Jurisdictional Statement — Kubo v. Agricultural Labor Relations Board

Supreme Court brief1976

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Po Supreme Ceurt, ¥. &

| FILED *:

: MAY 28 1976

In the Supreme Chuert RODAK, JR CLERK |

OF THE

United States

—— ee er

OcTOBER TERM, 1975

No. 25-1734

Harry Kuso, Niset FARMERS LEAGUE and

WESTERN ToMaTo GROWERS & SHIPPERS, INC.,

Appellants,

Vs.

AGRICULTURAL LABOR RELATIONS BOARD OF

THE STATE OF CALIFORNIA, (

Appellee.

On Appeal from the Supreme Court of California

JURISDICTIONAL STATEMENT

J. RicHARD THESING,

Georce J. Ticnry, II,

JorDAN L. BLoom,

Gary P, ScHOLICK,

LITTLER, MENDELSON, Fastirr & TicHy,

650 California Street, 20th Floor,

San Francisco, California 94108,

Telephone: (415) 433-1940,

Attorneys for Appellants Harry Kubo, Nisei Farm-

ers League, Western Tomato Growers & Shippers,

Ine.

_—

PERNAU - WALSH PRINTING CO.- S62 MISSION STREET - SAN FRANCISCO, CA 84108

Page

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A. The proceedings in the trial court ................: 5

Ne aa 6

C. Stage at which federal questions were raised ........ 7

The questions presented are substantial .................. 8

TI 6k 606 Seb hs htt dededesdccccdcececcccusacccases 10

The lower court’s decision varies from this court’s

prior decisions under the NLRA in two significant

I ok. ds 0 kn Se sksdenn wn chensdes ceccececdscacs 10

A. Contrary to this court’s decisions, the ALRB’s

rule allows access to private property in a count-

less number of cases where it is not necessary

and would not be permitted had the case origi-

nated under the federal labor laws ............ 10

B. In those cases where access is necessary, the

degree of access permitted by the ALRB is

constitutionally overbroad ...........c.ceceeee 13

Cn RIT EE SAE MAAR. = bchieS PRS SEAN LOR en 15

Table of Authorities Cited

Cases Pages

Central Hardware Co. v. NLRB, 407 U.S. 539 (1972) ....

Pcnnanitihdsetanekeiasansaneens eseducwes 3, 4, 10, 11, 13, 14

Cleveland Board of Ed. v. LaFleur, 414 U.S. 632 (1974) ..12,13

Griswold v. Connecticut, 381 U.S. 479 (1965) ........... 9

Hamilton v. Regents of the University of California, 293

i we GD sudéeueeneseduancesuscesuiecenncan 2

Hudgens v. NLRB, ....... eS icsnias , 147 L.Ed.2d 196 (1976)

Sjedweewtunense’ Srrrrrrrrrrirr ttre |

ll TABLE OF AUTHORITIES CITED

Pages

Live Oak Water Users’ Association v. Railroad Commission

of State of California, 269 U.S. 354 (1926) ........... 2

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) ............. 12

Lynch v. Household Finance Corp., 405 U.S. 538 (1972).. 12

New York v. O'Neill, 359 U.S. 1 (1959) ................ 9

NLRB v. Babeock & Wilcox Co., 351 U.S. 105 (1956)....

eter, on ale ar ee el ae ee ee a ad 3, 6, 7, 11, 12, 13

Stanley v. Illinois, 405 U.S. 645 (1972) .............45. 13

Vlandis v. Kline, 412 U.S. 441 (1973) ..............0.0- 12, 13

Codes

California Administrative Code, Title 8, Part II, Chapter

9, §§20900-20901, pp. 1051-1053 2.1... ce cece eee eee 3

California Agricultural Labor Relations Act, Labor Code

GRDGD GE GOR. oc ccccccsccccccccccsssccccsossccecceece 4,5

California Code of Civil Procedure:

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SED cc ccdcvncedccsecdcesedsdesndueccecesaeseoese 2

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Constitutions

United States Constitution :

SE or a oe ieee eeetken 3, 6, 7, 9, 10, 11, 13

Fourteenth Amendment ..............65. 3, 6, 7, 9, 10, 11, 13

Statutes

Ariz.Rev.Stats., §23-1381 et seq. ........ccsececseccvcces 9

Bdahe Coda, GUBGIEE G6 GEE. occ ccccccsccccnsccecscscace 9

Kans. Stats. Ann., §44-818 et seq. (1972) .........ceeeees 9

Ore.Rev.Stats., §662.805 et 90. ....ccccccccccccccvccces 9

BB UDG... SEBS) 2 ccccccccccccccccccccccvcccccsecsee 2

Other Authorities

U.S. Census of Agriculture: 1964 and 1969, Vol. II ...... 10

U.S. Department of Commerce, Bureau of the Census,

Statistical Abstract of the United States, 614 (1975 96th

Ate TROD © ood ceccccccccnsecccctesescccaseese 10

Iu the Supreme Court

OF THE

Anited States

OcTOBER TERM, 1975

No.

Harry Kuso, NisE1 FARMERS LEAGUE and

WESTERN Tomato GRowERS & Suppers, INC.,

Appellants,

vs.

AGRICULTURAL LABOR RELATIONS BOARD OF

THE STATE OF CALIFORNIA,

Appellee.

On Appeal from the Supreme Court of California

JURISDICTIONAL STATEMENT

Appellants appeal from the judgment of the Su-

preme Court of California, entered on March 4, 1976,

directing that a peremptory writ of mandate issue

compelling the Superior Courts of Tulare and Fresno

Counties, California to vacate various orders and

judgments enjoining the enforcement of an adminis-

trative regulation which permits access to private

agricultural property by union organizers. Appellants

submit this statement to show that the Supreme Court

of the United States has jurisdiction of the appeal

and that substantial questions are presented.

OPINION BELOW

The opinion of the Supreme Court of California is

reported in 16 Cal.3d 392. A copy of the opinion is

attached hereto as Appendix A.

JURISDICTION

This suit was brought under California Code of

Civil Procedure §6526, 1060, and 1085 (1975) to en-

join the enforcement of, and to declare as invalid

and unconstitutional, an aecess regulation adopted

by the California Agricultural Labor Relations Board

(hereinafter the “ALRB” or “Board’”’).

The judgment of the Supreme Court of California

was entered on March 4, 1976, and Appellants’ notice

of appeal was filed in that court on March 8, 1976.

See Appendix B, attached hereto.

The jurisdiction of the Supreme Court to review

this decision by appeal is conferred by Title 28,

United States Code, Section 1257(2), and the follov-

ing cases sustain that jurisdiction: Hamilton v. Re-

gents of the University of California, 293 U.S. 245

(1934); Live Oak Water Users’ Association v. Rail-

road Commission of State of California, 269 U.S. 354

(1926).

. 7M “See

THE STATUTE INVOLVED

California Administrative Code, Title 8, Part II,

Chapter 9, §§20900-20901, pp. 1051-1053. See Appen-

dix C, attached hereto.

QUESTIONS PRESENTED

1. Whether a state regulation which allow. non-

employee union organizers the right of access to the

private property of each and every agricultural em-

ployer in the State of California is unconstitutional

for overbreadth or for otherwise being in violation of

the Fifth and Fourteenth Amendments due process

clauses.

2. Whether the constitutional tests of “balancing”

and “accommodation” as explained in NLRB v. Bab-

cock & Wilcox,’ Central Hardware v. NLRB, and

Hudgens v. NLRB, govern the validity of a state

regulation allowing non-employee access to private

property; or, as held by the lower court, whether the

“rational relationship” test is the applicable judicial

standard of review.

3. Whether the access regulation is a deprivation

of fundamental personal liberties in violation of the

Fifth and Fourteenth Amendments of the Constitu-

tion; or, as held by the lower court, whether the

access regulation is “but a limited economic regula-

1351 U.S. 105 (1956).

2407 U.S. 539 (1972).

8. U.S...) 47 L.Ed.2d 196 (1976).

tion of the use of real property imposed for the

general public welfare.’”*

4. Whether the enumerated Constitutional limita-

tions of Central Hardware which, inter alia, limit

access to non-working areas and the duration of or-

ganizational activity, are applicable to an access regu-

lation adopted by the State of California.

STATEMENT OF THE CASE

This appeal involves the validity of a state regula-

tion which allows non-employee union organizers the

right of access to the private property of each and

every agricultural employer in the State of Califor-

nia. This regulation, as conceded by Appellee and as

recognized by the lower court, allows such non-

employee access despite the fact that unions have

available alternative effective means of communica-

tion, and despite the fact that access is neither lim-

ited to non-working areas nor to the duration of

organizational campaigns.

The access regulation was adopted by Appellee

ALRB on August 29, 1975. It was adopted immedi-

ately following a public hearing which lasted but one

day. In adopting the regulation, the ALRB was act-

ing purportedly pursuant to its authority under the

California Agricultural Labor Relations Act (herein-

after “ALRA”), a comprehensive agricultural labor

relations statute which became effective on August 28,

1975 and which was modeled after the National Labor

416 Cal.3d at 409.

Relations Act (hereinafter “NLRA”). (See Califor-

nia Labor Code §1140 et seq.)

A. The Proceedings in the Trial Court

On September 8, 1975, Appellants, agricultural em-

ployers subject to the provisions of the ALRA and the

instant access regulation, filed suit in the Fresno

County Superior Court seeking a writ of mandate and

injunctive and declaratory judgment relief against

enforcement of the access regulation. On September

10, 1975, after oral argument and submission of memo-

randa, affidavits and exhibits by all parties, the Su-

perior Court granted Appellants the relief requested

by adjudging, inter alia, that the access regulation

by reason of its overbreadth and failure to comport

with prior controlling U. S. Supreme Court decisions

was an unconstitutional infringement of Appellants’

fundamental property rights.

An action similar to that of Appellants was filed

on September 3, 1975 by other agricultural employ-

ers, Pandol & Sons and Jasmine Vineyards, Inc., be-

fore the United States District Court for the Eastern

District of California. The Court issued a temporary

restraining order that same day against the enforce-

ment of the rule on the ground that it was an

unconstitutional infringement of the employers’ fun-

damental property rights. A three-judge Federal

District Court was later convened which continued in

effect for an additional five days the TRO, but ulti-

mately decided that federal abstention was appro-

priate. Pandol & Sons and Jasmine Vineyards later

sought and obtained a temporary restraining order

from the Tulare County Superior Court which found,

inter alia, that the access regulation was an uncon-

stitutional infringement of the property rights of said

agricultural employers.

B. The Decision Below

The ALKB thereafter petitioned the Supreme Court

of California for an immediate stay of the lower

court decisions and a writ of prohibition and/or man-

date to compel the Superior Courts of Tulare and

Fresno Counties to vacate their previously issued

judgments and orders enjoining the enforcement of

the access regulation. On September 18, 1975, the

California Supreme Court granted the requested stay

pending final determination of the proceedings before

that Court. On March 4, 1976, over a vigorous dis-

sent by Justice Clark and by a 4-3 majority vote, the

California Supreme Court concluded that the access

regulation was valid in that, inter alia, it did not

violate the Fifth and Fourteenth Amendments of the

United States Constitution. In so holding, the Court

professed to apply the standards of Babcock & Wilcox,

but did not. Instead, the Court concluded that non-

employee access as to individual employers would be

permissible even though unions had available alter-

native effective means of communication, and even

though access would neither be limited to non-working

areas nor to the duration of organizational campaigns.

The Court held that the property rights affected by

the access regulation were not “fundamental personal

liberties” (16 Cal.3d at 409) and that the access reg-

ulation “satisfies the due process clause if it has a

reasonable relation to a proper public purpose and is

neither arbitrary nor discrijainatory.” 16 Cal.3d at

410. Hence, the lower court viewed the access regu-

lation as a mere “limited economic regulation of the

use of real property” and thus ignored the correct

constitutional test for adjusting conflicts between or-

ganizational rights and fundamental property rights:

“Talccommodation between the two must be obtained

with as little destruction of one as is consistent with

the maintenance of the other.” NLRB v. Babcock &

Wileox Co., supra, 351 U.S. at 112.

C. Stage at Which Federal Questions Were Raised

The Federal questions in this case were raised in

the original complaint for a temporary restraining

order, writ ©* mandate, and declaratory judgment

filed with the Superior Court of Fresno County. In

its Findings of Fact and Conclusions of Law, and

Declaratory Judgment, the Superior Court specifically

adjudged that the access regulation unconstitutionally

infringed upon Appellants’ property rights as guar-

anteed by the Fifth and Fourteenth Amendments of

the United States Constitution. Copies of the Supe-

rior Court’s Findings of Fact and Conclusions of

Law, and Declaratory Judgment, are attached hereto

as Appendix D.

Appellee ALRB’s petition to the California Su-

preme Court for a writ of mandate and/or prohibi-

tion contended, among other things, that the access

regulation was constitutionally permissible and did

not infringe upon any fundamental personal liberties

or rights. Appellants responded to the alternative

writ of mandate issued by the California Supreme

Court by filing a Return and a Memorandum in sup-

port thereof, in which all Federal constitutional ques-

tions raised herein were fully articulated and briefed.

In addition, these Federal questions were raised and

submitted to the California Supreme Court during

oral argument. In its written opinion the lower court

expressly stated, “[t]he real parties in interest con-

tend that the access regulation is unconstitutional

because it assertedly deprives them of property rights

without due process of law and constitutes a taking

of those rights without just compensation.” 16 Cal.3d

at 403. The lower court concluded that the regulation

“transgresses no constitutional command.” 16 Cal.3d

at 411.

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

This case involves the application of the wrong

Constitutional standards and the failure to follow

applicable decisions of this Court. Substantial ques-

tions are raised which this Court should hear because

the lower court’s decision results not only in the im-

proper infringement of property rights of a countless

number of California agricultural employers but, if

allowed to stand, the lower court’s decision will en-

able every state to enact statutes or regulations in-

fringing on the private property rights of every

employer in the country not subject to the National

Labor Relations Act to a degree more substantial

than this Court has ever allowed the NLRB to do

under the Federal labor laws.®

It obviously does not make sense for stricter stand-

ards to be imposed on the NI.RB than on the states

when the same fundamental Constitutional rights are

involved, i.e., Fifth and Fourteenth Amendment fun-

damental property rights.°

5This is not mere idle speculation. As of this date Arizona,

Kansas, Idaho, Oregon and Michigan have enacted statutes

affecting labor relations matters between agricultural employers

and employees. See, e.g., Ariz.Rev.Stats. §23-1381, et s q.; Kans.

Stats. Ann. §44-818, et seq. (1972); Idaho Code §22-4101, et

seq.; Ore.Rev.Stats. §662.805, et seq. In addition, we are informed

that within the past two years, such bills have been introduced

into the legislatures of Texas, New Mexico, Utah, Hawaii, and

Washington, We are further informed by the Florida Legislative

Service Office that the Florida legislature has such a bill that is

in the process of being drafted and shall soon be introduced for

legislative consideration. Cf. New York v. O'Neill, 359 U.S. 1, 3

(1959).

6Appellants do not contend that the State of California may

not experiment or attempt novel approaches in dealing with its

farm labor matters. However, Appellants do contend, as this

Court has noted many times, that when so experimenting, the

State may not abridge fundamental rights. As Justice Goldberg

stated in Griswold v. Connecticut, 381 U.S. 479, 496 (1965)

(concurring), “Elsewhere I have stated that ‘[w]hile I quite

agree with Mr. Justice Brandeis that ...a.. . state may serve

as a laboratory; and try novel social and economic experiments

(citations omitted), I do not believe that this includes the power

to experiment with the fundamental liberties of citizens.’”

ARGUMENT

THE LOWER COURT'S DECISION VARIES FROM THIS COURT'S

PRIOR DECISIONS UNDER THE NLRA IN TWO SIGNIFI-

CANT RESPECTS.

A. Contrary to this Court's Decisions, the ALRB’s Rule Allows

Access to Private Property in a Countless Number of Cases

Where It Is Not Necessary and Would Not Be Permitted

Had The Case Originated Under the Federal Labor Laws.

The day after the ALRA became law the ALRB

held a one day hearing and the following day an-

nounced the access rule now in question. In so doing

the Board found that “[g]enerally, alternative chan-

nels of effective communication [are not available ].”

(Emphasis added). For appellants and thousands of

other agricultural employers,’ however, alternative

effective means of communication are available and

yet they are required, under the lower court’s deci-

sion, to allow union organizers on their property dur-

ing working time. This clearly does not comport with

the due process of law requirements of the Fifth and

Fourteenth Amendments.

In NERB v. Babcock & Wileor Co., 351 U.S. 105

(1956), Central Hardware Co. v. NLRB, 407 US.

*According to the U.S. Bureau of Census, U.S. Census of

Agriculture: 1964 and 1969, Vol. Il, of which the Court is

respectfully requested to take judicial notice, in 1969 there were

approximately 78,000 farms in the State of California; the value

of the products sold by these farms (ie., a value of approxi-

mately 4 billion dollars) was greater than that of any other

state in the country. See, U.S. DEPARTMENT OF COMMERCE,

BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF

THE UNITED STATES, 614 (1975 96th Annual Edition).

939 (1972), and Hudgens v. NERB, ........ a :

147 L.Ed.2d 196 (1976), this Court established that

when employees’ statutory organizational rights con-

flict or compete with an employer’s Fifth or Four-

teenth Amendment property rights, the appropriate

constitutional test is one of balancing or accommoda-

tion. Thus, this Court stated in Babcock & Wilcox

that “accommodation” between organizational rights

of workers and property rights of the employer “must

be obtained with as little destruction of one as is

consistent with the maintenance of the other.” (351

U.S. at 112.) It is important to note that in the

Babcock & Wilcox case the Court had before it three

separate NLRB decisions in which the Board had

“found in each case that it was unreasonably difficult

for the union organizer to reach the eliplovees off

company property and held that, in refusing the

unions access to parking lots, the employers had

unreasonably impeded the employees’ rights to self-

organization . .” 351 U.S. at 106. (Emphasis

added). Notwithstanding the Board’s findings and

the Court’s observations that the Board’s orders were

“reasonable regulations” (Id. at 112), the Court con-

cluded that there were other available means of com-

munication for the unions and therefore it was not

necessary for the employers’ property rights to be

infringed.

In contrast, the court below admitted “that there

will be individual instances in which access might in

fact [be] unnecessary in order to effectively commu-

nicate with the workers.” 16 Cal.3d at 410. Notwith-

standing this admission, the court below upheld the

access rule because it “is not a deprivation of ‘funda-

mental personal liberties’ but a limited economic reg-

ulation of the use of real property imposed for the

public welfare,” citing a zoning case from this Court,

and further held that “such a regulation satisfies the

due process clause if it has a reasonable relation to

a proper public purpose.” 16 Cal.3d 409-410.

As the dissenting opinion by California Supreme

Court Justice Clark makes clear, “[The California

Supreme] Court is apparently the only court unable

to grasp that the appropriate standard for review is

one of balancing and not of rational relationship.”

(16 Cal.3d at 480.)

It is also noteworthy that in Babcock & Wilcox and

its progeny there is neither citation nor reference to

cases which involve zoning regulations or cases ap-

plying the reasonable relationship test. The reason,

of course, is that an employer’s property rights are

fundamental personal liberties that are protected by

the due process clause and thus are entitled to a judi-

cial scrutiny more significant and substantial than a

mere reasonable relationship test. See, Lloyd Corp.

v. Tanner, 407 U.S. 551, 570 (1972); Lynch v. House-

hold Finance Corp., 405 U.S. 538, 552 (1972); see

also, Cleveland Board of Ed, v. LaFleur, 414 U.S.

632, 644, 649 (1974); Vlandis v. Kline, 412 U.S. 441,

446 (1973). At the very least, and as explained in

Babcock, these fundamental rights are entitled to a

balancing test which allows intrusions on private

property only “to the extent needed to permit com-

munication.” 351 U.S. at 112°. By failing to apply

this balancing test to the instant access regulation,

the California Supreme Court clearly ignored the

express mandate of this Court, and accordingly, the

lower court’s decision is in obvious conflict with the

prior controlling decisions of this Court. NERB v.

Babcock & Wilcox Co., supra; Central Hardware Co.

vu. NLRB, supra; Hudgens v. NLRB, supra.®

B. In Those Cases Where Access Is Necessary, The Degree of

Access Permitted by the ALRB Is Constitutionally Over-

broad.

The second substantial area of difference between

the lower court decision and the previous decisions

of this Court is in the area of the application of the

rule. Of the various cases arising out of the National

Labor Relations Act, not a single case allows access

8Significantly, a balancing test which allows intrusion only to

the extent “needed” or “necessary” is similar to the type of

judicial review accorded whenever fundamental constitutional

rights are abridged by governmental action. See, Cleveland

Board of Ed. v. LaFleur, supra; Vlandis v. Kline, supra; Stan-

ley v. Illinois, 405 U.S. 645, 657 (1972). The use of such a

balancing test by this Court in Babcock clearly indicated that

the Court viewed the emplover’s property rights as important

and fundamental civil liberties.

®At issue here is not, as the lower court apparently believed,

the appropriateness of case by ease adjudication vis-a-vis rule-

making in the area of non-emplovee access. Certainly a regula-

tion can be devised which sets forth understandable eriteria and

which takes into account the constitutional standards and limita-

tions of Babcock & Wilcox and its progeny. Such a regulation

would likely be constitutional in that it would treat each indi-

vidual employer’s property with the constitutional deference to

which it is guaranteed by the due process clause. The instant

aecess regulation, however, because it treats all employers alike

and allows non-employee access even where alternate means of

communication exist, is patently overbroad and thus violates the

Fifth and Fourteenth Amendments,due process clauses.

to the work areas during working time. As the Court

stated in Central Hardware:

“The allowed intrusion on property rights is

limited to that necessary to facilitate the exercise

of an employee’s Section 7 rights. After the

requisite need for access to the employer’s prop-

erty has been shown, the access is limited to (i)

union organizers; (ii) prescribed non-working

areas of the employer’s premises; (iii) the dura-

tion of the organizational activity. In short, the

principle of accommodation announced in Bab-

cock is limited to labor organization campaigns,

and the ‘yielding’ of property rights it may re-

quire is both temporary and minimal.” 407 U.S.

at 544-545. (Emphasis added).

In contrast to the explicit limitations specified above

in Central Hardware, the ALRB’s rule allows access

by union organizers during work time in work areas.’

There is absolutely no justification in the lower court’s

decision for this substantial interference with the

rights of agricultural employers.

1°Under the access rule if there is not a regularly scheduled

one hour lunch break, organizers can enter the fields for an hour

during any period of the work day and attempt to organize em-

ployees while they are working. A regularly scheduled one hour

lunch break is the exception rather than the rule in California

agriculture.

CONCLUSION

For the reasons set forth above, the decision below

conflicts with controlling decisions of this Court, and

should be summarily reversed on the authority of

those cases, Moreover, the questions presented are

important and of substantial consequence not only to

the thousands of agricultural employers of California

affected by this overbroad regulation, but also to the

tens of thousands of employers throughout this coun-

try who are not subject to the Federal labor laws

and who could be affected by similar statutes and reg-

ulations in their respective states. Accordingly, if

the Court is not disposed to reverse summarily, it is

respectfully urged that probable jurisdiction be noted

and that the questions presented be set down for full

briefing and argument.

Dated: May 27, 1976.

Respectfully submitted,

J. RicHarp THESING,

Gerorce J. Ticny, II,

JoRDAN L. BLoom,

Gary P. ScHOLICK,

LITTLER, MENDELSON, FastirF & Ticnry,

Attorneys for Appellants Harry Kubo, Nisei Farm-

ers League, Western Tomato Growers & Shippers,

Ine.

(Appendices Follow)

APPENDICES

Appendix A

S. F. No. 23,349

In the Supreme Court

of the

State of California

In Bank

Agricultural Labor Relations Board et al., ]

Petitioners,

vs.

The Superior Court of Tulare County et al.,

Respondents ;

Pandol & Sons et al.,

Real Parties in Interest.

[Filed March 4, 1976]

OPINION

The state Agricultural Labor Relations Board

(ALRB) petitions for an original writ of mandate to

compel respondent Superior Courts of Tulare and

Fresno Counties to vacate various orders enjoining

enforcement of an administrative regulation which

permits qualified access to agricultural preperty by

farm labor organizers. We have concluded that the

regulation is valid and the board is entitled to the re-

lief requested.

On August 28, 1975, the Agricultural Labor Rela-

tions Act (ALRA) (Lab. Code, § 1140 et seq.) went

into effect. The preamble to the act recites in part

that “In enacting this legislation the people of the

State of California seek to ensure peace in the agri-

cultural fields by guaranteeing justice for all agricul-

tural workers and stability in labor relations. [{]

This enactment is intended to bring certainty and a

sense of fair play to a presently unstable and poten-

tially volatile condition in the state.” (Stats. 1975,

Third Ex. Sess., ch. 1, §1, No. 3 West’s Cal. Legis.

Service, p. 304, No. 2 Deering’s Adv. Legis. Service,

p. 1147.)

To achieve this goal, the act deciares the right of

agricultural employees to organize themselves into

unions and to engage in collective bargaining, free

from intimidation by either employers or union

representatives. Thus new section 1140.2 of the Labor

Code states “the policy of the State of California” to

be “to encourage and protect the right of agricultural

employees to full freedom of association, self-organi-

zation, and designation of representatives of their own

choosing, to negotiate the terms and conditions of

their employment, and to be free from the interfer-

ence, restraint, or coercion of employers of labor, or

their agents, in the designation of such representatives

or in self-organization or in other concerted activi-

ties for the purpose of collective bargaining or other

mutual aid or protection. For this purpose this part

[ie., the ALRA] is adopted to provide for collective-

bargaining rights for agricultural employees.”

Remaining provisions of the act implement this

legislative intent in two principal ways. First, chap-

ter 4 characterizes a variety of acts by employers or

unions as unfair labor practices. In particular, it is

declared to be an unfair labor practice for employers

to interfere in any way with the goal of self-organi-

zation by farm workers, to favor any union over an-

other, to discriminate against any worker for assert-

ing his rights under the statute, or to refuse to bar-

gain in good faith with the certified representative

union. (Lab. Code, § 1153.)°

Secondly, chapter 5 sets forth elaborate provisions

for elections by secret ballot to determine the repre-

sentative union for collective bargaining purposes.

“Recognizing that agriculture is a seasonal occupation

for a majority of agricultural employees” (§ 1156.4),

the act authorizes such elections only during peak har-

vest seasons. An election will be held when a union

obtains the signatures of the majority of the workers

on a ranch; if a second union obtains the signatures

of 20 percent of the same work force, it will also be

1Seection 1152 reaffirms that “Employees shall have the right to

self-organization, to form, join, or assist labor organizations, to

bargain collectively through representatives of their own choos-

ing, and to engage in other concerted activities for the purpose of

collective bargaining or other mutual aid or protection, and shall

also have the right to refrain from any or all of such activities.

_..” The quoted language is identical to that of section 7 of the

National Labor Relations Act (NLRA). (Now 29 U.S.C. § 157.)

2The provisions of section 1153 are closely modeled on those of

section 8 of the NLRA. (Now 29 U.S.C. § 158.)

placed on the ballot. The ballots are printed in Eng-

lish, Spanish, and any other language requested. Once

authorized, an election is quickly held: within 48 hours

in a case of a strike, and within 7 days in other cases.

Within five days thereafter any person may challenge

the propriety of the election or its results. (§ 1156.3.)

Article 1 of chapter 2 creates the ALRB and pre-

scribes its method of operation. Article 2 vests the

board with broad investigatory powers, and makes it

a criminal offense to interfere in the performance of

the board’s duties. Numerous provisions throughout

the remainder of the act grant the board specific pow-

ers and responsibilities of administration, particularly

in conducting and certifying elections and in investi-

gating and preventing unfair labor practices. On the

latter subject chapter 6 begins by declaring (¢ 1160)

that “The hoard is empowered . . . to prevent any

person from engaging in any unfair labor practice”

defined in the act, and succeeding sections authorize

the board to use a variety of methods to achieve that

end: administrative complaint (§ 1160.2), cease and

desist order (§ 1160.3), temporary restraining order

(§ 1160.4), injunctive relief (4 1160.6), and enforce-

ment orders from hoth the superior courts and the

Courts of Appeal (4 1160.8).

In addition to its adjudicatory and exeeutive pow-

ers, the board is vested with express legislative author-

ity: section 1144 delegates to the hoard the power to

make, amend, and repeal “such rules and regulations

as may he necessary to carry out the provisions” of

the ALRA.

The board promptly adopted emergency regulations

for the operation of the act. (Cal. Admin. Code, tit. 8,

pt. LI, § 20100 et sey.) Among those provisions is the

regulation here in issue, which grants a qualified right

of access to growers’ premises by farm labor organ-

izers. (Cal. Admin. Code, tit. 8, pt. L1, ch. 9, §§ 20900-

20901, pp. 1051-1053.)* Under the terms of the

regulation the right of access is specifically limited in

purpose, in time and place, and in the number of

organizers permitted to participate; and conduct is

forbidden, other than speech, which is “disruptive of

the employer’s property or agricultural operations,

including injury to crops or machinery."

8The regulation took effect on August 29, 1975. An emergency

regulation automatically expires 120 days after its effective date

unless the agency certifies during that period that it has complied

with certain requirements of notice and hearing. (Gov. Code,

§ 11422.1.) The ALRB so certified on December 2, 1975, and the

regulation will therefore remain in effect until such time as it

may be amended or repealed.

4The relevant portions of the regulation read as follows:

“5. Accordingly, the Board will consider the rights of em-

ployees under Labor Code See. 1152 [fn. 1, ante] to include the

right of access by union organizers to the premises of an agri-

cultural employer for the purpose of organizing, subject to the

following limitations :

“a. Organizers may enter the property of an employer for a

total period of 60 minutes before the start of work and 60 minutes

after the completion of work to meet and talk with employees in

areas in which employees congregate before and after working.

“b. In addition, organizers may enter the employer’s property

for a total period of one hour during the working day for the

purpose of meeting and talking with employees during their

lunch period, at such location or locations as the employees eat

their lunch. If there is an established lunch break, the one-hour

period shall include such lunch break. If there is no established

lunch break, the one-hour period may be at any time during the

working day.

“e. Aeecess shall be limited to two organizers for each work

crew on the property, provided that if there are more than 30

‘'wo groups of growers, real parties in interest

herein, filed actions in the Fresno and Tulare Su-

perior Courts attacking the validity of the regulation

and seeking to prevent its enforcement. The Fresno

Superior Court held a hearing on the matter and on

the same day issued a peremptory writ of mandate

ordering the board to vacate the regulation, together

with a declaratory judgment that the regulation is

invalid on both constitutional and statutory grounds.

At the same time the Tulare Superior Court issued a

temporary restraining order prohibiting the board

from enforcing the regulation, and set a hearing on

an order to show cause why an injunction to that ef-

fect should not be issued. Upon application and ap-

propriate showing by the board, we stayed the effect

of the respective superior court rulings pending final

determination of this proceeding for writ of mandate.

The remedy is proper. The challenged rulings of

respondent courts are primarily injunctive in effect.

The codes, embodying a settled principle of equity ju-

workers in a crew, there may be one additional organizer for

every 15 additional workers.

“d. Upon request, organizers shall identify themselves by

name and labor organization to the employer or his agent. Or-

ganizers shall also wear a badge or other designation of affiliation.

“e The right of access shall not include conduct disruptive

of the employer’s property or agricultural operations, including

injury to crops or machinery. Speech by itself shall not be con-

sidered disruptive conduct. Disruptive conduct by particular or-

ganizers shall not be grounds for expelling organizers not

engaged in such conduct, nor for preventing future access.

“f. Pending further regulation by the Board, this regulation

shall not apply after the results of an election held pursuant to

this act have been certified.”

risprudence, prohibit the granting of injunctive relief

“To prevent the execution of a public statute by offi-

cers of the law for the public benefit.” (Code Civ.

Proc., §526, 2d subd. 4; Civ. Code, § 3423, subd.

Fourth.) That rule is here applicable, inasmuch as a

regulation adopted by a state administrative agency

pursuant to a delegation of rulemaking authority by

the Legislature has the force and effect of a statute.

(Zumwalt v. Trustees of Cal. State Colleges (1973)

33 Cal.App.3d 665, 675 [109 Cal.Rptr. 344]; Alta-Dena

Dairy v. County of San Diego (1969) 271 Cal.App.2d

66, 75 [76 Cal.Rptr. 510]; Rigley v. Board of Retire-

ment (1968) 260 Cal.App.2d 445, 450 [67 Cal.Rptr.

185], and cases cited.) It is true the rule prohibiting

such an injunctio: does not operate when the statute

which is stayed is unconstitutional or otherwise in-

valid. (Conover v. Hall (1974) 11 Cal.3d 842, 850 [114

Cal.Rptr. 642, 523 P.2d 682].) As will appear, how-

ever, we have concluded that the access regulation 1s

valid. Under the codes, therefore, respondent courts

had no jurisdiction except to deny the real parties’

request to enjoin enforcement of the regulation. (City

of Los Angeles v. Superior Court (1959) 51 Cal.2d

423, 430 [333 P.2d 745], and cases cited.)

When a court’s discretion can legally be exercised

in only one way, mandate will lie to compel that ex-

ercise if there is no adequate remedy at law. (Babb

v. Superior Court (1971) 3 Cal.8d 841, 851 [92 Cal.

Rptr. 179, 479 P.2d 379].) The absence of an ade-

quate remedy at law was determined herein when we

issued the alternative writ. (Ibid.) Accordingly, man-

date is an appropriate remedy to compel respondent

courts to vacate their orders invalidating and en} in-

ing enforcement of the access regulation. (People v.

Superior Court (1967) 248 Cal.App.2d 276, 282 [56

Cal.Rptr. 393].) And we exercise our original juris-

diction to grant that remedy (Cal. Const. art. VI,

§ 10) because we find that in the circumstances of this

case “ ‘the issues presented are of great public impor-

tance and must be resolved promptly.’” (Clean Air

Constituency v. California State Air Resources Bad.

(1974) 11 Cal.3d 801, 808 [114 Cal. Rptr. 577, 523 P.2d

617], quoting from County of Sacramento v. Hickman

(1967) 66 Cal.2d 841, 845 [59 Cal.Rptr. 609, 428 P.2d

593 |.)

We begin with the constitutional issues. The real

parties in interest contend that the access regulation

is unconstitutional hecause it assertedly deprives them

of property rights without due process of law and con-

stitutes a taking of those rights without just compen-

sation. (Cal. Const., art. T, §§ 1, 7, subd. (a), and 19;

U.S. Const., 5th and 14th Amends.) As will appear,

however, the constitutional challenge comes many

vears too late.

The real parties principally rely on Lloyd Corp.

v. Tanner (1972) 407 U.S. 551 [33 L.Ed.2d 131, 92 S.Ct.

2219], and Diamond v. Bland (1974) 11 Cal.3d 331

[113 Cal.Rptr. 468, 521 P.2d 460], but the decisions

are not in point. In each a divided court held that the

constitutional guarantee of free speech was not vio-

lated by the refusal of a shopping center to permit its

property to be used for distribution of antiwar hand-

bills (Lloyd) or solicitation of signatures on an in-

itiative petition (Diamond). The matter at bar,

by contrast, is not primarily a First Amendment case.

At issue here is not an exercise of freedom of speech

on a topic of general concern in a convenient public

forum; rather, the interest asserted is the right of

workers employed on the premises in question to have

effective access to information assisting them to organ-

ize into representative units pursuant to a specific

governmental policy of encouraging collective bargain-

ing. The inapplicability of the Lloyd-Diamond rule to

labor disputes is noted on the face of each opinion

(Lloyd, at pp. 560-561 [33 L.Ed.2d at pp. 137-138];

Diamond, at p. 334, fn. 3), and has been elsewhere

emphasized by both the United States Supreme Court

(Central Hardware Co. v. NLRB (1972) 407 U.S. 539,

545 [33 L.Ed.2d 122, 127-128, 92 S.Ct. 2238]) and this

eourt (United Farm Workers of America v. Superior

Court (1975) 14 Cal.3d 902, 911 [122 Cal.Rptr. 877,

537 P.2d 1237]).

The governmental policy in favor of collective bar-

gaining, as the above-quoted preamble to the ALRA

makes clear, is designed to benefit the public as a

whole. It should seareely be necessary, as we enter

the last quarter of the 20th century, to reaffirm the

principle that all private property is held subject to

the power of the government to regulate its use for

the public welfare. We do not minimize the impor-

tance of the constitutional guarantees attaching to pri-

vate ownership of property; but as long as 50 vears

ago it was already “ ‘thoroughly established in this

country that the rights preserved to the individual by

these constitutional provisions are held in subordina-

tion to the rights of society. Although one owns prop-

erty, he may not do with it as he pleases any more

than he may act in accordance with his personal de-

sires. As the interest of society justifies restraints

upon individual conduct, so, also, does it justify re-

straints upon the use to which property may be de-

voted. It was not intended by these constitutional

provisions to so far protect the individual in the use

of his property as to enable him to use it to the detri-

ment of society. By thus protecting individual rights,

society did not part with the power to protect itself

or to promote its general well-being. Where the inter-

est of the individual conflicts with the interest of so-

ciety, such individnal interest is subordinated to the

general welfare. . . . [I ]ncidental damages to property

resulting from governmental activities, or laws passed

in the promotion of the public welfare are not consid-

ered a taking of the property for which compensation

must be made.’” (Miller v. Board of Public Works

(1925) 195 Cal. 477, 488 [234 P. 381, 38 A.L.R. 1479],

quoting from Carter v. Harper (1923) 182 Wis. 148,

153 [196 N.W. 451, 33 A.L.R. 269].) This is living

law today. (HFH, Ltd. v. Superior Court (1975) 15

Cal.3d 508, 515 [125 Cal.Rptr. 365, 542 P.2d 237].)

And no different rights are conferred by the corres-

ponding provisions of the federal Constitution. (See,

eg., Nebbia v. New York (1934) 291 U.S. 502, 523-527

[78 L.Ed, 940, 948-951, 54 S.Ct. 505, 89 A.L.R. 1469].)

Nor should we need tc recall the corollary of the

foregoing principle, to wit, that governmental power

is not static but dynamic: it is not “confined within

the narrow circumspection of precedents, resting upon

past conditions which do not cover and control pres-

ent-day conditions obviously calling for revised regu-

lations to promote the health, safety, morals, or gen-

eral welfare of the public,” but rather is “capable of

expansion to meet existing conditions of modern life

and thereby keep pace with the social, economic,

moral, and intellectual evolution of the human race.”

(Miller v. Board of Public Works, supra, at pp. 484,

485.) Early restraints on the unfettered use of private

property—e.g., the doctrines of easement and nuisance

—were few in number and narrow in scope. But mod-

ern social legislation has added many others—e.g.,

building codes, zoning restrictions, land use planning,

and urban redevelopment—which are far more per-

vasive in their effect on the rights of property owners.

Thus, an eminent authority on the law of property

lists no less than 20 ways in which private property is

today subject to governmental regulation (Powell, The

Relationship Between Property Rights and Civil

Rights (1963) 15 Hastings L.J. 135, 148-149), and

concludes that “the history of the law of private own-

ership has witnessed simultaneously a playing-down

of absolute rights and a playing-up of social concern

as to the use of property. . .. Property rights have

heen redefined in response to a swelling demand that

ownership he responsible and responsive to the needs

of the social whole. Property rights cannot he used as

a shibboleth to cloak conduct which adversely affects

the health, the safety, the morals, or the welfare of

others.” (Id., at pp. 149-150.)

The efforts for social justice documented in that

history have precipitated many conflicts. In most the

reasonable needs of the community as a whole have

eventually prevailed. But in the general retreat of re-

calcitrant forces, a strange rearguard action has been

fought by those property owners who are also

employers of labor: “Though subject to reasonable

use in other areas of the law, curiously the concept

a property rights has become a rallying ery in the

field of labor law. The traditional notion would seem

to he that the concept suffices as an absolute defense

against those who would engage in union activity.

That notion—like so many others held as doctrine by

past generations—may well be under increasing at-

tack.” (Gould, Union Organizational Rights and the

Concept of “Quasi-Public” Property (1965) 49 Minn.

L.Rev. 505, 509.)

The issue joined here is new to the California

courts, but our federal brethren have often considered

it in the industrial labor context. “In Republic Avi-

ation Corp. v. Board [ (1945) 324 U.S. 793 (89 L.Ed.

1372, 65 S.Ct. 982, 157 A.L.R. 1081) ], the Supreme

Court set forth the ground rules concerning union ac-

5In other settings our courts have looked to federal decisions

interpreting provisions of the NLRA similar to state law. (F.g.,

Los Angeles Met. Transit Authority v. Brotherhood of Railroad

Trainmen (1960) 54 Cal.2d 684, 687-689 [8 Cal.Rptr. 1, 355 P.2d

905]; Petri Cleaners, Inc. v. Automotive Employees, ete Local No.

88 (1960) 53 Cal.2d 455, 459-460 [2 Cal.Rptr. 470, 349 P.2d 76];

International Assn. of Fire Fighters v. County of Merced (1962)

204 Cal.App.2d 387, 392 [22 Cal.Rptr. 270].

tivity on company property.” (Gould, The Question

of Union Activity on Company Property (1964) 18

Vand.L.Rey. 73, 75.) The case dealt with organiza-

tional activities conducted on the employer’s premises

by union spokesmen who were also employees of the

company. The high court ratified the position of the

NLRB that absent extraordinary circumstances it is

an unfair labor practice for the employer to prohibit

such activities during nonworking hours. The court

quoted with approval the following language of the

decision of the board: “*As the Circuit Court of Ap-

peals for the Second Circuit has held, “It is not every

interference with property rights that is within the

Fifth Amendment .. . Inconvenience, or even some

dislocation of property rights, may be necessary in

order to safeguard the right to collective bargaining.”

[National Labor R. Board v. Cities Service Oil Co.

(2d Cir. 1941) 122 F.2d 149, 152.] The Board has

frequently applied this principle in decisions involv-

ing varying sets of circumstances, where it has held

that the employer’s right to control his property does

not permit him to deny access to his property to

persons whose presence is necessary there to enable

the employees effectively to exercise their right to

self-organization and collective bargaining,...’” (/d.,

at p. 802, fn. 8 [89 L.Ed. at p. 1379].)°

6The reasoning in support of this conelusion was given in the

court’s quotation from an earlier NLRB decision in point (Peyton

Packing Company (1943) 49 NLRB 828, 843-844), which said in

part that ‘‘time outside working hours, whether before or after

work, or during luncheon or rest periods, is an employee's time to

use as he wishes without unreasonable restraint, although the em-

ployee is on company property. It is therefore not within the prov-

inee of an employer to promulgate and enforce a rule prohibiting

The second landmark ease on this topic is Labor

Board v. Babcock & Wilcox Co. (1956) 351 U.S. 105

[100 L.Ed. 975, 76 S.Ct. 679]. In contrast to Republic

Aviation, the union organizers excluded from the em-

ployers’ premises in the three consolidated cases de-

cided in Babcock d&: Wilcox were not employees of the

companies in question. The NLRB found that in the

circumstances shown it was unreasonably difficult for

the organizers to make contact with the employees off

company property, and concluded that in deiiying the

organizers permission to distribute union literature on

company parking lots the employers had unlawfully

interfered with the right of the employees to self-

organization under the NLRA. The Supreme Court

ruled that the board erred in failing to draw a dis-

tinction between employee and nonemployee organ-

izers: access to company property by the latter can be

denied, said the court, “if reasonable efforts by the

union through other available channels of communica-

tion will enable it to reach the employees with its mes-

sage....” (Id. at p. 112 [100 L.Ed. at p. 982].)’

By declaring the foregoing standard the court nee-

essarily rejected any claim that “property rights” of

union solicitation by an employee outside of working hours, although

on company property. Such a rule must be presumed to be an

unreasonable impediment to self-organization and therefore dis-

criminatory in the absence of evidence that special circumstances

make the rule necessary in order to maintain production or disci-

pline.’’ (324 U.S. at pp. 803-804, fn. 10 [89 L.Ed. at p. 1380].)

7A second condition imposed by the eourt—i.e., prohibiting dis-

crimination against the union ‘‘by allowing other distribution’’—

is not involved in the ease at bar.

The court concluded that on the record of each of the three cases

be*ore it the evidence did not support the beard’s finding of em-

ployee inacessibility, and therefore declined to decree enforcement.

employers are paramount to their employees’ right to

have effective access to information assisting them in

their goal of self-organization: “The right of self-

organization depends in some measure on the ability

of employees to learn the advantages of self-organiza-

tion from others.” (/d. at p. 113 [100 L.Ed. at p.

983].) Rather, employers’ property rights must give

way whenever the two interests are found to be in ir-

reconcilable conflict: “Organization rights are granted

to workers by the same authority, the National Goy-

ernment, that preserves property rights. Accommoda-

tion between the two must be obtained with as little

destruction of one as is consistent with the mainte-

nance of the other... . But when the inaccessibility of

employees makes ineffective the reasonable attempts

by nonemployees to communicate with them through

the usual channels, the right to exclude from property

has heen required to yield to the extent needed to

permit communication of information on the right to

organize.” (Id. at p. 112 [100 L.Ed. at pp. 982-983.)

(Aceord, Central Hardware Co. v. NLRB (1972

supra, 407 U.S. 539, 542-545 [33 L.Ed.2d 122, 125-

128].)

Examples of the application of this rule appear in

a variety of contexts. In Republic Aviation the court

in dictum distinguished the case before it from those

involving “a mining or lumber camp where the em-

plovees pass their rest as well as their work time on

the emplover’s premises, so that union organization

must. proceed upon the employer’s premises or he seri-

ously handicapped.” (Fn. omitted.) (324 U.S. at p.

799 [89 L.Ed. at p. 1377]; see also Labor Board v.,

Stowe Sninning Co. (1949) 336 U.S. 226, 232, fn. 10

[93 L.Ed. 638, 644, 69 S.Ct. 541].)

Shortly thereafter such a case arose. In National

Labor Rel. Bd. v. Lake Superior Lumber Corp. (6th

Cir. 1948) 167 F.2d 147, the employer operated a

number of lumbering camps on its timber tract. Each

was isolated from any town, and was largely self-

sufficient. The employees lived on the camp premises

in bunkhouses; although given Sundays off, they us-

ually remained in the camps. In these circumstances

the NLRB ruled it was an unfair labor practice for

the employer to bar nonemployee union organizers

from entering the bunkhouses to talk with the men

during nonworking hours. Enforcing the order of ac-

cess, the Sixth Circuit Court of Appeals relied on the

above-quoted dictum in Republic Aviation and held

that “In view of the limited free time available to the

employees and the practical difficulties involved in

contacting them after the evening meal in any place

other than in the bunkhouses, union organization

would as a practical matter be seriously handicapped

by restricting such activity to the recreation hall.”

(Td., at p. 152.) (Accord, Alaska Barite Company

(1972) 197 N.L.R.B. 1623 (mining camp on private

island ).)

Nor is the right of access limited to remote lumber

or mining camps; it may attach in the case of a ship

anchored in a busy port. Thus in National Labor R.

Board v. Cities Service Oil Co, (2d Cir. 1941) supra,

122 F.2d 149, the emplover operated ocean-going oil

tankers which entered United States ports to dis-

charge their cargo. A maritime union was refused

passes to board the ships while in port for the purpose

of negotiating grievances of the seamen. The NLRB

ruled this practice violated the seamen’s rights to

self-organization and collective bargaining under see-

tion 7 of the NLRA. The Second Cireuit Court of

Appeals agreed, reasoning that “The result of refusing

passes is undoubtedly to prevent the most effective

sort of collective action by the employees. Ships, and

particularly these oil tankers, which ordinarily remain

in port for a day only, afford less opportunity for in-

vestigation of labor conditions than do factories where

the employees go home every afternoon and have the

evenings at their disposal. There is no cessation of

work at the end of each day for seamen on a tanker.

A large number of them are on watch, others are

loading or discharging cargo; their hours for work

and shore leave are different and, in the short time

the vessel is in port, it is impossible for Union repre-

sentatives to assemble the unlicensed personnel either

on shore or on shiphoard to discuss grievances or in-

vestigate conditions. The Union must have the mem-

bers of the crew readily accessible in order to work to

any real advantage. .. .” (Id. at p. 151.) The court

therefore granted enforcement of the board’s order of

access. (Accord, Richfield Oil Corp. v. National Labor

Relations Board (9th Cir. 1944) 148 F.2d 860: Sabine

Towing & Transportation Co. (1973) 205 N.L.R.B.

No. 45; see also National Labor Rel. Bd. v. National

Organization, etc. (7th Cir. 1958) 253 F.2d 66, 70.)

The same result has been reached on a showing of

significantly less employee isolation than in the fore-

going cases. In NV.L.R.B. v. 8. & H. Grossinger’s Inc.

(2d Cir. 1967) 372 F.2d 26, the employer operated a

large rural resort hotel located only one and one-half

miles from the nearest town. Sixty percent of the em-

ployees lived on the premises, but the remainder lived

in neighboring towns and drove to work by car or taxi.

The employer refused access to its premises by nonem-

ployee union representatives, and the NLRB ruled

this to be interference with the employees’ right of

self-organization. The federal circuit court observed

that “No effective alternatives are available to the

Union in its organizational efforts. The resident em-

ployees have no telephones in their rooms. Radio and

newspaper advertising are expensive and relatively in-

effectual. Moreover as far as radio is concerned, there

was no single time at which a major proportion of

employees would be off duty and free to listen to a

message broadcast by the Union... . [1] While some

organization work can be done by employees who are

willing to solicit fellow employees, it is obvious that

lacking as they do the requisite special training and

experience, they cannot convey the Union’s appeal

with anything like the effectiveness of professional

union organizers.” (Id. at p. 29.)°

The court then quoted and applied the principles of

Babcock &: Wilcor as follows: “Here the majority of

the employees live on the employer’s premises. They

®The court added that the union’s attempts to reach the emplovees

as they drove through the gates to the resort were ineffective be-

cause the ears did not stop there except briefly for a traffie light,

and in any event it was diffieult or impossible to distinguish between

guests and employees in such circumstances.

cannot be reached by any means practically available

to union organizers. As against these considerations

Grossinger’s raises only its proprietary interest. It

shows no detriment that would result from the admis-

sion to its property of the Union’s representatives

under those reasonable regulations as to place, time

and number which the Board’s order contemplates.

“We will enforce the Board’s order in so far as it

requires [the employer] to permit nonemployee union

organizers to come on its premises ir order to solicit

employees.” (Id. at p. 30.) (Accord, HW. & G. Operat-

ing Corp. (Raleigh Hotel) (1971) 191 N.L.R.B. No.

110; see also Fafnir Bearing Company v. N.L.R.B.

(2d Cir. 1966) 362 F.2d 716, 722 (company ordered to

allow union to enter premises to conduct independent

time studies).)°

Thus the rule of Babcock & Wileor, both as enun-

ciated and as applied, is clear: if the circumstances

of employment “place the employees beyond the reach

of reasonable union efforts to communicate with them,

the employer must allow the union to approach his

employees on his property.” (Italies added.) (351 U.S.

at p. 113 [100 L.Ed. at p. 983].) This language could

not be plainer. We deem it dispositive of the issue of

°9We recognize that other federal circuit court decisions have re-

fused to enforee NLRB orders of access. (See eg. N. L. Rh. RB. v.

Siour City and New Orleans Barge Lines, Inc. (8th Cir. 1973) 472

P.2d 753; N. L. R. B. v. New Pines, Ine (2d Cir. 1972) 468 F.2d

427; NV. L. R. B. v. Tamiment, Inc. (3d Cir. 1971) 451 F.2d 794:

N. L. R. B. v. Kutsher’s Hotel and Country Club, Inc. (2d Cir.

1970) 427 F.2d 200.) But in each case the court found that on the

record presented either the union had not made a reasonable effort

to communicate with the employees or the alternative means of

doing so were effective. ,

the federal constitutionality of access to agricultural

property under the challenged regulation of the

ALRB (ef. Petersen v. Talisman Sugar Corporation

(5th Cir, 1973) 478 F.2d 73, 79), and of the claim of

invalidity premised on the cited provisions of the

California Constitution. (Art. I, §§1, 7, subd. (a),

and 19.) In the present context we construe those

sections to guarantee no greater rights to California

property owners than do their federal counterparts.

The only remaining question in this regard is

whether it is constitutionally required that the deter-

mination of employee inaccessibility within the mean-

ing of the Babcock & Wilcor test be made on a

case-by-case basis, as the real parties urge, rather

than by a rule of general application. As will appear,

there is no authority for imposing such a requirement

as a matter of constitutional law.

The question was not presented in either Babcock

& Wilcox or Central Hardware, and the opinions are

therefore silent on the point. The real parties rely

on decisions holding that when a statute or regulation

impairs a fundamental personal liberty, the state has

the burden of showing that the measure is necessary

to promote a compelling governmental interest (see,

e.g., Shapiro v. Thompson (1969) 394 U.S. 618, 638

[22 L.Fd.2d 600, 617, 89 S.Ct. 1322]; Castro v. State

of California (1970) 2 Cal.3d 223, 234-236 [85 Cal.

Rptr. 20, 466 P.2d 244]) and that there are no rea-

sonable alternative means of accomplishing that goal

(Cleveland Board of Education v, LaFleur (1974) 414

U.S. 632, 640-644 [39 L.Ed.2d 52, 60-63, 94 S.Ct. 791];

Shelton v. Tucker (1960) 364 U.S. 479, 488 [5 L.Ed.

2d 231, 237, 81 S.Ct. 247]). That well-known prin-

ciple, however, is not applicable here: for the reasons

stated at the outset, the access rule is not a depriva-

tion of “fundamental personal liberties” but a limited

economic regulation of the use of real property im-

posed for the public welfare. (Cf. Village of Belle

Terre v. Boraas (1974) 416 U.S. 1, 7-8 [39 L.Ed.2d

797, 803-804, 94 S.Ct. 1536].)

It has long been settled that such a regulation sat-

isfies the due process clause if it has a reasonable

relxtion to a proper public purpose and is neither

arbitrary nor discriminatory. (Nebbia v. New York

(1934) supra, 291 U.S. 502, 537 [78 L.Ed. 940, 957,

54 S.Ct. 505, 89 A.L.R. 1469]; accord, Weinberger v.

Salfi (1975) 422 U.S. 749, 768-770 [45 L.Ed.2d 522,

540-542, 95 S.Ct.—], and cases cited.) In the light of

Babcock & Wilcox, it cannot be said that an access

regulation designed to assist self-organization by

workers lacks a reasonable relation to a valid public

goal; and a careful examination of the various limi-

tations as to time, place, purpose, and manner which

are written into this regulation (fn. 4, ante) demon-

strates that it is neither arbitrary nor discriminatory

within the meaning of the foregoing standards.

The principal objection of the real parties to the

hoard’s decision to proceed by way of rule rather

than adjudication is that there will be individual in-

stances in which access might in fact have been un-

necessary in order to effectively communicate with

the workers, This is inevitable, as the board candidly

recognizes, But it does nut follow therefrom that the

regulation is unconstitutional, “In the area of eco-

nomics and social welfare, the State does not violate

the Equal Protection Clause merely because the classi-

fications made by its laws are imperfect. If the elassi-

fication has some ‘reasonable basis,’ it does not offeud

the Constitution simply because the classification ‘is

not made with mathematical nicety or because in prac-

tice it results in some inequality.’ [Citation.] “The

problems of government are practical ones and may

justify, if they do not require, rough aceommoda-

tions—illogically, it may be, and unscientific.’ ”

(Dandridge v. Williams (1970) 397 U.S. 471, 485 [25

L.Ed.2d 491, 501-502, 90 S.Ct. 1153].) Moreover, “a

classification that meets the test articulated in

Dandridge is perforce consistent with the due process

requirement of the Fifth Amendment.” (Richardson

vu. Belcher (1971) 404 U.S. 78, 81 [30 L.Ed.2d 231,

235, 92 S.Ct. 254].)

It follows, as we have often had occasion to hold,

that general economic regulations affecting property

rights are not constitutionally invalid merely because

they may be inappropriate in the case of a few in-

dividual property owners. (See, e.g., Associated Home

Builders, ete., Inc. v. City of Walnut Creek (1971)

4 Cal.3d 633, 638-645 [94 Cal.Rptr. 630, 484 P.2d 606,

43 A.L.R.3d 847].) The entire law of zoning, from

City of Euclid v. Ambler Realty Co. (1926) 272 U.S.

365, 388-389 [71 L.Ed. 303, 310-311, 47 S.Ct. 114, 54

A.L.R. 1016], to the present day, stands as witness

to that fact of contemporary life. And it is a funda-

mental tenct of such law that if a zoning plan is

reasonable vis-a-vis the community as a whole, it is

not rendered unconstitutional merely because certain

property owners can show that it causes them un-

necessary hardship, (Hamer v. Town of Ross (1963)

59 Cal.2d 776, 787 [31 Cal.Rptr. 335, 282 P.2d 375];

McCarthy v. City of Manhattan Beach (1953) 41 Cal.

2d 879, 890 [264 P.2d 932]; Wilkins v. City of San

Bernardino (1946) 29 Cal.2d 332, 338 [175 P.2d 542];

Zahn v. Board of Public Works (1925) 195 Cal. 497,

512 [234 P. 388].)

We conclude that the decision of the ALRB to

regulate the question of access by a rule of general

application transgresses no constitutional command.

Itt

An administrative regulation, however, must a’ -

comport with various statutory prerequisites to valid-

ity. At the outset we take note of certain principles

which govern our consideration of the matter; al-

though these rules have been often restated, it would

be well to remember that they are not merely empty

rhetoric. First, our task is to inquire into the legality

of the challenged regulation, not its wisdom. (Morris

v. Williams (1967) 67 Cal.2d 733, 737 [63 Cal.Rptr.

G89, 433 P.2d 697].) Second, in reviewing the legality

of a regulation adopted pursuant to a delegation of

legislative power, the judicial function is limited to

determining whether the regulation (1) is “within

the scope of the authority conferred” (Gov. Code,

§ 11373) and (2) is “reasonably necessary to effectuate

the purpose of the statute” (Gov. Code, § 11374).’°

Moreover, “these issues do not present a matter for

the independent judgment of an appellate tribunal;

rather, both come to this court freighted with the

strong presumption of regularity accorded adminis-

trative rules and regulations.” (Ralphs Grocery Co.

uv. Retmel (1968) 69 Cal.2d i172, 175 [70 Cal.Rptr. 407,

444 P.2d 79].) And in considering whether the regu-

lation is “reasonably necessary” under the foregoing

standards, the court will defer to the agency’s ex-

pertise and will not “superimpose its own policy

judgment upon the agency in the absence of an arbi-

trary and capricious decision.” (Pitts v. Perluss

(1962) 58 Cal.2d 824, 832 [27 Cal.Rptr. 19, 377 P.2d

83].)

The real parties in interest seek to overcome the

presumption of regularity on several grounds, First,

it is contended that in two respects the access regula-

tion exceeds the authority of the board because it

conflicts with the ALRA. The claim is not that the

regulation contravenes any particular provision of

the act expressly forbidding qualified access to agri-

cultural property by union organizers—or declaring

such entry to be an unfair labor practice—for no such

provision exists. Rather, it is urged that the regula-

tion violates the Legislature’s implie’ intent to pro-

hibit such access, assertedly manifested by both

legislative action and inaction, Neither branch of the

contention is convincing.

104 third inquiry—whether the regulation was adopted pursuant

to proper procedure—is not an issue in this ease.

As noted earlier, article 1 of chapter 2 of the act

prescribes the composition and general method of

operation of the board; among its provisions is sec-

tion 1148, which declares in its entirety that “The

board shall follow applicable precedents of the Na-

tional Labor Relations Act, as amended.” The real

parties stress the fact that it is the practice of the

NLRB to decide questions of employee inaccessibility

on a case-by-case basis rather than by general rule;

when the ALRB adopted a contrary procedure, argue

the real parties, it therefore violated section 1148.

The unstated major premise of this argument, how-

ever, is that in enacting section 1148 the Legislature

impliedly intended the board to follow not only the

substantive case law (i.e., the “precedents”) inter-

preting the NLRA—holding, for example, that cer-

tain activities do or do not constitute unfair labor

practices—but also the rules of procedure of the

NLRB. In our view the premise appears highly

dubious, More importantly, the board could reason-

ably construe section 1148 otherwise, and that is our

only concern. “In determining whether a specific ad-

ministrative rule falls within the coverage of the

delegated power, the sole function of this court is to

decide whether the department reasonably interpreted

the legislative mandate.” (Ralphs Grocery Co. ».

Reimel, supra, at p. 176 of 69 Cal. 2d.)

Adverting first to the language of section 1148, we

note that it directs the board to follow the “prece-

dents” of the “Act,” not the “procedure” of the

“Board.” The ALRB could reasonably have concluded

that the choice of words was significant, and hence

that the Legislature did not intend it to be bound by

any particular rule of practice adopted by the federal

agency to suit its own needs. This conclusion could

well have been reinforced by the fact that the state

act vests the board with full rulemaking authority in

an earlier and different provision (§ 1144) which

makes no reference to the practices of the NLRB. In

addition, we observe that section 1148 directs the

board to be guided by the “applicable” precedents of

the NLRA, not merely “the precedents” thereof. From

this language the board could fairly have inferred

that the Legislature intended it to select and follow

only those federal precedents which are relevant to the

particular problems of labor relations on the Cali-

fornia agricultural scene. As we shall see, a case-by-

case resolution of the question of access appears in-

appropriate in that context.

More importantly, in the absence of an express

statutory directive to the contrary the board could

also reasonably presume that the Legislature intended

to abide by the well-settled principle of administrative

law that in discharging its delegated responsibilities

the choice between proceeding by general rule or by

ad hoe adjudication “lies primarily in the informed

discretion of the administrative agency.” (Securities

Comm'n v. Chenery Corp. (1947) 332 U.S. 194, 203

[91 L.Ed, 1995, 2002, 67 S.Ct. 1575]; accord, PBW

Stock Exchange, Inc. v. Securities and Exch. Com’n

(3d Cir. 1973) 485 F.2d 718, 732; GTE Service Cor-

poration v. F.C. C. (2d Cir, 1973) 474 F.2d 724, 731;

Alabama-Tcnnessee Natural Gas Co, v. Federal Power

Com’n (5th Cir. 1966) 359 F.2d 318, 343 (Wisdom,

J.) ; see generally Shapiro, The Choice of Rulemaking

or Adjudication in the Development of Administrative

Policy (1965) 78 Harv.L.Rev. 921; Baker, Policy

by Rule or Ad Hoc Approach—Which Should it Be?

(1957) 22 Law & Contemp. Prob. 658.)'' The real

parties in interest fail to show that the ALRB abused

its discretionary powers as a duly constituted admin-

istrative agency when it determined to proceed on

this issue by way of a general rule rather than ad

hoc adjudication.

A related argument is premised not only on section

1148 but also on section 1152 of the ALRA, emphasiz-

ing that the language of the latter which declares the

right of farmworkers to organize and to bargain

collectively is identical to that of section 7 of the

NLRA. (See fn. 1, ante.) Reliance is then placed on

the rule that ‘‘When legislation has been judicially

construed and a subsequent statute on the same or an

11This principle applies equally well to the NLRB. (See, e.g.,

NLRB v. Bell Aerospace Co, (1974) 416 U.S. 267, 294 [40 L.Ed.

2d 134, 153-154, 94 S.Ci. 1757].) That agency, however, has

chosen to proceed on . case-by-case basis not only on questions

of employee inaccessibility, but on essentially all issues within its

competence. We note that the pervasive and long-standing reluc-

tance of the NLRB to promulgate any rules or regulations what-

ever has been the subject of “substantial and repeated scholarly

and judicial criticism. . . .” (Retail, Whelesale and Department

Store U. v. N. L. R. B. (D.C. Cir. 1972) 466 F.2d 380, 388; see

NLRB v. Wyman-Gordon Co. (1969) 394 U.S. 759 [22 L.Ed.2d

709, 89 S.Ct. 1426]; Davis Administrative Law Treatise (1970

Supp.) § 6.17; Bernstein, The NLRB’s Adjudication-Rule Making

Dilemma Under the Administrative Procedure Act (1970) 79

Yale L.J. 571; Peck, The Atrophied Rule-Making Powers of the

National Labor Relations Board (1961) 70 Yale L.J. 729.)

analogous subject is framed in the identical language,

it will ordinarily be presumed that the Legislature

intended that the language as used in the later enact-

ment would be given a like interpretation. This rule

is applicable to state statutes which are patterned

after federal statutes.” (Los Angeles Met. Transit

Authority v. Brotherhood of Railroad Trainmen

(1960) supra, 54 Cal.2d 684, 688-689.) From this

premise it is reasoned that the Legislature must have

intended that the board also follow the NLRB practice

of ad hoe adjudication of the access issue.

We do not question the quoted rule of statutory

construction, but in the circumstances of the case at

bar it does not lead to the claimed conclusion. It may

be posited that by adopting the language of section 7

of the NLRA the Legislature intended also to adopt

the rule of Babcock & Wilcox and Central Hardware

applying that language to the right of nonemployee

labor organizers to enter an employer’s premises for

union purposes, But as we observed above, the ques-

tion whether such a right of access should be resolved

by regulation or by adjudication was not presented

in either decision, and the opinions are accordingly

silent on the matter. The teaching of Babcock & Wil-

cor and its progeny, rather, is stmply that qualified

access to an employer’s premises must be granted

when the circumstances of employment render ineffee-

tive the reasonable efforts of union representatives to

communicate with the employees by alternative

methods, (351 U.S. at p. 112 [100 L.Ed. at pp. 982-

983 ].)

Far from ignoring this lesson, the ALRB predicated

its access regulation on factual findings phrased in

the very language of Babcock & Wilcox. Those find-

ings disclose that the board did not adopt the NLRB

practice on the access question because it determined

that significant differences existed between the work-

ing conditions of industry in general and those of

California agriculture. As we have seen, in regulating

industrial labor disputes the NLRB has authorized

access by union organizers to employers’ premises

when, for example, the same employees did not arrive

and depart every day on fixed schedules, there were

no adjacent public areas where the employees con-

gregated or through which they regularly passed, and

the employees could not effectively be reached at

permanent addresses or telephone numbers in the

nearby community, or by media advertising.

By contrast, the ALRB found that such conditions

are the nile rather than the exception in California

agriculture, The evidence heard by the board showed

that many farmworkers are migrants; they arrive in

town in time for the local harvest, live in motels,

labor camps, or with friends or relatives, then move

on when the crop is in. Obviously home visits, mail-

ings, or telephone calls are impossible in such cir-

cumstances, According to the record, even those

farmworkers who are relatively sedentary often live

in widely spread settlements, thus making personal

contact at home impractical because it is both time-

consuming and expensive,

»’

Nor is pamphleting or personal contact on public

property adjacent to the employer’s premises a rea-

sonable alternative in the present context, on several

grounds. To begin with, many ranches have no such

public areas at all: the witnesses explained that the

cultivated fields begin at the property line, and across

that line is either an open highway or the fields of

another grower, Secondly, the typical industrial scene

of a steady stream of workers walking through the

factory gates to and from the company parking lot

or nearby public transportation rarely if ever occurs

in a rural setting. Instead, the evidence showed that

labor contractors frequently transport farmworkers

by private bus from camp to field or from ranch to

‘anch, driving directly onto the premises before un-

loading; in such circumstances, pamphleting or per-

sonal contact is again impossible. Thirdly, the

testimony established that a significant number of

farmworkers read and understand only Spanish, Fili-

pino, or other languages from India or the Middle

East. It is evident that efforts to communicate with

such persons by advertising or broadcasting in the

local media are futile. Finally it was also shown that

many farmworkers are illiterate, unable to read even

in one of the foregoing languages; in such ¢ireum-

stances, of course, printed messages in handbills,

mailings, or local newspapers are equally meompre-

hensible."*

12Even in the industrial context the true effectiveness of ‘*‘tradi-

tional’’ alternative methods of communicating with workers has

been seriously questioned. Thus the Second Cireuit Court of Ap-

peals has observed that ‘‘ The chances are negligible that alternatives

In addition, the problem here is compounded by

the provisions of the ALRA which require swift

elections—a difficulty not faced by the NLRB. In all

cases involving crops with short harvest seasons, the

union petitioning for the election has only a brief time

in which to gather the necessary employee signatures.

(Lab. Code, § 1156.3, subd. (a).) An intervening

union will have even less time—at most 6 days—to

obtain the signatures of 20 percent of the workers

in order to qualify for the ballot. (Id., subd. (b).)

And both unions have only a few days thereafter to

explain their positions to the workers. In such cir-

cumstances most of the channels of communication

which have been used in organizing industrial la-

borers, and which were found sufficient in Babcock

equivalent to solicitation in the plant itself would exist. In the plant

the entire work foree may be contacted by a relatively small num-

ber of employees with little expense. The solicitors have the oppor-

tunity for personal confrontation, so that they ean present their

message with maximum persuasiveness. In contrast, the predictable

alternatives bear without exception the flaws of greater expense

and effort, and a lower degree of effectiveness. Mailed material

would be typically lost in the daily flood of printed matter whieh

passes with little impact from mailbox to wastebasket. Television

and radio appeals, where not precluded entirely by cost, would

suffer from competition with the family’s favorite programs and

at best would not compare with personal solicitation. Newspaper

advertisements are subject to similar objections. Sidewalks and

street corners are subject to the vicissitudes of climate and often

foree solicitation at awkward times, as when employees are hurry-

ing to or from work.’’ (N. L. R. B. v. United Aircraft Corp., Pratt

& Whitney Air. Div. (2d Cir. 1963) 324 F.2d 128, 130.) Similar

criticisms have been voiced in the legal literature. (See, e.g., Bok,

The Regulation of Campaign Tactics in Representation Elections

Under the National Labor Relations Act (1964) 78 Harv.L. Rev. 38,

95-96; Gould, The Question of Union Activity on Company Prop-

erty (1964) 18 Vand.L.Rey. 73, 99-100, 102-103. )

cd: Wileor and its progeny, are simply too -low to be

effective.’®

On the basis of the foregoing evidence the ALRB

formally found that “Generally, unions seeking to

organize agricultural employees do not have available

alternative channels of effective communication. Alter-

native channels of effective communication which have

been found adequate in industrial settings do not exist

or are insufficient in the context of agricultural

labor. (Cal. Admin, Code, tit. 8, pt. IT, § 20900, subd.

3, p. 1051.) From this finding—and in furtherance

of the expressed intent of the framers of the act—the

board concluded (id., subd. 4) that “The legislatively

declared purpose of bringing certainty and a sense

of fair play to a presently unstable and potentially

volatile condition in the agricultural fields of Cali-

fornia can best be served by the adoption of rules on

access which provide clarity and predictability to all

parties. Relegation of the issues to case-by-case ad-

judication or the adoption of an overly general rule

would cause further uncertainty and instability and

create delay in the final determination of elections.”

We conclude from the foregoing that the decision

of the board to create a limited right of aecess by

means of a detailed and specific regulation does not

conflict with any intent of the Legislature inferable

from its enactment of sections 1148 and 1152.

13For example, the board heard testimony that although the home

addresses of farmworkers ean be obtained from the Department of

Motor Vehicles on the basis of their automobile license plate num-

bers, the process takes an average of two weeks and costs $2 per

name.

In this connection the real parties also contend

that the regulation does not follow “applicable pre-

cedents” of the NLRA under section 1148 because

the right of access it declares is assertedly not limited

to nonworking areas. [In support they rely on a passage

from Central Hardware Co. v. NLRB (1972) supra,

407 U.S. 539, 545 [33 L.Ed.2d 122, 127], in which the

court summarizes the rule of Babcock & Wilcox as

authorizing access “limited to (1) union organizers;

(ii) prescribed nonworking areas of the employer's

premises; and (ili) the duration of organization activ-

ity.” (Italics added.) The purpose of the emphasized

limitation, presumably, is to prevent disruption of

work. But the regulation here challenged achieves

the same goal, although by a method more appropriate

to the California agricultural setting in which the

ALRB must operate,

As we have seen, there was evidence hefore the

board that many ranches have no public or “nonwork-

ing” areas such as the parking lots of large factories.

Responsive to this circumstance, the present regula-

tion first authorizes access by farm labor organizers

for a prescribed time prior to and at the close of the

work day in “areas in which employees congregate

before and after working.” (Fn. 4, ante.) No more

precise description is possible, as these areas will

vary from ranch to ranch; in each instance, however,

no disruption of work is permitted because the access

is expressly limited to nonworking hours.

Secondly, and in further distinction to the typical

industrial scene, California farm properties generally

’

do not have cafeterias or lunchrooms where the em-

ployees assemble for their midday meal. Rather, in

the case of row crops the workers frequently eat in

or near their cars or at the bus at the edge of the

field, while in harvesting tree crops they often remain

on the job site while they take their food and rest.

Again responsive to these conditions, the regulation

permits access for a prescribed time “at such location

or locations as the emplovees eat their lunch.” Al-

though this description may include working areas

in certain cases, access at all such locations is pri-

marily restricted to the nonworking period of the

“lunch break” and in any event the regulation ex-

pressly prohibits any disruption of “the employer’s

property or agricultural operations, including injury

to crops or machinery.” (Fn. 4, ante.) The regulation

thus comports with the spirit if not the letter of the

que ed language of Central Hardware, and cannot be

deemed to contravene the asserted implication of

section 1148.

Next it is contended that the access regulation

conflicts with an implied intent of the ALRA derived

not from a provision thereof but from the absence

of such a provision. The real parties stress that one

of the proposed farm labor bills which was not enacted

into law (Assem. Bill No. 1 (1975-1976 Reg. Sess.) )

contained a provision (§ 1149.3, subd. (b)) expressly

permitting access by farm labor organizers to em-

plovers’ property, while the bill which finally became

the ALRA (Sen. Bill No. 1 (1975 Third Ex. Sess.) )

is silent on the point. This fact is said to reveal an

unstated intent of the Legislature that no such access

be permitted,

The contention is not persuasive, At best, “Legisla-

tive silence is a Delphic divination.” (Alabama-Ten-

nessce Natural Gas Co, v. Federal Power Com’n (5th

Cir, 1966) supra, 359 F.2d 318, 333.) It is true that

in two recent cases we have given weight to an

argument superficially similar to that now advanced

by the real parties. (Cooper v. Swoap (1974) 11 Cal.

Jd 856, 863-865 [115 Cal. Rptr. 1, 524 P.2d 97]; Clean

Air Constituency v. California State Air Resources

Bd, (1974) supra, 11 Cal.3d 801, 817-818.) But in the

circumstances which led to the passage of the ALRA,

the reasoning of those decisions is inapposite.

This was not the Cooper situation, in which the

Legislature rejected three successive attempts to add

a certain provision to a welfare bill which thereafter

became law, and the agency administering the ensuing

statute nevertheless adopted a regulation “reviving”

that provision, Nor is Clean Air relevant, for in that

case an administrative agency charged with promptly

adapting a certain antipollution program declined to |

do so even after the Legislature itself considered and

rejected no less than five proposals to order or permit

a delay.

In the case before us there was no such sequence:

in this respect Senate Bill No. 1 was not merely an

amended version of Assembly Bill No. 1, but an

entirely new approach. Indeed, when the bills are

closely compared it becomes apparent that the absence

of a specific access provision in Senate Bill No, 1 is,

if anything, an indication that the Legislature in-

tended to adopt rather than yeject the access principle.

Assembly Bill No, 1 contained a number of proposed

sections declaring various rights and duties derived

from NLRA precedents, including a specific right

of access. Senate Bill No. 1, however, adopted a dif-

ferent technique: instead of listing the substance of

NLRA precedents individually as did Assembly Bill

No. 1, it simply incorporated them by reference via

section 1148. Thus the omission in Senate Bill No. 1

of any of the foregoing provisions of Assembly Bill

No. 1 was a natural consequence of the legislative

device employed; and rather than being of negative

significance, the statutory history now stressed by the

real parties can plausibly be taken to mean that the

Legislature affirmatively intended to adopt the access

principle of Babcock & Wilcox as herein defined.

Lastly it is urged that the access regulation violates

yet another rule discussed in Clean Air (11 Cal.3d at

p. 816): “An unconstitutional delegation of power

occurs when the Legislature confers upon an admin-

istrative agency the unrestricted authority to make

fundamental policy determinations, [Citations.]”

(Italics added.) Again the present case is distinguish-

able. In Clean Air the “fundamental policy determina-

tion” by the agency was to totally reverse a clearly

established legislative priority of pollution-free air—

and environmental protection generally—over concern

for increased gasoline consumption. In the cases

cited in Clean Air on this point (id., at pp. 816-817),

administrative decisions of similar magnitude were

involved,

In the case at bar the “fundamental policy deter-

mination” was made by the Legislature when that body

decided, after much study and discussion, to grant

to agricultural workers throughout California the

rights of self-erganization and collective bargaining

so long denied to them under federal law. Seen in the

perspective of that momentous decision, the board’s

qualified access provision appears much less important

than the real parties would have us believe. As a

regulation which in essence merely implements one

aspect of the statutory program—the holding of secret

elections—it does not amount to a “fundamental policy

determination” within the meaning of the quoted rule.

Taking a different tack, the real parties contend

the access regulation is invalid because it assertedly

conflicts with the general criminal trespass statute.

(Pen. Code, § 602.) The contention fails largely for

reasons we have already explored,

It is settled that “Administrative regulations that

violate acts of the Legislature are void and no protes-

tations that they are merely an exercise of admin-

istrative discretion can sanctify them. They must

conform to the legislative will if we are to preserve

an orderly system of government.” (Morris v. Wil-

liams (1967) supra, 67 Cal.2d 733, 737.) Nor is the

motivation of the ageney relevant: “It is fundamental

that an administrative agency may not usurp the

legislative function, no matter how altruistic its mo-

tives are.” (City of San Joaquin v. State Bd. of

Equalization (1970) 9 Cal.App.3d 365, 374 [88 Cal.

Rptr. 12].)

The doctrine has been most frequently invoked to

strike down administrative regulations in conflict with

the statute which created the agency or which the

agency is authorized to administer. (See, e.g., Califor-

nia Welfare Rights Organization v. Brian (1974) 11

Cal.3d 237, 242-243 [113 Cal.Rptr. 154, 520 P.2d 970];

Mooney v. Pickett (1971) 4 Cal.38d 669, 680-681 [94

Cal.Rptr. 279, 483 P.2d 1231]; California Sch. Em-

ployees Assn, v. Personnel Commission (1970) 3 Cal.

3d 139, 143-144 [89 Cal.Rptr. 620, 474 P.2d 436].)

But the principle is equally applicable when the regu-

lation contravenes a provision of a different statute.

(See, e.g., Orloff v. Los Angeles Turf Club (1951) 36

Cal.2d 734 [227 P.2d 449]; Tolman v. Underhill (1952)

39 Cal.2d 708 [249 P.2d 280]; Harris v. Alcoholic Bev.

etc. Appeals Bd. (1964) 228 Cal.App.2d 1 [39 Cal.

Rptr. 192].)

On the other hand, it i. no less settled that when

a special and a general statute are in conflict, the

former controls. (Code Civ. Proe., § 1859.) “‘[T]he

special act will be considered as an exception to the

general statute whether it was passed before or after

such general enactment.’” (In re Williamson (1954)

43 Cal.2d 651, 654 [276 P.2d 593]; accord, People v.

Gilbert (1969) 1 Cal.3d 475, 479-480 [82 Cal.Rptr.

724, 462 P.2d 580], and cases cited.) This rule of con-

struction is reiterated and specifically made applicable

to the ALRA in section 1166.3, subdivision (b), of the

act, which states: “If any other act of the Legislature

shall conflict with the provisions of this part [i.e., the

ALRA], this part shall prevail.”

If the Lesislature can thus depart from its existing

dispositions on a given topic, it can authorize an

administrative agency to do so on its behalf. Accord-

ingly, in cases of conflict a regulation validly adopted

pursuant to a delegation of authority uuder a special

statute likewise prevails over the terms of a general

statute. The Legislature can surely accomplish in-

directly that which it could do directly.

The access rule here challenged is such a regulation.

For the reasons stated at length hereinabove, the in-

corporation in section 1152 of the language of section

7 of the NLRA, together with the express direction

in section 1144 that the board make regulations neces-

sary to carry out the act and in section 1148 that it

follow applicable NLRA_ precedents, at least mean

that the Legislature intended the board to structure

a qualified right of entry onto agricultural property

for organizational purposes. The access regulation

was adopted as-an expression of that intent. It there-

fore prevails over the general trespass statute, by

operation of both the foregoing rule of statutory

construction and the specifie directive of section

1166.3, subdivision (b). No act in compliance with

the access regulation can be punished as a criminal

trespass. (See In re Zerbe (1964) 60 Cal.2d 666 [36

Cal.Rptr. 286, 388 P.2d 182, 10 A.L.R.38d 8401.)

Let a peremptory writ of mandate issue as prayed.

Mosk, J.

Wright, C. J., Tobriner, J., and Sullivan, J., con-

curred,

DISSENTING OPINION

I dissent.

The access regulation of the Agricultural Labor

Relations Board is invalid on three grounds. First,

federal law has established that nonemployee organ-

izers have no right of access to an employer’s property

whenever other reasonable means of communication

are available. Even when access is permissible, it is

restricted to nonworking areas. The California Agri-

cultural Labor Relations Act of 1975 (Lab. Code,

§ 1140 et seq.) incorporated the federal law; the

board’s regulation, in authorizing access when other

means of communication are available, and in permit-

ting access to working areas, is contrary to federal

law and therefore violates the state statute. Second,

because the board’s regulation is in conflict with the

penal trespass statute it usurps the legislative fune-

tion, and is thus invalid. Third, the regulation

constitutes an unwarranted infringement on constitu-

tionally protected property rights.

THe REGULATION CONFLICTS WitH THE AGRICULTURAL

LaBor RELATIONS AcT

A. The Federal Law

Two United States Supreme Court decisions have

specifically dealt with the issue of nonemployee union

organizer access to private property. In Labor Board

v. Babcock & Wilcox Co. (1956) 351 U.S. 105 [100

L.Ed. 975, 76 S.Ct. 679], employers prohibited non-

employees from distributing union literature on em-

ployer-owned parking lots. The National Labor

Relations Board (labor board) ruled that the em-

ployers’ conduct constituted an unfair labor practice.

The labor board based its ruling on a decision estab-

lishing that employees could use nonworking areas

of the employer’s premises for organizational activi-

ties. (Republic Aviation Corp. v. Board (1945) 324

U.S. 793 [89 L.Ed. 1372, 65 S.Ct. 982, 157 A.L.R.

1081 ].)

The court in Babcock unanimously ruled that the

labor board had erred in failing “to make a distine-

tion between rules of law applicable to employees

and tiiose applicable to nonemployees.” (351 U.S. at

p. 118 [100 L.Ed. at p. 983].)

Having identified the source of the labor board’s

error, the Supreme Court stated the legal principles

which govern nonemployee access cases. “[A]n em-

ployer may validly post his property against nonem-

ployee 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. In these circumstances the employer

may not be compelled to allow distribution even

under such reasonable regulations as the orders in

these cases permit.” (351 U.S. at p. 112 [100 L.Ed.

at p. 982].)

In Central Hardware Co. v. NLRB (1972) 407 U.S.

539 [33 L.Ed.2d 122, 92 S.Ct. 2238], the second United

States Supreme Court decision, the labor board again

found an employer to have engaged in an unfair

labor practice by excluding nonemployee union organ-

izers from its parking lot. In making this ruling, the

labor board decided that the enT,.ioyer had violated

First Amendment rights of the employees under Food

Employees v. Logan Plaza (1968) 391 U.S. 308 [20

L.Ed.2d 603, 88 S.Ct. 1601].

The Supreme Court reversed, ruling that Logan

Valley’s First Amendment analysis was inapplicable,

and that if the labor board’s attempt to apply Logan

Valley to nonemployee organizers were allowed to

stand, it would “constitute an unwarranted infringe-

ment of long-settled rights of private property pro-

tected by the Fifth and Fourteenth Amendments.”

(407 U.S, at p. 547 [33 L.Ed.2d at p. 129].)

The Supreme Court reiterated its Babcock holding

that nonemplovee organizers may not be allowed access

when other reasonable means of communication are

available. The court added: “The principle of Babcock

is limited to this accommodation between organization

rights and property rights. This principle requires

a ‘yielding’ of property rights only in the context of

an organization campaign. Moreover, the allowed

intrusion on property rights is limited to that neces-

sary to facilitate the exercise of employees’ § 7 rights.’

After the requisite need for access to the employer’s

property has been shown, the access is limited to (i)

union organizers; (ii) prescribed nonworking areas

1Section 7 of the National Labor Relations Act is substantially

identical to Labor Code section 1152.

of the employer’s premises; and (iii) the duration of

organization activity. In short, the principle of accom-

modation announced in Babcock is limited to labor

organization campaigns, and the ‘yielding’ of property

rights it may require is both temporary and minimal.”

(407 U.S. at pp. 544-545 [33 L.Ed.2d at p. 127].)

The dissent in Central Hardware did not relate to

the points involved here. Even the dissenting justices

expressly stated that the labor board should have

followed Babcock.

The federal law of nonemployee access is therefore

settled, establishing that there is no right of access

where alternative methods of communication exist. If

there are no alternative methods, the nonemployees’

right of access is limited to preseribed nonworking

areas of the employer’s premises. The Supreme Court

has expressly held that the broader right of employees

to engage in organizational activities recognized by

Republic Aviation v. Board, supra, 324 U.S. 793, does

not apply to the nonemployee organizer. Employee

organizers are legally upon the employer’s premises

as employees; thus, their presence usually does not

interfere with the employer’s property rights. The em-

ployer’s interest in securing effective work is the only

interest subject to potential interference. Accordingly,

the limitation on employees’ right to organize relates

to discipline. Nonemployee organizers, however, are

not invited on the premises. In this situation, not only

is the employer’s interest in securing effective work

jeopardized, but his property rights under the United

States Constitution are interfered with as well.

B. The Legislature’s Incorporation of the Federal

Law

Labor Code section 1152 establishes the right of em-

ployees to organize, That section contains language

identical to section 7 of the National Labor Relations

Act,? the section applied in Babcock and Central

Hardware. Labor Code section 1148 states: “The board

shall follow applicable precedents of the National

Labor Relations Act, as amended.” (Italics added.)

“When legislation has been judicially construed and

a subsequent statute on the same or an analogous

subject is framed in the identical language, it will

ordinarily be presumed that the Legislature intended

that the language as used in the later enactment

would be given a like interpretation, This rule is ap-

plicable to state statutes which are patterned after

the federal statutes. [Citations.]” (Los Angeles Met.

Transit Authority v. Brotherhood of Railroad Train-

men (1960) 54 Cal.2d 684, 688-689, [8 Cal.Rptr. 1,

395 P.2d 905].)

In Los Angeles Met. Transit Authority, as in the

instant case, the Lezislature had used language from

section 7 of the National Labor Relations Act. This

court held that, because the federal courts had inter-

preted part of the language to include the right to

strike, the Legislature intended to grant a right to

strike despite the fact that the state statute applied

2The operative language of section 1152 is identical to section 7.

The only difference between the statutes is that section 7 cross-refer-

ences to another federal statute while section 1152 cross-references,

of course, to a state statute.

to governmental employees who ordinarily have no

such right.

By using the language of section 7, the Legislature

clearly manifested its intention to adopt the federal

construction of section 7. In Babcock and Central

Hardware, the United States Supreme Court con-

strued section 7, That construction was therefore

adopted by our Legislature when it enacted section

1152. Any doubt in the matter was eliminated when

the Legislature, in section 1148, expressly required

the board to follow applicable federal precedents.

Accordingly, the inescapable conclusion is that the

Legislature intended the board to apply the rule of

Babcock and Central Hardware, which denies access

rights to nonemployee organizers when reasonable

alternative methods of communication are available.*

It is generally recognized that the Agricultural

Labor Relations Act of 1975 is a compromise among

the various interests. (Levy, The Agricultural Rela-

tions Act of 1975—La Esperanza de California Para

8The majority attempts to characterize the access regulation as

‘‘limited in purpose, in time and place, and in the number of

organizers... .’’ (Ante, p. 400.) But in characterizing these as

limitations, the majority relies on the irrelevant. These limitations

in no way indicate the unavailability of alternative means of com-

munication—the very showing that must be made before any access,

regardless of how limited, is permitted. Moreover, the majority’s

statement that elections under the ALRA are required to be held

within short periods of time (ante, p. 416), while true, has nothing

to do with the aecess regulation. The elections must be held within

seven days of the filing of a petition signed by a majority of the

currently employed. (Lab. Code, § 1156.3, subd.(a).) However, the

access regulation does not limit access to the period following the

filing of a petition. The regulation is thus open-ended and the in-

fringement on property rights it sanctions—contrary to the major-

ity’s implication—is therefgre neither limited in time nor is it

El Futuro (1975) 15 Santa Clara Law. 783.) When

the competing interests agreed to compromise, the

Legislature was faced with three choices: it could

turn the board loose with little definition of its duties,

powers, limitations on those powers, or standards to

be applied; it could, on the other hand, sharply define

the duties, powers, limitations, and standards; or it

could incorporate the highly developed federal law,

which had over a period of 40 years arrived at defini-

tions of both the rights and interests of the affected

parties, as well as the duties, powers, limitations, and

standards of the administrative agency.

The Legislature chose to incorporate 4he highly

developed federal law. This is clear from its adoption

of section 1152, which is substantially identical to

section 7 of the Nationa] Labor Relations Act, and

adoption of section 1148, which requires the board to

rely on applicable federal precedents.

The majority, of course, is not unmindful of the

necessity to resort to federal law. There is no specific

mention of a right of access in the act (other than

for board officials) and no express delegation empow-

ering the board to adopt a right of access. The

majority, in finding a right of access, relies upon sec-

tions 1148 and 1152, which adopt federal law, and

section 1144 which grants general rule-making powers

to the board. Obviously, a general rule-making power

with no specification as to what those rules relate is

not the same as an express power to create access

rights. It is evident that the majority must resort

to federal law to find hoard authority to create aecess

rights.

It is manifestly unfair to the Legislature, in light

of the history and language of the act, to rely on

federal law to establish board power to create an

access right, and at the same time to ignore the stand-

ards and limitations placed upon that right by the

same federal law. Rather, the Legislature’s incorpora-

tion of the federal law includes the duties, powers,

limitations, and standards.

Although the board is given general rule-making

power, regulations adopted pursuant to this power

must conform to the legislative command requiring

application of federal law. As this court stated in

Morris v. Williams (1967) 67 Cal.2d 733 [63 Cal.

Rptr. 689, 433 P.2d 697]: “Under Government Code

section 11373, ‘Each regulation adopted [by a state

agency ], to be effective, must be within the scope of

authority conferred, . . .’ Whenever a state agency

is authorized by statute ‘to adopt regulations to im-

plement, interpret, make specific or otherwise carry

out the provisions of the statute, no reg.’ation adopted

is valid or effective unless consistent and not in con-

flict with the statute... .’ (Gov. Code, § 11374.) Our

first duty, therefore, is te determine whether the

Administrator exercised quasi-legislative authority

within the bound: of the statutory mandate. While

the construction of a statute by officials charged with

its administration, including tlieir interpretation of

the authority invested in them to implement and

carry out its provisions, is entitled to great weight,

nevertheless ‘Whatever the force of administrative

construction ... final responsibility for the interpreta-

tion of the law rests with the courts.’ (Whitcomb

Hotel v. California Emp. Com, (1944) 24 Cal.2d 753,

757 ..., and authorities there collected.) Administra-

tive regulations that alter or amend the statute or

enlarge or impair its scope are void and courts not

only may, but it is their obligation to strike down

such regulations. (Whitcomb Hotel v. California Emp.

Com., supra; Hodge v. McCall (1921) 185 Cal. 330,

(334 ...; Boone v. Kingsbury (1928) 206 Cal. 148,

161-162 .. .; Fire’ Industrial Loan Co, v. Daugherty

(1945) 26 Cal.2d 545, 550... .; see Brock v. Superior

Court (1938) 11 Cal2d 682, 688 ... .)” (67 Cal.2d

at p. 748.)

C. The Regulation’s Conflict With the Federal Law

and the Statute

As we have seen, the federal law incorporated in

the act by the Legislature denies access to nonem-

ployee organizers whenever reasonable alternative

means of communication are available. Further, even

when access is allowed, it 1s restricted to nonworking

areas. By permitting blanket access to all agricultural

property, regardless of the existence of alternative

means of communication, and by permitting access to

working areas, the board’s regulation is contrary to

Babcock and Central Hardware, violating the statu-

tory command to follow federal precedent.

The conflict may not be avoided on the basis of the

board’s finding that “[g]enerally” there is no alter-

native means of communication. The absence of alter-

native means of communication in most cases does

nn a

not relieve the »oard oi its obligation to adhere to

Babcock and Central Hardware any more than an

N.L.R.B. finding of the availability of alternative

means of communication in most cases would justify

the N.L.R.B. from denying nonemployee access in all

cases.

ConFLIcT W1TH TRESPASS STATUTE

Penal Code section 602 provides in relevant part:

“Every person who willfully commits a trespass by

any of the following acts is guilty of a misdemeanor:

(j) Entering any lands, whether unenclosed or en-

closed by fence, for the purpose of injuring any

property or property rights or with the intention of

interfering with, obstructing, or injuring any lawful

business or occupation carried on by the owner of

such land, his agent or by the person in lawful pos-

session. [1] (k) Entering any lands under cultivation

or enclosed by fence, belonging to, or occupied by,

another . . . without the written permission of the

owner of such land, his agent or the person in lawful

possession, and [{] (1) Refusing or failing to leave

such lands immediately upon being requested by the

owner of such land, his agent or by the person in

lawful possession to leave such lands, ... [{] (1)

Entering and occupying real property or structures

of any kind without the consent of the owner, his

agent, or the person in lawful possession thereof. [1]

(m) Driving any vehicle ... upon real property be-

longing to or lawfully occupied by another and known

not to be open to the general public, without the con-

sent of the owner, his agent, or the person in lawful

possession thereof. [1] (n) Refusing or failing to

leave land, real property, or structures belonging to

or lawfully occupied by another and not open to the

general public, upon being requested to leave by a

peace officer and the owner, his agent, or the person

in lawful possession thereof.”

The conflict between the access regulation and the

trespass statute is apparent.

The law regarding conflict between administrative

acts and legislative acts is well-settled. “Administra-

tive regulations that violate acts of the Legislature

are void and no protestations that they are merely

an exercise of administrative discretion can sanctify

them. They must conform to the legislative will if we

are to preserve an orderly system of government.”

(Morris v. Williams, supra, 67 Cal.2d 733, 737; italics

added.) “It is fundamental that an administrative

agency may not usurp the legislative function, no

matter how altruistic its motives are.” (City of San

Joaquin v. State Bd, of Equalization (1970) 9 Cal.

App.3d 365, 374 [88 Cal.Rptr. 12].)

Administrative agencies “may not exercise [their]

sublegislative powers to modify, alter or enlarge the

provisions of the legislative act which is being admin-

istered. Administrative regulations in conflict with

the Constitution or statutes are generally declared to

be null or void. (Hammond v. McDonald, 49 Cal.App.

2d 671, 679 . . .; Hodge v. McCall, 185 Cal. 330, 334

...+)” (Harris v. Alcoholic Bev. etc. Appeals Bd.

(1964) 228 Cal.App.2d 1, 6; Accord: Morris v. Wil-

liams, supra, 67 Cal.2d 733, 748-749; Duskin v. State

Board of Dry Cleaners (A962) 58 Cal.2d 155, 161-162

[23 Cal.Rptr. 404, 373 P.2d 468]; Schenley Industries,

Ine. v. Munro (1965) 237 Cal.App.2d 106, 111 [46

Cal.Rptr. 678]; Am. Distilling Co. v. St. Bd. of Equal-

ization (1942) 55 Cal.App.2d 799, 805-806 [131 P.2d

609 ].)

As the court in Harris v. Alcoholic Bev. ete. Appeals

Bd., supra, noted: “The order of priority with respect

to jurisdiction, accordingly, is as follows: (1) The

Constitution is the supreme expression; (2) to the

extent that it does not conflict with the Constitution,

the Legislature may act; (3) to the extent that it

does not conflict with the Constitution, or with lawful

acts of the legislature, the department [administrative

agencies] may act through its rules and regulations.”

(228 Cal.App.2d at p. 7; italics added.)

The doctrine that administrative regulations are

subordinate and must give way to legislative enact-

ments is equally applicable when the regulation con-

travenes a provision of a statute or code other than

the statutes creating the agency or administered by

it. (Tolman v. Underlall (1952) 39 Cal.2d 708, 712

(249 P.2d 280]; Orloff v. Los Angeles Turf Club

(1951) 36 Cal.2d 734, 737-738 [227 P.2d 449]; Zn re

Potter (1913) 164 Cal, 735, 739 [130 P. 721]; Cleve-

land Chiropractic College v. State Bd. of Chiropractic

Examiners (1970) 11 Cal.App.3d 25, 34-35 [89 Cal.

Rptr. 572]; Harris v. Alcoholic Bev. etc. Appeals Bd.,

supra, 228 Cal.App.2d 1, 6.)

The Legislature, as the majority points out, may

make exceptions to other statutes and may expressly

authorize an administrative agency to make excep-

tions. Such exceptions may also be made by the

incorporation of other law, including federal law. In

addition, an agency’s right to make an exception to gen-

eral statutory provisions might be implied in cases of

necessity, when exercise of a power expressly granted

to the agency will necessarily involve a violation of

the other statute. In these circumstances, exceptions

are warranted by the general principle that specific

statutory provisions govern general ones. (Code Civ.

Proe., § 1859; People v. Gilbert (1969) 1 Cal.3d 475,

479-480 [82 Cal.Rptr. 724, 462 P.2d 580].)

However, the special-general principle does not ap-

ply when the ageney’s power to act is not express but

merely implied. Because the agency’s power is implied,

it can never be special in relation to a conflicting

express legislative declaration. If the rule were other-

wise, agencies in their field of expertise would be

free to ignore almost all statutes enacted by the

Legislature.

The Legislature has not expressly provided for

access by nonemployee organizers to employer prop-

erty. Nor has the Legislature expressly delegated to

the board the authority to formulate an access rule.

Having refused to follow Babcock and Central Hard-

ware and the federal law, the majority may not

properly claim that the Legislature incorporated an

access rule by reference ta federal law. Nor has the

board or the majority shown it to be absolutely neces-

sary to sanction violations of the Penal Code in order

to effectuate the powers expressly granted to the

board.

The Agricultural Labor Relations Act deals with

labor relations; it does not deal with trespasses to

real property. Penal Code section 602 deals with tres-

pass to real property; its relevant provisions do not

expressly deal with labor relations. The instant case

deals with labor relations and trespasses. Thus each

statute is on par with the other, and the Penal Code

provision being a legislative enactment, it must take

precedence over the administrative regulation based

on a power implied from the labor statute. Moreover,

if either the act or the Penal Code provisions must

be categorized as special in relation to the activities

before us, the Penal Code provisions should be so

categorized. Related provisions of the Penal Code

expressly deal with hoth trespasses and labor relations

(Pen. Code, §§ 552.1, 555.2), and in In re Zerbe (1964)

60 Cal.2d 666, 668-669 [36 Cal.Rptr. 286, 388 P.2d 182,

10 A.L.R.38d 840], it was held that the provisions of

those sections must be read into section 602, sub-

division (/), one of the subdivisions presently before

us,

CONSTITUTIONALITY Or THE ACCESS REGULATION

The majority concludes that the access regulation

is constitutional and does not impinge upon private

property rights because a rational relationship exists

hetween the access regulation and the purposes of the

act. The majority finds that the rational relationship

test is the proper standard for constitutional review

by analogizing the issue here presented to the issues

raised when the validity of a zoning ordinance is

challenged. The majority, however, has erred in its

analogy, applied an improper standard of constitu-

tional review, and thereby sanctioned an impermissible

invasion on constitutionally protected property

rights.*

When regulations such as zoning are challenged,

the constitutional issue raised is the extent to which

the government may regulate a landowner’s use of his

own property. The access regulation, on the other

hand, presents a very distinct situation. In promulgat-

ing such a regulation the government is requiring a

property owner to surrender the use of his private

property not for public use but for the use of other

private parties—nonemployee union organizers.

4The majority justifies its application of the rational relationship

test on grounds that the access regulation’s infringement of prop-

erty rights is ‘‘not a deprivation of ‘fundamental personal liber-

ties.’ ’’ However, property rights are fundamental and personal.

As the United States Supreme Court pointed out in Lynch v.

Household Finance Corp. (1972) 405 U.S. 538 [31 L.Ed.2d 424, 92

S.Ct. 1113], ‘‘ [T]he dichotomy between personal liberties and prop-

erty rights is a false one. Property does not have rights. People

have rights. The right to enjoy property without unlawful depriva-

tion, no less than the right to speak or the right to travel, is in

truth a ‘personal’ right, whether the ‘property’ in question be a

welfare check, a home, or a savings account. In fact, a fundamental

interdependence exists between the personal right to liberty and

the personal right in property. Neither could have meaning without

the other. That rights in property are basic civil rights has long

been recognized. J. Locke, Of Civil Government 82-85 (1924); J.

Adams, A Defense of the Constitutions of Government of the

United States of America, in F. Coker, Democracy, Liberty, and

Property 121-132 (1942); 1 W. Blackstone, Commentaries 138-140.”’

(Id., at p. 552 [31 L.Ed.2d at pp. 434-435].)

The distinction is of major significance. In the

private access situation we must weigh the strength

of the interest asserted against the infringement on

private property rights. The proper judicial function

is to balance the competing interests; although the

rational relationship test applies in zoning cases, the

law of zoning is not a universal solvent in which

property rights are dissolved.

This court is apparently the only court unable to

grasp that the appropriate standard for review is

one of balancing and not of rational relationship. In

Labor Board v. Babcock & Wilcox Co., supra, 351

U.S. 105, the United States Supreme Court stated:

“This is not a problem of always open or always closed

doors for union organization on company property....

Accommodation between the two [organizational rights

and property rights] must be obtained with as little

destruction of one as is consistent with the mainten-

ance of the other.” (/d., at p. 112: italics added.)

Similarly, in Central Hardware Co. v. NLRB, supra,

407 U.S. 539, the Supreme Court stated: “the prin-

ciple of accommodation announced in Babcock is

limited to labor organization campaigns, and the

‘yielding’ of property rights it may require is both

temporary and minimal.” (/d., at p. 545; italics

added.) The proper test is one of balancing, not a

determination of rational relationships.

The federal Courts of Appeals have fully reeog-

“nized that balancing is the proper standard for re-

view. (E.g., NV. D. R. B. v. Visceglia (3d Cir. 1974)

498 F.2d 43, 45; McDonnell Douglas Corporation v.

N. L. R. B. (8th Cir. 1973) 472 F.2d 539, 544;

Diamond Shamrock Co. v. N. L. R. B. (3d Cir. 1971)

443 F.2d 52, 56-58; see Asociacion de Trabajadores,

Ete. v. Green Giant Co. (3d Cir. 1975) 518 F.2d 130,

135; Petersen v. Talisman Sugar Corporation (5th

Cir, 1973) 478 F.2d 73, 82.)

Indeed, in the only federal Court of Appeals case

decided after Babcock and Central Hardware specifi-

cally discussed by the majority, the court recognized

that the proper standard for resolving this issue is

one of balancing. (NV. L. R. B. v. S & H Grossinger’s

Ine. (2d Cir. 1967) 372 F.2d 26, 29-30.) Moreover, the

fact that access has been permitted in several federal

cases is hardly surprising under a halancing test.

However, it does not follow, as the majority suggests,

that because the balance in some cases has favored

access that the balance in all cases will do so. If this

were otherwise then the United States Supreme

Court’s use of the word “accommodate” is meaning-

less, as is the federal Courts of Appeals’ continual use

of a balancing approach.

The United States Supreme Court balanced the

competing interests in Babcock and Central Hard-

ware, and because, as pointed out above, the board’s

regulation violates the rule of those cases, the access

regulation violates the constitutional provisions pro-

tecting private property. The board’s regulation does

* not even attempt to balance or accommodate the com-

peting interests. It allows aecess when alternative

means of communication do in fact exist. And it per-

mits blanket entry onto private property during work-

—

ing hours. The regulation as presently promulgated

is unconstitutional.

CONCLUSION

In a case such as this, where conviction and feeling

run high, we should apply the law to the facts care-

fully and objectively, to assure that the result of our

decision comports with precedent, thereby carrying

out the intent of the Legislature. In this, the ma-

jority have failed today. To reach their result, they

have relied on inapplicable precedent, applied the

wrong constitutional standard of review, nullified the

Legislature’s mandate to the board, and subordinated

the Legislature to an administrative agency.

Clark, J.

McComb, J., and Richardson, J., concurred.

Appendix B

S. F. No. 23,349

In the Supreme Court

of the

State of California

Agricultural Labor Relations Board, Roger Ma- |

honey, Leroy Chatfield, Joseph Grodin, Richard

Johnsen, Joseph Ortega and Walter Kintz,

or Petitioners,

vs.

Superior Court in and for the County of Tulare, |

State of California,

and

Superior Court in and for the County of Fresno,

State of California, \

Respondents,

and

Harry Kubo, an individual; Nisei Farmers

League, a non-profit corporation; and Western

Tomato Growers & Shippers, Inc., a California

corporation,

and

Pandol & Sons, a California partnership; Jasmine

Vinevards, Ine., a California corporation,

Real Parties In Interest. :

[Filed Mar 8, 1976]

Notice oF APPEAL To

THE SuPREME Court OF THE UNITED STATES

Notice is hereby given that Harry Kubo, Nisei

Farmers League, and Western Tomato Growers &

Shippers, Inc., real parties in interest above-named,

hereby appeal to the Supreme Court of the United

States from the final judgment of the Supreme Court

of the State of California, directing that a peremptory

writ of mandate issue compelling respondent Superior

Courts of Tulare and Fresno Counties to vacate vari-

ous orders enjoining enforcement of an administra-

tive regulation which permits access to agricultural

property by farm labor organizers, entered in this

action on March 4, 1976.

This appeal is taken pursuant to 28 U.S.C.

§1257(2).

Dated: March 8, 1976.

Littler, Mendelson & Fastiff

By J. Richard Thesing

Attorneys for Appellants

Harry Kubo, Nisei Farmers

League, and Western Tomato

Growers & Shippers, Inc.

Appendix C

EMERGENCY ORDER ADOPTING EMERGENCY REGULA-

TIONS OF THE AGRICULTURAL LABOR RELATIONS

BOARD

Agricultural Labor Relations Board having met in

session since August 28, 1975, finds that the State-

ment of Emergency approved in regulations of Au-

gust 28, 1975, continues to apply.

Adopts Chapter 9 to read:

Chapter 9. Access to Workers in the Fields by Labor

Organizations

Labor Code Sec. 1140.2 declares it to be our 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 rep-

resentatives of their own choosing.

1. Agricultural employees have the right under

Labor Code Sec. 1152 to self-organization, to form,

join, or assist labor organizations, to bargain collee-

tively through representatives of their own choosing,

and to engage in other concerted activities for the

purpose of collective bargaining or other mutual aid

or all of such activities except to the extent that such

right may be affected by a lawful agreement requiring

membership in a labor organization as a condition of

continued employment. Labor Code See. 1153(a)

makes it an unfair labor practice for an agricultural

employer to interfere with, restrain, or coerce agri-

cultural employees in the exercise of these rights.

2. As the United States Supreme Court has stated:

Organizational rights are not viable in a vacuum.

Their effectiveness depends in some measure on the

ability of employees to learn the advantages and dis-

advantages of organization from others. When alter-

native channels of effective communication are not

available to a union, organizational rights must in-

clude a limited right to approach employees on the

property of the employer. Under such circumstances,

both statutory and constitutional principles require

that a reasonable and just accommodation be made

between the right of unions to access and the legiti-

mate property and business interests of the employer.

3. Generally, unions seeking to organize agricul-

tural employees do not have available alternative

channels of effective communication, Alternative

channels of effective communication which have been

found adequate in industrial settings do not exist or

are insufficient in the context of agricultural labor.

4. The legislatively declared purpose of bringing

certainty and a sense of fair play to a presently un-

stable and potentially volatile condition in the agri-

cultural fields of California can best be served by the

adoption of rules on access which provide clarity and

predictability to all parties. Relegation of the issue

to case-by-case adjudication or the adoption of an

overly general rule would cause further uncertainty

and instability and create delay in the final determi-

nation of elections.

5. Accordingly, the Board will consider the rights

of employees under Labor Code Sec, 1152 to include

the right of access by union organizers to the prem-

ises of an agricultural employer for the purpose of

organizing, subject to the following limitations:

a. Organizers may enter the property of an

employer for a total period of 60 minutes before the

start of work and 60 minutes after the completion of

work to meet and talk with employees in areas in

which employees congregate before and after working.

b. In addition, organizers may enter the em-

ployer’s property for a total period of one hour dur-

ing the working day for the purpose of meeting and

talking with employees during their lunch period, at

such location or locations as the emplovees eat their

lunch, If there is an established lunch break, the

one-hour period shall include such lunch break. If

there is no established lunch break, the one-hour

period may be at any time during the working day.

c¢. Access shall be hmited to two organizers

for each work crew on the property, provided that if

there are more than 30 workers in a crew, there may

be one additional organizer for every 15 additional

workers.

d. Upon request, organizers shall identify

themselves by name and labor organization to the

employer or his agent. Organizers shall also wear a

badge or other designation of affiliation.

e. The right of access shall not include con-

duct disruptive of the employer’s property or agri-

cultural operations, including injury to crops or

machinery. Speech by itself shall not be considered

disruptive conduct. Disruptive conduct by particular

organizers shall not be grounds for expelling organ-

izers not engaged in such conduct, nor for preventing

future access.

f. Pending further regulation by the Board,

this regulation shail not apply after the results of

an election held pursuant to this Act have been cer-

tified.

FINDING OF EMERGENCY

The Agricultural Labor Relations Board finds that

an emergency exists, and that the foregoing regula-

tions are necessary for the immediate preservation of

the public health, safety, or general welfare. A state-

ment of such facts constituting an emergency is:

STATEMENT OF Facts

The Agricultural Labor Relations Act of 1975 is

designed to define and protect the rights of agricul-

tural employees and agricultural employers. The Act

defines the rights of agricultural employees to include

organizing and bargaining collectively with their em-

ployers through representatives of their own choosing.

To ensure that agricultural employees can freely

choose their own representatives for the purpose of

collective bargaining, the Act establishes a procedure

by which they can exercise their choice at a secret bal-

lot election conducted by the Agricultural Labor Rela-

tion Board. To protect the rights of agricultural

employees and employers, and to prevent ‘labor dis-

putes that would adversely affect the rights of the

public, the Act also defines certain practices of em-

ployers and unions as unfair labor practices.

The Act is administered and enforced by the Agri-

cultural Labor Relations Board. The general counsel

of the Board and his staff investigate and prosecute

unfair labor practice cases and conduct elections to

determine employee representatives. The five-member

Board decides cases involving charges of unfair labor

practices and determines certain representation elec-

tion questions.

The Act does not set forth in detail many of the

procedures used by the Board in administering and

enforcing the Act. Instead, the Legislature delegated

to the Board the authority to adupt regulations which

are necessary to carry out the provisions of the Act

relative to representation cases and unfair labor prac-

tice cases.

The Agricultural Labor Relations Board has reason

to believe that unfair labor practice charges are likely

to be filed on or soon after August 28, 1975, the effee-

tive date of the Act. The Board has also determined

that it will begin accepting representation case peti-

tions on September 2, 1975, and it expects numerous

representation case petitions to be filed on or soon

after that date.

In addition, the strict time limitations contained in

the Act relative to the holding of elections and to the

expeditious processing of certain categories of unfair

labor practice charges make even more apparent the

necessity of having regulations covering these mat-

ters in effect on August 28, 1975, or as soon there-

after as possible. For instance, Labor Code Sec. 1156.3

requires that the Board immediately investigate a

petition for representation and, additionally, that any

representation election ordered pursuant thereto be

held within a maximum of seven days of the filing of

a petition.

Moreover, in enacting this legislation the people of

the State of California sought to ensure peace in the

agricultural fields by guaranteeing stability in labor

relations. The events of the past decade demonstrate

that unrest and strife may occur in the absence of

orderly procedures for resolving labor disputes. In

light of the foregoing, the Agricultural Labor Rela-

tions Board has reason to believe that there exists a

potentially volatile condition in the agricultural fields

of the state which requires definite and orderly pro-

cedures to ensure immediate and effective enforcement

of the Act.

Also, the Legislature, in providing that the Act

becomes effective on August 28, 1975, fully intended

that the -Agricultural Labor Relations Board be prt

pared to administer and enforce the Act on the date

it becomes effective. In order to comply with the

legislative mandate, it is essential that the Board

immedigtely adopt regulations to enforce the Act.

The current situations therefore suggests [sic] to the

Board the urgent and immediate necessity of adopt-

ing detailed regulations covering these matters to be-

come effective on August 28, 1975, or as soon there-

after as is possible.

Inasmuch as the five-member Board responsible for

adopting regulations is not authorized by law to adopt

regulations until August 28, 1975, it is, therefore,

appropriate and necessary to the efficient administra-

_ tion of the Act, that regulations relative to the filing

of representation case petitions and unfair labor prac-

tice charges which are intended to become effective on

or soon after August 28, 1975, be adopted as emer-

gency regulations as defined in the Administrative

Procedure Act (Gov. Code See. 11370 et seq.).

Accordingly, these regulations are hereby adopted

as emergency regulations to take effect immediately

upon filing with the Secretary of State as provided

in Gov. Code See. 11422(¢). The Agricultural Labor

Relations Board has determined that the above regu-

lations will have no cost to local government pursuant

to Sec. 2231 of the Revenue and Taxation Code.

Appendix D

Superior Court of the State of California

for the County of Fresno

No. 172286

Harry Kubo, an individual; and Nisei Farmers |

League, a nonprofit corporation; Western To- |

mato Growers & Shippers, Inc., a California |

corporation, |

Plaintiffs/Petitioners, |

vs.

Right Reverend Roger Mahoney, Chairman; Jo-

seph Grodin, Richard Johnson, Leroy Chat-

field, and Joseph Ortega, Members of the Cal-

ifornia Agricultural Labor Relations Board,

Defendants/Respondents. J

[ Filed Sept. 10, 1975]

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The above-entitled cause came on regularly for

hearing on an Order to Show Cause on September

10, 1975 at 9:30 a.m., before the Court. Plaintiffs/

Petitioners appeared through their counsel Jordan

L. Bloom, Esq., and Defendants/Respondents ap-

peared through Robert Le Prohn, Esq.

The Court having examined the pleadings and the

documentary evidence introduced herein, including the

Declarations and Memoranda of Points and Authori-

ties, and having heard the arguments of counsel; and

the cause having been submitted for decision; the

Court, being fully advised in the matter, finds and

concludes as follows: |

FINDINGS OF FACT

Plaintiff/Petitioner Harry Kubo is an _ indivi-

dual engaged in the cultivation and harvesting of

agricultural products and is an agricultural employer

within the meaning of Section 1140.4(c) of the Cali-

fornia Labor Code. Said Plaintiff/Petitioner’s agri-

cultural premises are located in Fresno County, and

Plaintiff/Petitioner Kubo employs agricultural em-

ployees, as said term is defined in Labor Code Section

1140.4(b) in the cultivation and harvesting of agricul-

tural products on said premises. Plaintiff/Petitioner

Kubo is a member and the President of Plaintiff/

Petitioner Nisei Farmers League.

Plaintiff/Petitioner Nisei Farmers League is a non-

profit California corporation composed of approxi-

mately 1,300 growers engaged in the cultivation and

harvesting of agricultural products. Said grower mem-

bers of the Nisei Farmers League are agricultural em-

ployers within the meaning of Section 1140.4(c) of

the California Labor Code. The agricultural property

of said growers is located in Fresno, Madera, Tulare

and Kings Counties. Said growers employ agricul-

tural employees as said term is defined in Labor Code

Section 1140.4(b). Plaintiff/Petitioner Nisei Farmers

League is authorized to bring and does bring this ac-

tion by and on behalf of its members.

Iil

Plaintiff/Petitioner Western. Tomato Growers & _

Shippers, Inc., is a California corporation engaged in

the cultivation and harvesting of agricultural products

and is an agricultural employer within the meaning

of Section 1140.4(c) of the California Labor Code.

Said Plaintiff’s/ Petitioner’s operations are located in

the Counties of Fresno and San Joaquin. Plaintiff/

Petitioner Western Tomato Growers & Shippers, Inc.,

employs agricultural employees as said term is defined

in Labor Code Section 1140.4(b).

Defendants/Respondents The Right Reverend Roger

Mahoney, Joseph Grodin, Richard Johnson, Leroy

Chatfield and Joseph Ortega, are duly appointed mem-

bers of the Agricultural Labor Relations Board, whose

composition and duties are particularly described in

California Labor Code Section 1141, ef seq., popularly

known as the Agricultural Labor Relations Act. At

all times mentioned hereir, Defendants/Respondents

were acting as Members of the said Board. Said

Board maintains offices at various loeations through-

out the State of California, including a regional of-

fice in Fresno, Califoynia.

On August 29, 1975 Defendants/Respondents, acting

as the Agricultural Labor Relations Board, adopted

certain so-called “Emergency Regulations of the Ag-

ricultural Labor Relations Board.” Chapter 9 of said

regulations is entitled “Access To Workers In The

vant part as follows:

“5. Accordingly, the Board will consider the

rights of employees under Labor Code See. 1152

to include the right of access by union organizers

to the premises of an agricultural employer for

the purpose of organizing, subject to the follow-

ing limitations:

(a) Organizers may enter the property of an

employer for a total period of 60 minutes before

the start of work and 30 minutes after the com-

pletion of work tq meet and talk with employees

in areas where employees congregate before and

after working.

(b) In addition, organizers may enter the em-_

ployer’s property for a total period of one hour

during the working day for the purpose of meet-

ing and talking with employees during their lunch

period, at such location or locations as the em-

ployees eat their lunch. If there is an established

lunch break, the one-hour period shall inelude

such lunch break. If there is no established lunch

break, the one-hour period may be .at any time

during the working day.

(ce) Aecess shall be limited to two orgarizers

for each work crew on the property, provided that

if there are more than 30 workers in a crew, there

may be one additional organizer for every 15 ad-

ditional workers.

(d) Upon request, organizers shall identify

themselves by name and labor organization to the

employer or his agent. Organizers shall also wear

a badge or other designation of affiliation.

(e) The right of access shall not include con-

duct disruptive of the employer’s property or ag-

ricultural operations, including injury to crops or

machinery. Speech by itself shall not be consid-

ered disruptive conduct. Disruptive conduct by

particular organizers shall not be grounds for ex-

pelling organizers not engaged in such corduct,

nor for preventing future access.

(f) Pending further regulation by the Board,

this regulation shall not apply after the results of

an election held pursuant to this Act have been

certified.”

The fields and orchards located on Plaintiffs/

Petitioners’ agricultural premises are private property

posted against trespass and not open to any of the

public or to persons not employed by Plaintiffs/

Petitioners.

Vill

If non-employee union organizers are allowed to

come onto Plaintiffs/Petitioners’ private fields and

orchards, Plaintiffs/Petitioners’ peaceful use and en-

joyment of their private property will be repeatedly

and continuously impaired, and Plaintiffs/Petitioners

will thereby be irreparably harmed. Such violations

and impairment of Plaintiffs/Petitioners’ rights are

not compensable in monetary damages.

If non-employee union orgamzers are allowed to

come onto Plaintiffs/Petitioners’ private fields and

orchards, Plaintiffs/Petitioners will be subject to

property damage to their crops, equipment and land;

interference with their agricultural operations; dis-

ruption of work; and possible violent confrontations

among rival union organizers or among union and

anti-union factions. Plaintiffs/Petitioners will thereby

suffer irreparable and permanent injury.

If Plaintiffs/Petitioners and other agricultural em-

ployers rely on trespass statutes to exclude non-

employee union organizers from their property, they

will be subject to false arrest actions, unfair labor

practice charges and the probable refusal of the Ag-

ricultural Labor Relations Board to certify any secret

ballot elections which are lost by labor organizations

denied access to the agricultural employers’ property.

Plaintiffs/Petitioners accordingly have no _ plain.

speedy and adequate remedy at law.

A provision allowing non-employees union organi-

zers access to the private property of agricultural «,

employers was rejected by the California Legislature

and stricken from the bill passed as the Altorre-

Zenovich-Dunlap-Berman [ste] Agricultural Labor

Relations Act of 1975.

ane:

— ow

CONCLUSIONS OF LAW

I ,

This Court has jurisdiction over the subject matter

of this action pursuant to California Code of Civil

Procedure Section 526, 1060, et seq., and 1085; Gov-

ernment Code Section 11440; and Labor Code Section

1144.

Il ’

Chapter 9 of the Emergency Regulations adopted

by Defendants/Respondents on August 29, 1975,

grants non-employee labor union organizers absolute

aecess to Plaintiffs/Petitioners’ fields and orchards

and other properties, and these of all other agricul-

tural employers under the Act, irrespective of the

facts that said properties are private, posted against

trespassing, and not open to members of the public

or other non-employees of Plaintiffs/Petitioners; and

irrespective of whatever other reasonable means of

communitations such organizers may have with re-

spect to Plaintiffs/Petitioners’ employees.

II!

Chapter 9 of the Emergency Regulations adopted

by Defendants/Respondents on August 29, 1975 vio-

lates the Fifth and Fourteenth Amendments of the

United States Constitution and Article T &7 of the

California Constitution in that it deprives Plaintiffs /

Petitioners and other agricultural employers of prop-

erty rights without due process of law and further

constitutes a taking of Plaintiffs Petitioners’ prop-

erty for public use without just compenstion.

Chapter 9 of the Emergency Regulations of the

Agricultural Labor Relations Board constitutes an

impermissible enlargement of the authority granted

to the Board under the enabling statute, California

Labor Code Section 1144, and California Government

Code Section 11371, et seq., in that it constitutes a

fundamental policy dectsion creating a right of access

to private property by union organizers which is not

provided for in existing statutory or case law, and

which exceeds the parameters of administrative rule-

making authority established by California law. As

such, Chapter 9 of the Emergency Regulations is ar-

bitrary and beyond the scope of proper procedure.

Chapter 9 of the Emergeney Regulations adopted

by Defendants/Respondents conflicts with Penal Code

Section 602(k), 602(1) and 602(n) and accordingly

exceeds the Board’s statutory authority under Labor

Code Section 1144 and Government Code Section

11371, et seq.

VII

By adopting the access provisions of Chapter 9 of

the Emergency Regulations, Defendants/Respondents

contravened the intent of the Legislature in enacting

Agricultural Labor Relations Act (Labor Code §§1140,

et seq).

VITl

Plaintiffs/Petitioners have no plain, speedy and

adequate remedy at law.

If Chapter 9 of the Emergency Regulations is al-

lowed to remain in effect, Plaintiffs/Petitioners will

suffer irreparable injury to their property rights and

interests.

This is a proper case for the issuance of a Declara-

tory Judgment pursuant to California Government

Code Section 11440 and California Code of Civil

Procedure Section 1060 decreeing that Defendant/Re-

spondents exceeded their statutory authority in adopt-

ing Chapter 9 of the Emergency Regulations of the

Agricultural Labor Relations Board; that said Chap-

ter 9 constitutes an unconstitutional infringement

upon the property rights of Plaintiffs/Petitioners

and other agricultural employers as guaranteed by

the California and United States Constitutions; and

that Chapter 9 of the Emergency Regulations conflicts

with California Penal Code Section 602 and is there-

fore arbitrary and in excess of Defendants/Respond-

ents’ delegated authority.

XTT

This is a proper case for the issuance of a per-

emptory Writ of Mandate directing Defendants/

Respondents to vacate Chapter 9 of the Emergency

Regulations and compelling Defendants Respondents

to refrain from enforeing or implementing Chapter 9.

Dated: Sept. 10, 1975

Hollis G. Best

_ Judge of the Superior Court

Superior Court of the State of California

for the County of Fresno

No. 172286

Harry Kubo, an individual; and Nisei Farmers |

League, a nonprofit corporation; Western To-

mato Growers & Shippers, Inc., a California

r .

— Plaintiffs,

vs. .

Right Reverend Roger Mahoney, Chairman; Jo-

seph Grodin, Richard Johnson, Leroy Chat-

field, and Joseph Ortega, Members of the Cal-

ifornia Agricultural Labor Relations Board, .

Defendants. :

[Filed Sept. 10, 1975]

JUDGMENT

The above-captioned cause came on regularly for

hearing on September 10, 1975 of the above-entitled

Court, the Honorable Hollis Best, Judge presiding.

Plaintiffs appeared by their attorney, J. Bloom, and

defendants appeared by their attorney, M, LeProhn

[sic], and both oral and documentary evidence having

been presented, the cause having been argued and

submitted for decision, and the Court having made

and caused to be filed its written findings of fact and

conclusions of law,

On the basis of the findings of fact and conclusions

of law filed herewith:

It Is Hereby Ordered, Adjudged, and Decreed

(1) That the Agricultural Labor Relations Board

issued Chapter 9 of the Emergency Regulations in

excess of the authority delegated to it by the Califor-

nia State Legislature in the Alatorre-Zenovich-

Dunlap-Berman Agricultural Relations Act of 1975;

and

(2) That Chapter 9 of the Emergency Regulations

issued by the Agricultural Labor Relations Board is

in excess of its statutory authority in that it is not

in accordance with standards proscribed by other pro-

visions of law; and |

(3) That Chapter 9 of the Emergency Regulations

issued by the Agricultural Labor Relations Board is

an unconstitutional infringement upon Plaintiffs’

property rights as guaranteed by both the California

and United States Constitutions; and

(4) That costs of suit be awarded;

Dated: September 10, 1975

Hollis G. Best

Judge of the Superior Court

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