The opinion
BROWN (G. A.), P. J., Concurring and Dissenting.
I agree that the evidence is sufficient to support the Board’s conclusions regarding the unfair labor practices.
I concur in the result reached by the principal opinion with regard to ■the remedies imposed by paragraphs 1 (cease and desist order), 2(a) (expanded access), 2(b) (supplying payroll lists), 2(c) (posting notices), 2(d) (mailing copies of notice), and 2(f) (notification of steps taken to comply) of the revised order, with the qualifications set forth below.
*984 I concur with paragraph 2(e) of the remedial order insofar as it requires a reading of the notice on company time to employees who were employed during the period when the unfair labor practice occurred.
I dissent from that part of paragraph 2(e) which requires the employer to pay for the time of persons assembled for a meeting during which the notice is to be read who were not employees at the time the unfair labor practices occurred and insofar as that paragraph requires the employer to pay all employees for the time it takes for a question and answer period after the reading of the notice.
The qualifications to my concurrence are these: First, the principal opinion in approving the remedies ordered quotes at length the language and reasoning of the Board’s decision in M. Caratan, Inc. (1980) 6 A.L.R.B. No. 14, which is relied upon in the Board’s decision in the instant case. I do not agree with all of the reasons stated in the Board’s decision nor in all of the language used by the Board and therefore agree only in the result in that regard. Secondly, the remedies assessed are for the most part predicated upon presumed employment conditions generally existing in agriculture. For example, the phraseology of the Board’s decision quoted in the principal opinion says “mailing is often the only method available for reaching...” and, again, the decision speaks of “the high degree of illiteracy or semi-literacy among agricultural employees,” and says, “Agricultural workers generally do not assemble at a common place.. .,” and “they often travel by private car or by bus from pickup points,...” and “farm workers do not customarily eat lunch at a common gathering place.” The principal opinion also observes, “It is possible that current employees who were not working at the time of the unfair labor practices nonetheless may be aware of the illegal acts of the employer.” (Italics added.) If, however, it is shown by the evidence in a particular case that these conditions do not exist, then the remedy should not be imposed in a routine and automatic way.
For example, the reading requirement is grounded upon illiteracy of the work force and the presumed problems of assembling employees other than while working. (Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 355 [ 156 Cal.Rptr. 1 , 595 P.2d 579 ]; see Marine Welding and Repair Works, Inc. v. N. L. R. B. (8th Cir. 1971) 439 F.2d 395, 399 .) If, however, the proof in a particular case should show that illiteracy is not significant among the employees there involved and because of the size of the work force, *985 the living arrangements, or other factors it would be feasible to assemble the employees outside of work hours into a group or sizable groups, I am of the opinion that the reading requirement would not be justified.
In the case at bench, however, though petitioner has made arguments that the appropriate conditions do not exist in this case, it offered no proof of conditions different from those described by the Board either at the original hearing or upon remand to substantiate the claims it makes. Accordingly, the Board was justified in relying upon its so-called expertise and background knowledge of what the agricultural conditions generally are in formulating the order.
Attention is next drawn to that part of paragraph 2(e) which requires the petitioner to pay for the time of all persons currently employed, including those not employed when the unfair labor practices occurred, who attend the reading of the notice and an open-ended educational session held after the reading of the notice. It is to be noted that the session is not limited in time or to issues raised by the notice.
The fundamental consideration here is whether the Board can justify an order requiring the employer to pay for the education of agricultural laborers who have not been offended by the unfair labor practice 1 on the general theory that such an order “serves the important function of informing workers of the outcome of the unfair labor practice proceedings . . .thereby effectuating the purposes of the act, including the encouragement and protection of agricultural employees to be free from interference, restraint or coercion in the exercise of their organizational rights. (Lab. Code, §§ 1160.3, 1140.2.)
As justification for the reading requirement to all employees, the Board expressly relies upon its decision in M. Caratan, Inc., supra, 6 A.L.R.B. No. 14, where it is stated: “Requiring employees to use their nonwork time to receive information about the results of an unfair labor practice proceeding and about their related statutory rights places an unwarranted burden on the employees. This is particularly true since the employer’s illegal conduct, which this information is intended to remedy, arose in the context of the employment relationship. The reading, like other remedial provisions of the Order, serves to remove, insofar as possible, the consequences of Respondent’s violations of the *986 Act. Therefore, it is appropriate that Respondent bear the incidental costs of the remedy as part of its obligation to restore the status quo.” {Id., at p. 4.)
Also, the Caratan opinion in referring to the reading requirement to persons who were not employees at the time of the infraction states: “After due consideration of this portion of the Order, we find that the reading of the Notice to all agricultural employees of the Respondent employed at the time of the reading is an appropriate remedy. It is probable that, due to employee turnover, a certain percentage of workers employed by an agricultural employer at the time of a reading were not employed when the unfair labor practices took place. However, the fact that these workers were not employed at that time does not mean that they have no knowledge of the employer’s misconduct. Agricultural employees generally speak to each other about their employment conditions and incidents which occur at their ranches and neighboring ranches. There is little doubt that workers will learn of an employer’s illegal actions, particularly at their own place of employment, through informal communication with the other employees. Because the current workers who were not employed at the time of the misconduct are often aware of the employer’s unfair labor practices, we believe it is necessary to have them present at the reading so as to dispel, as fully as possible, the effects of the respondent’s misconduct.” {Id., at pp. 5-6.)
As to employees who were not there when the illegal practice occurred, however, the infractions did not arise in the context of the employment relationship, there are no consequences insofar as they are concerned to remove as a result of respondent’s violation of the act, and there is no status quo to restore.
Thus it is apparent that the requirement that the employer pay substantial sums for the work time of persons who merely are aware of past misconduct but were not offended by the unlawful labor practices can only be justified under the vague and generalized theory that it “dispels], as fully as possible, the effects of the respondent’s misconduct” and helps prevent future violations. The preventative aspect can only be interpreted as the imposition of this payment for past violations as a penalty to prevent future violations and evidences a punitive attitude. Prevention is one of the primary purposes of penalties both in civil and criminal law. It is plain therefore that the payment to these persons can be justified only by the value of educating laborers generally regarding their rights under the act.
*987 It is obvious that if, for example, an order specifically required an employer to pay for a yearly educational course covering employees’ rights under the act for all agricultural employees whether employed by the particular employer or not, this likewise would serve the purpose of the act by apprising employees of their organizational rights. However, it is inconceivable that such an order would be held other than an abuse of discretion and punitive. Yet on principle the analogy is indistinguishable from the case at bench.
I can find nothing in the act or prior authority, federal or state, that authorizes the board to require an employer who has been found to have engaged in an unfair labor practice to educate his employees as to their rights under the act, let alone to educate the general labor population, all at a substantial expense to the employer. Accordingly, I dissent from this requirement.
The respondent Board has cited NLRB v. Rutter-Rex Mfg. Co. (1969) 396 U.S. 258 [ 24 L.Ed.2d 405 , 90 S.Ct. 417 ] to support the requirement that employers may be required to pay the cost. However, that case involved a make-whole remedy by way of back pay for employees for the unlawful failure to reinstate employees as a result of a labor dispute involving those employees. It invoked the policy of the National Labor Relations Board to make whole the employees for losses suffered on account of violations of the act by the employer. That case has no relation to the case at bench and lends no support to the Board’s order.
Also, to support the imposition of the reading requirement at the expense of the employer, the Board cites Marine Welding and Repair Works, Inc. v. N.L.R.B., supra, 439 F.2d 395, 399 ; N. L. R. B. v. Texas Electric Cooperatives, Inc., Treating Div. (5th Cir. 1968) 398 F.2d 722, 726 ; and N. L. R. B. v. Bush Hog, Inc. (5th Cir. 1968) 405 F.2d 755 . In each of those cases the court supported a reading requirement by evidence that a significant number of employees were unable to read a posted notice. Nothing in those cases supports the notion that the employer was required to pay for the work time during which the meeting was held nor that the reading was made applicable to any employees who were not members of the work force at the time the unfair labor practice occurred. The cases therefore lend no support for the proposition for which they are cited. 2
*988 The observations are pertinent to the requirement that the employer pay for an educational seminar after the reading of the notice. I note also that in this particular instance the subject matter of the seminar is not limited to the contents of the notice nor is there any limitation on the duration of the meeting. In this regard, I do not agree with the principal opinion in its observation in response to Jasmine’s argument that the reading requirement is economically burdensome, unfair and punitive in nature, “that the actual reading of the notice will take but a few minutes and we should presume that the board representatives will be impartial in their explanation of employee rights and will not utilize any more company time than is reasonably necessary to answer employee questions.”
The process of assembling all of the employees from widespread locations, reading the notice in several languages and then explaining the notice and answering questions in several languages and then transporting them back to the locations of their work would take more than a few minutes. I must also disagree with the position that this court should presume the Board and its representatives will be impartial and utilize a minimum of time.
More fundamentally, the Board can be faulted for asserting little efforts to fit the nature and magnitude of the remedy to the nature and magnitude of the offense. Unlike the NLRB which fashions the remedy in each particular case to fit the seriousness of the unfair labor practice and type of infraction, the ALRB typically imposes its boilerplate remedies irrespective of the seriousness of the unfair labor practice, the number of persons involved in the activity vis-á-vis the total number of work force, and the effect the practice may have had upon organizational activity. Accordingly, the employer wins a Pyrrhic victory when he prevails upon some but not all unfair labor charges that may be leveled against him as the Board routinely imposes the same onerous remedies upon the employer whether he is guilty of one minor or a doz *989 en major unfair practices. This is contrary to the spirit and principle of J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 30-35 [ 160 Cal.Rptr. 710 , 603 P.2d 1306 ], standing for the proposition that the imposition of remedies should not be automatic.
In this regard it is of more than passing interest to note that the mailing requirement (par. 2(d)) is limited to the persons who were on the payroll at the time of the unfair labor practice.
I am not unmindful of Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd., supra, 24 Cal.3d 335 , upon which respondent relies. In the dispository *988 sentences of that case the court stated, at page 355: “On the recommendation of the ALRB its order is modified in these respects: ... [11] 3. References in paragraph 2(a), on reinstatement, and paragraph 2(e), on the reading of the notice, to the ‘1977’ season are changed to the ‘1979’ season.”
The prior language of paragraph 2(e) is not set forth in the opinion, nor was the issue as to the reading of the notice on company time to nonemployees at the time of the unfair labor practice nor the issue of the educational session discussed by the court. From all that appears no issue of this change was raised or discussed by the parties except for what appears to have been an unopposed casual change in the dates.
Under these circumstances, I do not consider this authority as a binding precedent.