Jurisdictional Statement — Kubo v. Agricultural Labor Relations Board
Supreme Court brief1976
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ales. JR., CLERK
——
IN THE
Supreme Court of the Unit
oe ae. 1 7 5 4
PANDOL & SONS, a California partnership; JASMINE
VINEYARDS, INC., a California corporation,
Appellants,
vs.
AGRICULTURAL LABOR RELATIONS BOARD,
Appellee.
JURISDICTIONAL STATEMENT
JosEPH HERMAN,
GEORGE PREONAS,
JorL KAPLAN,
Attorneys for Appellant.
SEYFARTH, SHAW, FAIRWEATHER &
GERALDSON,
1801 Century Park East,
Los Angeles, Caiif. 90067,
(213) 277-7200,
Of Counsel.
Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622
SUBJECT INDEX
Page
FE aE Ec ee ee 1
ea ee ee Bee de 2
ELE EE SER rs Le" 3
Constitutional and Statutory Provisions Involved .... 3
ee Se Ts sak ccchlh eels chvensenindectiniiiniie 4
The Federal Questions Are Substantial .............. 10
A. The Constitutional Standard Requires the
Accommodation of Conflicting Rights ........ 11
B. A Case-by-Case Determination Is Constitu-
Se ee 14
C. The California Supreme Court Applied an
Incorrect Standard of Review ...................... 17
D. The Access Regulation Is Unconstitutional —
0 TE BIE ncteniendicmnsiertinangdegniciaetereas 19
E. The Access Regulation Establishes an Un-
constitutional Irrebuttable Presumption ........ 20
I | cisncttscietccevctntetedelintiadelitnenbitiitaitienuiitiatedas 23
ii.
INDEX TO APPENDICES
Page
Appendix A. Onplebatt ..........-ccoccceeccocccccesees App. p. 1
Clash, J.” TORR GIMII cnccecsscceccccccconccnccrscscssnscsceeseres 38
Appendix B. Notice of Appeal to the Supreme
Court of the United States .................---.---00000++ 55
Appendix C. Title 8. Agricultural Labor Rela-
tions Board. Chapter 9. Access to Workers in the
Fields by Labor Organizations ................-...--.--- 57
Appendix D. Temporary Restraining Order ........ 60
Appendix E. Interim Order .................::--:s-00-++ 66
Appendix F. Onder ..............--ccsccsssssssreseseeesseesoees 67
Appendix G. Order to Show Cause and Temporary
Passteateine TANG acsccnccccenesniiennmsissinnensetnntinsictaninnae 69
Appendix H(1). Preemptory Writ of Mandate .... 71
Appendix H(2). Judgment .............----.-ssse--e-esees 73
TABLE OF AUTHORITIES CITED
Cases Page
Camara v. Municipal Court, 387 U.S. 523 (1967)
Central Hardware Company v. National Labor Re-
lations Board, 407 U.S. 539 (1972) ....10, 13,
Cleveland Board of Education v. LaFleur, 414 U.S.
Te Ciba taints ciciintiledtaetsidticcrtendewesion
Erznoznik v. City of Jacksonville, 422 U.S. 205
19
16
19
22
i Eee ER en 2
Hamilton v. Regents of the University of California,
| & ee FS) | ) ES La en 2
Lake Erie Railroad Co. v. State Public Utilities
Commission, 249 U.S. 422 (1919) ...............-+. 2
Live Oak Water Users Association v. Railroad
Commission of the State of California, 269 U.S.
I isaac aes idatatinirermpteemnmintnnsenginnte 2
Lloyd Corporation Ltd. v. Tanner, 407 U.S. 551
) 13, 18
Lynch v. Household Finance Corp., 405 U.S. 538
PIII: dundisscteiiclinsematiiabicetuatiientiibemnatantgenmnindte 18
NLRB v. Babcock & Wilcox Co., 351 U.S. 105
EER 9, 10, 11, 12, 13, 15, 16, 17, 18
NLRB v. Cities Service, 122 F.2d 149 (2d
ee | 15
NLRB v. Kutsher’s Hotel & Country Club, Inc.,
427 F.2d 200 (2d Cir. 1970) .......22.-2...-.00--+- 15
NLRB v. S & H Grossinger’s, Inc., 372 F.2d 26
(2B Clk. 19GB) ..cccrceeseccccrcoseeseccccccccceccescsceseccceosees 15
iv.
Page
NLRB v. Sioux City & New Orleans Barge Lines,
Inc., 472 F.2d 753 (8th Cir. 1973) ............ 15
Pando! & Sons and Jasmine Vineyards, Inc. v. Ed-
mund G. Brown, Jr., Governor of the State of
California, of all., NO. ArBE6. .<«taicwcmenten 7
Scott Hudgens v. NLRB, .... U.S. ...., 96 S.Ct. 1029
C {, ) NET 13
See v. City of Seattle, 387 U.S. 541 (1967) ...... 19
Stanley v. Illinois, 405 U.S. 645 (1972) ............ 21, 22
Sultan Railroad and Timber Co. v. Department of
Labor and Industries of State of Washington, 277
US. 1335 (1GZB) cccccceccccssscensssesnniae 2
United States Department of Agriculture v. Murry,
413 US. SOB CIGTS) ncccercessseten 22
Village of Belle Terre v. Boraas (1974) 416 US.
1, 94 3.Cr. 1336, 39 L.GSS FOP cee 17
Viandis v. Kline, 412 U.S. 441 (1973) .......... 21
Williams v. Bruffy, 96 U.S. 176 (1877) ............ 2
Statutes
Agricultural Labor Relations Act, Sec. 1152 ........ 10
California Administrative Code, Title 8, Part II,
Chap. 9, Secs. 20900-20901 ...................... a
California Labor Code, Sec. 1141-20000... 2... 4
National Labor Relations Act, Sec. 7 ........... . 10
United States Code, Title 28, Sec. 1257(2) .......... 2
United States Code, Title 29, Sec. 141 .......0........ 4
United States Code, Title 29, Sec. 152(3) .......... 5
United States Code, Title 29, Sec. 157 ..............
United States Constitution, Fifth Amendment ......
Textbook
Broomfield, “Preemptive Federal Jurisdiction Over
Concerted Trespassory Union Activity,” 83 Harv.
L. Rev., pp. 552, 573, 575-576 (1970) ........ 15,
20
Supreme Court of the United States
October Term, 1975
enact at heel
PaNnpoL & Sons, a California partnership; JASMINE
VINEYARDS, INC., a California corporation,
Appellants,
vs.
AGRICULTURAL LABOR RELATIONS BOARD,
Appellee.
JURISDICTIONAL STATEMENT
Appellants appeal from a decision of the Supreme
Court of the State of California, issued on March 4,
1976, upholding the validity of an administrative regula-
tion which was challenged, inter alia, as unconstitu-
tional. This Jurisdictional Statement is submitted to
demonstrate that the Supreme Court of the United
States has jurisdiction of this appeal and that a sub-
stantial federal question is presented.
Opinion Below.
The opinion of the Supreme Court of the State of
California is reported at 16 Cal.3d 392, 546 P.2d
687, 128 Cal.Rptr. 183 (1976). A copy of the opinion
is attached hereto as Appendix A.
=
Jurisdiction.
This appeal is taken from a final decision of the
Supreme Court of the State of California (with three
of the seven Justices dissenting) upholding the validity
of an administrative regulation enacted by the California
Agricultural Labor Relations Board: California Ad-
ministrative Code, Title 8, Part Il, Chapter 9, Sections
20900-20901. This regulation was challenged, inter alia,
on the grounds that it deprived Appellants of property
without due process of law, in violation of the Fifth
and Fourteenth Amendments to the Constitution of
the United States.
The decision of the Supreme Court of the State
of California was entered on March 4, 1976. Notice
of Appeal to this Court was filed with the clerk of
the Supreme Court of the State of California on March
8, 1976. (A copy of the Notice of Appeal is attached
hereto as Appendix B.)
The Supreme Court has jurisdiction to review this
case on direct appeal pursuant to 28 U.S.C. § 1257(2).
The following decisions sustain the jurisdiction of the
Supreme Court to review this case on direct appeal:
Williams v. Bruffy, 96 U.S. 176 (1877); Lake Erie
Railroad Co. v. State Public Utilities Commission, 249
U.S. 422 (1919); Live Oak Water Users Association
v. Railroad Commission of the State of California,
269 U.S. 354 (1926); Sultan Railroad and Timber
Co. v. Department of Labor and Industries of State
of Washington, 277 U.S. 135 (1928); Hamilton v.
Regents of the University of California, 293 U.S. 245
(1934); Erznoznik v. City of Jacksonville, 422 US.
205 (1975).
—
Question Presented.
Does an administrative regulation, which grants non-
employee union organizers an absolute right to enter
the private property, including working areas, of an
agricultural employer irrespective of the fact that other
means of communicating effectively with the employer's
employees are available, deprive Appellants of property
without due process of law, in violation of the Fifth
and Fourteenth Amendments to the Constitution of
the United States?
Constitutional and Statutory Provisions Involved.
This case involves the Fifth and Fourteenth Amend-
ments to the Constitution of the United States.
This case also involves California Administrative
Code, Title 8, Part II, Chapter 9, Sections 20900-
20901 (pp. 1051-1053), a copy of which is attached
hereto as Appendix C. This regulation provides in
pertinent part:
Ҥ 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 premises 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 com-
pletion 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
during the working day for the purpose of meeting
a
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 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 limited 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 ciaployer’s property or agri-
cultural 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 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.”
Statement of the Case.
On August 28, 1975, the Agricultural Labor Re-
lations Act (ALRA), California Labor Code, Section
1141 et seqg., went into effect. The ALRA, which
is modeled upon the National Labor Relations Act,
as amended, 29 U.S.C. § 141 ef seq., applies to labor
= =
relations between agricultural employers and employees
in the State of California, Agricultural employees are
specifically excluded from coverage under the National
Labor Relations Act, 29 U.S.C. § 152(3).
On August 29, 1975, the Agricultural Labor Re-
lations Board (ALRB), the agency charged with the
administration of the ALRA, adopted an administra-
tive regulation which grants to nonemployee union or-
ganizers the right to enter any agricultural employer’s
private property to organize employees—California Ad-
ministrative Code, Title 8, Part II, Chapter 9, Sections
20900-2090 1—(hereinafter referred to as the “access
regulation”). The regulation requires an employer to
grant such organizers access to working and nonwork-
ing areas of his property, during both working and
nonworking hours. Significantly, this right of access is
granted to nonemployee union organizers regardless of
whether other means are available by which such or-
ganizers can effectively reach and communicate with
an agricultural employer’s employees. Access to an
employer’s private property is required without any
showing whatsoever that it is needed by the union to
organize.
Appellants are agricultural employers in California
and are subject to the ALRA. Their properties are
private and posted against trespass. It is undisputed
that union organizers could communicate with Appel-
lants’ employees through various means other than by
entry upon Appellants’ private property. As found by
the United States District Court (Appendix D at 62):
“The evidence presented plainly demonstrates that
labor organizations seeking to organize and repre-
sent Plaintiffs’ agricultural employees have avail-
a
able numerous means of contacting and com-
municating with Plaintiffs’ agricultural employees
outside the private property and particularly the
agricultural fields of Plaintiffs.”
On September 3, 1975, Appellants filed suit in the
United States District Court for the Eastern District
of California at Fresno seeking declaratory and injunc-
tive relief against the application and enforcement of
the access regulation and requesting the convening of
a three-judge court. On that same date, Judge M.
D. Crocker issued a Temporary Restraining Order (a
copy of which is attached hereto as Appendix D)
enjoining and restraining Appellees from “applying,
implementing, and/or enforcing” the access regulation.
In that Order, Judge Crocker found that:
“{T]|hese Emergency Regulations violate the Fifth
and Fourteenth Amendments of the Constitution
of the United States in that they deprive Plaintiffs
of their property without due process of law and
also constitute a taking of Plaintiffs’ property for
public use without just compensation. In addition,
these Emergency Regulations are constitutionally
overbroad in violation of the Fifth and Fourteenth
Amendments of the United States Constitution
in that even if Plaintiffs were required to grant
access to non-employee union organizers—and this
Court has found that such access is not required—
the Emergency Regulations require access at im-
permissible times and locations and do not properly
minimize the invasion of Plaintiffs’ private property
by non-employee union organizers.” (Appendix
D at 62-63.)
_
On September 5, 1975, the three-judge District Court
issued an Interim Order continuing in effect the Tem-
porary Restraining Order until 12:00 noon on Septem-
ber 10, 1975, and stating that the court would “abstain
from adjudicating all issues in this case until they
are determined by the state courts of the State of
California.” (A copy of this Order is attached hereto
as Appendix E.)' On September 10, 1975, the three-
judge court issued an Order (a copy of which is
attached hereto as Appendix F) in which it retained
jurisdiction, stating:
“Since this case raises questions involving possible
impairment of Federal Constitutional rights, this
court continues to maintain jurisdiction. Upon ap-
plication of any party, the court will consider
whether further orders should be made in the
exercise of such jurisdiction.” (Appendix F at
68.)
In accordance with the three-judge court’s Order,
Appellants filed suit in the Superior Court of California
in and for the County of Tulare, challenging the con-
stitutionality of the access regulation under the Fifth
and Fourteenth Amendments to the Constitution of
the United States and also challenging the regulation
on various state law grounds. On September 10, 1975,
that court issued an Order to Show Cause and Tempo-
1On September 10, 1975, Appellants filed with this Court
an Application for a Stay and for Continuance of the Temporary
Restraining Order, which was denied by Mr. Justice Douglas
on September 28, 1975. Pandol & Sons and Jasmine Vineyards,
Inc. v. Edmund G. Brown, Jr., Governor of the State of
California, et al., No. A-222.
rary Restraining Order enjoining and restraining Appel-
lees from “applying, implementing, and/or enforcing”
the access regulation. (A copy of this Order is attached
hereto as Appendix G.) On that same date, the Superior
Court of California in and for the County of Fresno,
in an unrelated action brought by a group of agricul-
tural employers, issued a Peremptory Writ of Mandate
and a Declaratory Judgment in which it decreed that
the access regulation “is an unconstitutional infringe-
ment upon Plaintiffs’ property rights as guaranteed
by the California and United States Constitutions.”
(Copies of these Orders are attached hereto as Appen-
dices H(1) and H(2).)
On September 12, 1975, the ALRB filed with the
Supreme Court of the State of California a Petition
for a Writ of Prohibition and/or Writ of Mandate,
which sought an order prohibiting the Superior Courts
for the Counties of Tulare and Fresno from taking
any further action, including the enforcement of their
outstanding Orders, an immediate stay against the en-
forcement of the Orders of said courts, and other
and further relief. On September 18, 1975, the Supreme
Court of the State of California stayed the Orders
of the Superior Courts pending its decision on the
ALRB’s Petition for a Writ of Prohibition and/
or Writ of Mandate. On October 29, 1975, the
Supreme Court of the State of California issued an
Alternative Writ of Mandamus directing the Superior
Courts to set aside their Orders or in the alternative
to show cause why a Peremptory Writ of Mandate
should not issue.
On March 4, 1976, the Supreme Court of the State
of California (with three of its seven Justices dissent-
ing) issued its decision, holding that the access regula-
i
ee
cuties
tion was not invalid under California law, did not
violate Appellants’ rights under the United States and
California Constitutions, and directing that a Peremp-
tory Writ of Mandate issue.
The majority decision, although recognizing that the
access regulation inevitably requires that an employer
grant to nonemployee union organizers access to his
private property even where access is unnecessary to
enable such organizers to effectively communicate with
his workers, upheld the validity of the regulation.
The court ruled that this admittedly unnecessary
infringement of an employer’s property rights was per-
missible because property rights were not “fundamental
personal liberties.” Stating that the decisions of this
Court were silent on the issue, the court held that the
required accommodation between an employer’s prop-
erty rights and the right of access to that property by
union organizers need not be made on a case-by-case
basis, but could be resolved by a general regulation of
state-wide applicability.
The dissent concluded that prior decisions of this
Court required a balancing between these competing
interests and that the resulting accommodation must
necessarily be on a case-by-case basis in order to satisfy
the constitutional mandate of this Court’s decision in
NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956),
that “accommodation between the two [organizational
rights and property rights] must be obtained with as
little destruction of one as is consistent with the mainte-
nance of the other.” Appendix A at 52. The dissent
also concluded that “by permitting . . . access to work-
ing areas, the board’s regulation is contrary to Babcock
and Central Hardware... .”
= =
The Federal Questions Are Substantial.
The issues presented by this appeal involve the ac-
commodation of the statutory right of employees to
engage in union organizational activities with the con-
stitutional right of employers to the use and control
of their private property. These identical issues were
dealt with by this Court in NLRB v. Babcock & Wilcox
Co., 351 U.S. 105 (1956), and Central Hardware Com-
pany v. National Labor Relations Board, 407 U.S. 539
(1972).* The decision below is an unprecedented de-
parture from the rule announced by this Court in those
cases and raises significant questions of constitutional
law and public policy.
As the California Supreme Court stated, “the issues
presented are of great public importance and must
be resolved promptly.” Appendix A at 9. Because of
the national scope of union organizing activities in
agriculture and the national impact of these activities
by way of widely publicized product boycotts, these
issues are important to agricultural employers, employ-
ees, and unions, not only in California, but throughout
the country.
The issues are also of great importance to persons
covered by the National Labor Relations Act, for if
the ALRB has the constitutional authority to adopt
a general access regulation requiring employers to allow
nonemployee union organizers on their property without
any showing of need, the National Labor Relations
"It is true that in Babcock and Central Hardware the source
of the statutory rights was federal law. However, Section 1152
of the ALRA, the provision of California law which is the
basis for employee organization rights (and which is cited
as such in the access regulation itself), is identical to Section
7 of the National Labor Relations Act, 29 U.S.C. § 157.
—
Board would have such authority as well. For this
reason, the case also is of importance to persons ¢xX-
cluded from coverage under the National Labor Rela-
tions Act, but covered by various state labor relations
statutes.
As to the constitutional questions raised by the access
regulation, there can be no question that they are sub-
stantial. Judge M. D. Crocker, of the United States
District Court, ruled that the regulation is unconstitu-
tional. The three-judge United States District Court
retained jurisdiction over the case because it “raises
questions involving possible impairment of Federal Con-
stitutional rights.” Two California Superior Courts also
found that the regulation is unconstitutional. Finally,
both the majority and the dissent in the California
Supreme Court dealt at length with the constitutional
issues in their opinions.
A. The Constitutional Standard Requires the Accommodation
of Conflicting Rights.
In NLRB v. Babcock & Wilcox Co., 351 U.S. 105
(1956), this Court reversed NLRB decisions requiring
employers to permit nonemployee union organizers to
enter and use the employers’ private property for organi-
zational purposes, holding:
“Organization rights are granted to workers by
the same authority, the National Government, that
preserves property rights. Accommodation between
the two must be obtained with as little destruction
of one as is consistent with the maintenance of
the other. The employer may not affirmatively
—
interfere with organization; the union may not
always insist that the employer aid organization.
But when the inaccessibility of employees makes
ineffective the reasonable attempts by nonem-
ployees to communicate with them through the
usual channels, the right to exclude from property
has been required to yield to the extent needed
to permit communication of information on the
right to organize.
* * *
“[I]f the location of a plant and the living quarters
of the employees 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.” 351
U.S. at 112-113.
The Court made clear, however, that where such
inaccessibility cannot be shown, a quite different rule
applies:
“[A]n employer may validly post his property
against nonemployee distribution of union litera-
ture 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.” Jd. at 112.
Applying this principle to the cases before it, this
Court held that the employers were not required to
permit nonemployee union organizers to come onto
private parking lots since other means of communicating
with the employees were available.
= =
In Central Hardware Company v. NLRB, 407 U.S.
539 (1972), this Court again reversed an NLRB deter-
mination that access by nonemployee organizers was
required and held that such persons did not have a
constitutional or statutory right of entry to an employer’s
parking lot even though the parking lot was open to
the public. The principles originally expressed in Bab-
cock were clearly affirmed:
“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 organi-
zation campaign. Moreover, the allowed intrusion
on property rights is limited to that necessary
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 nonwork-
ing areas of the employer’s premises; and (iii) the
duration of organization activity. In short, 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 544-545.
These principles were recently reaffirmed by this
Court in Scott Hudgens v. NLRB, ........ ) Se
96 S.Ct. 1029 (1976). See also, Lloyd Corporation Ltd.
v. Tanner, 407 U.S. 551 (1972).
—-
B. A Case-by-Case Determination Is Coustitutionally Required.
Applying these principles to the present case, it is
clear that the access regulation cannot stand, for the
constitutionally required accommodation cannot be
made by general regulation. Ouly a case-by-case determi-
nation will insure that any “yielding” of property rights
is “temporary and minimal” and that the accommoda-
tion between organization rights and property rights
is “obtained with as little destruction of one as is
consistent with the maintenance of the other.” To justify
an infringement of an employer’s property rights, there
must be a showing in each case that such an infringe-
ment is necessary because alternative means of com-
municating with the employees, means which do not
infringe on the employer’s property rights, are not avail-
able.
The National Labor Relations Board has never at-
tempted to deal with the subject of access by non-
employee union organizers through a general regulation.
The reason is that a case-by-case approach is constitu-
tionally required:
“The balance envisioned by Babcock & Wilcox
appears to be one which requires case-by-case ad-
judication.
* * *
“[A]|ny question of access must involve a counter-
balancing of the employer’s property rights which
will vary in importance, depending on the character
—15—
of the property and the extent to which it is
open to the public.
“The multiplicity of the potential combination
of relevant factors amd the possible presence of
certain special circumstances limit the practicability
of Board action by rule-making.” Broomfield, “Pre-
emptive Federal Jurisdiction Over Concerted Tres-
passory Union Activity,” 83 HARV. L. REV.
552, 573, 575-576 (1970).
Even as to employers in a particular industry or
of a particular type or size, the NLRB has never adopted
a general rule. Indeed, the NLRB and the courts have
required nonemployee organizers to be given access to
one employer’s property but not to the property of
another employer in the same industry. Compare NLRB
v. S & H Grossinger’s, Inc., 372 F.2d 26 (2d Cir.
1967), with NLRB v. Kutsher’s Hotel & Country Club,
Inc., 427 F.2d 200 (2d Cir. 1970) [involving resort
hotels in the Catskill Mountains]; NLRB v. Sioux City
& New Orleans Barge Lines, Inc., 472 F.2d 753 (8th
Cir. 1973), with NLRB vy. Cities Service, 122 F.2d
149 (2d Cir. 1941) [involving ships’ crews].
The California Supreme Court rejected the need
for a case-by-case analysis, stating that Babcock and
Central Hardware are silent on the subject. Ap
pendix A at 20. To be sure those cases did not present
this Court directly with the question of whether access
could be required by means of a general regulation.
However, this Court expressly recognized in Babcock
=
that “[t]his is not a problem of always open or always
closed doors for union organizers on company prop-
erty” and “the union may not always insist that the
employer aid organization.” 351 U.S. at 112. Similarly,
Babcock held that the balance to be struck “does
not require that the employer permit the use of its
facilities for organization when other means are readily
available.” 351 U.S. at 114. Because the access regula-
tion requires an employer in all cases to open the
door for union organizers on his property, even where
“other means are readily available,” it clearly is at
odds with Babcock.
Indeed, Babcock and Central Hardware admit to
no interpretation other than requiring balancing on a
case-by-case basis. This was expressly recognized by
the three dissenting Justices, who noted:
“This court is apparently the only court unable
to grasp that the appropriate standard for review
is one of balancing and not of rational relation-
ship.
* * *
“If this were otherwise then the United States
Supreme Court’s use of the word ‘accommodate’
is meaningless, as is the federal Courts of Appeals’
continual use of a balancing approach.” Appendix
A at 52.
= =
In view of the undisputed availability to unions
of effective alternative means of communicating with
Appellants’ employees, it is clear that application of
the access regulation to Appellants runs counter to
the balancing process mandated by Babcock and Central
Hardware. Thus, as applied to Appellants, rather than
balancing competing interests, the access regulation vi-
tiates their property rights without any significant en-
hancement of organizational rights.
C. The California Supreme Court Applied an Incorrect Standard
of Review. :
The majority of the California Supreme Court held
that because the ALRB chose to act by means
of a general regulation rather than by making a case-
by-case determination, the test to be applied by a
reviewing court was whether the regulation “has a
reasonable relation to a proper public purpose and
is neither arbitrary nor discriminatory.” Appendix A
at 21. According to the majority, this departure from
the balancing standard mandated by Babcock and Cen-
tral Hardware is proper because “the access rule is
not a deprivation of ‘fundamental personal liberties’
but a limited economic regulation of the use of real
property imposed for the public welfare. (Cf. Village
of Belle Terre v. Boraas (1974) 416 U.S. 1, 7-8,
94 S.Ct. 1536, 39 L.Ed.2d 797).” Appendix A at
21.
In view of Babcock and Central Hardware, which
specificaily deal with the issues presented, the reliance
upon Belle Terre, a zoning case, is clearly misplaced.
Moreover, under the approach of the majority decision,
the NLRB could have required the employers in Bab-
cock and Central Hardware to open their parking
lots to nonemployee union organizers simply by adopting
— =
a general access regulation, thus accomplishing precisely
what this Court held to be constitutionally impermis-
sible.
Additionally, the rationale asserted by the California —
court for its departure from Babcock and Central
Hardware is clearly erroneous:
(1) “[T]he access rule is not a deprivation of ‘funda-
mental personal liberties’. . . .” Precisely the opposite
conclusion was reached by this Court in Lynch v.
Household Finance Corp., 405 U.S. 538, 552 (1972):
“T]he dichotomy between personal liberties and
property rights is a false one. Property does not
have rights. People have rights. The right to enjoy
property without unlawful deprivation, no less
than the right to speak or the right to travel,
is in truth, a ‘personal’ right, whether the ‘prop-
ert,’ in question be a welfare check, a home,
or a savings account. In fact, a fundamental inter-
dependence 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. .. .”
See also Lloyd Corporation Ltd. v. Tanner, 407
U.S. 551 (1972).
(2) “[T]he access rule is . . . a limited economic
regulation of the use of real property imposed for
the public welfare.” The dissent provides the correct
response:
“In promulgating 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—nonem-
ployee organizers.” Appendix A at 52.
— =
Even if organizers employed by private labor unions
were viewed as serving a public purpose, that purpose
is not as strong or direct as is served by building
inspectors or fire inspectors employed by public agen-
cies. This Court, however, has not permitted such per-
sons access to private property absent a court issued
warrant showing the need to enter particular premises.
Camara v. Municipal Court, 387 U.S. 523 (1967);
See v. City of Seattie, 387 U.S. 541 (1967). It is,
at the least, anomalous to give to private persons
rights of entry on to private property which public
officials serving indisputably public purposes do not
have. Yet, in California while a building inspector
must obtain a warrant before entering private property,
a union organizer is free to enter property where agri-
cultural employees are working without any showing
of need whatsoever.
D. The Access Regulation Is Unconstitutional on Its Face.
In Central Hardware Company v. NLRB, 407 US.
539, 545 (1972), this Court established the following
limitations on the right of access:
“After the requisite need for access to the em-
ployer’s property has been shown, the access is
limited to (i) union organizers; (ii) prescribed
nonworking areas of the employer's premises; and
(iii) the duration of organization 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 require
is both temporary and minimal.” (Emphasis add-
ed.)
onlin:
The access regulation exceeds these limitations by:
(1) not restricting access to nonworking 2reas, in
direct violation of limitation (ii), as was noted by
the dissent, Appendix A at 46;°
(2) not restricting access to the duration of organ-
ization activity, in direct violation of limitation (iii) ;*
(3) not restricting access to nonworking time so
as to minimize the yielding of property rights;
(4) failing to effectively limit the number of union
organizers allowed access to the employer’s premises
since there is no maximum number of unions that
can claim access.
Thus, despite the California Supreme Court’s char-
acterization of the regulation as creating a “qualified”
right of access, the qualifications do not meet the
standards established by this Court. Even if adoption
of a general regulation on this subject was permissible,
the access regulation still would be unconstitutionally
overbroad.
E. The Access Regulation Establishes an Unconstitutional
Irrebuttable Presumption.
The access regulation establishes a presumption that
reasonable alternate means of communication with agri-
cultural employees are unavailable to labor unions.
3In all of the cases cited by the California Supreme Court
in which access to nonemployee union organizers was required
because of the unavailability of alternative means of communica-
tion, the access was limited to nonworking areas. In no case
have the NLRB or the courts granted access to working areas:
“Concerted activity of any kind within working or selling
areas of the employer’s establishment presents the clearest
situation for a rule prohibiting non-employee concerted
activity. . . .” Broomfield, “Preemptive Federal Jurisdiction
Over Concerted Trespassory Union Activity,” 83 HARV.
L. REV. 552, 572 (1970).
‘Under the access regulation, nonemployee union organizers
have the right to come onto property after a
representation election has been held.
aiiian
This presumption does more than simply shift the bur-
den of proof. It establishes a conclusive and irrebuttable
presumption that access is required in the case of
every agricultural employer. No opportunity is allowed
to demonstrate that in a particular case other means
of communicating with employees exist and that, there-
fore, access is not required. Even if other means exist
by which a union can communicate with an agricultural
employer's employees, access to his private property
is nonetheless required. On several recent occasions
this Court has indicated that such irrebuttable presump-
tions are constitutionally suspect:
“Statutes creating permanent irrebuttable pre-
sumptions have long been disfavored under the
Due Process Clauses of the Fifth and Fourteenth
Amendments.” Viandis v. Kline, 412 U.S. 441,
446 (1973).
The rationale for this suspect treatment is that, while
a state may have an interest in facilitating the achieve-
ment of its legislative aims, this interest cannot be
advanced at the expense of individual rights. For this
reason, in Stanley v. Illinois, 405 U.S. 645 (1972),
this Court struck down as violative of due process
a state statute which conclusively presumed that all
unmarried fathers were unfit parents and allowed no
opportunity to disprove this presumption:
“The establishment of prompt efficacious pro-
cedures to achieve legitimate state ends is a proper
state interest worthy of cognizance in constitutional
adjudication. But the Constitution recognizes high-
er values than speed and efficiency. Indeed, one
might fairly say of the Bill of Rights in general,
and the Due Process Clause in particular, that
a
they were designed to protect the fragile values
of a vulnerable citizenry from the overbearing
concern for efficiency and efficacy that may char-
acterize praiseworthy government officials no less,
and perhaps more, than mediocre ones.
“Procedure by presumption is always cheaper
and easier than individualized determination. But
when, as here, the procedure forecloses the deter-
minative issues of competence and care, when
it explicitly disdains present realities in deference
to past formalities, it needlessly risks running
roughshod over the important interests of both
parent and child. It therefore cannot stand.” (foot-
note omitted) Jd. at 656-657.
A similar result was reached in Vlandis v. Kline,
supra, where the Court struck down a state statute
establishing a conclusive presumption of nonresidency
for purposes of tuition at the state university. In doing
so, this Court noted that the interest in administrative
ease was not sufficient to justify a conclusive presump-
tion where other means were available to make the
crucial factual determination:
“The State’s interest in administrative ease and
certainty cannot, in and of itself, save the con-
clusive presumption from invalidity under the Due
Process Clause where there are other reasonable
and practicable means of establishing the pertinent
facts on which the State’s objective is premised.”
412 US. at 451.
See also United States Department of Agriculture v.
Murry, 413 U.S. 508 (1973); Cleveland Board of
Education v. LaFleur, 414 U.S. 632 (1974).
—-— =
The rationale of these cases is equally applicable
to the present case. The presumption that access is
required in the case of every agricultural employer
is far from being universally true, as demonstrated
by the undisputed facts relating to Appellants. Yet,
the presumption is irrebuttable and precludes agricul-
tural employers, including Appellants, from proving
facts to the contrary. Moreover, other reasonable meth-
ods are available for making the required factual deter-
mination. Specifically, the ALRB could utilize the same
case-by-case approach as is utilized by the NLRB,
which has a vastly larger jurisdiction. In short, the
access regulation establishes a presumption which,
though contrary to fact, is irrebuttable. This presump-
tion is established despite the availability of a tried
and tested means of making the crucial factual deter-
mination. For these reasons, it is apparent that the
access regulation is violative of the constitutional stand-
ard of due process.
Conclusion.
The present case presents a substantial federal ques-
tion. Accordingly, this Court should note Probable
Jurisdiction.
Respectfully submitted,
JosEPH HERMAN,
GEORGE PREONAS,
JOEL KAPLAN,
Attorneys for Appellant.
= ie
ra
eed
- co =
APPENDIX A
Opinion.
Agricultural Labor Relations Board et al., Petitioners,
v. The Superior Court of Tulare County et al., Respond-
ents; Pandol & Sons et al., Real Parties in Interest.
[S.F. No. 23349. In Bank. Mar. 4, 1976.].
SUMMARY
The Supreme Court granted the petition of the state
Agricultural Labor Relations Board for an original
writ of mandate to compel trial courts in two counties
to vacate various orders enjoining enforcement of an
administrative regulation adopted pursuant to rule mak-
ing power granted the board by Lab. Code, § 1144,
which permitted qualified access to agricultural property
by farm labor organizers. The court first rejected the
growers’ contention that the regulation deprived them
of property rights without due process of law and
constituted a taking of those rights without just compen-
sation in violation of Cal. Const., art. I, §§ 1, 7,
subd. (a), 19, and U.S. Const., 5th and 14th Amends.
It held that the rule of federal cases, that if the
circumstances of employment place employees beyond
the reach of reasonable union efforts to communicate
with them, the employer must allow the union to ap-
proach his employees on his property, was dispositive
of the federal constitutional issues and that the cited
sections of the California Constitution guarantee no
greater rights to California property owners than do
their federal counterparts. It further held that there
anbiiien
is no constitutional requirement that the determination
of employee inaccessibility be made on a case-by-case
basis rather than by a rule of general application.
The court then discussed the growers’ assertion that
the Legislature, in enacting the Agricultural Labor
Relations Act set forth in Lab. Code, § 1140 et seq.,
had manifested, both by action and inaction, an intent
to prohibit access by union organizers to growers’ prem-
ises. In rejecting that assertion, the court referred to
the general rule making power granted the board by
Lab. Code, § 1144, and the provision of Lab. Code,
§ 1148, directing the board to follow applicable prece-
dents of the National Labor Relations Act. In view
of the different situation existing with respect to farm
labor as opposed to industrial labor; however, the court
held that the federal practice of deciding access ques-
tions on a case-by-case basis did not preclude the
state board from creating a limited right of access
by means of its detailed and specific regulation. In
rejecting the growers’ final contention that the access
regulation invalidly conflicted with the general criminal
trespass statute, the court held that the Legislature
intended the board to structure a qualified right of
entry onto agricultural property for organizational pur-
poses and that the access regulation therefore prevailed,
as a specific provision, over the general trespass statute.
(Opinion by Mosk, J., with Wright, C. J., Tobriner
and Sullivan, JJ., concurring. Separate dissenting opin-
ion by Clark, J., with McComb and Richardson, JJ.,
concurring. )
COUNSEL
Walter L. Kintz, Jerrold C. Schaefer, Byron S. Geor-
giou, Ruth Friedman, Ronald Greenberg, Maurice Jour-
dane, Ellen Lake, Alberto Saldamando and Gustin
L. Reichbach for Petitioners.
ssnfiiens
Dennis M. Perluss, Mark D. Rosenbaum, Fred Okrand,
Daniel C. Lavery, Jill Jakes and Mary Ellen Gale
as Amici Curiae on behalf of Petitioners.
No appearance for Respondents.
Seyfarth, Shaw, Fairweather & Geraldson, Joseph Her-
man, Michael M. Machan, Thomas, Snell, Jamison,
Russell, Williamson & Asperger, Jay V. Jory, Littler,
Mendelson & Fastiff, J. Richard Thesing, George J.
Tichy II, Jordan L. Bloom, Nancy L. Ober and Gary
P. Scholick for Real Parties in Interest.
Jay W. Powell, District Attorney (Tulare), as Amicus
Curiae.
OPINION
MOSK, J.— The state Agricultural Labor Relations
Board (ALRB) petitions for an original writ of man-
date to compel respondent Superior Courts of Tulare
and Fresno Counties to vacate various orders enjoining
enforcement of an administrative regulation which per-
mits qualified access to agricultural property by farm
labor organizers. We have concluded that the regulation
is valid and the board is entitled to the relief requested.
On August 28, 1974, 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 agricul-
tural fields by guaranteeing justice for all agricultural
workers and stability in labor relations. [4] This enact-
ment is intended to bring certainty and a sense of
fair play to a presently unstable and potentially 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.)
ee
cutlion
To achieve this goal, the act declares the right of
agricultural employees to organize themselves into un-
ions and to engage in collective bargaining, free from
intimidation by either employers or union representa-
tives. 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-organiza-
tion, and designation of representatives of their own
choosing, to negotiate the terms and conditions of
their employment, and to be free from the interference,
restraint, or coercion of employers of labor, or their
agents, in the designation of such representatives or
in self-organization or in other concerted activities for
the purpose of collective bargaining or other mutual
aid or protection. For this purpose this part [i.e.,
the ALRA| is adopted to provide for collective-bargain-
ing rights for agricultural employees.”
Remaining provisions of the act implement this legis-
lative intent in two principal ways. First, chapter 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-organization by farm
workers, to favor any union over another, to discrimi-
nate against any worker for asserting his rights under the
statute, or to refuse to bargain in good faith with
1Section 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 pur-
pose of collective bargaining or other mutual aid or protec-
tion, 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.)
—~ =
the certified representative union. (Lab. Code,
§ 1153.)?
Secondly, chapter 5 sets forth elaborate provisions
for elections by secret ballot to determine the representa-
tive union for collective bargaining purposes. “Recogniz-
ing that agriculture is a seasonal occupation for a
majority of agricultural employees” (§ 1156.4), the
act authorizes such elections only during peak harvest
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 placed on the
ballot. The ballots are printed in English, Spanish, and
any other language requested. Once authorized an
election is quickly held: within 48 hours in 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 powers
and responsibilities of administration, particularly in
conducting and certifying elections and in investigating
and preventing unfair labor practices. On the latter
subject chapter 6 begins by declaring (§ 1160) that
“The board 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: adminis-
2The provisions of section 1153 are ciosely modeled on
those of section 8 of the NLRA. (Now 29 U.S.C. § 158.)
a ee Oe es
_—
trative complaint (§ 1160.2), cease and desist, order
(§ 1160.3), temporary restraining order (§ 1160.4),
injunctive relief (§ 1160.6), and enforcement orders
from both the superior courts and the Courts of Appeal
(§ 1160.8).
In addition to its adjudicatory and executive powers,
the board is vested with express legislative authority;
section 1144 delegates to the board the power to make,
amend, and repeal “such rules and regulations as may
be 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. II, § 20100 et seq.) Among those provisions
is the regulation here in issue, which grants a qualified
right of access to growers’ premises by farm labor
organizers. (Cal. Admin. Code, tit. 8, pt. II, 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 con-
duct is forbidden, other than speech, which is “disruptive
of the employer’s property or agricultural operations,
including injury to crops or machinery.”
3The 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. e,
§ 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.
‘The relevant portions of the regulation read as follows:
“5. Accordingly, the Board will consider the rights of em-
ployees under Labor Code Sec. 1152 [fn. 1, ante] to include
the right of access by union organizers to the premises 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
oil
Two groups of growers, real parties in interest herein,
filed actions in the Fresno and Tulare Superior 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 constitu-
tional and statutory grounds. At the same time the
Tulare Superior Court issued a temporary restraining
order prohibiting the board from enforcing the regula-
tion, and set a hearing on an order to show cause
why an injunction to thai -ffect should not be issued.
Upon application and appropriate showing by the board,
60 minutes after the completion of work to meet and talk
with the employees in areas in which employees congregate
before and after working.
“b. In addition, — rs may enter the employer’s pr
erty for a total peri 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.
“ce, Access shall be limited 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.
ee ee Se ee 8 ye ee a tion of
“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
considered disruptive conduct. Disruptive conduct by particular
organizers 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 wo J after the results an election held pursuant
to this act have been certified.”
-~ =
we stayed the effect of the respective superior court
rulings pending final determination of this proceeding
for writ of mandate.
I
(la) The remedy is proper. The challenged rulings
of respondent courts are primarily injunctive in effect.
The codes, embodying a settled principle of equity
jurisprudence, prohibit the granting of injunctive relief
“To prevent the execution of a public statute by officers
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 Retirement
(1968) 260 Cal.App.2d 445, 450 [67 Cal.Rptr. 185],
and cases cited.) It is true the rule prohibiting such
an injunction does not operate when the statute which
is stayed is unconstitutional or otherwise invalid. (Con-
over v. Hall (1974) 11 Cal.3d 842, 850 [114 Cal.
Rptr. 642, 523 P.2d 682].) As will appear, however,
we have concluded that the access regulation is 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.)
(2) When a court’s discretion can legally be exer-
cised in only one way, mandate will lie to compel
==
that exercise if there is no adequate remedy at law.
(Babb v. Superior Court (1971) 3 Cal.3d 841, 851
[92 Cal.Rptr. 179, 479 P.2d 379].) (1b) The absence
of an adequate remedy at law was determined herein
when we issued the alternative writ. (/bid.) Accord-
ingly, mandate is an appropriate remedy to compel
respondent courts to vacate their orders invalidating
and enjoining 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 jurisdiction 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
importance and must be resolved promptly.’” (Clean
Air Constituency v. California State Air Resources
Bd. (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].)
II
(3) We begin with the constitutional issues. The
real parties in interest contend 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 com-
pensation. (Cal. Const., art. I, §§ 1, 7 subd. (a),
and 19; U.S. Const., 5th and 14th Amends.) As will
appear, however, the constitutional challenge comes
many years 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
Fee aE
niin
the decisions are not in point. In each a divided court
held that the constitutional guarantee of free speech
was not violated by the refusal of a shopping center
to permit distribution on its property of antiwar (Lloyd)
or antipollution (Diamond) handbills. 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 conven-
ient 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 organize into representative units pursuant to a
specific governmental policy of encouraging collective
bargaining. 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 Su-
preme 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 court (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 scarcely 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 importance
of the constitutional guarantees attaching to private
ownership of property; but as long as 50 years ago
it was already “ ‘thoroughly established in this country
— =
that the rights preserved to the individual by these
constitutional provisions are held in subordination to
the rights of society. Although one owns property,
he may not do with it as he pleases any more than
he may act in accordance with his personal desires.
As the interest of society justifies restraints upon individ-
ual conduct, so, also, does it justify restraints upon
the use to which property may be devoted. 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 detriment 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 interest of the individ-
ual conflicts with the interest of society, such individual
interest is subordinated to the general welfare. . . .
[1 }ncidental damages to property resulting from govern-
mental activities, or laws passed in the promotion of
the public welfare are not considered a taking of the
propurty 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 corresponding
provisions of the federal Constitution. (See, e.g., 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 to 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
cnlitiins
past conditions which do not cover and control present-
day conditions obviously calling for revised regulations
to promote the health, safety, morals, or general 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 in-
tellectual 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 modern social
legislation has added many others—e.g., building codes,
zoning restrictions, land use planning, and urban re-
development—which are far more pervasive in their
effect on the rights of property owners. Thus, an emi-
nent 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 ownership 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 been redefined in response
to a swelling demand that ownership be responsible
and responsive to the needs of the social whole. Property
rights cannot be used as a shibboleth to cloak conduct
which adversely affects the health, the safety, the mor-
als, or the welfare of others.” (/d., 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 recal-
— =
citrant 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 of property
rights has become a rallying cry in the field of labor
law. The traditional notion would seem to be 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 genera-
tions—may well be under increasing attack.” (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 Aviation
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
activity on company property.” (Gould, The Question
of Union Activity on Company Property (1964) 18
Vand.L.Rev. 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
‘In other settings our courts have looked to federal decisions
interpreting provisions of the NLRA similar to state law. (E.g.,
Los Angeles Met. Transit Authority v. Brotherhood of Rail-
road Trainmen (1960) 54 Cal.2d 684, 687-689 [8 Cal.Rptr.
1, 355 P.2d 905]; Petri Cleaners, Inc. v. Automotive Employees,
etc. 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].)
a ae
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 vy. Cities Service Oil Co.
(2d Cir. 1941) 122 F.2d 149, 152.] The Board has
frequently applied this principle in decisions involving
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 em-
ployees effectively to exercise their right to self-organiza-
tion and collective bargaining, .. .’” (Jd., at p. 802,
fn. 8 [89 L.Ed. at p. 1379].)°
The second landmark case on this topic is Labor
Board v. Babcock & Wilcox Co. (1956) 351 US.
105 [100 L.Ed. 975, 76 S.Ct. 679]. In contrast to
Republic Aviation, the union organizers excluded from
the employers’ premises in the three consolidated cases
®The reasoning in support of this conclusion was given in
the court’s quotation from an earlier NLRB decision in point
(Peyton Packing Company (1943) 49 N.L.R.B. 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 employee is on company property. It
is therefore not within the province of an employer to promulgate
and enforce a rule prohibiting 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 discriminatory in the absence
of evidence that special circumstances make the rule nec
in order to maintain production or discipline.” (324 U.S. at
pp. 803-804, fn. 10 [89 L.Ed. at p. 1380].)
ceive
decided in Babcock & 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 denying
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 distinc-
tion between employee and nonemployee organizers:
access to company property by the latter can be denied,
said the court, “if reasonable efforts by the union
through other available channels of communication will
enable it to reach the employees with its message. . . .”
(/d., at p. 112 [100 L.Ed. at p. 982].)’
By declaring the foregoing standard the court neces-
sarily rejected any claim that “property rights” of em-
ployers are paramount to their employees’ right to
have effective access to information assisting them in
their goal of self-organization: “The right of self-organi-
zation depends in some measure on the ability of
employees to learn the advantages of self-organization
from others.” (/d., at p. 113 [100 L.Ed. at p. 983].)
Rather, e nployers’ property rights must give way when-
ever the two interests are found to be in irreconcilable
conflict: “Organization rights are granted to workers
by the same authority, the National Government, that
7A second condition imposed by the court—i.e., prohibiting
discrimination against the union “by allowing other distribution”
—is not involved in the case at bar.
The court concluded that on the record of each of the
three cases before it the evidence did not support the board’s
finding of employee inaccessibility, and therefore declined to
decree enforcement.
—
preserves property rights. Accommodation between the
two must be obtained with as little destruction of
one as is consistent with the maintenance 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 been required
to yield to the extent needed to permit communication
of information on the right to organize.” (Jd., at p.
112 [100 L.Ed. at pp. 982-983].) (Accord, 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 employ-
ees pass their rest as well as their work time on
the employer’s premises, so that union organization
must proceed upon the employer’s premises or be ser-
iously handicapped.” (Fn. omitted.) (324 U.S. at p.
799 [89 L.Ed. at p. 1377]; see also Labor Board
v. Stowe Spinning 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 c>mps 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 usually
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 access, 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 con-
tacting them after the evening meal in any place other
than in the bunkhouses, union organization would as
a practical matter be seriously handicapped by restrict-
ing such activity to the recreation hall.” (/d., at p.
152.)(Accord, Alaska Barite Company (1972) 197
N.L.R.B. 1023 (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 employer operated ocean-
going oil tankers which entered United States ports
to discharge 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 section
7 of the NLRA. The Second Circuit 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 particu-
larly these oil tankers, which ordinarily remain in port
for a day only, afford less opportunity for investigation
of labor conditions than do factories where the em-
ployees 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 representatives
to assemble the unlicensed personnel either on shore
or on shipboard to discuss grievances or investigate
conditions. The Union must have the members of the
crew readily accessible in order to work to any real
advantage. . . .” (/d., at p. 151.) The court therefore
granted enforcement of the board’s order of access.
(Accord, Richfield Oil Corp. v. National Labor Rela-
tions Board (9th Cir. 1944) 143 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
foregoing cases. In N.L.R.B. v. S. & 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 employees 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 nonemployee 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. . . . [4] While
some organization work can be done by employees
—19—
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 & Wilcox as follows: “Here the majority
of the employees live on the employer’s premises. They
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 admission
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 in order to solicit
employees.” (/d., at p. 30.) (Accord, H. & G. Oper-
ating 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 ).)°
®The court added that the union’s attempts to reach the
employees as they drove through the gates to the resort were
ineffective because the cars did not stop there except briefly
for a traffic light, and in any event it was difficult or impossible
to distinguish between guests and employees in such circum-
stances.
°We oe that other federal circuit court decisions
have re to enforce NLRB orders of access. (See, e.g.,
N.L.R.B. v. Sioux City and New Orleans Barge Lines, Inc.
(8th Cir. 1973) 472 F.2d 753; N.L.R.B. v. New Pines, Inc.
(2d Cir. 1972) 468 F.2d 427; N.L.R.B. v. Tamiment, Inc.
(3d Cir. 1971) 451 F.2d 794; N.L.R.B. v. Kutsher’s Hotel
(This footnote is continued on next page)
—~ =
Thus the rule of Babcock & Wilcox, both as enunci-
ated 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.” (Italics 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 the federal constitutionality of access to agri-
cultural property under the challenged regulation of
the ALRB (cf. Petersen v. Talisman Sugar Corporation
(Sth 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 determination
of employee inaccessibility within the meaning of the
Babcock & Wilcox 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
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 communi-
cate with the employees or the alternative means of doing
so were effective.
— =
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.Ed.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 reasonable 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
US. 479, 488 [5 L.Ed.2d 231, 237, 81 S.Ct. 247]).
(4) That well-known principle, however, is not appli-
cable here: for the reasons stated at the outset, the
access rule is not a deprivation of “fundamental personal
liberties” but a limited economic regulation of the
use of real property imposed for the public welfare.
(Cf. Village of Belle Terre v. Boraas (1974) 416
US. 1, 7-8 [39 L.Ed.2d 797, 803-804, 94 S.Ct. 1536].)
It has long been settled that such a regulation satisfies
the due process clause if it has a reasonable relation
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 limita-
tions 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
board’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 unneces-
sary in order to effectively communicate with the work-
ers. This is inevitable, as the board candidly recognizes.
But it does not follow therefrom that the regulation
is unconstitutional. (5) “In the area of economics
and social welfare, the State does not violate the Equal
Protection Clause merely because the classifications
made by its laws are imperfect. If the classification
has some ‘reasonable basis,’ it does not offend the
Constitution simply because the classification ‘is not
made with mathematical nicety or because in practice
it results in some inequality.’ [Citation.] ‘The problems
of government are practical ones and may justify, if
they do not require, rough accommodations—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 con-
sistent with the due process requirement of the Fifth
Amendment.” (Richardson v. 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 individ-
ual property owners. (See, e.g., Associated Home Build-
ers, etc., 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 fundamental tenet 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 cer-
tain property owners can show that it causes them
unnecessary 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.
Ill
(6) An administrative regulation, however, must also
comport with various statutory prerequisites to validity.
At the outset we take note of certain principles which
govern our consideration of the matter; although 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. Wil-
liams (1967) 67 Cal.2d 733, 737 [63 Cal.Rptr. 689,
433 P.2d 697].) (7) 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 avihority 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 administra-
tive rules and regulations.” (Ralphs Grocery Co. v.
Reimel (1968) 69 Cal.2d 172, 175 [70 Cal.Rptr.
407, 444 P.2d 79].) And in considering whether the
regulation is “reasonably necessary” under the foregoing
standards, the court will defer to the agency’s expertise
and will not “superimpose its own policy judgment
upon the agency in the absence of an arbitrary and
capricious decision.” (Pitts v. Perluss (1962) 58 Cal.2d
824, 832 [27 Cal.Rptr. 19, 377 P.2d 83].)
(8a) 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 regulation
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 agricultural 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 regulation violates the
Legislature’s implied intent to prohibit such access,
assertedly manifested by both legislative action and
inaction. Neither branch of the contention is convincing.
As noted earlier, article 1 of chapter 2 of the act
prescribes the composition and general method of opera-
tion of the board; among its provisions is section 1148,
104 third inquiry—whether the regulation was adopted pur-
suant to proper procedure—is not an issue in this case.
endiiion
which declares in its entirety that “The board shall
follow applicable precedents of the National Labor Rela-
tions 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”) interpreting
the NLRA—holding, for example, that certain activi-
ties do or do not constitute unfair labor practices—but
also the rules of procedure of the NLRB. (9) In
our view the premise appears highly dubious. More
importantly, the board could reasonably construe section
1148 otherwise, and that is our only concern: “In
determining whether a specific administrative rule falls
within the coverage of the delegated power, the sole
function of this court is to decide whether the depart-
ment reasonably interpreted the legislative mandate.”
(Ralphs Grocery Co. v. Reimel, supra, at p. 176
of 69 Cal.2d.)
(8b) 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 tle Legislature
intended it to select and follow only those federal
precedents which are relevant to the particular problems
of labor relations on the California agricultural scene.
As we shall see, a case-by-case resolution of the question
of access appears inappropriate in that context.
More importantly, in the absence of an express statu-
tory 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 hoc 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
Corporation v. F. C. C. (2d Cir. 1973) 474 F.2d
724, 731; Alabama-Tennessee Natural Gas Co. v. Fed-
eral 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
This principle applies equally well to the NLRB. (See,
e.g., NLRB v. Bell Aerospace Co, (1974) 416 US. 267,
— =
the ALRB abused its discretionary powers as a duly
constituted administrative 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, empha-
sizing 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.) (10) Reliance is then placed
on the rule that “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 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 hoc
adjudication of the access issue.
294 [40 L.Ed.2d 134, 153-154, 94 S.Ct. 1757].) That agency,
however, has chosen to proceed on a 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 reluctance of the NLRB to promulgate any
rules or regulations whatever has been the subject of “substantial
and repeated scholarly and judicial criticism . . .” (Retail,
Wholesale 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; Bern-
stein, 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.)
———S ee
ofits
(8c) 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 non-
employee labor organizers to enter an employer’s prem-
ises for union purposes. But as we observed above,
the question whether such a right of access should
be resolved by regulation or by adjudication was not
presented in either decision, and the opinions are accord-
ingly silent on the matter. The teaching of. Babcock
& Wilcox and its progeny, rather, is simply that qualified
access to an employer’s premises must be granted when
the circumstances of employment render ineffective the
reasonable efforts of union representatives to communi-
cate 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 findings
disclose that the board did not adopt the NLRB practice
on the access question because it determined that signifi-
cant differences existed between the working conditions
of industry in general and those of California agricul-
ture. 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 congregated or through
which they regularly passed, and the employees could
not effectively be reached at permanent addresses or
enfiion
telephone numbers in the nearby community, or by
media advertising.
By contrast, the ALRB found that such conditions
are the rule 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, mailings,
or telephone calls are impossible in such circumstances.
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 ex-
pensive.
Nor is pamphleting or personal contact on public
property adjacent to the employer’s premises a reason-
able 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
ranch, driving directly onto the premises before unload-
ing; in such circumstances, pamphleting or personal
contact is again impossible. Thirdly, the testimony estab-
lished that a significant number of farmworkers read
and understand only Spanish, Filipino, or other lan-
Re ar ee a
onlin
guages from India or the Middle East. It is evident
that efforts to communicate with such persons by adver-
tising 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 circumstances, of course, printed
messages in handbills, mailings, or local newspapers
are equally incomprehensible.”
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.
12Ryen in the industrial context the true effectiveness of
“traditional” alternative methods of communicating with workers
has been seriously questioned. Thus the Second Circuit Court
of Appeals has observed that “The chances are negligible that
alternatives equivalent to solicitation in the plant itself would
exist. In the plant the entire work force may be contacted
by a relatively small number of employees with little expense.
The solicitors have the opportunity for personal confrontation,
so that they can present their message with maximum persuasive-
ness. In contrast, the predictable alternatives bear without excep-
tion 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 which passes with little
impact from mailbox to wastebasket. Television and radio ap-
peals, 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. News ad-
vertisements are subject to similar objections. Sidew and
street corners are subject to the vicissitudes of climate and
often force solicitation at awkward times, as when employees
are hurrying 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 Property (1964) 18 Vand.
L.Rev. 73, 99-100, 102-103.)
anfitives
(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. (/d., subd. (b).)
And both unions have only a few days thereafter
to explain their positions to the workers. In such
circumstances most of the channels of communication
which have been used in organizing industrial laborers,
and which were found sufficient in Babcock & Wilcox
and its progeny, are simply too slow to be effective.”
On the basis of the foregoing evidence the ALRB
formally found that “Generally, unions seeking to or-
ganize 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. Il, § 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 California
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 adjudication
or the adoption of an overly general rule would cause
further uncertainty and instability and create delay
in the final determination of elections.”
18For example, the board heard testimony that altho
the home addresses of farmworkers can be obtained from the
Department of Motor Vehicles on the basis of their automobile
license plate numbers, the process takes an average of two
weeks and costs $2 per name.
—~ =
We conclude from the foregoing that the decision
of the board to create a limited right of access 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.
In this connection the real parties also contend that
the regulation does not follow “applicable precedents”
of the NLRA under section 1148 because the right
of access it declares is assertedly not limited to non-
working 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 (i) union organizers;
(ii) prescribed nonworking areas of the employer's
premises; and (iii) the duration of organization
activity.” (Italics added.) The purpose of the empha-
sized 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 before 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 regulation
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 employees eat their lunch.” Although
this description may include working areas in certain
cases, access at all such locations is primarily restricted
to the nonworking period of the “lunch break” and
in any event the regulation expressly 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 quoted language of Central
Hardware, and cannot be deemed to contravene the
asserted implication of section 1148.
(11) 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 employers’
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 per-
mitted.
=’
The contention is not persuasive. At best, “Legislative
silence is a Delphic divination.” (Alabama-Tennessee
Natural Gas Co. v. Federal Power Com’n (Sth 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.3d 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 adapt-
ing a certain antipollution program declined to do
so even after the Legislature itself considered and re-
jected 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 com-
pared it becomes apparent that the absence of a specific
access provision in Senate Bill No. 1 is, if anything,
an indication that the Legislature intended to adopt
rather than reject the access principle. Assembly Bill
No. 1 contained a number of proposed sections declar-
ing various rights and duties derived from NLRA prece-
dents, including a specific right of access. Senate Bill
often
No. 1, however, adopted a different technique: instead
of listing the substance of NLRA precedents individ-
ually 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.
(12) 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 administrative 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 generall, —over concern for
increased gasoline consumption. In the cases cited in
Clean Air on this point (id., at pp. 816-817), adminis-
trative decisions of similar magnitude were involved.
In the case at bar the “fundamental policy determina-
tion” was n de by the Legislature when that body
decided, after much study and discussion, to grant
to agricultural workers throughout California the rights
of self-organization and collective bargaining so long
denied to them under federal law. Seen in the perspec-
tive 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 determina-
tion” within the meaning of the quoted rule.
IV
(13a) Taking a different tack, the real parties con-
tend the access regulation is invalid because it asserted-
ly conflicts with the general criminal trespass statute.
(Pen. Code, § 602.) The contention fails largely for
reasons we have already explored.
.14) It is settled that “Administrative regulations
that violate acts of the Legislature are void and no
protestations that they are merely an exercise of ad-
ministrative discretion can sanctify them. They must
conform to the legislative will if we are to preserve
an orderly system of government.” (Morris v. Williams
(1967) supra, 67 Cal.2d 733, 737.) Nor is the motiva-
tion of the agency relevant: “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].)
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., California
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.3d 669, 680-681
[94 Cal.Rptr. 279, 483 P.2d 1231]; California Sch.
Employees 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 regulation 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].)
(15) On the other hand, it is no less settled that
when a special and general statute are in conflict,
the former controls. (Code Civ. Proc., § 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.’” (Jn re Williamson
(1954) 43 Cal2d 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.) (13b)
This rule of construction is reiterated and specifically
made applicable to the ALRA in section 1166.3, sub-
division (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 Legislature 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 under a special
statute likewise prevails over the terms of a general
statute. The Legislature can surely accomplish indirectly
that which it could do directly.
The access rule here challenged is such a regulation.
For the reasons stated at length hereinabove, the incor-
poration 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 therefore
prevails over the general trespass statute, by operation
of both the foregoing rule of statutory construction
and the specific 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.3d 840].)
Let a peremptory writ of mandate issue as prayed.
Wright, C. J., Tobriner, J., and Sullivan, J., con-
curred.
CLARK, J.-—1I dissent.
The access regulation of the Agricultural Labor Rela-
tions Board is invalid on three grounds. First, federal
law has established that nonemployee organizers 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 Agricultural 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 communica-
tion are available, and in permitting 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
colin
the legislative function, and is thus invalid. Third,
the regulation constitutes an unwarranted infringement
on constitutionally 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 nonem-
ployees from distributing union literature on employer-
owned parking lots. The National Labor Relations
Board (labor board) ruled that the employers’ conduct
constituted an unfair labor practice. The labor board
based its ruling on a decision establishing that em-
ployees could use nonworking areas of the employer's
premises for organizational activities. (Republic Avia-
tion 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 distinction
between rules of law applicable to employees and those
applicable to nonemployees.” (351 U.S. at p. 113
[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 employer 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 Val-
ley’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 infringement of long-
settled rights of private property protected 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 nonemployee 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 in-
trusion on property rights is limited to that necessary
to facilitate the exercise of employees’ § 7 rights."
1Section 7 of the National Labor Relations Act is substantially
identical to Labor Code section 1152.
— =
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
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 fol-
lowed 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 prescribed 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 US. 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
employees to organize. That section contains language
identical to section 7 of the National Labor Relations
Act,” the section applied in Babcock and Central Hard-
ware. 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 ordi-
narily be presumed that the Legislature intended that
the language as used in the later enactment would
be given a like interpretation. This rule is applicable
to state statutes which are patterned after the federal
statutes. [Citations.]” (Los Angeles Met. Transit
Authority v. Brotherhood of Railroad Trainmen (1960)
54 Cal.2d 684, 688-689 [8 Cal.Rptr. 1, 355 P.2d
905].)
In Los Angeles Met. Transit Authority, as in the
instant case, the Legislature 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
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
2The operative language of section 1152 is identical to
section 7. The only difference between the statutes is that
section 7 cross-references to another federal statute while section
1152 cross-references, of course, to a state statute.
— =
construction of section 7. In Babcock and Central
Hardware, the United States Supreme Court construed
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 inescap-
able conclusion is that the Legislature intended the
board to apply the rule of Babcock and Central Hard-
ware, which denies access rights to nonemployee organ-
izers when reasonable alternative methods of communi-
cation are available.*
It is generally recognized that the Agricultural Labor
Relations Act of 1975 is a compromise among the
various interests. (Levy, The Agricultural Relations
Act of 1975—La Esperanza de California Para El
Futuro (1975) 15 Santa Clara Law, 783.) When
the competing interests agreed to compromise, the Legis-
lature 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
8The majority attempts to characterize the access regulation
as “limited in purpose, in a. and place, and in the number
of organizers. .” (Ante, p. ) But in ch
these as limitations, ‘the majority relies on the irrelevant. These
limitations in no way indicate the unavailability of alternative
means of communication—the very showing that must be made
before any access, Tegardless of how limited, is permitted. More-
over, 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 access regulation.
The elections must be held within seven days of the filing
of a petition si by a majority of the currently employes.
(Lab. Code, § 1156.3, subd. (a).) However, the access re
tion does not limit access to the period following the filing
of a petition. The regulation is thus open-ended and the infringe-
ment on property rights it sanctions—contrary to the majority’s
implication—is therefore neither limited in time nor is it minimal.
—_—
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 the highly de-
veloped federal law. This is clear from its adoption
of section 1152, which is substantially identical to
section 7 of the National 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 empower-
ing the board to adopt a right of access. The majority,
in finding a right of access, relies upon sections 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 specifi-
cation 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 board authority to create access rights.
It is manifestly unfair to the Legislature, in light
of the history and language of the act, to rely on
tederal 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 incorporation
of the federal law includes the duties, powers, limita-
tions, and standards.
— =
Although the board is given general rule-making
power, regulations adopted pursuant to this power must
conform to the legislative command requiring applica-
tion 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 implement, interpret,
make specific or otherwise carry out the provisions
of the statute, no regulation adopted is valid or effec-
tive unless consistent and not in conflict with the
statute. .. ” (Gov. Code, § 11374.) Our first duty,
therefore, is to determine whether the Administrator
exercised quasi-legislative authority within the bounds
of the statutory mandate. While the construction of
a statute by officials charged with its administration,
including their 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 responsi-
bility for the interpretation of the law rests with the
courts.’ (Whitcomb Hotel v. California Emp. Com.
(1944) 24 Cal.2d 753, 757 . .. , and authorities
there collected.) Administrative 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 . . .; First Industrial
Loan Co. v. Daugherty (1945) 2@ Cal.2d 545, 550
. .. see Brock v. Superior Court (1938) 11 Cal.2d
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 nonemployee
organizers whenever reasonable alternative means of
communication are available. Further, even when access
is allowed, it is 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 statutory 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 alterna-
tive means of communication in most cases does not
relieve the board of 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 com-
munication in most cases would justify the N.L.R.B.
from denying nonemployee access in all cases.
CONFLICT WITH 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 enclosed
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 possession. [4]
—_
(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 [4] (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, . . . [4] (1) Entering and occupy-
ing real property or structures of any kind without
the consent of the owner, his agent, or the person
in lawful possession thereof. [4] (m) Driving any
vehicle . . . upon real property belonging to or lawfully
occupied by another and known not to be open to
the general public, without the consent of the owner,
his agent, or the person in lawful possession thereof.
[4] (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. “Administrative
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 funda-
mental 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 adminis-
tered. 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 (1962) 58 Cal.2d 155, 161-
162 [23 Cal.Rptr. 404, 373 P.2d 468]; Schenley Indus-
tries, Inc. v. Munro (1965) 237 Cal.App.2d 106,
111 [46 Cal.Rptr. 678]; Am. Distilling Co. v. St.
Bd. of Equalization (1942) 55 Cal.App.2d 799, 805-
806 [131 P.2d 609].)
As the court in Harris v. Alcoholic Bev. etc. 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 ex-
tent 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 sub-
ordinate and must give way to legislative enactments
is equally applicable when the regulation contravenes
a provision of a statute or code other than the statutes
—49—
creating the agency or administered by it. (Tolman
y. Underhill (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]; In re Potter
(1913) 164 Cal. 735, 739 [130 P. 721]; Cleveland
Chiropractic College v. State Bd. of Chiropractic Ex-
aminers (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 exceptions.
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 general 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. Proc., § 1859; People
vy. Gilbert (1969) 1 Cal.3d 475, 479-480 [82 Cal.Rptr.
724, 462 P.2d 580].)
However, the special-general principle does not apply
when the agency’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 Legis-
lature.
The Legislature has not expressly provided for access
by nonemployee organizers to employer property. Nor
elie
has the Legislature expressly delegated to the board
the authority to formulate an access rule. Having refused
to follow Babcock and Central Hardware and the federal
law, the majority may not properly claim that the
Legislature incorporated an access rule by reference
to federal law. Nor has the board or the majority
shown it to be absolutely necessary 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
trespass 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 ex-
pressly deal with both 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.3d 840], it was held that
the provisions of those sections must be read into
section 602, subdivision (/), one of the subdivisions
presently before us.
—51—
CONSTITUTIONALITY OF THE ACCESS REGU-
LATION
The majority concludes that the access regulation
is constitutional and does not impinge upon private
property rights because a rational relationship exists
between 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 chal-
lenged. The majority, however, has erred in its analogy,
applied an improper standard of constitutional 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
‘The majority justifies its application of the rational relation-
ship test on grounds that the access regulation’s infringement
of property rights is “not a deprivation of ‘fundamental personal
liberties.’ ”” However, property rights are fundamental and per-
sonal. As the United States Supreme Court pointed out in
Lynch v. Household Finance Corp. (1972) 405 US. 538
[31 L.Ed.2d 424, 92 S.Ct. os ah “(T]he nang a
rsonal liberties and property rights is a one. Property
See not have rights. People have rights. The right to enjoy
property without unlawful deprivation, no less than the right
to s or the right to travel, is in truth a ‘personal’ ight,
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
- dl in property. Neither could have meaning without the
. 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].)
~~ =
his own property. The access regulation, on the other
hand, presents a very distinct situation. In promulgating
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.
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 bal-
ance 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 USS.
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 maintenance
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 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.”
(Id., at p. 545; italics added.) The proper test is
one of balancing, not a determination of rational re-
lationships.
—53—
The federal Courts of Appeals have fully recognized
that balancing is the proper standard for review. (E.g.,
N. L. 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, Etc. v. Green
Giant Co. (3d Cir. 1975) 518 F.2d 130, 135; Petersen
v. Talisman Sugar Corporation (Sth Cir. 1973) 478
F.2d 73, 82.)
Indeed, in the only federal Court of Appeals case
decided after Babcock and Central Hardware specif-
ically discussed by the majority, the court recognized
that the proper standard for resolving this issue is
one of balancing. (N. L. R. B. v. S & H Grossinger’s
Inc. (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 balancing
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 meaningless,
as is the federal Courts of Appeals’ continual use
of a balancing approach.
The United States Supreme Court balanced the com-
peting interests in Babcock and Central Hardware,
and because, as pointed out above, the board’s regula-
tion violates the rule of those cases, the access regulation
violates the constitutional provisions protecting private
property. The board’s regulation does not even attempt
to balance or accommodate the competing interests.
It allows access when alternative means of communica-
~~
tion do in fact exist. And it permits blanket entry
onto private property during working hours. The regula-
tion 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 carefully
and objectively, to assure that the result of our decision
comports with precedent, thereby carrying out the intent
of the Legislature. In this, the majority have failed
today. To reach their result, they have relied on in-
applicable precedent, applied the wrong constitutional
standard of review, nullified the Legislature’s mandate
to the board, and subordinated the Legislature to an
administrative agency.
McComb, J., and Richardson, J., concurred.
=—
APPENDIX B
Notice of Appeal to the Supreme Court
of the United States.
In the Supreme Court of the State of California.
Pandol & Sons, a California partnership; Jasmine
Vineyards, Inc., a California corporation, Appellants,
v. Agricultural Labor Relations Board, Appellee.
a
Filed: March 8, 1976.
Notice is hereby given that PANDOL & SONS,
a California partnership, and JASMINE VINEYARDS,
INC., a California corporation, the appellants 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, entering a Writ of
Mandate in this action on March 4, 1976.
This appeal is taken pursuant to 28 U.S.C. §1257
(2).
/s/ Joseph Herman
Joseph Herman
/s/ Michael J. Machan
Michael J. Machan
Seyfarth, Shaw, Fairweather
& Geraldson
1801 Century Park East, Suite 2450
Los Angeles, California 90067
(213) 277-7200
Counsel for Appellants
—_ =
PROOF OF SERVICE BY MAIL
State of California, County of Los Angeles—-ss.
I am employed in the county aforesaid; I am over
the age of eighteen years and not a party to the
within entitled action; my business address is 1801
Century Park East, Los Angeles, California. On March
8, 1976, I served the within NOTICE OF APPEAL
TO THE SUPREME COURT OF THE UNITED
STATES in said action, by placing true copies thereof
enclosed in sealed envelopes with postage thereon fully
prepaid, in the United States mail at Los a,
California, addressed as follows:
Honorable Hollis G. Best
Judge of the Superior Court
Fresno County
Fresno, California 93721
Honorable Jay Ballantyne
Judge of the Superior Court
Tulare County
Visalia, California
Walter Kintz
Agricultural Labor Relations Board
4433 Florin Road, Suite 500
Sacramento, California 95823
Littler, Mendelson & Fastiff
650 California Street, 20th Floor
San Francisco, California 94108
I declare, under penalty of perjury, that the foregoing
is true and correct.
Executed on March 8, 1976, at Los Angeles, Cali-
fornia.
/s/ Nancy L. Finnimore
Nancy L. Finnimore
= =
APPENDIX C
Title 8. Agricultural Labor Relations Board.
Chapter 9. Access to Workers in the Fields
by Labor Organizations.
20900. 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 designa-
tion of representatives of their own choosing.
1. Agricultural employees have the right under La-
bor Code Sec. 1152: to self-organization, to form, join,
or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protec-
tion, as well as the right to refrain from any or all
of such activities except to the extent that such right
may be affected by a lawful agreement requiring mem-
bership ir. a labor organization as a condition of contin-
ued employment. Labor Code Sec. 1153(a) makes
it an unfair labor practice for an agricultural employer
to interfere with, restrain, or coerce agricultural employ-
ees 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 disadvantages
of organization from others. When alternative channels
of effective communication are not available to a union,
organizational mghts must include a limited right to
approach employees on the property of the employer.
Under such circumstances, both statutory and constitu-
tional principles require that a reasonable and just
aniition
accommodation be made beiween the ~s'v of unions
to access and the legitimate prope y sid business
interests of the employer.
3. Generally, unions seeking to organize agricui-
tural employees do not have available alternative chan-
nels of effective communication. Alternative chani*ls
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 unstable
and potentially volatile condition in the agricultural
fields of California can best be served by the adoption
of rules on access which provide clarity and predicta-
bility to all parties. Relegation of the issues to case-
by-case adjudication or the adoption of an overly gener-
al rule would cause further uncertainty and instability
and create delay in the final determination of elec-
tions. '
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 premises
of an agricultural employer for the purpose of organiz-
ing, subject to the following limitations:
a. Organizers may enter the property of an employ-
er 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 loca-
unfian
tion 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.
c. Access shall be limited 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 vvery 15 additional work-
ers.
d. Upon request, organizers shall identify them-
selves 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 conduct
disruptive of the employer’s property or agricultural
operations, including injury to crops or machinery.
Speech by itself shall not be considered disruptive con-
duct. Disruptive conduct by particula: organizers 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.
20901. Effective Date. The provisions of this Chap-
ter shall be effective as of August 29, 1975.
~~ ™S
APPENDIX D
Temporary Restraining Order. |
In the United States District Court, for the Eastern
District of California, at Fresno.
Pandol & Sons, a California Partnership; Jasmine
Vineyards, Inc., a California Corporation, Plaintiffs,
vs. Edmund G. Brown, Jr., Governor of the State
of California; Roger Mahony, individually and as
Chairman-Designate of the Agricultural Labor Relations
Board; Leroy Chatfield, Richard Johnson, Joseph Or-
tega, and Joseph Grodin, individually and as Members-
Designate of the Agricultural Labor Relations Board;
and Walter Kintz, individually and as General Counsel-
Designate of the Agricultural Labor Relations Board,
Defendants. Civ. No. F-75-165-Civ.
Filed: Sept. 3, 1975.
There having been presented, on prior notice to
Defendants, in open Court a Complaint with supporting
affidavits, for a Temporary Restraining Order, Pre-
liminary Injunction, and Permanent Injunction, and
specifically praying that a Temporary Restraining Order
be issued pending a hearing of the Plaintiffs’ application
for a preliminary injunction thereto, the Court finds
and concludes:
1. This Court has jurisdiction under 28 U.S.C. §
1343(3) and 42 U.S.C. § 1983, this being an action
to redress the deprivation by the Defendants, acting
under color of State law, of Plaintiffs’ rights, privileges
and immunities secured by the Constitution and laws
of the United States. Jurisdiction also is founded upon
28 U.S.C. §§ 2201 and 2202 as Plaintiffs seek injunctive
relief and a declaratory judgment as to the constitu-
onion
tionality of certain regulations adopted pursuant to
the Act. Venue in this Court is appropriate upon
28 U.S.C. § 1391(b) as the claims herein arise in
this judicial district.
2. This is a proper case for determination by a
three-judge court pursuant to 28 U.S.C. §§ 2281 and
2284 because Plaintiffs seek, inter alia, injunctive relief
against the enforcement of certain regulations adopted
under the Act on the ground that they are unconstitu-
tional on their face as they deny Plaintiffs of their
property without due process or just compensation in
violation of the Fifth and Fourteenth Amendments
to the United States Constitution.
3. Defendants are certain officials of the State of
California who are charged with the administration
and enforcement of the Agricultural Labor Relations
Act, California Labor Code, Sections 1140-66 (herein-
after referred to as the “Act’’).
4. Defendant Edmund G. Brown, Jr., is the Gov-
ernor of the State of California and is responsible
under Section 1141(b) of the Act for the appointment
of the Chairman, Members and General Counsel of
the Agricultural Labor Relations Board (hereinafter
referred to as the “Board”). Defendant Roger Mahony
is the Chairman-Designate of the Board and he, along
with defendants Joseph Ortega, Joseph Grodin, Leroy
Chatfield and Richard Johnson are the Members-
Designate of the Board. Defendant Walter Kintz is
the General Counsel-Designate of the Board.
5. Plaintiff Pandol & Sons is a California partner-
ship, which owns and/or leases approximately 8000
acres of farm land in Tulare, Kern, and Fresno counties,
California. Plaintiff Pandol & Sons is an “agricultural
— §2—
employer” as defined in Section 1140.4(c) of the Act
and is subject to the Act’s provisions.
6. Plaintiff Jasmine Vineyards, Inc., is a California
corporation, duly qualified to do business in the State
of California, which leases approximately 600 acres
of farmland in Delano, California. Plaintiff Jasmine
Vineyards, Inc., is an “agricultural employer” as defined
in Section 1140.4(c) of the Act and is subject to
the Act’s provisions.
7. The evidence presented plainly demonstrates that
labor organizations seeking to organize and represent
Plaintiffs’ agricultural employees have available numer-
ous means of contacting and communicating with Plain-
tiffs’ agricultural employees outside the private property
and particularly the agricultural fields of Plaintiffs.
8. Plaintiffs’ properties are private and posted
against trespass. Neither Plaintiff permits access to
such private property by non-employee labor union
organizers. :
9. On August 29, 1975, the Board adopted Emer-
gency Regulations which grant to non-employee labor
union organizers the absolute right to enter Plaintiffs’
fields and other properties and those of all other agricul-
tural employers under the Act. This right is granted
irrespective of whatever other reasonable available
means of communications such. organizers may have
in regard to Plaintiff's employees. :
10. As such, these Emergency Regulations violate
the Fifth and Fourteenth Amendments of tghe [sic] Con-
stitution of the United States in that they deprive Plain-
tiffs of their property without due process of law and
also constitute a taking of Plaintiffs’ property for public
use without just compensation. In addition, these Emer-
—_ =
gency Regulations are constitutionally overbroad in vio-
lation of the Fifth and Fourteenth Amendments of
the United States Constitution in that even if Plaintiffs
were required to grant access to non-employee union
organizers—and this Court has found that such access
is not required—the Emergency Regulations require
access at impermissible times and locations and do
not properly minimize the invasion of Plaintiffs’ private
property by non-employee union organizers.
11. Plaintiffs have no adequate remedy at law and
unless application and enforcement of these Emergency
Regulations are temporarily restrained pending a hear-
ing on Plaintiffs’ request for a preliminary injunction,
Plaintiffs will suffer permanent and irreparable injury,
to wit:
a) Continued and repeated trespass to their fields
and other properties by non-employee labor union or-
ganizers over whom Plaintiffs have no control will
occur;
b) As a result of such trespass, Plaintiffs’ crops,
machinery and equipment are subject to damage; __
c) Asa result of such trespass, the work of Plaintiffs’
employees is threatened with interference and disrup-
tion;
d) As a result of such trespass, Plaintiffs wili be
subjected to possible legal liability to such organizers
for personal injuries occurring while on Plaintiffs’ prop-
erties;
e) The simultaneous presence of rival non-employee
union organizers upon Plaintiffs’ properties could result
in violence, including violence to Plaintiffs’ empioyees
and damages to Plaintiffs’ crops, machinery and equip-
ment;
— =
f) In order to insure compliance by such organizers
with the Emergency Regulations will require Plaintiffs
to employ additional personnel;
g) Plaintiffs’ failure to comply with these unconstitu-
tional Emergency Regulations could result, inter alia,
in unfair labor practice proceedings before the Board;
the issuance by the Board of orders, the content and
scope of which are unknown at this time; the invalida-
tion of Board-conducted elections; and possible injunc-
tive litigation against Plaintiffs by the Board in State
courts to enforce these Emergency Regulations;
h) Substantial loss or infringement of Plaintiffs’ prop-
erty rights will occur.
12. That such irreparable injury will occur to Plain-
tiffs unless a temporary restraining order is granted
is clear from the pleadings herein and affidavits pre-
sented to this Court.
13. If application and enforcement of these Emer-
gency Regulations are not temporarily restrained pend- —
ing a hearing on Plaintiffs’ request for a preliminary
injunction, Plaintiffs will, as a result thereof, suffer
more from the denial of a temporary restraining order
than the Defendants will from its issuance.
IT IS HEREBY ORDERED:
1) That Defendants, their agents and employees who
receive actual notice of this Order be enjoined and
restrained from applying, implementing, and/or en-
forcing Emergency Regulations of the Agricultural
Labor Relaations [sic] Board, Chapter 9—Access to
Workers in the Fields by Labor Organizations;
2) That the Defendants notify all their employees
‘or agents administering the Agricultural Labor Relations
=
Act of this Order and that the application, implementa-
tion and/or enforcement of said Emergency Regulations
are hereby enjoined and restrained;
3) That a three-judge District Court be convened
pursuant to 28 U.S.C. §§ 2281 and 2284 to hear
and etermine [sic] this controversy;
4) That bond be filed by Plaintiffs herein in the
sum of $10,000.00 as security.
This Order shall be effective until Sept. 12th, 1975,
at 10:00 AM and not longer without the further Order
of the Court.
A hearing shall be held on Plaintiffs’ application
for preliminary injunction on Sept. 12th, 1975, at
10:00 AM.
IT IS FURTHER ORDERED that service of a
copy of this Order, together with a copy of the Com-
plaint and affidavits in support thereof, be forthwith
made upon the Defendants in any manner provided
by the Federal Rules of Civil Procedure, and that
proof of such service be filed herein.
This Order issued at Fresno, CA, this 3rd day
of Sept., 1975. 11:35 a.m.
M. D. CROCKER
United States District Judge
By: /s/ G. Lucas
Deputy Clerk
=— =
APPENDIX E
Interim Order.
United States District Court, Eastern District of Cali-
fornia.
Upon due consideration the court issues the following
order:
1. The Temporary Restraining Order issued in this
matter on September 3, 1975 is hereby continued in
effect until 12:00 o’clock noon on September 10, 1975,
at which time it will expire. The court will consider
withdrawing the restraining order at an earlier time
upon being advised by any party in this proceeding
that a state court, upon application of a party in
this proceeding, made a determination that a temporary
restraining order containing similar terms will or will
not be issued, said determination to be made after
the state court has afforded such notice and hearing
as is appropriate under the circumstances.
2. This court will abstain from adjudicating all
issues in this case until they are determined by the
state courts of the State of California.
3. The hearing now set in this case for September
12, 1975 at 10:00 o’clock a.m., is continued until
further notice.
4. A more complete order containing the above
terms will be issued by the court at a later date.
/s/ Anthony M. Kennedy,
U.S. Circuit Judge
/s/ Thomas J. MacBride
~~ =
APPENDIX F
Order.
In the United States District Court, for the Eastern
District of California.
Pandol & Sons, a California Partnership; Jasmine
Vineyards, Inc., a California Corporation, Plaintiffs,
vs. Edmund G. Brown, Jr., Governor of the State
of California; Roger Mahony, individually and as Chair-
man-Designate of the Agricultural Labor Relations
Board; Leroy Chatfield, Richard Johnson, Joseph Or-
tega, and Joseph Grodin, individually and as Members-
Designate of the Agricultural Labor Relations Board;
and Walter Kintz, individually and as General Counsel-
Designate of the Agricultural Labor Relations Board,
Defendants. Civil No. F-75-165.
Filed: September 10, 1975.
This cause came to be heard before a three-judge
court convened pursuant to 28 U.S.C. § 2284, and
consisting of the Honorable Anthony M. Kennedy,
Judge of the United States Court of Appeals for the
Ninth Circuit, the Honorable Thomas J. MacBride,
Chief Judge of the United States District Court for
the Eastern District of California and the Honorable
M. D. Crocker, Judge of the United States District
Court for the Eastern District of California, at 4:00
p.m., Friday, Sept*mber 5, 1975. The court considered
whether the Temporary Restraining Order issued here-
with on September 3, 1975, should be continued in
effect.
Upon due consideration the court issues the following
order:
1. The Temporary Restraining Order issued in this
matter on September 3, 1975, is hereby continued
—_—
in effect until 12:00 noon on September 10, 1975,
at which time it will expire. The court will consider
withdrawing the restraining order at an earlier date
upon being advised by any party in this proceeding
that a state court, upon application of a party in
this proceeding, has determined to issue or not issue
a Temporary Restraining Order containing similar
terms. Such determination should be made after the
state court has afforded such notice and hearing as
is appropriate under all the circumstances of this case.
2. This court will abstain from adjudicating all
issues in this case until they are further determined
by the courts of the State of California.
3. Since this case raises questions involving possible
impairment of Federal Constitutional rights, this court
continues to maintain jurisdiction. Upon application
of any party, the court will consider whether further
orders should be made in the exercise of such jurisdic-
tion.
4. The hearing now set in this case for September
12, 1975, at 10:00 a.m. is continued until further
notice.
/s/ Anthony M. Kennedy
ANTHONY M. KENNEDY,
UNITED STATES CIRCUIT JUDGE
/s/ Thomas J. MacBride
THOMAS J. MacBRIDE
CHIEF UNITED STATES
DISTRICT JUDGE
M. D. CROCKER
UNITED STATES DISTRICT JUDGE
—- =
APPENDIX G
Order to Show Cause and Temporary
Restraining Order.
Superior Court of California, County of Tulare.
Pandol & Sons, a California Partnership; Jasmine
Vineyards, Inc., a California Corporation, Plaintiffs,
vs. Roger Mahony, Chairman-Designate of the Agricul-
tural Labor Relations Board; Leroy Chatfield, Richard
Johnson, Joseph Ortega, and Joseph Grodin, Members-
Designate of the Agricultural Labor Relations Board;
and Walter Kintz, General Counsel-Designate of the
Agricultural Labor Relations Board, Defendants. No.
80521.
Filed: September 10, 1975.
On reading the verified Complaint, supporting Dec-
larations and Points and Authorities on file in this
action, and it appearing from these that this is a
proper case for issuance of an Order to Show Cause
and Temporary Restraining Order, and that unless a
temporary restraining order issues Plaintiffs will suffer
irreparable injury before the matter can be heard on
notice; Now, Therefore
It is hereby ORDERED that the Defendants ROGER
MAHONY, individually and as Chairman-Designate of
the Agricultural Labor Relations Board, LEROY
CHATFIELD, RICHARD JOHNSON, JOSEPH OR-
TEGA, and JOSEPH GRODIN, individually and as
Members-Designate of the Agricultural Labor Relations
Board, and WALTER KINTZ, individually and as
General Counsel-Designate of the Agricultural Labor
Relations Board, and the Agricultural Labor Relations
Board, appear before this court on September 17,
1975, in the Courtroom of Department 2, located
at Tulare County Courthouse, South Mooney Boulevard
—_ 70
and West Mineral King Avenue, V
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