# Jurisdictional Statement — Kubo v. Agricultural Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0041%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1976 - **Citation:** 429 U.S. 802 ## Text , Supreme Court, iS 4 | r* RILED ™“y,} ; 5A "’ of JUN 2 1976 | | 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: “§ 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 b [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0041%3A1. Public record. Not legal advice.