The opinion
ARGUELLES, J., Concurring.
I agree with the majority opinion that the Agricultural Labor Relations Act (ALRA) does not preclude the establishment of reasonable “time, place and manner” regulations for labor camp access, and that, at least in the first instance, the grower, rather than the Agricultural Labor Relations Board (ALRB), is the appropriate entity to fashion the regulations governing access to a labor camp on a grower’s property. I write separately only because I believe that with respect to an ancillary issue—the attorney fee and costs question (see ante, pp. 171-173)—the majority opinion unwisely ventures beyond what is necessary to decide the present case and imposes an overly broad and unjustified limitation on the ALRB’s general remedial authority in unfair labor practice proceedings.
In this case, the ALRB, after finding that the grower had committed a number of access violations over several years, added to its remedial order a requirement that the grower pay the attorney fees and costs incurred by the union in pursuing its unfair labor practice complaint. The majority opinion initially concludes that the ALRB’s award of attorney fees and costs cannot be sustained because, in view of the majority’s ultimate conclusion on the labor camp access issue, the grower’s litigation was not “frivolous or even meritless.” (Ante, p. 171.) That conclusion in itself is sufficient to justify the reversal of this portion of the ALRB’s remedial order, and there is no reason to go any further in this case.
The majority opinion, however, goes on to declare broadly that the ALRB has no authority to award costs or attorney fees in any unfair labor practice proceeding, apparently even when a grower or a union does pursue a patently frivolous claim or defense in bad faith. (Ante, pp. 171-173.) Although the majority relies on the United States Supreme Court’s decision in Summit Valley Industries, Inc. v. Carpenters (1982) 456 U.S. 717 [ 72 L.Ed.2d 511 , 102 S.Ct. 2112 ] and the general provisions of section 1021 of the Code of Civil Procedure to support its sweeping restriction on the *182 ALRB’s authority to require a party to bear attorney fees or costs in any instance, neither authority supports the majority’s broad ruling.
In Summit Valley, supra, 456 U.S. 717 , the Supreme Court held only that, pursuant to the normal “American Rule” on attorney fees, an employer could not routinely obtain attorney fees as a part of the statutory “damages” available in an enforcement action under section 303 of the federal Labor Management Relations Act. (456 U.S. at pp. 721-727 [72 L.Ed.2d at pp. 515-519].) In the course of its opinion, the Summit Valley court explicitly noted that one of the established exceptions to the “American Rule” recognized by federal courts permits an award of attorney fees against a party who litigates in “bad faith.” (See 456 U.S. at p. 721 [ 72 L.Ed.2d at p. 516 ] [citing Vaughan v. Atkinson (1962) 369 U.S. 527 [ 8 L.Ed.2d 88 , 82 S.Ct. 997 ]].) Summit Valley neither holds nor in any way suggests that an administrative agency, such as the National Labor Relations Board (NLRB), may not properly award attorney fees or costs when it finds that a party has pursued a frivolous claim in bad faith.
Indeed, although the majority takes no note of the fact, the NLRB has for more than 15 years followed just such a policy in fashioning remedial orders in unfair labor practice proceedings. (See generally 2 Morris, The Developing Labor Law (2d ed. 1983) pp. 1680-1681.) In Tiidee Products (1972) 194 NLRB 1234 [79 Lab.Rel.Ref. Manual (Bur.Nat. Affairs) p. 1175 (hereafter LRRM)] (enforced sub nom., International U. of Electrical, R. & M. Wkrs. v. N.L.R.B. (D.C. Cir. 1974) 502 F.2d 349 , 351-355, cert. den. (1974) 417 U.S. 921 [ 41 L.Ed.2d 226 , 94 S.Ct. 2629 ]), the NLRB, while noting that “[n]ormally . . . litigation expenses are not recoverable by the charging party in Board proceedings . . .,” concluded that an exception to this general rule was warranted where a party, in bad faith, pursues a frivolous claim. The board observed: “[Fjrivolous litigation such as this is clearly unwarranted and should be kept from the nation’s already crowded court dockets, as well as our own. . . . The policy of the Act to insure industrial peace through collective bargaining can only be effectuated when speedy access to uncrowded Board and court dockets is available. Accordingly, in order to discourage future frivolous litigation, to effectuate the policies of the Act, and to serve the public interest, we find that it would be just and proper to order [the employer] to reimburse the Board and the Union for their expenses incurred in the . . . conduct of these cases, including . . . reasonable counsel fees . . . and record costs . . . .” (79 LRRM at p. 1179.)
The NLRB has continued to apply the Tiidee Products “patently frivolous” rule (supra, 79 LRRM 1175) in the years following the Summit Valley *183 decision, supra, 456 U.S. 717 (see, e.g., Market King, Inc. (1987) 282 NLRB 123 [124 LRRM 1150, 1151-1152]; Hydrotherm Inc. (1986) 280 NLRB 167 [123 LRRM 1342, 1343]), and federal courts have likewise continued to impose such sanctions on parties to unfair labor practice proceedings on finding that the party has acted in bad faith in pursuing a patently frivolous claim. (See, e.g., Palmas Del Mar Co. v. N.L.R.B. (1st Cir. 1986) 797 F.2d 39, 40-41 .) Thus, Summit Valley clearly does not support a rule barring the ALRB from awarding attorney fees or costs to deter frivolous litigation.
Section 1021 of the Code of Civil Procedure similarly does not support the majority’s broad conclusion. Section 1021 provides that “[e]xcept as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys ... is left to the agreement... of the parties . . . .” (Italics added.) Although the ALRA contains no provision addressed specifically to attorneys fees, the ALRA does contain a provision giving the ALRB broad remedial power in unfair labor practice proceedings, authorizing the agency to order a party who commits an unfair labor practice “to take affirmative action . . . and to provide such other relief as will effectuate the policies of this part. . . .” (Lab. Code, § 1160.3.) Section 1160.3 was modeled directly on the analogous provision of the National Labor Relations Act (see Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848 , 865 & fn. 5 [ 176 Cal.Rptr. 753 , 633 P.2d 949 ]), which, as the Tiidee Products rule, supra, 19 LRRM 1175, demonstrates, has long been construed to permit the NLRB to impose a sanction of attorney fees and costs in unfair labor practice proceedings when it finds that a party has pursued a patently frivolous claim. In view of the parallel nature of the state and federal provisions, the Legislature evidently intended to authorize the ALRB to impose at least the same range of sanctions as the NLRB may impose, including an award of attorney fees and costs against parties who in bad faith pursue patently frivolous claims. (See Lab. Code, §1148 [“The [ALRB] shall follow applicable precedents of the National Labor Relations Act, as amended.”]; Highland Ranch, supra, 29 Cal.3d 848, 865.)
Contrary to the majority’s suggestion, this court’s decision in Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891 [ 160 Cal.Rptr. 124 , 603 P.2d 41 ] (hereafter CLAM) is in no way inconsistent with the ALRB’s exercise of such authority. In CLAM we held that even in the absence of express statutory authority the Public Utilities Commission has the power in a quasi-judicial proceeding to award attorney fees pursuant to the same equitable doctrines that may be invoked by trial courts. (See 25 Cal.3d at pp. 906-909.) Nothing in CLAM suggests that when—as here— the Legislature has granted an administrative agency broad remedial au *184 thority in a statutory provision modeled on a federal statute which has previously been construed to authorize the award of attorney fees against frivolous litigation, the state legislation should not be interpreted to grant the state agency comparable authority to award such fees.
Indeed, it is arguable that, even without regard to Labor Code section 1160.3, the CLAM decision would support the ALRB’s authority to require a party who engages in frivolous litigation to bear its adversary’s attorney fees. As noted, in CLAM the court held that in a quasi-judicial administrative proceeding the Public Utilities Commission possesses authority to award attorney fees on the same basis on which a trial court may impose such fees in a judicial proceeding. (CLAM, supra, 25 Cal.3d at pp. 907-908.) As we have seen, federal decisions have long recognized a court’s equitable authority, even in the absence of statute, to award attorney fees against a party who has acted in bad faith (see, e.g., Vaughan v. Atkinson, supra, 369 U.S. 527 ), and the California Legislature has recently codified this “frivolous litigation” or “bad faith” exception to the “American Rule” in section 128.5 of the Code of Civil Procedure, which provides that trial courts may order a party “to pay any reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” If, as CLAM suggests, an administrative agency may, at least in some circumstances, award attorney fees on the same basis as trial courts, section 128.5 of the Code of Civil Procedure may provide an alternative source of authority for an ALRB order requiring a party who has pursued a frivolous claim or defense in bad faith to bear attorney fees incurred by its adversary.
In sum, I think the majority opinion errs in concluding that the ALRB may never order a party in an unfair labor practice proceeding to bear another party’s attorney fees or costs. There is, however, no need to resolve that broad question in this case. As the majority opinion properly notes, in light of its conclusion with regard to the issue of labor camp access, the grower’s position in this case cannot be found patently frivolous. I would reverse the attorney fee and costs order at issue here on this narrow ground alone.