# SAM ANDREWS'SONS v. Agricultural Labor Relations Bd.

> California Supreme Court · November 17, 1988 · 47 Cal. 3d 157

URL: https://www.frixlaw.com/law-library/cases/9851012

## Case

- **Full name:** SAM ANDREWS’ SONS, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest
- **Court:** California Supreme Court
- **Decided:** November 17, 1988
- **Citations:** 47 Cal. 3d 157; 253 Cal. Rptr. 30; 763 P.2d 881; 1988 Cal. LEXIS 255; 1988 WL 122329
- **Precedential status:** Published
- **Opinion:** Concurring in part by Broussard
- **Judges:** Kaufman, Arguelles, Broussard
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

BROUSSARD, J., Concurring and Dissenting.
I concur in the judgment. I also join in Justice Arguelles’s discussion of the issues of costs and attorney fees. I write separately, however, to express my disagreement with the majority’s analysis of restrictions on union access to labor camps. In a case in which the court upholds a decision by the Agricultural Labor Relations Board (ALRB or Board) finding the grower’s restriction on labor camp access invalid, the majority have managed to write an opinion more con *185 cerned with the hypothetical rights of the grower than with the violated rights of the union.
I agree with the majority’s resolution of the access issue in the following respects. The federal work site access standard enunciated in Labor Board v. Babcock & Wilcox Co. (1956) 351 U.S. 105 [ 100 L.Ed. 975 , 76 S.Ct. 679 ], requiring the union to establish the unavailability of reasonable alternative channels of communication, does not govern access to California agricultural labor camps. The statutory right of union representatives and agricultural workers to communicate at labor camps is not dependent upon the absence of alternative channels of communication. Rather, the burden is on the grower to justify restrictions on access, and to establish that reasonable, effective channels of communication remain available. The grower in this case did not meet its burden, and the Board properly found that the grower’s denial of access to the labor camp constituted an unfair labor practice.
The majority’s analysis of the access issue is, however, wholly inadequate. Disputes concerning union access to employees at the employer’s private property require accommodation of the statutory and constitutional interests of the union, employees and employer. The majority do not identify or weigh the relative strength of the parties’ interests in questions concerning labor camp access, nor do they contrast those interests with the interests applicable to the work site.
Although they acknowledge in passing the unreasonableness of the restrictions imposed by Andrews, the majority barely discuss the interests supporting camp access which render those restrictions invalid. They fail to acknowledge that workers and union organizers have constitutional speech rights, as well as statutory rights, which are implicated by restrictions on access to residential labor camps and which necessarily define the permissible parameters of such restrictions. Instead, they focus almost entirely on the right of growers to impose restrictions on access, and fail to acknowledge the limited character of the interests which could legitimately support restrictions on access to worker’s homes during nonworking hours. This is a particularly curious approach in a case where the grower’s interest in restricting access was so clearly outweighed by the interest of the workers and the union in uninhibited communication. In addition, the majority opinion fails to provide a workable standard for assessing the validity of future restrictions on labor camp access.
Statutory Access Rights
The Agricultural Labor Relations Act (ALRA or Act) guarantees agricultural workers the right “to self-organization, to form, join, or assist labor *186 organizations, [and] to bargain collectively through representatives of their own choosing . . . .” (Lab. Code, § 1152). The organizational rights extended to workers under the Act “are not viable in a vacuum; their effectiveness depends in some measure on the ability of employees to learn the advantages and disadvantages of organization from others.” (Central Hardware Co. v. NLRB (1972) 407 U.S. 539, 543 [ 33 L.Ed.2d 122, 126 , 92 S.Ct. 2238 ]; see also Cal. Code Regs., tit. 8, § 20900, subd. (b).) Therefore, union access to workers is “ ‘crucial to the proper functioning of the Act.’ ” (Vista Verde Farms v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307, 317 [ 172 Cal.Rptr. 720 , 625 P.2d 263 ], quoting Silver Creek Packing Co. (Feb. 16, 1977) 3 ALRB No. 13, p. 4.)
When the union seeks to engage in organizational activities on property owned by the employer, tension arises between the organizational rights of the union and employees on one hand and the property rights of the grower on the other. Accommodation of the various interests “. . . may fall at differing points along the spectrum depending on the nature and strength of the respective [statutory] rights and private property rights asserted in any given context.” (Hudgens v. NLRB (1975) 424 U.S. 507, 522 [ 47 L.Ed.2d 196, 208-209 , 96 S.Ct. 1029 ].)
As the majority note, the United States Supreme Court enunciated the federal rule governing union access to the work site in Labor Board v. Babcock & Wilcox, supra, 351 U.S. 105 . “[A]n employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer’s notice or order does not discriminate against the union by allowing other distribution.” (Id. at p. 112 [ 100 L.Ed. at p. 982 ].)
The majority acknowledge that the Babcock standard does not govern union access to agricultural labor camps. They reason that the union’s right of access to agricultural labor camps is guaranteed under the ALRA because communication with employees is necessary to facilitate the goals of the Act and an absence of alternative means of communication is presumed. While this is a correct statement of the law, further explanation is needed to make clear why statutory access rights in the agricultural labor camp setting are more expansive than in the work site.
It is well established that the unique characteristics of agricultural labor make effective communication difficult to achieve whether access to em *187 ployees is sought at the work site or at workers’ residences. 1 Thus, the Board has interpreted the Act to provide a right of access to the work site as well as to labor camps. Statutory access rights vary from one context to another. In particular, the burden of establishing the existence or nonexistence of alternative channels of communication varies according to the context in which the access issue is raised.
In the organizational context, when workers must decide whether they desire union representation and, if so, which agent will serve as their exclusive bargaining representative, access to the work site is governed by an administrative regulation established by the Board. (Cal. Code Regs., tit. 8, § 20900.) The regulation permits qualified access to employer property for organizational purposes with specific limitations on time and place, and on the number of organizers permitted to participate.
This court upheld the constitutionality of the Board’s access regulation in Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d 392 . We reasoned that the incidental interference with the employer’s property interests occasioned by permitting qualified organizational access was outweighed by the governmental policy in favor of the rights of workers to organize and to collectively bargain. (Id. at pp. 404-409.)
We also upheld the regulation against a challenge that it departed from the federal balancing standard enunciated in Babcock Co., supra, 351 U.S. 105 and effectively created an irrebuttable presumption that effective alternative channels of communication were unavailable. (Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at pp. 413-416.) We reasoned that the Board “did not adopt the NLRB practice on the access question because it determined that significant differences existed between the working conditions of industry in general and those of California agriculture.” (Id. at p. 414.)
In the postcertification context, after the workers have chosen an exclusive bargaining representative and collective bargaining is in progress, access is necessary to facilitate the right and duty of the exclusive bargaining *188 agent to bargain collectively on behalf of the employees it represents. In that setting, access is governed by the Board’s opinion in O.P. Murphy Produce Co., Inc. (Dec. 27, 1978) 4 ALRB No. 106) which held that access questions should be determined on an ad hoc basis. (Id. at p. 8.) Thus, instead of specific provisions, the Board elected to enunciate general guidelines governing postcertification access. 2 The Board further observed that in both the preelection and postcertification contexts, effective alternative channels of communication were generally unavailable. (Id. at p. 7.) Accordingly, it established a presumption—rebuttable by the employer—that no such alternative channels exist. (Id. at p. 8; F & P Growers Assn. v. Agricultural Labor Relations Bd. (1985) 172 Cal.App.3d 1127, 1132 [ 218 Cal.Rptr. 736 ].)
In the strike context, questions concerning work site access are governed by the Board’s decision in Bruce Church, Inc. (Sept. 18, 1981) 7 ALRB No. 20.) In Bruce Church, the Board recognized the right of the union during a strike to communicate with nonstriking employees. (Id. at pp. 20-21.) It also recognized the employer’s countervailing interest in the continued operation of its business and the nonstriking employees’ interest in being free from intimidation or coercion. (Id. at pp. 29-30.) To accommodate these potentially conflicting interests, the Board: 1) limited the number of access takers to one for every fifteen employees; 2) reduced the frequency of access to less than that which it found appropriate in the organizational context; and 3) limited access to lunchtime only. (Id. at pp. 29-30.) These guidelines only apply if the union establishes that picketing is not an effective means of communication and that no other effective means exist.
All of these decisions, however, govern access to a work site. Questions involving a labor camp require a different analysis. As the majority observe, the Board has held that the Act guarantees the right of employees to communicate with organizers at their homes, wherever those homes are located. (Silver Creek Packing Company, supra, 3 ALRB No. 13, at p. 4; Anderson Farms Company (Aug. 17, 1977) 3 ALRB No. 67, at p. 21-22; Merzoian Brothers Farm Management Company, Inc. (July 29, 1977) 3 ALRB No. 62, at pp. 3-4.) ‘‘[C]ommunication at the homes of employees is not only legitimate, but crucial to the proper functioning of the Act. [Citations] An employer may not block such communication. The fact that an *189 employer is also a landlord does not give him a license to interfere with the flow of discourse between union and worker.” (Silver Creek, supra, 3 ALRB No. 13, at p. 4.) We agreed with these principles, and adopted the Board’s finding that “ ‘When an employer . . . uses his power as landlord to dictate to employees that they cannot receive union visitors in their own homes, that action is in itself an awesome display of power which cannot but chill enthusiasm for union activity. The normal effect of such a showing of control over employees’ lives is to give workers a sense of futility and thereby restrain the exercise of self-organizational rights in violation of the Act.’ ” (Vista Verde Farms v. Agricultural Labor Relations Bd., supra, 29 Cal.3d 307, 317 .)
While an employer has a legitimate property interest in the productivity of employees at the work site, it does not have a comparable interest in the activities of employee-residents at home during nonworking hours. (Republic Aviation Corp. v. Board (1945) 324 U.S. 793, 803-804 [ 89 L.Ed. 1372 , 65 S.Ct. 982 , 157 A.L.R. 1081 ].) Thus, in the labor camp, as contrasted with the work site, the workers’ interest in unimpeded access is substantial while the landowner’s interest in restricting access is relatively limited. Accommodation of these interests results in a broader standard of access to labor camps. Accordingly, the Babcock standard (supra, 351 U.S. 105 ) is entirely inapplicable; the statutory right of the union and workers to communicate at labor camps exists independently of proof or presumption of the absence of alternative channels of communication.
Constitutional Access Rights
While the majority acknowledge the statutory guaranty of access to labor camps, they completely ignore the constitutional underpinnings of labor camp access rights. The majority note that camp access is subject to reasonable time, place and manner regulation, but they do not recognize that constitutional principles necessarily define the outer limits of those restrictions.
Even before the Legislature codified protections for agricultural labor organizing activities, this court made it clear that union representatives and workers have reciprocal labor camp access and speech rights under both the federal and state Constitutions. (United Farm Workers of America v. Superior Court (1975) 14 Cal.3d 902, 910 [ 122 Cal.Rptr. 877 , 537 P.2d 1237 ].) In that pre-ALRA decision, Justice Mosk wrote for the majority that a “labor housing facility is not, of course, the equivalent of a prison isolation block, impervious to visitation. ...[][]... Labor organizing activities, including *190 picketing, are equally protected by the free speech provisions of our state Constitution. [Citations.]” (Id. at pp. 910, 912.)
The primary authority upon which we relied in support of our conclusion that access to labor camps is a First Amendment right was Petersen v. Talisman Sugar Corporation (5th Cir. 1973) 478 F.2d 73 . (See also Ill. Migrant Council v. Campbell Soup Co. (7th Cir. 1978) 574 F.2d 374 ; Velez v. Amenta (D.Conn. 1974) 370 F.Supp. 1250 ; United Farm Workers Union, AFL-CIO v. Mel Finerman Co. (D.Colo. 1973) 364 F.Supp. 326 ; Franceschina v. Morgan (S.D.Ind. 1972) 346 F.Supp. 833 ; Folgueras v. Hassle (W.D.Mich. 1971) 331 F.Supp. 615 .) Like the instant case, Petersen did not involve state action in the traditional sense. Instead, it relied upon the “company town” theory articulated in Marsh v. Alabama (1946) 326 U.S. 501 [ 90 L.Ed. 265 , 66 S.Ct. 276 ]. Under this view, although the First Amendment is limited by a state action requirement, “where private interests were substituting for and performing the customary functions of government, First Amendment freedoms could not be denied where exercised in the customary manner on the town’s sidewalks and streets.” (Lloyd Corp. v. Tanner (1971) 407 U.S. 551, 562 [ 33 L.Ed.2d 131, 139 , 92 S.Ct. 2219 ].) Our adoption of this analysis demonstrates that we considered labor camps analogous to company towns for the purpose of scrutinizing an employer-landowner’s restrictions upon its employee-tenants rights of free speech, association and privacy. 3
Under the “company town” theory, private property is subject to the same First Amendment standards to which public property is subject. (Marsh v. Alabama, supra, 326 U.S. 501 .) Under established constitutional principles, the government may incidentally regulate speech activity by imposing reasonable nondiscriminatory time, place and manner restrictions which are narrowly drawn to protect significant state interests. (Grayned v. Rockford (1971) 408 U.S. 104 , 115-118 [ 33 L.Ed.2d 222, 231-234 , 92 S. Ct. 2294 ]; Cox v. Louisiana (1965) 379 U.S. 559, 562-564 [ 13 L.Ed.2d 487, 490-492 , 85 S.Ct. 476 ].) The interests which the government may legitimately seek to protect depend, in part, upon the purposes for which the property is generally used. (Heffron v. Int'l Soc. for Krishna Consc. (1980) 452 U.S. 640, 650-651 [ 69 L.Ed.2d 298, 308-309 , 101 S.Ct. 2559 ]; Grayned, supra, 408 U.S. at p. 116 [ 33 L.Ed.2d at p. 232 ]; Tinker v. Des Moines School *191 District (1969) 393 U.S. 503, 513 [ 21 L.Ed.2d 731, 741-742 , 89 S.Ct. 733 ].) Accordingly, the reasonableness of any given restriction will depend in part, on whether the restricted speech activity is compatible with the normal uses of the property. Moreover, the government may not deny access to property which it has opened to the public unless it establishes that effective alternative means of communication are available. (Heffron, supra, 452 U.S. at p. 654 [ 69 L.Ed.2d at p. 311 ].)
Application of these standards to the regulations on access imposed by Andrews demonstrates their clear unconstitutionality. The primary purpose of a labor camp is to provide room and board for migrant agricultural workers. Thus, the grower may only restrict speech activity which would interfere with the running of a communal residence, and only then if the restrictions are narrowly drawn. The regulations imposed by the grower in this case were by no stretch of the imagination narrowly tailored to protect legitimate property interests. 4 Each of the purported justifications posited by Andrews is without substance.
Andrews first asserts that its refusal to permit visitors inside the camp was justified to protect camp residents’ right to privacy. First, the residents of the camp, not the owner, possess the right to privacy and the standing to assert it. The Court of Appeal in this case properly held that “[t]he employer’s efforts to protect other worker’s privacy rights may not be used as justification for denying access.” (See also Carian v. Agricultural Labor Relations Bd., supra, 36 Cal.3d 654, 672-673 ; Vista Verde Farms v. Agricultural Labor Relations Bd., supra, 29 Cal.3d 307, 317 ; Sam Andrews’ Sons v. Agricultural Labor Relations Bd. (1984) 162 Cal.App.3d 923, 927 [ 208 Cal.Rptr. 812 ]; Merzoian, supra, 3 ALRB No. 62, at p. 4.) There is no indication in the record that visitors—union or otherwise—had invaded the privacy of camp residents, or that residents had invoked their privacy rights.
Moreover, even if there had been conflict between residents who wished to communicate with the union and those who did not, the restrictions at issue were not narrowly tailored to accommodate the countervailing interests. The rights of those who do not wish to communicate with the union do *192 not automatically conflict with, nor outweigh the rights of those who wish to receive visitors. The goal is to reasonably accommodate the various interests, not to obliterate the interests of some residents in the name of protecting the interests of others. The Board has instructed that “a heavy burden will lie with the owner or operator of a camp to show that any rule restricting access does not also restrict the rights of the tenant to be visited or have visitors.” (Merzoian, supra, 3 ALRB No. 62, at p. 4.) Andrews’s paternalistic motives, even if they were genuine, could not justify a complete ban on visitation in the labor camp.
Andrews’s remaining justification for the access denials was that it sought, during a strike, to protect camp residents from union violence and to minimize discord between striking and nonstriking employees residing at the camp. The flaw in this reasoning is that the only residents of the Lake-view Camp during November 1981 were lettuce harvesters, and there was no strike during the lettuce harvest. The July 1981 strike against Andrews involved only tractor drivers, irrigators and melon harvesters. Although nonstriking tractor drivers had once been housed at the camp, they had been gone for three months before the November access denials. Some picketing continued through November, but only in the fields and at the office, not at the camp. Furthermore, the record indicates that no violence occurred in the Lakeview Camp during the month of November 1981 and no property inside the camp was ever damaged. The disturbances to which the majority refer occurred in August 1981 over a period of few days and promptly subsided when a restraining order was issued granting work site access to union representatives. Theoretically, carefully tailored restrictions on access could be justified to protect property and residents from the violent activity of outsiders. However, neither the property nor the residents were threatened in this case, and restrictions on that basis were therefore unjustified.
Finally, Andrews has not met its burden of establishing that effective alternative channels of communication were available. The company-owned park adjacent to the camp provides no shelter of any kind, so that visitors would be forced to meet with residents outdoors with no protection from cold, wind, rain or darkness. Moreover, the identification procedure imposed by Andrews added an additional chilling effect. The right of a resident to communicate with union representatives was dependent upon: (1) the representative knowing the resident’s name; (2) the willingness of the security guard (an Andrews agent) to notify the worker of the representative’s desire to speak with the resident; and (3) the willingness of both the representative and the resident to take the risk of subjecting the resident to the type of antiunion retaliation for which Andrews was notorious. (See *193 Sam Andrews’ Sons (Dec. 3, 1979) 5 ALRB No. 68; Sam Andrews’ Sons (Sept. 3, 1980) 6 ALRB No. 44; Sam Andrews’Sons (Oct. 5, 1982) 8 ALRB No. 69.) The supposed alternative channels of communication provided by Andrews were better designed to discourage communication with the union than to facilitate it.
The majority concede in a footnote that the “grower’s visitation policies in the instant case were rather clearly not reasonable,” but they do not explain the basis of this holding. Indeed, the only access restriction that they analyze in any detail is a fictional one which they create as a backdrop for discussion of issues not presented by this case. In the section entitled “Restrictions on Access ‘in the Home,’ ” the majority first clarify that the workers’ “home” to which access rights attach is the entire camp, not the communal bunkhouse. However, neither the grower nor the parties attempts to raise such a distinction. Visitors were not denied access to the bunkhouse specifically, but to the entire camp. The majority then caution against infringing on the “rights, both statutory and constitutional, of employees residing in the communal bedroom not to suffer visits by unrestricted numbers of union representatives at any and all hours of the day and night.” Of course, there is no indication in this case that union representatives sought any such unreasonable access—either in terms of numbers or time. Finally, the majority suggest that permitting residents to invite visitors into the bunkhouse would “inevitably” impinge on the rights of other residents. In order to resolve this fictional dispute, the majority suggest that a policy excluding visitors from the bunkhouse would be appropriate. Hence, the majority create an issue from whole cloth and then resolve it to their liking. Although the entire section can only be regarded as dictum without any precedential value, I strongly object to the majority’s gratuitous resolution of issues not before it.
Conclusion
I sympathize with the Board’s efforts to frame an effective order facilitating union access to Andrews’s labor camp. Andrews had consistently exhibited its hostility to the union and its disrespect for the law. However, I agree with the majority that the Board has no authority to sanction the grower by depriving it of the right to impose reasonable restrictions on access which are narrowly tailored to advance legitimate property interests. Thus, to the extent the Board’s order can be read as requiring unlimited access, it is overbroad. A better approach would have been to acknowledge the right of the grower to impose reasonable restrictions, but to emphasize the limited range of interests which could support restrictions on access to labor camps *194 and to caution against invoking improper justifications as a pretext for thwarting union activities.
Mosk, J., concurred.
Organizing agricultural workers is difficult because: 1) the workforce is primarily migrant and cannot effectively be reached at permanent addresses; 2) workers move from site to site, often arriving at different times of the day; 3) there are usually no adjacent public areas where the workers congregate or through which they regularly pass; 4) substantial percentage of agricultural workers speak a language other than English; 5) many agricultural workers are illiterate; and 6) elections under the AERA happen very quickly. (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 414 [ 128 Cal.Rptr. 183 , 546 P.2d 687 ]; See also Cal. Code Regs., tit. 8, § 20900, subd. (c); Carian v. Agricultural Labor Relations Bd. (1984) 36 Cal.3d 654, 666 [ 205 Cal.Rptr. 657 , 685 P.2d 701 ].)
The Board determined that: 1) access must be related to the collective bargaining process; 2) the labor organizer must give notice to the employer and seek his or her agreement before entering the employer’s premises; 3) the labor organization must provide the number and names of the representatives who wish to take access, and the times and locations of access; 4) the parties must act in good faith to reach agreement about post-certification access; and 5) the right of access does not include conduct disruptive of the employer’s property or agricultural operations. (Id. at pp. 9-10.)
Indeed, it would be difficult to imagine a situation more analogous to a “company town” than the migrant labor camp in this case. Workers are housed in barracks, behind tall fences and a guardhouse, far from town, where they eat and sleep under the supervision of the same landowner for whom they toil in the fields all day. An employer who can determine who may properly meet and speak with his employees during both working and nonworking hours effectively exercises a sort of totalitarian control far surpassing any permissible state action, except with regard to convicts and the insane.
Under Andrews’s policy, no visitors were permitted to enter the camp without the permission of the 24-hour guard. Visitors were required to name the resident to whom they wished to speak. The guard would then inform the identified resident, who would be permitted to speak to the visitor only outside the camp. On November 10, 1981, Andrews’s security guards forcibly ejected a union organizer from inside one of the barracks. Thereafter, guards began to demand identification from visitors suspected of being affiliated with the union and no longer recognized union identity cards as “proper” identification required before the guards would summon a worker to the gate.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9851012. Public record. Not legal advice.