# Cadiz v. Agricultural Labor Relations Board

> California Court of Appeal · April 25, 1979 · 92 Cal. App. 3d 365

URL: https://www.frixlaw.com/law-library/cases/9725153

## Case

- **Full name:** JOSE L. CADIZ Et Al., Petitioners, v. AGRICULTURAL LABOR RELATIONS BOARD,Respondent; UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest
- **Court:** California Court of Appeal
- **Decided:** April 25, 1979
- **Citations:** 92 Cal. App. 3d 365; 155 Cal. Rptr. 213; 1979 Cal. App. LEXIS 1684
- **Precedential status:** Published
- **Opinion:** Dissent by Hopper
- **Judges:** Brown, Hopper
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9725153

## Opinion text

HOPPER, J.
I respectfully dissent.
The Agricultural Labor Relations Board (hereinafter Board) by a three-to-two vote dismissed a decertification petition as untimely and *384 vacated the election. I agree with the result reached by the Board and substantially agree with the Board’s reasoning.
First, this matter is not reviewable at this time. The matter is not appropriate for threshold judicial review. It is not a final order. (See United Farm Workers v. Superior Court (1977) 72 Cal.App.3d 268 [ 140 Cal.Rptr. 87 ]; Radovich v. Agricultural Labor Relations Bd. (1977) 72 Cal.App.3d 36 [ 140 Cal.Rptr. 24 ].) A nonfinal order is reviewable only under limited circumstances which are not applicable here (see Belridge Farms v. Agricultural Labor Relations Bd. (1978) 21 Cal.3d 551, 558 [ 147 Cal.Rptr. 165 , 580 P.2d 665 ]).
Petitioners contend that the exception set forth in Leedom v. Kyne (1958) 358 U.S. 184 [ 3 L.Ed.2d 210 , 79 S.Ct. 180 ] is applicable to this case. Kyne permits judicial review of orders not coming within Labor Code section 1160.8 “ ‘only where the fact of a statutory violation cannot seriously be argued and where the deviation resulted in a deprivation of a “right” guaranteed by the Act.’ ” (United Farm Workers v. Superior Court, supra, at p. 274 .) The Kyne exception should only be used in extraordinary circumstances. (See Boire v. Greyhound Corporation (1964) 376 U.S. 473, 479 [ 11 L.Ed.2d 849, 853-854 , 84 S.Ct. 894 ].) “The Kyne exception is a narrow one, not to be extended to permit plenary District Court review of Board orders in certification proceedings whenever it can be said that an erroneous assessment of the particular facts before the Board has led it to a conclusion which does not comport with the law.” (Boire v. Greyhound Corporation, supra, 376 U.S. 473, 481 [ 11 L.Ed.2d 849, 855 ].) Kyne itself pointed out that it is to be used only when an order is “made in excess of its delegated powers and contrary to a specific prohibition in the Act” (Kyne, 358 U.S. 184, 188 [ 3 L.Ed.2d 210, 214 ]); in Kyne the Board conceded in the court of appeals that it “had acted in excess of its powers and had thereby worked rnjury to the statutory rights of the professional employees” ( 358 U.S. at p. 187 [ 3 L.Ed.2d at p. 213 ]). The Kyne exception in some respects is analogous to the rule requiring exhaustion of administrative remedies “in cases in which the Court has granted relief on the ground that the agency has acted in violation of its statute, the action has been so extreme as to be characterized as ‘lawless’ or ‘a clear departure from [a] statutory mandate.’ ” (5 Mezines et al. (1978) Administrative Law, § 49.02(3), p. 49-26.) For two cases where there was a violation of a clear statutory requirement (although Kyne was not discussed but its principle applied) see the preinduction review cases of Breen v. Selective Service Board (1970) 396 U.S. 460 [ 24 L.Ed.2d 653 , 90 S.Ct. 661 ] and Oestereich v. Selective Service Bd. (1968) 393 U.S. 233 *385 [ 21 L.Ed.2d 402 , 89 S.Ct. 414 ]. In order for Kyne to apply, the action of the Board must be patently without legality (Eastern Greyhound Lines v. Fusco (6th Cir. 1962) 310 F.2d 632 , 635) and the Board must have disregarded a specific and unambiguous statutory directive (Squillacote v. Int’l Broth. of Teamsters (7th Cir. 1977) 561 F.2d 31 (a case in which a union unsuccessfully tried to use the Kyne exception)). The Kyne exception, in short, is limited to instances where the Board’s determination is so patently invalid there could be no reasonable difference of opinion. That is not the instant case. Labor Code section 1156.7, subdivision (c), is not clear and unambiguous on its face.
Even if the statute at issue were clear on its face and were interpreted as done by the majority in the instant case, the disputed terms only define when a decertification will be “timely.” Petitioners contend that the express terms of section 1156.7 leave no discretion in the Board once a petition has been filed. Petitioners base this contention on the language in the first paragraph of subdivision (c) that the “Board shall conduct an election.” Petitioners argue that the “shall” language creates a mandatory duty on the part of the Board to complete the election procedure. However, arguably, the mandatory language “shall” in subdivision (c) may be construed as not being absolute on its face. In Radovich v. Agricultural Labor Relations Bd., supra, 72 Cal.App.3d 36, 43-46 , this court held that similar mandatory language in a related provision in the Agricultural Labor Relations Act “apparently absolute” on its face did not remove from the Board the discretion to determine whether a petition was sufficient to compel the Board to act on it. Furthermore, Labor Code section 1142, subdivision (b), and California Administrative Code, title 8, section 20360, subdivision (c), construed together, vest discretion in the Board to review the sufficiency of the decertification petition. Therefore, it could be argued that the statute requiring an election to be held if the decertification petition is timely filed is not absolute on its face. The action of the Board in refusing to proceed to count the ballots does not necessarily constitute statutory violation except upon consideration of whether it properly exercised its discretionary powers.
Second, Labor Code section 1156.7, subdivision (c), can, and should be, reasonably interpreted in a different manner than done by the majority. In my opinion section 1156.7 should be properly and logically construed considering the purposes and intent of the Agricultural Labor Relations Act to prohibit decertification elections within the first year of any collective bargaining agreement. The majority purports to utilize the well-recognized method of statutory interpretation known as the plain *386 meaning rule. In this regard we should remember that in statutory interpretation there are generally two opposing canons on almost every point and for every thrust there is a parry. (See Llewellyn, The Common Law Tradition (1960) Appen. C, 521-535, for an extended discussion; see also Code Civ. Proc., §§ 4, 1858, 1859; Civ. Code, §§ 13, 3541, 3542; and 45 Cal.Jur.2d (1958) Statutes, § 99, p. 613.) As Llewellyn points out, supra, at page 521, “Plainly to make any canon take hold in a particular instance, the construction contended for must be sold, essentially, by means other than the use of the canon: the good sense of the situation and a simple construction of the available language to achieve that sense, by tenable means, out of the statutory language.” (Italics in original.)
There are a myriad of aids in statutory construction which may be usable in a given case. “[W]here uncertainty exists consideration may be given to the consequences that flow from a particular interpretation.” (Jaynes v. Stockton (1961) 193 Cal.App.2d 47, 56 [ 14 Cal.Rptr. 49 ]; Big Sur Properties v. Mott (1976) 62 Cal.App.3d 99, 105 [ 132 Cal.Rptr. 835 ]; see also Estate of Ryan (1943) 21 Cal.2d 498, 512-513 [ 133 P.2d 626 ].) A statute should be interpreted with reference to the whole system of law of which it is a part. (People v. Comingore (1977) 20 Cal.3d 142, 147 [ 141 Cal.Rptr. 542 , 570 P.2d 723 ]; see also extensive citations listed in Steilberg v. Lackner (1977) 69 Cal.App.3d 780, 785 [ 138 Cal.Rptr. 378 ].) Canons of construction cannot save us from the anguish of judgment. (See Frankfurter, Some Reflections On the Reading of Statutes (1947) 47 Colum. L.Rev. 527.) “The meaning of a sentence is to be felt rather than to be proved.” (United States v. Johnson (1911) 221 U.S. 488, 496 [ 55 L.Ed. 823, 826 , 31 S.Ct. 627 ].) The final rendering of the meaning of a statute, thus, becomes an act of judgment. Statutory construction implies the exercise of choice precluding the notion of capricious choice as much as choice based on private notions of a policy which, of course, should be left to the legislative branch. “[T]he primary rule of statutory construction, to which eveiy other rule as to interpretation of particular terms must yield, is that the intention of the Legislature must be ascertained if possible, and, when once ascertained, will be given effect, even though it may not be consistent with the strict letter of the statute.” (Dickey v. Raisin Proration Zone No. 1 (1944) 24 Cal.2d 796, 802 [ 151 P.2d 505 , 157 A.L.R. 324 ].) We should try to give effect to the manifest purposes which appear in the provisions of the statute considered as a whole. (County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 849 [ 59 Cal.Rptr. 609 , 428 P.2d 593 ].) We should give the statute an interpretation that will promote rather than defeat the general purpose and policy of the statute. (City of L.A. v. Pac. Tel. & Tel. Co. (1958) 164 Cal.App.2d 253, 256 [ 330 P.2d 888 ].) Where a *387 statute is susceptible of two constructions, the one that leads to the more reasonable result will be followed. (45 Cal.Jur.2d, supra, § 116, p. 625.) The words of the statute are often flexible enough to admit of some other construction which should be adopted to effectuate the intention of the statute rather than to defeat it. (See In re Haines (1925) 195 Cal. 605, 613 [ 234 P. 883 ].) Attempting to apply these various approaches to the instant case, and fully cognizant of the fact that there is no table of logarithms for statutoiy construction, I turn to the statute in question. The second paragraph of Labor Code section 1156.7, subdivision (c), provides: “However, such a petition shall not be deemed timely unless it is filed during the year preceding the expiration of a collective-bargaining agreement which would otherwise bar the holding of an election, and when the number of agricultural employees is not less than 50 percent of the employer’s peak agricultural employment for the current calendar year.” (Italics added.)
I conclude that a reasonable construction of the clause emphasized above is that that clause simply modifies the words “collective bargaining agreement” and was intended to refer only to collective bargaining agreements which under Labor Code section 1156.7, subdivision (b), barred an election, i.e., three-year contracts. Such a conclusion makes sense in light of the legislative intent to promote stability in labor relations. The majority conclusion would result (assuming other-statutory requirements are met) in the possibility of decertification taking place within the very first year of a contract. If decertification is successful, the contract itself may possibly be set aside at any time. (See Levy, The Agricultural Labor Relations Act of 1975—La Esperanza De California Para El Futuro, 15 Santa Clara Law. 783, 800, fn. 106, 2d par.)
I cannot conclude, particularly in light of the violence preceding the legislation and the considerable hearings which were conducted, that the Legislature intended such an unstable condition to exist during the first year of a collective bargaining agreement. Such a construction would raise the possibility of periodic elections and a potentially continuous struggle in such period similar to the chaotic conditions existing in some European countries on election of a Prime Minister. While I concede that the majority position is arguable as set forth in footnote 7 of the majority opinion, I am unable to agree that it is so obvious what the Legislature had in mind in using the “otherwise bar” language. Nor do I agree that the interpretation of the majority is compelled. I submit that the interpretation set forth in this dissenting opinion leads to the more reasonable result.
*388 I believe that the Legislature intended to give some breathing room to the parties to a collective bargaining agreement to the end that repeated elections would not be taking place in the early part of such an agreement. I agree with the Board’s conclusion that while the “various bars to an election serve different purposes, the central theme of such rules is that employees should be bound by their choice of a bargaining agent for a period of time sufficient to allow the bargaining relationship to develop and mature in order to attain the stability which is an objective of the statute.” Such a bar eliminates the pressure on parties in negotiation to produce a hot-house result. (See Brooks v. Labor Board (1954) 348 U.S. 96 [ 99 L.Ed. 125 , 75 S.Ct. 176 , 42 A.L.R.2d 1405 ] (a certification bar case).) Permitting a decertification election to take place in the early days of a collective bargaining agreement eliminates a major inducement to both the employers and employees to sign a collective bargaining agreement since the major benefit of such an agreement is the stability that results from having the conditions of employment fixed for a definite period of time. Of course, the Legislature could have been more specific. Undoubtedly the Legislature should give consideration toward appropriate amendments to the act in several places. That, however, is a legislative matter and not our concern. I agree completely with the majority that the wisdom of the legislation is not for us to consider. However, the state policy has been expressly stated by the Legislature in Labor Code section 1140.2 which reads, in full, as follows: “It is hereby stated to be the policy of the State of California to encourage and protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing, to negotiate the terms and conditions of their employment, and to be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. For this purpose this part is adopted to provide for collective-bargaining rights for agricultural employ ees.” (Italics added.)
The hope of the Legislature was to eradicate the plague caused by constant turmoil threatening agriculture in this state. The Legislature recognized that, as a practical matter, the only way to hopefully solve the problem was through the mechanism of collective bargaining agreements. To adopt the interpretation urged by petitioners in this case would mean both employers and employees would be discouraged from entering into one-year contracts as a means of resolving their differences. Employees are entitled to change or reject their representatives if they desire, but *389 only at reasonable intervals. Even in the governmental process at the local level there are limitations on recall of representatives so that an opportunity can be given for the electorate to evaluate the performance of their particular representative. It would be very difficult for agricultural workers to evaluate the performance of their representatives if a petition for decertification could be filed (other statutory prerequisites having been met) at any time after a collective bargaining agreement had been signed. Furthermore, Labor Code section 1156.7 does not mention one-year collective bargaining agreements, although three-year agreements are inferentially mentioned. (See Lab. Code, § 1156.7, subd. (b).) From this omission alone it could be inferred that the inclusion of three-year agreements necessarily excludes agreements for less than three years.
Additionally, applying section 1156.7, subdivision (c), to one-year collective bargaining agreements would arguably bring the section into conflict with sections 1156.5 and 1156.6. Those sections give a union a 12-month period after being elected as the collective bargaining unit’s representative and 12 months after being so certified in which the Board may direct any elections. If section 1156.7, subdivision (c), is applicable to one-year collective bargaining agreements, it certainly is not clear what would happen if a collective bargaining agreement of that length is entered into immediately after a collective bargaining unit’s representative is elected or certified. At the very least, it is not clear whether section 1156.7 applies to one-year collective bargaining agreements.
Furthermore, when the majority concludes that the statute is plain on its face and therefore needs no interpretation, they have already engaged in a type of interpretation and concluded that, as so interpreted, the statute needs no further interpretation. (See Radin, Statutory Interpretation (1930) 43 Harv.L.Rev. 863, 868-869.) This type of reasoning is similar to saying “[cjlear statutoiy language no more needs to be interpreted than pure water needs to be strained” (Holder v. Superior Court (1969) 269 Cal.App.2d 314, 317 [ 74 Cal.Rptr. 853 ]). At first blush that statement sounds very logical and accurate. However, it is predicated upon the water being pure, which itself resolves the very matter in question.
Third, it is interesting to note that the minority on the Board seriously questioned the adequacy of the record in the instant case being used to establish a general rule to be applied in all cases. The Board minority pointed out that the record should have included the percentage of employees who actually voted, the degree of turnover since the initial election, and the degree of employer involvement in the campaign.
*390 Fourth, for a writ of mandate to issue, two basic requirements are essential, namely, a clear, present (and usually ministerial) duty on the part of the Board and a clear, present and beneficial right in petitioner to performance of that duty. (5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, § 61, p. 3838; Frank, Cal. Civil Writs (Cont.Ed. Bar 1970) §§ 5.17-5.23, pp. 72-77.) I am not so certain that petitioners, or any of them, have established a clear, present and beneficial right to performance of a duty sought to be ordered in this case. Neither petitioner is in any danger of violation of the Agricultural Labor Relations Act by reason of an unfair labor practice insofar as the present matter is concerned. The obligations of the employer remain unaffected at the present time, as do those of the petitioner employee. Those obligations and rights continue to be unaffected so long as decertification in fact has not taken place. There is no more uncertainty or blind gamble involved in this situation than exists in the usual situation involving any nonfinal order. To reiterate, the statutory scheme has in mind noninterference by the judiciary with the sort of representation problem presented here until, if ever, Labor Code section 1160.8 comes into play. Until then, we should, with proper deference to the Legislature, adopt a hands-off policy.
While I do not suggest, in the manner of a Chicken Little, that the sky will fall if we issue the writ in this case, I submit that the thread of the garment which the Legislature has pieced together, hopefully to bring peace and stability to the fields, is as fragile as the thread of Ariadne given to Theseus to aid him out of the Labyrinth. In these trying times when violence and claims of violence are daily encountered and the atmosphere is filled with emotion, I would interpret the statute to keep that garment whole and not weaken it by snipping at the thread.
I would deny the writ.
A petition for a rehearing was denied May 15, 1979. Hopper J., was of the opinion that the petition should be granted. The petitions of the respondent and the real party in interest for a hearing by the Supreme Court were denied July 27, 1979. Bird, C. J., did not participate therein. Tobriner, J., and Newman, J., were of the opinion that the petitions should be granted.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9725153. Public record. Not legal advice.