The opinion
BROWN (G. A.), P. J.
I concur in the judgment.
In doing so I wish to make my position clear with regard to those objections filed by the appellants which were dismissed without a hearing.
The objection that the respondent did not make a proper showing of interest was properly dismissed under Nishikawa Farms, Inc. v. Mahony (1977) 66 Cal.App.3d 781 [ 136 Cal.Rptr. 233 ] (see Cal. Admin. Code, tit. 8, § 20315).
As to the balance of the objections which were dismissed without a hearing, the record before us contains no showing that the appellants complied with the legally adopted Board regulation requiring the objector to “file with the petition declarations or other evidence establishing a prima facie case in support of the allegations of said *48 petition.” (See Lab. Code, § 1144; Cal. Admin. Code, tit. 8, § 20365.) 1 Because the appellants failed to comply with this regulation, the Board was acting within its power when it dismissed these objections without a hearing. This authority was properly exercised notwithstanding the provisions of Labor Code section 1156.3, subdivision (c), 2 the regulation being reasonably directed toward preventing the filing of frivolous and non meritorious objections.
However, had appellants filed the appropriate declarations in support of the objections contained in their petition before the Board, I am not prepared to say that the Board could not have been compelled by court action to hold a hearing on those objections instead of summarily dismissing them. (Leedom v. Kyne (1958) 358 U.S. 184 [ 3 L.Ed.2d 210 , 79 S.Ct. 180 ].)
The failure to accord a party a fair hearing not only has due-process/fair-trial overtones (see English v. City of Long Beach (1950) 35 Cal.2d 155 [ 217 P.2d 22 , 18 A.L.R.2d 547 ]), but the statute expressly mandates that “[u]pon receipt of a petition under this subdivision, the board, upon due notice, shall conduct a hearing to determine whether the election shall be certified.” (Italics added.) No equivalent provision is found in the National Labor Relations Act; consequently, federal precedents under that act are of little value. Lacking such cases, the principal opinion has gone far afield in search of authority. Some precedent has been found in a less authoritative lower federal court case *49 in another area of administrative law dealing with food and drug laws. (See Dyestuffs and Chemicals, Inc. v. Flemming (8th Cir. 1959) 271 F.2d 281 , a case which I shall discuss in more detail later.)
Keeping in mind that the ALRA makes a hearing mandatory, the language of Leedom v. Kyne, supra, would permit judicial review of the ALRB’s intermediate action dismissing charges without a hearing. Among other teachings, that case permits judicial review of intermediate acts of the Board when the actions are “contrary to a specific prohibition in the Act” ( 358 U.S. at p. 188 [ 3 L.Ed.2d at p. 214 , 79 S.Ct. at p. 184 ]) and the Board action deprives a party of a right which has been assured by the legislative body. (See Boire v. Miami Herald Publishing Co. (5th Cir. 1965) 343 F.2d 17, 21 .) There is nothing in Boire v. Greyhound Corp. (1964) 376 U.S. 473 [ 11 L.Ed.2d 849 , 845 S.Ct. 894 ] or Boire v. Miami Herald Publishing Co., supra, 343 F.2d 17 , contrary to this position. In both of those cases a hearing in fact was held by the National Labor Relations Board.
The case primarily relied upon by the principal opinion is Dyestuffs and Chemicals, Inc. v. Flemming, supra, 271 F.2d 281 , which is clearly distinguishable. In that case Dyestuffs, a manufacturer of food dye, sought judicial review of an order promulgated by the Secretary of Health, Education and Welfare. The order decertified and prohibited certain dyes from use in foodstuffs. Prior to the issuance of the order no hearing was held, though a provision of the Federal Food, Drug and Cosmetic Act provides that before an order is issued “the Secretary [of Health, Education and Welfare], after due notice, shall hold such a public hearing . ...” ( 21 U.S.C.A. § 371 (e)(3).)
The Supreme Court held in an analogous case (Flemming v. Florida Citrus Exch. (1958) 358 U.S. 153, 167 [ 3 L.Ed.2d 188, 197 , 79 S.Ct. 160, 168 ]) that under the statute “where a coal-tar color is not harmless, it is not to be certified” and agreed with the Secretary’s contention that he “is without power to permit the use of harmful coal-tar colors in specific foods through a system of tolerances.” (358 U.S. at p. 166 [3 L.Ed.2d at p. 196, 79 S.Ct. at p. 168].) The dye involved in the Dyestuffs case was a coal-tar dye.
Dyestuffs sought to have the Secretary authorize the use of the prohibited dye by establishing tolerances in violation of the specific holding in the Supreme Court case.
*50 Under these circumstances the court agreed with the Secretary’s position that he had the authority to prohibit the use of the dye without a hearing because “the grounds set forth in petitioner’s objections were wholly insufficient to warrant a hearing in that they sought the promulgation of regulations that were beyond the Department’s authority.” (Dyestuffs and Chemicals, Inc. v. Flemming, supra, 271 F.2d 281, 284 .) The court stated that “[w]here the objections stated and the issues raised thereby are, even if true, legally insufficient, their effect is a nullity and no objections have been stated. Congress did not intend the governmental agencies created by it to perform useless or unfruitful tasks. If it is perfectly clear that petitioner’s appeal for a hearing contains nothing material and the objections stated do not abrogate the legality of the order attacked, no hearing is required by law.” (At p. 286.) And further, “that no hearing need be held when the prerequisite objections are not supported by grounds legally sufficient to justify the relief sought.” (At p. 287.) “[N]o ‘objections’ can be deemed to have been filed when the grounds therefor raise no issues material to the legality of the disputed order.” (At p. 287.)
This is not the situation in the case at bench. No decision or statute prohibits the ALRB from making an order that the election would not be certified because of the irregularities and objections stated by appellants. To the contrary, it is clearly the Board’s duty to refuse to certify the election if it finds after the hearing “that any of the assertions made in the petition filed pursuant to this subdivision are correct, or that the election was not conducted properly, or misconduct affecting the results of the election occurred, ....” (See Lab. Code, § 1156.3, subd. (c).) For this reason, Dyestuff's is inapposite to the instant case.
It is one thing to hold that the determination by the Board that a sufficient interest exists to order an election is not subject to judicial review except later in resistance to an unfair labor charge (see Nishikawa Farms, Inc. v. Mahony, supra, 66 Cal.App.3d 781 ); it is quite another matter to hold that the Board may by administrative ukase determine all issues relative to the election process without according a hearing to the parties if one is properly requested pursuant to the mandatory terms of the statute. I can scarcely think of a right more fundamental than that of a fair hearing before the tribunal which purports to adjudicate a matter having far-reaching consequences to the contestants. Pragmatically, it is apparent to all who are acquainted with the practicalities of the situation that requiring the employer to wait and proceed by way of an unfair labor practice charge and subsequent refusal to bargain, with all its *51 attendant risks and penalties, is, from the employer’s standpoint, equivalent to no remedy at all. At the very least the employer should not be required to suffer the consequences of such a procedure without having had a hearing before the Board on his initial objections. Sometimes the courts tend to forget that the due process clause protects property rights as well as the right to life and liberty. It is perhaps trite but it is essential to remind ourselves that the courts should accord the protections of all constitutional guarantees to all litigants, even in the face of widespread pressure group outcries that tilt sentiment in favor of farm laborers. Such pressures should not blind the courts to basic constitutional provisions or cause them to gloss over specific statutory protections afforded to employers.
Appellants’ petition for a hearing by the Supreme Court was denied November 23, 1977. Bird, C. J., did not participate therein. Sullivan, J., * participated therein. Clark, J., Richardson, J., and Newman, J., were of the opinion that the petition should be granted.
As to the objections relating to utilization of allegedly confusing symbols on the ballot, the record is murky. The Board did not dismiss this objection on the specific ground of a lack of a declaration although there does not appear to be such a declaration in the record. The Board did dismiss on the ground that the subject matter was fully covered by a duly adopted administrative regulation. (See Cal. Admin. Code. tit. 8, § 21000.) It does not appear that the appellants are attacking the validity of that regulation.
Labor Code section 1156.3 provides in part:
“(c) Within five days after an election, any person may file with the board a signed petition asserting that allegations made in the petition filed pursuant to subdivision (a) were incorrect, that the board improperly determined the geographical scope of the bargaining unit, or objecting to the conduct of the election or conduct affecting the results of the election.
“Upon receipt of a petition under this subdivision, the board, upon due notice, shall conduct a hearing to determine whether the election shall be certified. Such hearing may be conducted by an officer or employee of a regional office of the board. He shall make no recommendations with respect thereto. If the board finds, on the record of such hearing, that any of the assertions made in the petition filed pursuant to this subdivision are correct, or that the election was not conducted properly, or misconduct affecting the results of the election occurred, the board may refuse to certify the election. Unless the board determines that there are sufficient grounds to refuse to do so, it shall certify the election.”
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.