to petition a
court for relief, which the Board necessarily does through counsel”].) In light of this fact,
the delegation of the power to seek injunctive relief to general counsel -- who already
serves as the NLRB’s lawyer by supervising the NLRB’s legal staff -- appears to be
nothing other than a client’s authorization to its attorney to take action on the client’s
behalf. That was the essence of the court’s analysis in Frankl, and we find that analysis
persuasive under the comparable provisions of the Act at issue here, notwithstanding the
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fact that we are not bound by Frankl, and notwithstanding the fact that this analysis may
not have represented the holding of Frankl.
To the extent Gerawan argues that the terms of the delegation itself do “not
contemplate the production of privilege, confidential evidence or confidential
communications between the Board and General Counsel,” we disagree. In Gerawan’s
view, because the delegation memorandum instructs general counsel to provide the board
with “copies of the proposed complaint for [injunctive] relief and the papers in support
thereof,” “[t]he papers to be submitted to the Board are not confidential; they are copies
of proposed public court filings.” (Italics and bold text omitted.) But as Gerawan itself
acknowledges, at the time the documents are transmitted from general counsel to the
board, they are not “public court filings” but proposed public court filings. Gerawan
offers no explanation of why documents general counsel proposes to file cannot be
protected by the attorney-client privilege when those documents are transmitted by the
attorney to the client for approval.
That takes us to Gerawan’s third point, which is really the heart of Gerawan’s
argument and the heart of the superior court’s decision. In essence, Gerawan argues, and
the superior court concluded, that there cannot be an attorney-client relationship between
the board and general counsel with respect to decisions to seek injunctive relief under
section 1140.6 because recognition of such a relationship would, as the superior court put
it, “raise serious due process concerns in the administrative case.” As we will explain,
however, even if recognizing an attorney-client relationship between the board and
general counsel with respect to decisions to seek injunctive relief under section 1140.6
would raise due process concerns, those concerns are not a legitimate basis for
disregarding that relationship and, as a consequence, ignoring the privileges that arise
from it. In other words, either an attorney-client relationship exists or it does not. If the
relationship exists, and its existence raises due process concerns in the administrative
case against Gerawan, then those concerns can be addressed in that case. But those
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concerns cannot justify the conclusion that the relationship does not exist in the first
place, nor do they justify acting as though the relationship does not exist. Simply put, if
the existence of an attorney-client relationship between the board and general counsel
with respect to the decision to seek injunctive relief against Gerawan creates due process
concerns in the administrative case against Gerawan that is pending before the board,
those concerns are not to be dealt with by pretending there was no such relationship and
by requiring the board to disclose confidential communications to and from general
counsel made in the course of that relationship.
Our Supreme Court most recently explored the application of due process
principles to the roles played by attorneys employed by administrative agencies in
administrative proceedings in Morongo Band of Mission Indians v. State Water
Resources Control Bd. (2009) 45 Cal.4th 731. There, the court explained as follows:
“When . . . an administrative agency conducts adjudicative proceedings, the
constitutional guarantee of due process of law requires a fair tribunal. [Citation.] A fair
tribunal is one in which the judge or other decision maker is free of bias for or against a
party. [Citations.] Violation of this due process guarantee can be demonstrated not only
by proof of actual bias, but also by showing a situation ‘in which experience teaches that
the probability of actual bias on the part of the judge or decisionmaker is too high to be
constitutionally tolerable.’ [Citation.]
“Unless they have a financial interest in the outcome [citation], adjudicators are
presumed to be impartial [citation]. . . .
“By itself, the combination of investigative, prosecutorial, and adjudicatory
functions within a single administrative agency does not create an unacceptable risk of
bias and thus does not violate the due process rights of individuals who are subjected to
agency prosecutions. [Citations.] Thus, ‘[p]rocedural fairness does not mandate the
dissolution of unitary agencies, but it does require some internal separation between
advocates and decision makers to preserve neutrality.’ [Citation.]
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“[T]he state Administrative Procedure Act (Gov. Code, § 11400 et seq.) was
revised in 1995 in accordance with recommendations of the California Law Revision
Commission, after the commission had studied the matter for seven years. [Citation.] To
ensure the impartiality of administrative adjudicators, the act generally prohibits ex parte
communications (Gov. Code, § 11430.10) and requires ‘internal separation of functions’
[citations].
“Significantly, however, the state Administrative Procedure Act requires the
internal separation of prosecutorial and advisory functions on a case-by-case basis only.
[Citation.] The act does not prohibit an agency employee who acts in a prosecutorial
capacity in one case from concurrently acting in an advisory role in an unrelated case.
We have summarized the act’s relevant restrictions this way: ‘The agency head is free to
speak with anyone in the agency and to solicit and receive advice from whomever he or
she pleases—anyone except the personnel who served as adversaries in a specific case.
[Citations.] Indeed, the agency head can even contact the prosecutor to discuss
settlement or direct dismissal. [Citations.] Virtually the only contact that is forbidden is
communication in the other direction: a prosecutor cannot communicate off the record
with the agency decision maker or the decision maker’s advisers about the substance of
the case.’ ” (Morongo Band of Mission Indians v. State Water Resources Control Bd.,
supra, 45 Cal.4th at pp. 737-738.)
From Morongo and other decisions, the superior court here drew the conclusions
that “[d]ue process requires the internal separation of prosecutorial and advisory
functions” and “[i]t is a violation of the constitutional right to due process of law for an
agency attorney acting as prosecutor to concurrently advise the administrative decision
maker in the same proceeding.” Without deciding whether these conclusions are correct
as stated, we agree with the superior court that it may “raise . . . due process concerns in
the administrative case” against Gerawan for general counsel to act both as the prosecutor
before the board in that administrative case and as the attorney for the board with respect
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to the injunctive proceeding against Gerawan under section 1140.6. But such concerns
cannot justify disregarding the attorney-client relationship and the privilege that attaches
to communications in the course of that relationship.
Notably, early federal case law under the NLRA recognized the potential for due
process problems arising from the very grant of authority to the NLRB to seek injunctive
relief in the first place. Evans v. International Typographical Union (S.D. Ind. 1948) 76
F.Supp. 881 -- a case that arose very soon after the NLRB first delegated its authority to
seek injunctive relief under section 10(j) of the NLRA to the NLRB’s general counsel --
contains this pertinent discussion on the subject:
“[I]t is contended by respondents that if the [NLRB]’s power to petition for
interlocutory equitable relief under the provisions of Section 10(j) is delegable, there is
no limit to the authority to confer its functions upon the General Counsel and that such
delegation could extend even to the distinctly judicial powers of the [NLRB]. The statute
itself, as well as its legislative background, indicates that it was the purpose and policy of
Congress to separate the judicial functions of the [NLRB] from any prosecutive or
investigative functions. Thus, it is not reasonable that the [NLRB] could properly
delegate its functions of a judicial nature, because such a delegation would pervert the
Congressional design for the separation of powers within the agency. On the other hand,
the delegation of its functions which are of a more prosecutive than judicial nature is in
harmony with this design.
“The consistency of such a delegation with the Congressional intent to sever the
judicial functions of the agency from its prosecutive activities is emphasized when the
authority to initiate interlocutory proceedings for temporary relief under Section 10(j) is
more carefully considered. If the [NLRB] itself were to petition the court for such
temporary relief, not only would it be performing a function of a prosecutive nature, but
also it would have considered, ex parte, facts which relate to the very issues upon which
the [NLRB] must ultimately pass in its quasi-judicial capacity. It is reasonable to assume
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that such prosecutive action and prejudgment on the part of the [NLRB] might tend to
cast the shadow of partiality upon the further and principal proceedings before the
[NLRB].” (Evans v. International Typographical Union, supra, 76 F.Supp. at p. 889.)
Essentially, the court in Evans recognized that Congress’s very grant of power to
the NLRB to seek injunctive relief in the first place raised the specter of due process
concerns, inasmuch as the NLRB -- if it had ever exercised that power -- would have
been acting as prosecutor in seeking injunctive relief and as adjudicator in ultimately
ruling on the administrative charges. The NLRB avoided this problem by immediately
delegating to its general counsel the full and final authority to seek injunctive relief.
Nevertheless, it is not difficult to understand how those due process concerns can arise
again when the administrative agency -- be it the NLRB or the board -- conditions its
delegation of authority by requiring its general counsel to seek approval from the agency
on a case-by-case basis before pursuing injunctive relief. This is so because by making
itself part of the prosecutorial process again (by reserving to itself the final decision as to
whether to seek injunctive relief), the administrative agency raises legitimate questions
about its ability to later serve as a neutral and detached adjudicator with respect to the
related administrative charges.
Thus, the due process concerns that drove the superior court’s decision here are
not imaginary. But the superior court’s decision to find that there was no attorney-client
relationship between the board and general counsel with respect to the decision to seek
injunctive relief against Gerawan under section 1140.6 because recognition of that
relationship would give rise to such due process concerns finds no support in the law.
Thus, while the superior court may have correctly identified the problem, the court
imposed a solution to that problem that has no lawful basis.
Gerawan’s ultimate concern here is that it will be deprived of a fair trial in the
administrative proceeding because of the communications that occurred between the
board and general counsel with respect to the decision to seek injunctive relief against
22
Gerawan in superior court under section 1140.6. But Gerawan offers no authority for the
idea that the possibility Gerawan may not get a fair trial in the administrative proceeding
justifies disregarding the attorney-client relationship between the board and general
counsel, and we are aware of none.9
To the extent Gerawan argues that California law requires disclosure of the
communications at issue here because they qualify as prohibited ex parte
communications that must be disclosed under the provisions of the California
Administrative Procedures Act10 and the board’s own rules, we are not persuaded.
Assuming (without deciding) that the communications between the board and general
counsel with respect to the decision to seek injunctive relief against Gerawan in the
superior court under section 1140.6 fall within the ban on ex parte communications
contained in Government Code section 11430.10,11 the proper resolution in such a case is
9 To illustrate the point that any prejudicial unfairness to Gerawan is, at this point,
merely a possibility, it is significant to point out that: (1) the ultimate decision in the
administrative proceeding may go in favor of Gerawan, in which case there will be no
prejudice at all; and (2) under the board’s rules, the decision in an unfair labor practice
proceeding before the board is made by an administrative law judge, the board reviews
the decision only if a party files an exception to it, and even then the board’s role is
simply to “review the applicable law and the evidence and determine whether the factual
findings are supported by a preponderance of the evidence taken.” (Cal. Code Regs., tit.
8, §§ 20279, 20282, 20286, subd. (b).) Thus, the possibility that a communication made
to the board at the outset of the proceeding, even before the administrative complaint was
filed by general counsel, for the sole purpose of determining whether injunctive relief
should be sought in superior court, will ultimately influence an adjudicatory decision by
the board in the administrative proceeding that will prejudice Gerawan is highly
attenuated.
10 Government Code section 11340 et seq.
11 Subject to certain exceptions, Government Code section 11430.10 forbids any ex
parte “communication, direct or indirect, regarding any issue in [an administrative]
proceeding” between a party to that proceeding (here, general counsel) and the presiding
officer in that proceeding. Government Code section 11430.70 makes that ban applicable
23
for the communication to be made part of the record in the administrative proceeding.
(Gov. Code, § 11430.50.) The same is true under the board’s rules. (See Cal. Code
Regs., tit. 8, § 20750.) Gerawan offers no authority for the idea that a party excluded
from such a communication is entitled to seek disclosure in a collateral proceeding under
the Public Records Act. Thus, Gerawan’s remedy -- if any -- lies in the administrative
proceeding, not here.
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to: (1) vacate
its judgment partially granting and partially denying Gerawan’s petition for writ of
mandate; and (2) enter a new judgment denying Gerawan’s petition in its entirety. The
board shall recover its costs in this proceeding. (Cal. Rules of Court, rule 8.493.) The
previously issued stay shall remain in effect until this decision is final.
/s/
Robie, J.
We concur:
/s/
Nicholson, Acting P.J.
/s/
Hoch, J.
to communications with “the agency head,” and Government Code section 11405.40
defines “agency head” as “a person or body in which the ultimate legal authority of an
agency is vested” (here, the board).
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