Agricultural Labor Relations Board v. Superior Court

23349. In Bank. Mar. No. 1976.] [S.F.

AGRICULTURAL LABOR RELATIONS al., Petitioners,

BOARD et

THE SUPERIOR COURT OF TULARE al.,

COUNTY et Respondents; al., PANDOL SONS et in Interest. & Real Parties Counsel Kintz, Schaefer, L. C.

Walter Jerrold S. Fried- Ruth Byron Georgiou, man, Jourdane, Lake, Ronald Maurice Ellen Alberto Greenberg, Saldamando and Gustin L. Reichbach Petitioners. for Perluss, Rosenbaum, Okrand, M. Dennis Mark D. Fred C. Daniel Jill Jakes Ellen of and Gale as Amici Curiae on behalf Lavery, Mary Petitioners. for

No appearance Respondents. Shaw, Herman, Geraldson, J. Michael & Fairweather Seyfarth, Joseph Thomas, Snell, Machan, Jamison, Russell, Williamson & Jay Asperger, Littler, J. Fastiff, V. Mendelson & J. Richard Thesing, George Jory, II, Bloom, L. Jordan L. P. for Ober and Scholick Real Tichy Nancy Gary Parties in Interest. Powell, W. District as Amicus Curiae. (Tulare),

Jay Attorney Opinion

MOSK, J.The state Labor Relations Board (ALRB) Agricultural for an writ of to mandate petitions original compel respondent Superior Courts of Tulare and Fresno Counties to vacate various orders enjoining enforcement of an administrative which regulation permits qualified access farm labor We have agricultural organizers. concluded that the and the valid board is entitled relief requested. 28, 1975,

On Labor August Relations Act Agricultural (ALRA) Code, (Lab. 1140 et § went into effect. The to the act seq.) preamble recites in that “In this part State of enacting legislation people California seek to ensure in the fields peace agricultural by guaranteeing for all workers and in labor justice relations. This agricultural stability [K] enactment is intended to and a sense of fair to a certainty bring play and unstable volatile in the (Stats. condition state.” presently potentially Sess., Service, Third Ex. ch. No. 3 West’s Cal. § Legis. p. Service, 2No. Adv. Deering’s Legis. achieve

To this the act declares the goal, right agricultural themselves into unions and to in collective employees organize engage free from intimidation either union bargaining, employers Thus new section 1140.2 the Labor Code states “the representatives. State California” to “to policy encourage protect association, to full freedom self- agricultural employees their own organization, designation choosing, representatives the terms and conditions of their be free negotiate employment, labor, interference, restraint, the from or or coercion of of employers the their in of or in self- such agents, designation representatives or in other for collective concerted activities the of organization purpose or other mutual aid For this this or bargaining protection. part purpose

399 for for the is to [i.e., rights collective-bargaining adopted provide ALRA] employees.”1 agricultural in this intent the act of legislative implement

Remaining provisions First, 4 a of acts characterizes two variety ways. chapter principal it is declared In as labor or unions unfair practices. particular, employers to interfere in labor for way to be an unfair any practice employers workers, union to favor over of farm any self-organization by goal another, his under to worker for discriminate any asserting against statute, the certified faith with or to refuse to in bargain good Code, (Lab. 1153.)2 union. § representative 5 sets forth elaborate for elections

Secondly, chapter provisions secret ballot to determine the union for collective representative bargain- is a for seasonal ing purposes. “Recognizing agriculture occupation 1156.4), of authorizes such (§ act majority agricultural employees” An will be elections harvest seasons. election held only during peak the workers when a union obtains of the on signatures majority ranch; 20 if a second union same obtains signatures percent force, in work it will also be ballot. ballots printed placed authorized, an and other Once any language English, Spanish, requested. strike, 7 48 of a and within election is held: within hours in case quickly in cases. five thereafter other Within days any person may challenge days 1156.3.) or its election results. (§ propriety 2 and its method Article creates ALRB prescribes chapter and Article vests the board with broad investigatory powers, operation. of the board’s it a offense to interfere in the makes criminal performance the act the remainder of duties. Numerous grant throughout provisions administration, the board and particu- specific powers responsibilities and and in elections in investigating larly conducting certifying On latter unfair labor subject begins practices. chapter preventing ... to that “The board 1160) (§ any prevent by declaring empowered act, unfair defined from labor any engaging practice” person use a of methods sections authorize board to variety succeeding 1Section reaffirms that to shall have “Employees right self-organization, form, assist labor organizations, bargain collectively through representatives join, for the purpose the their own in other concerted activities choosing, engage also have or other aid or and shall protection, collective mutual bargaining identical that of of such ...” The refrain from or all activities. any quoted language 157.) (NLRA). (Now 29 U.S.C. § Labor Act section of the National Relations of section 2The of section 1153 are modeled on those closely provisions (Now NLRA. 29 U.S.C. § (§ 1160.2), to achieve that end: administrative cease and desist complaint 1160.3), 1160.4), order order relief (§ (§ restraining injunctive temporary and enforcement orders from both courts and the (§ 1160.6), superior 1160.8). Courts of (§ Appeal

In addition to its and executive is board adjudicatory powers, vested with section to the authority: express legislative delegates make, amend, to board “such rules and power repeal regulations as be out the of the ALRA. may necessary carry provisions”

The board for the promptly adopted emergency regulations operation Code, 8, II, of the act. Admin. tit. 20100 et (Cal. those § Among pt. seq.) issue, is the here in which a provisions regulation grants qualified right Code, access to farm labor Admin. (Cal. growers’ premises by organizers. 8, II, 20900-20901, tit. ch. Under 1051-1053.) the terms of §§ pt. pp. of access is limited in in regulation right specifically purpose, time and and in the number of place, organizers permitted participate; forbidden, and conduct other which than speech, “disruptive or employer’s property agricultural operations, including injury crops or machinery.”4 3The took effect on 1975.An regulation automatical August emergency regulation expires 120 after ly days its effective date unless the certifies agency during period Code, (Gov.

that it has with certain so certified on December of notice complied requirements and hearing. 11422.1.) The ALRB § remain in effect until such time will therefore and the regulation itas be amended or may repealed. 4The relevant read portions as follows: “5. the Board will Accordingly, consider under Labor Code employees Sec. to include the of access union right premises organizers [fn. ante] an limitations: for the to the agricultural employer purpose organizing, subject following “a. enter the a of 60 minutes for total Organizers may employer period before the start of meet talk work and minutes after the of work to completion with after areas in which before and employees working. employees congregate addition, “b. In of one enter the for total organizers may period employer’s property hour for during working day meeting talking employees purpose their lunch eat their lunch. at such location or locations as during period, employees break, If there is an shall include such lunch established lunch the one-hour period break, break. If there is lunch be at time no established the one-hour period may any during working day. “c. Access shall be limited to two for each work crew on property, organizers crew, that if there one additional are more than 30 workers there provided organizer may for additional workers. every “d. shall themselves name and labor organiza- Upon request, organizers identify tion to the of affiliation. or his shall also wear a or other employer agent. Organizers badge designation “e. The of access shall not include conduct disruptive employer’s property or itself shall agricultural operations, including machinery. Speech by injury crops not be considered shall conduct. conduct organizers disruptive Disruptive by particular

401 herein, of filed actions Two real in interest growers, groups parties the the Fresno and Tulare Courts validity attacking Superior The Fresno and its to enforcement. Superior regulation seeking prevent a Court held a on the matter and on the same issued day hearing vacate writ of the board to mandate ordering peremptory regulation, on with a is invalid that the declaratory judgment regulation together At the same time the Tulare both constitutional and statutory grounds. Court issued a order prohibiting temporary restraining Superior to board from and set a an order hearing regulation, enforcing be show cause effect should not issued. why injunction Upon board, effect we by stayed showing application appropriate final of court determination superior rulings respective pending for this writ of mandate. proceeding

I The The is remedy rulings proper. challenged respondent codes, effect. a settled courts are embodying primarily injunctive equity granting injunctive principle jurisprudence, prohibit relief “To the execution of a the law statute officers of prevent public Code, for the 526, 4; Proc., benefit.” 2d (Code Civ. subd. Civ. public § 3423, § subd. Fourth.) That rule is as here inasmuch applicable, a state to a administrative regulation adopted by agency pursuant has force and authority by delegation rulemaking Legislature 33 (Zumwalt effect of statute. v. Trustees State (1973) Cal. Colleges 665, 675 v. Alta-Dena 344]; Dairy County Cal.App.3d Cal.Rptr. [109 66, 271 v. (1969) San 75 510]; Diego Cal.App.2d Cal.Rptr. Rigley [76 185], Board Retirement 260 450 (1968) Cal.App.2d Cal.Rptr. [67 It does cases true the rule such an cited.) is injunction prohibiting when which is unconstitutional not the statute operate stayed 11 Cal.3d (Conover otherwise invalid. v. Hall [114 however, we have P.2d As will 682].) Cal.Rptr. appear, therefore, codes, that the concluded access is valid. Under regulation courts had no real deny respondent jurisdiction except parties’ A v. enforcement of Los (City enjoin ngeles request regulation. cited.) 745], Court 51 Cal.2d P.2d cases Superior [333 one exercised in When a can court’s discretion only legally if there no mandate will that exercise lie adequate way, compel conduct, nor for preventing not in such for engaged not be grounds expelling organizers future access. Board, after shall apply further this regulation “f. Pending this act have certified.” election held been results of an pursuant at law. (Babb Court Cal.3d remedy Superior 179, 479 P.2d 379].) absence of an Cal.Rptr. adequate at law was determined herein we when issued the alternative remedy writ. mandate (Ibid) is an Accordingly, appropriate remedy compel courts to vacate their orders respondent enjoining invalidating enforcement of the access v. Court (1967) regulation. (People Superior 276, 248 282 And we 393].) exercise our Cal.App.2d Cal.Rptr. [56 Const., VI, 10) art. original (Cal. jurisdiction § grant remedy “ because we find that in the circumstances this case ‘the issues are of and must be resolved presented great public importance prompt ” Air (Clean v. State Air Resources Bd. ly.’ (1974) Constituency California 801, 11 577, Cal.3d 808 523 P.2d from 617], Cal.Rptr. quoting [114 841, Sacramento v. Hickman 66 Cal.2d 845 (1967) County Cal.Rptr. [59 609, 428 P.2d 593].) II We with the The real constitutional issues. begin parties interest contend that the access is unconstitutional because it them without due of law assertedly deprives property rights process and constitutes a of those without (Cal. taking just compensation. Const., I, 1, 7, Const., 19; art. subd. U.S. 5th and 14th (a), §§ however, As will Amends.) the constitutional comes appear, challenge too late. many years

The real v. 407 Tanner (1972) parties rely Lloyd principally Corp. 131, U.S. 551 L.Ed.2d 92 S.Ct. and Diamond v. 2219], Bland [33 Cal.3d 521 P.2d but the decisions are not in 460], Cal.Rptr. [113 In each a divided court held that the constitutional point. guarantee free was not violated the refusal of a center to speech shopping permit its to be used for distribution of antiwar handbills property (Lloyd) solicitation of on an initiative (Diamond). The matter signatures petition bar, contrast, at is not a First Amendment case. At issue primarily here is not an exercise of freedom of aon speech topic general forum; rather, concern in a convenient the interest asserted pubjic of workers on the to have effective employed premises question access to information them to into units assisting organize representative to a pursuant collective specific governmental policy encouraging of the rule to labor bargaining. inapplicability Lloyd-Diamond is noted on the face of each at disputes 560-561 opinion (Lloyd, pp. [33 Diamond, L.Ed.2d at 137-138]; 3), fn. and has been pp. elsewhere both the United States Court emphasized by Supreme (Central Hardware Co. NLRB 407 U.S. L.Ed.2d [33 122, 127-128, (United 92 S.Ct. 2238]) this court Farm Workers America v. 14 Cal.3d Court Superior Cal.Rptr. 537 P.2d 1237]). in favor of collective as the governmental policy bargaining, clear, to the ALRA makes to benefit

above-quoted preamble designed as a whole. It should we as enter the last public scarcely necessary, of the 20th to reaffirm the that all quarter century, principle private is held to the its subject power government regulate use for the welfare. We do not minimize the public importance constitutional but guarantees attaching private ownership property; “ as as it was long years established in ago this already ‘thoroughly that countiy to the con individual these rights preserved by stitutional are held in subordination to the provisions society. rights one owns he not do with it he as Although property, may any pleases more than he act in accordance with his desires. As the may personal interest of conduct, so, also, restraints individual society justifies upon does restraints to use which be devoted. justify upon may property It was not intended these constitutional to so far provisions protect individual in the use of his as to enable him to use it to the property detriment of thus individual did not society. By protecting rights, society with the to itself or to its part power protect promote general well-being. Where the interest of the individual conflicts with the interest of society, such individual interest is subordinated to the welfare. . . . general activities, from damages [incidental property resulting governmental or laws in the of the passed welfare are not considered promotion public ” of the for which taking must be made.’ property compensation v. Board 477, Public Works 195 (1925) 381, Cal. 488 {Miller P. 38 [234 A.L.R. 1479], 148, from Carter v. 182 (1923) Wis. quoting Harper 451, N.W. 33 A.L.R. This 269].) law [196 Ltd. v. {HFH, living today. 508, Court Cal.3d Superior 542 P.2d Cal.Rptr. [125 conferrejd And no 237].) different rights corresponding of the federal Constitution. provisions (See, Nebbia v. New York e.g., 291 U.S. 940, 948-951, 523-527 L.Ed. 54 S.Ct. A.L.R. 1469].)

Nor should we need to recall the of the corollary foregoing principle, wit, is not static but it is not governmental dynamic: power “confined within the narrow circumspection precedents, resting upon conditions which do not cover and control conditions past present-day health, for revised obviously calling regulations safety, promote morals, or welfare of the rather is but general public,” “capable to meet conditions of modern life and expansion existing thereby keep social, economic, moral, with the and intellectual pace evolution Works, human race.” (Miller Board Public at supra, pp. restraints on the unfettered use of Early private property—e.g., doctrines of easement and nuisance—were few in number and narrow in But modem social added has scope. legislation many others—e.g., codes, restrictions, land use and urban building zoning planning, are far more in their effect on the redevelopment—which pervasive Thus, owners. an eminent law rights property authority lists no than 20 less in which property ways private today Between subject governmental (Powell, Relationship and Civil 148-149), L.J. Property Rights Rights Hastings and concludes that “the law has history private ownership witnessed of absolute and a simultaneously playing-down rights of social concern as to use of . playing-up rights property... Property have been redefined in to a demand response swelling ownership to the needs of the social whole. responsible responsive Property cannot be used as a shibboleth cloak conduct which adversely health, morals, affects the welfare of others.” (Id., safety, 149-150.) pp.

The efforts for social documented in that have justice histoiy conflicts. In most the the reasonable needs of precipitated many as a whole have But in the community eventually prevailed. general forces, retreat of recalcitrant action has been strange rearguard fought those owners who also of labor: property employers “Though law, to reasonable use in other areas of the subject curiously concept of has become a of in field labor law. The rights property rallying cry traditional notion would to seem be that suffices as an concept absolute defense those who would in union That against engage activity. notion—like so others held as doctrine many by past generations—may well be under attack.” (Gould, Union increasing Organizational Rights 505, “Quasi-Public” (1965) 49 Minn.L.Rev. Concept Property of 509.) courts, The issue here is new the to California but our federal joined brethren have often considered init the industrial labor context.5 “In 1372, Aviation v. 324 U.S. L.Ed. Board [(1945) (89 Republic Corp. 5In other our have to of settings courts looked federal decisions interpreting provisions Authority the NLRA similar to law. v. state Los Met. Transit Brotherhood Angeles (E.g., 684, 1, (1960) 355 P.2d Petri Railroad Trainmen 54 Cal.2d 687-689 Cal.Rptr. 905]: [8 455, Cleaners, 459-460 v. 53 Cal.2d Inc. Automotive etc. Local No. 88 [2 Employees, County 470, Merced 76]; 349 P.2d Assn. Fire International Cal.Rptr. (1962) Fighters 270].) 204 Cal.App.2d Cal.Rptr. [22 S.Ct. 157 A.L.R. Court set forth 1081)], ground Supreme The (Gould, union on rules activity company property.” concerning Vand.L.Rev. Question Union on Property Activity Company on the conducted The dealt with activities case organizational were also who union employees premises by spokesmen employer’s NLRB that The court ratified the high position company. for the labor it is an unfair circumstances absent extraordinary practice The court hours. to such activities nonworking during employer prohibit decision language approval following quoted “ Second Circuit has ‘As Court of for the board: the Circuit Appeals within the held, “It that is is not interference with every property Inconvenience, . some dislocation of Amendment . . even Fifth in order to right may necessary safeguard rights, property Oil Co. R. Board v. Cities Service collective Labor bargaining.” [National 1941) Cir. 122 F.2d Board this (2d The has frequently applied 152.] circumstances, where decisions sets of principle involving varying has held that the does not to control his permit employer’s right property him to access to whose his deny necessary presence persons there to exercise their enable effectively employees ’ ” 802, fn. 8 at (Id., collective .. self-organization bargaining,. p. [89 L.Ed. 1379].)6 v. Babcock & is Labor Board second landmark case this topic In contrast 679], Co. U.S. 105 L.Ed. 76 S.Ct.

Wilcox Aviation, the union excluded from organizers employers’ Republic Wilcox in the three decided in Babcock & consolidated cases premises NLRB found that were not the companies employees question. for the in the it was difficult circumstances shown unreasonably to make with the off contact property, organizers employees company that in to distribute and concluded denying organizers permission had union literature on lots unlawfully parking employers company under the to interfered with the of self-organization right employees from an in the court’s 6The in of this conclusion was given quotation reasoning support 828, N.L.R.B. 49 NLRB in (Peyton Packing earlier 843-844), decision point Company hours, or whether before after in “time outside which said part working work, he time use as wishes an to or luncheon or rest periods, employee’s during restraint, It is is on although employee company property. without unreasonable a enforce rule an to not within province employer promulgate therefore hours, on although outside of working union solicitation by employee prohibiting to a be to be an unreasonable impediment Such rule must presumed company property. that special in the of evidence and therefore absence discriminatory self-organization or discipline.” the rule order to maintain necessary production circumstances make (324 803-804, 1380].) fn. L.Ed. at U.S. at 10 pp. p. [89 406 Court ruled that the board erred in draw

NLRA. Supreme failing access to distinction between employee nonemployee organizers: denied, court, the latter can be said the “if by company property reasonable efforts union other available channels of by through communication will it enable to reach the with its message....” employees (Id., at L.Ed. at 982].)7 p. p. [100 standard the court

By declaring foregoing necessarily rejected any claim that are to their rights” “property employers paramount to have effective access to information them in right employees’ assisting their “The goal self-organization: right self-organization depends some measure learn ability advantages employees from others.” (Id., at L.Ed. at 983].) self-organization p. p. [100 Rather, must whenever the two employers’ property rights give way are interests found to be in irreconcilable conflict: “Organization Government, workers same the National granted authority, must Accommodation between the two be preserves property rights. obtained with as little destruction of one as is consistent with the maintenance of the . But other. . . when the inaccessibility employees makes ineffective the reasonable non to commu employees attempts channels, nicate with them the usual to exclude from through right has been to the extent needed to yield permit required communication on the (Id., information at organize.” p. L.Ed. at Central Co. v. NLRB 982-983].) (Accord, Hardware pp. [100 ) 122, 539, 407 U.S. 542-545 L.Ed.2d supra, [33 125-128]. in a of this rule of contexts. Examples appear variety application In Aviation the court in dictum the case before Republic distinguished from those “a or lumber where the involving mining camp employees their rest as well as their work time on the so pass employer’s premises, that union must organization upon employer’s proceed premises omitted.) U.S. (Fn. (324 L.Ed. at seriously handicapped.” p. [89 see also Labor Board v. Stowe Co. 1377]; U.S. Spinning fn. L.Ed. 69 S.Ct. 541].) thereafter such case arose. In National Labor Rel. Bd. Lake

Shortly 1948) 167 (6th Lumber Cir. F.2d Superior employer Corp. court—i.e., 7Asecond condition the discrimination the prohibiting imposed against union other distribution”—is involved at bar. “by in the case allowing The concluded the it court that on record of each three cases before the evidence did not decree enforcement. the board’s and therefore declined support finding employee inaccessibility, to Each was on its timber tract. a number of lumbering camps operated town, was self-sufficient. isolated from employees any largely off, bunkhouses; on the in Sundays lived given although premises camp NLRB these the In circumstances remained in the they usually camps. the to bar it unfair for ruled was an labor nonemploy- employer practice to talk with men bunkhouses ee union from entering organizers access, Sixth the order hours. nonworking Enforcing during dictum in on the Circuit Court of relied Republic Appeals above-quoted to the time available held that “In view of the limited free Aviation and them after involved in and the difficulties contacting practical employees bunkhouses, than union meal in other in evening any place would as a matter seriously handicapped by organization practical 152.) at (Accord, the recreation hall.” (Id., such to activity p. restricting on Ñ.L.R.B. 1023 Alaska Barite camp Company (mining island).) private it

Nor is to remote lumber or access limited mining camps; Thus in in the case anchored in a attach busy may ship port. 1941) Cir. National R. v. Cities Oil Co. (2d Labor Board Service supra, oil tankers which 122 F.2d operated ocean-going employer A maritime union entered States their United discharge cargo. ports for the was refused while in board purpose passes ships port NLRB ruled this of the seamen. The practice negotiating grievances collective violated the seamen’s bargain- self-organization Court of under 7 of NLRA. The Second Circuit section Appeals ing is result undoubtedly “The of refusing reasoning passes agreed, action the most effective sort collective employees. prevent tankers, remain which these oil ordinarily port Ships, particularly of labor for for a afford less investigation day only, opportunity home conditions than do factories where every go employees cessation There is no have the at their afternoon and disposal. evenings number A at on tanker. of work the end of each for seamen large day watch, their them or are on others discharging cargo; loading and, time in the short hours for work and shore leave are different to assemble vessel for Union port, impossible representatives to discuss the unlicensed either shore or on personnel shipboard have the members conditions. The Union must grievances investigate real crew work in order to accessible any advantage readily 151.) the board’s enforcement of (Id., court therefore granted order of v. (Accord, access. Oil National Labor Relations Corp. Richfield 860; 1944) (9th Board Cir. 143 F.2d & Co. Sabine Towing Transportation 45; 205 N.L.R.B. Rel. No. see National Labor Bd. National also 1958) etc. 253 F.2d (7th Cir. Organization, been less

The same result has reached on showing significantly H. In N.L.R.B. v. S. & isolation than cases. employee foregoing Cir. 372 F.2d 1967) Inc. (2d employer operated Grossinger’s located and miles from rural resort hotel one one-half only large but lived on the town. nearest premises, Sixty percent employees car work remainder lived in towns and drove to neighboring union taxi. The refused access to its by nonemployee employer premises and ruled this to interference with the NLRB representatives, circuit court observed The federal self-organization. employees’ right in its that “No effective are the Union alternatives available efforts. The resident have no organizational telephones employees their rooms. Radio and advertising expensive newspaper concerned, ineffectual. there was no Moreover as far as radio is relatively time at which a be off would single major duty proportion employees and free to . listen to a the Union. . . While broadcast message [If] some can work be done who are organization willing by employees solicit fellow is obvious that as do the employees, lacking they requisite cannot the Union’s special they convey training experience, appeal like the effectiveness of union anything organizers.” professional (Id., at 29.)8 p.

The court then of Babcock & quoted applied principles Wilcox as follows: “Here the live on majority employees cannot be reached means employer’s premises. They by any practically available to union As these considerations organizers. against Grossing- er’s raises its It interest. shows no detriment would only proprietary result from the admission its of the Union’s representatives under those reasonable as to time and number which regulations place, the Board’s order contemplates.

“We will enforce the Board’s order in so far as it requires [the union to come its employer] permit nonemployee organizers in order to solicit (Id., at premises 30.) (Accord, H. & G. employees.” 110; 191 N.L.R.B. Hotel) (1971) No. see also Operating Corp. (Raleigh v. N. (2d 1966) L. R. B. Cir. F.2d Bearing Company Fafnir ordered to allow union to enter to conduct (company premises indepen- dent time studies).)9 8The court added that the union’s to reach the as drove attempts employees they

through to the were ineffective gates resort because the cars did there not stop except briefly for a traffic and in event it light, was difficult or any impossible distinguish between guests and in such circumstances. employees 9We recognize that other federal circuit court refused to enforce NLRB decisions have Lines, (See. orders of access. N. L. R. B. v. and New Orleans Inc. Barge Sioux e.g., City

409 Wilcox, Thus the rule of Babcock & both as enunciated and as is clear: if the circumstances of applied, employment “place the reach of reasonable union efforts communicate beyond employees them, the union to his must allow employees employer approach L.Ed. added.) U.S. at 113 (351 983].) his (Italics property.” p. [100 We deem it of the issue of This could not be dispositive language plainer. under the the federal of access to constitutionality agricultural property ALRB v. (cf. Petersen Talisman challenged Sugar regulation 73, 79), 1973) Cir. 478 F.2d and of the claim of (5th Corporation on the cited California Constitu- invalidity premised provisions I, 1, 7, 19.) tion. we (Art. subd. In the context construe (a), §§ present those sections no to California guarantee greater property than owners do their federal counterparts.

The in this is whether it is constitution- only remaining question regard that the within determination ally required inaccessibility employee of the Babcock & Wilcox test be made on a meaning case-by-case basis, as the real a rule rather than parties urge, general As will there no such for application. appear, authority imposing as a matter of constitutional law. requirement was not in either Babcock & Wilcox or Central question presented

Hardware, and the real are therefore silent on the point. opinions on decisions that when a statute rely regulation parties holding a fundamental the state has burden impairs personal liberty, measure is necessary compelling showing promote 394 U.S. v. (see, (1969) interest governmental e.g., Shapiro Thompson 600, 617, L.Ed.2d 89 S.Ct. v. State Castro 1322]; [22 California 2 Cal.3d P.2d and that 234-236 244]) Cal.Rptr. [85 there are no reasonable alternative means of goal accomplishing 632, 640-644 Board v. LaFleur 414 U.S. (Cleveland Education 52, 60-63, L.Ed.2d 364 U.S. S.Ct. Shelton Tucker 791]; [39 231, 237, L.Ed.2d That well-known 81 S.Ct. 247]). [5 however, is not here: for the reasons stated at principle, applicable outset, the access rule is not a “fundamental deprivation personal liberties” but a limited real economic of the use of for the welfare. Belle Terre v. Boraas (Cf. imposed public Village of 797, 803-804, (1974) 416 U.S. 7-8 L.Ed.2d 94 S.Ct. 1536].) 753; Pines, F.2d 427; 1973) 1972) (2d 8th Cir. 472 F.2d B. N. L. R. v. New Inc. Cir. N. Tamiment, 794; 1971) (3d R. B. v. L. Country Inc. Cir. 451 F.2d N. L. R. B. v. Kutsher's Hotel and 1970) (2d Inc. Cir. 427 F.2d But in each ease the court found that on Club. the record either the had not made a reasonable elfort to presented union communicate with the or the alternative means of so were effective. employees doing It has been settled that such a satisfies the due long regulation process clause if it has a reasonable relation to a and is proper public purpose neither nor (Nebbia v. New York (1934) arbitrary discriminatory. supra, 502, 940, 957, 505, 291 U.S. 537 L.Ed. 54 S.Ct. 89 A.L.R. 1469]; [78 accord, 749, v. 522, 422 U.S. (1975) 768-770 L.Ed.2d Weinberger [45 Salfi 540-542, Wilcox, 95 cited.) S.Ct. and cases In & 2457], of Babcock light it cannot be said that an access to assist self- regulation designed workers lacks a reasonable relation to a valid organization by public time, and a careful examination of the various limitations toas goal; 4, and manner which are written this into (fn. place, purpose, regulation ante) demonstrates that it is neither nor within arbitrary discriminatory standards. meaning foregoing of the real to the board’s decision to principal objection parties of rule rather than is that there will be proceed way adjudication individual instances in which access in fact have been might unnecessary inevitable, order to communicate with the workers. This is effectively as the board But it does not follow therefrom that candidly recognizes. is unconstitutional. “In the area of economics and welfare, social the State does violate Protection Clause Equal because the classifications made its laws are If the merely imperfect. basis,’ classification has some ‘reasonable it does not offend the Constitution because the classification ‘is not made with mathe simply matical or because in it results in some nicety practice inequality.’ ‘The ones and problems government practical [Citation.] may if do not it justify, they require, rough accommodations—illogical, ” be, and 471, unscientific.’ v. Williams 397 U.S. (1970) may {Dandridge 491, 501-502, 485 Moreover, L.Ed.2d 90 S.Ct. “a 1153].) classification [25 that meets the test articulated in consistent with the Dandridge perforce due of the Fifth Amendment.” v. process requirement {Richardson 78, 231, 235, Belcher (1971) 404 U.S. 81 L.Ed.2d 92 S.Ct. 254].) [30 follows, hold, It as we have often had occasion to that general economic are not regulations affecting property rights constitutionally invalid because in the case of a few merely they may inappropriate Builders, etc., individual (See, owners. Associated Home property e.g., 633, Inc. v. Walnut 4 Creek Cal.3d 638-645 (1971) City Cal.Rptr. [94 630, 484 606,43 P.2d A.L.R.3d The entire law of 847].) from zoning, Village Euclid v. 272 (1926) Ambler Co. U.S. 388-389 L.Ed. Realty [71 303, 310-311, 47 54 S.Ct. A.L.R. to the as 1016], stands day, present witness to that fact of life. And it is a fundamental tenet of contemporary such law that if a is reasonable vis-a-vis the as a zoning plan community

411 whole, certain because is not rendered unconstitutional merely show that it causes them owners can unnecessary hardship. 335, v. Town Cal.2d (Hamer Ross (1963) Cal.Rptr. [31 P.2d v. Beach Cal.2d Manhattan 375]; McCarthy City of 29 Cal.2d P.2d San Bernardino 932]; Wilkins City [264 195 Cal. P.2d v. Board Public Works Zahn 542]; [175 497, 512 P. 388].) We conclude that the decision of the ALRB to the regulate question access a rule of no constitutional general application transgresses command.

Ill however, An administrative must also regulation, comport various the we At outset take note of statutory prerequisites validity. matter; certain which the our consideration of al principles govern restated, these rules have would be well to remember been often it though First, that are not rhetoric. our task is to into they merely empty inquire of the v. (Morris not its wisdom. legality challenged regulation, 733; 689, Williams 67 (1967) Cal.2d 433 P.2d Cal.Rptr. [63 Second, 697].) of a reviewing legality regulation adopted to a is function pursuant delegation legislative judicial power, limited to whether the is “within the (1) determining regulation scope Code, conferred” (Gov. 11373) and is authority § “reasonably Code, to effectuate the of the statute” necessary (Gov. purpose § n Moreover, 11374).10 “these issues do not a matter for the present tribunal; rather, of an both come to this independent judgment appellate court with the accorded freighted strong regularity presumption administrative rules and Reimel Co. v. regulations.” Grocery (Ralphs 69 Cal.2d 444 P.2d And in 79].) Cal.Rptr. [70 under necessary” whether considering regulation “reasonably standards, will defer court to the foregoing expertise agency’s in the will not its own “superimpose policy judgment agency upon (Pitts absence decision.” Perluss arbitrary capricious Cal.2d 377 P.2d 83].) Cal.Rptr.

The real interest seek to overcome parties presumption First, on several it that is contended in two regularity grounds. respects 10Athird was regulation adopted pursuant proper procedure inquiry—whether —is not an issue in this case.

the access exceeds the of the because it board regulation authority with the ALRA. conflicts The claim is not that the contravenes regulation of the act access any particular provision expressly forbidding qualified union such agricultural property by organizers—or entry declaring Rather, be an unfair labor no such exists. practice—for provision violates intent urged Legislature’s implied access, such manifested both action and prohibit assertedly legislative inaction. Neither branch of the contention is convincing. earlier,

As noted article 1 of the act chapter prescribes board; method of its composition general operation among is section which declares in its “The board provisions entirety Act, shall follow of the National Labor Relations applicable precedents amended.” The as real stress the fact that it is the parties practice NLRB to decide on a questions employee inaccessibility case-by-case rule; basis rather than when the ALRB by general .adopted contrary the real it therefore violated section 1148. procedure, argue parties, however, The unstated of this in is that major premise argument, section 1148 the intended the board to enacting Legislature impliedly follow not the substantive case law the (i.e., only “precedents”) for that certain activities do interpreting NLRA—holding, example, or do not constitute unfair labor also rules practices—but of the NLRB. In our view the procedure highly premise appears dubious. More the board could construe section importantly, reasonably otherwise, 1148 and that is our concern: “In whether a only determining administrative rule falls within the of the specific coverage delegated the sole function of this court is to decide whether the power, department mandate.” v.Co. reasonably interpreted legislative Grocery (Ralphs Reimel, 176 69 Cal.2d.) supra, 1148, first to the we note that it section

Adverting language “Act,” directs the not the board to follow the “precedents” have of the “Board.” The ALRB could conclud reasonably “procedure” ed that the choice of was hence that words significant, it rule of did not intend to be bound Legislature by any particular the federal to suit its own needs. This practice adopted by agency well act conclusion could have been reinforced fact that state by different vests board with full in an earlier and authority rulemaking 1144) (§ which no reference to the makes practices provision addition, NLRB. In we observe that section 1148 directs the board to be NLRA, “the guided by merely “applicable” precedents

413 could have thereof. the board From this fairly language precedents” follow those that the intended to select and inferred Legislature only of labor which are relevant federal problems precedents particular see, we As shall relations on California scene. agricultural in resolution of the access case-by-case question appears inappropriate that context. directive absence

More in the statutory express importantly, that the the board also could Legisla- reasonably presume contrary law of administrative to abide the well-settled ture intended by principle the choice between in its responsibilities discharging delegated “lies ad hoc rule or by general adjudication primarily proceeding (Securities of the administrative informed discretion agency.” 332 v. U.S. L.Ed. Comm’n Chenery Corp. accord, v. Exch. Stock Inc. Securities and 1575]; S.Ct. PBW Exchange, 718, 732; Cir. v. F. C. 1973)

Com’n 485 F.2d GTE Service (3d Corporation 731; C. Cir. F.2d Natural Gas Co. 1973) Alabama-Tennessee (2d 1966) Federal Power Cir. F.2d J.); Com’n (5th (Wisdom, see The Choice in the generally Shapiro, Rulemaking Adjudication Baker, 921; Administrative 78 Harv.L.Rev. Policy Development of Ad Rule or it Be? Law Hoc Should Policy Approach—Which & Prob. The real fail to that the interest show 658.)11 Contemp. parties abused its ALRB as a constituted administra- discretionary powers duly tive when it issue of a determined to on this by way agency proceed rather rule than ad hoc general adjudication. also on not on section 1148 but

A related is only argument premised ALRA, latter 1152 that the section of language emphasizing and which declares the of farmworkers to organize bargain right of NLRA. fn. is to that section 7 of the (See identical collectively on that Reliance is then the rule “When ante.) legislation placed has on or an been and a statute the same construed judicially subsequent v. (See, well to the NLRB Bell e.g., Aerospace 11This NLRB. applies principle equally 153-154, 1757].) That (1974) agency, S.Ct. Co. 416 U.S. 294 L.Ed.2d 94 [40 however, of on only questions basis not case-by-case has chosen on proceed that We note its all issues within essentially competence. but on inaccessibility, employee the rules or of NLRB to any reluctance promulgate and long-standing pervasive and scholarly has of ‘substantial and repeated whatever been the regulations subject (D.C. v. B. (Retail, U. N. L. R. .” and Store criticism. . . Wholesale Department judicial 380, 388; 394 U.S. 1972) Co. [22 Cir. F.2d see NLRB Wyman-Gordon 6.17; Davis, (1970 § Treatise 1426]; Supp.) Administrative Law 89 S.Ct. L.Ed.2d Bernstein, Administrative Under the NLRB’s Dilemma The Making Adjudication-Rule Peck, 571; Powers (1970) 79 Rule-Making Act Yale L.J. Atrophied Procedure of Relations 70 Yale L.J. National Labor Board is framed in the identical it will analogous subject language, ordinarily be that the intended that the in presumed as used Legislature language the later enactment would be a like This rule is given interpretation. to state statutes which are after federal applicable statutes.” patterned (Los Met. Transit v. Brotherhood Angeles Railroad Trainmen Authority Cal.2d From this it 688-689.) supra, reasoned premise that the must have intended that the Legislature board also follow the NLRB of ad hoc the accéss issue. practice adjudication construction,

We do not rule of statutory quoted question but in the of the case bar it does lead to the claimed circumstances not It conclusion. that may by adopting language posited section of the NLRA the intended also to the rule of Babcock Legislature adopt & that to the Wilcox Central Hardware applying language right labor an enter for union nonemployee organizers employer’s premises above, But as we observed whether such a .purposes. question access should be resolved or was by regulation by adjudication decision, in either silent presented opinions accordingly rather, matter. Babcock & Wilcox and its teaching progeny, access must be simply qualified employer’s premises granted when the circumstances render ineffective reasonable employment efforts of union to communicate with the representatives employees alternative methods. U.S. L.Ed. (351 982-983].) atp. at pp. lesson,

Far from this the ALRB its access ignoring predicated on factual in of Babcock & findings phrased very language Wilcox. Those disclose that the board did not the NLRB findings adopt on the access because determined practice question significant differences existed between the conditions of industry general working seen, those As California we have agriculture. regulating industrial labor the NLRB has access union authorized disputes when, for the same organizers employers’ premises example, employ- schedules, ees did not arrive and on fixed there were depart every day no areas where the adjacent public employees congregated through which and the not could be they regularly passed, employees effectively reached at addresses or numbers in the permanent telephone nearby or media community, by advertising. contrast, the ALRB found that such-conditions are the rule rather

By than the in California The evidence heard the exception agriculture. by board showed that are farmworkers arrive town many in they migrants; harvest, in motels, time for the local live in labor or with friends camps, visits, relatives, when is in. home or then on move Obviously crop circumstances. calls are in such or telephone impossible mailings, record, are even those farmworkers who to relatively According settlements, thus often live in making widely spread personal sedentary it is both and at home because contact time-consuming impractical expensive. on

Nor is or contact adjacent public property pamphleting personal context, a alternative in the reasonable premises present employer’s with, have no such on several To ranches grounds. begin many public fields at the areas at all: the that cultivated witnesses begin explained or the fields line, and line across that is either open highway scene of a industrial of another steady grower. Secondly, typical to and from workers stream of factory walking through gates if ever occurs lot or rarely nearby public transportation parking company Instead, labor contractors the evidence showed that in a rural setting. or bus from field farmworkers camp transport by private frequently before unload- ranch, onto the from ranch to directly premises driving circumstances, contact or in such again personal ing; pamphleting number established that impossible. testimony significant Thirdly, of other farmworkers read and understand or only Spanish, Filipino, from East. It is that efforts to India or Middle evident languages communicate with such or in the advertising persons by broadcasting are local media futile. it was also shown that farmworkers Finally many illiterate, are unable to read even in one of the foregoing languages; course, handbills, circumstances, such or printed messages mailings, local are newspapers equally incomprehensible.12 12Even in the context effectiveness “traditional” alternative industrial true Thus the Second seriously methods of with workers has been communicating questioned. that Circuit has observed “The chances are alternatives Court Appeals negligible entire would exist. In the work force to solicitation in the itself equivalent plant plant with little The contacted small may employees expense. number relatively confrontation, their can

solicitors have the for so they present opportunity personal contrast, alternatives bear In maximum message without predictable persuasiveness. effort, a lower degree the flaws exception greater expense matter in the flood of printed Mailed material would be lost daily effectiveness. typically Television and radio which with little from mailbox wastebasket. passes impact cost, with the would suffer from entirely competition where not appeals, precluded solicitation. with personal favorite and at best would compare family’s programs corners street to similar Sidewalks advertisements are subject objections. Newspaper times, as at awkward solicitation are of climate and often force vicissitudes subject (N. Corp., L. R. B. United from work.” hurrying when employees Aircraft 128, 130.) 1963) have been criticisms (2d Air. 324 F.2d Similar Div. Cir. Whitney Pratt & Bok, Tactics in (See, Campaign in the literature. e.g., Regulation voiced legal (1964) 78 Harv.L.Rev. Act the National Labor Relations Elections Under Representation Gould, 95-96; (1964) 18 Question Property Union Activity Company 73, 99-100, 102-103.) Vand.L.Rev. addition;

In the here is problem compounded by provisions ALRA which swift elections—a not faced require difficulty by NLRB. seasons, In all cases with short harvest the union involving crops for the a election has brief time which to petitioning only gather Code, 1156.3, (Lab. subd. An necessary employee (a).) § signatures. union will even time—at have less most 6 obtain the intervening days—to 20of of the workers in order to signatures for ballot. percent qualify {Id., subd. And both (b).) unions have a few thereafter only days their workers. In such circumstances most of explain positions channels of communication which have been used in organizing laborers, industrial and which found were sufficient in Babcock & Wilcox and its too slow.to be effective.13 progeny, simply

On the basis the ALRB found that evidence foregoing formally unions do not “Generally, seeking organize agricultural employees have available alternative channels of effective communication. Alterna- tive channels effective communication which have been found in industrial do not exist or are insufficient adequate settings Code, II, context of labor.” Admin. (Cal. tit. agricultural § pt. subd. 1051.) From this in furtherance of the finding—and expressed intent of the framers of the act—the board 4) concluded subd. {id, “The declared a sense of legislatively purpose certainty bringing fair to a unstable and volatile condition in play presently potentially fields of California can best be served agricultural adoption rules on access which all clarity provide predictability parties. of the issues to or the Relegation case-by-case adjudication adoption would rule cause further overly general uncertainty instability and create in the final determination elections.” delay

We conclude from the that the decision of the board to foregoing create a limited of access means of detailed and right specific does not conflict intent of the inferable regulation any Legislature from its enactment of sections 1152. 1148 and

In this real contend that the connection the also does parties not follow of the NLRA under section “applicable precedents” because the it declares is limited access assertedly areas. In on from Central rely nonworking support they passage 13For heard home addresses of testimony although board example, Vehicles the basis of be obtained from the Motor farmworkers can Department of numbers, of two weeks and their license takes an process average automobile plate $2 costs name. per 539, 407 U.S. L.Ed.2d Hardware Co. NLRB (1972) supra, as the rule of Babcock & Wilcox in which court summarizes 127], (ii) to access “limited union (i) organizers; prescribed authorizing duration of (iii) areas premises; nonworking employer’s of the added.) (Italics activity.” purpose emphasized organization limitation, of work. But is to prevent disruption presumably, here achieves the a method same although regulation challenged goal, which the more to the California setting appropriate agricultural ALRB must operate. seen, have

As we there was evidence before board that many have no ranches or areas such as lots public “nonworking” parking circumstance, factories. to this Responsive large present regulation labor a time first authorizes access farm for prescribed organizers to and the close of the work in “areas in which prior day employees No ante.) before and after more (Fn. working.” congregate precise ranch; in as these areas will from ranch to description possible, vary instance, however, each no of work is because disruption permitted to access is limited hours. expressly nonworking scene, and in distinction industrial further

Secondly, typical or lunch- California farm do not have cafeterias generally properties Rather, rooms where the assemble for their meal. midday employees the case of row eat in or near their the workers cars or crops frequently field, the bus at the while in tree often they edge harvesting crops on the while their food and rest. remain site take job they Again conditions, these a access for responsive regulation permits time “at as the eat their such location locations prescribed employees in certain include areas lunch.” this may working Although description cases, at all restricted the nonwork- access such locations primarily and in “lunch break” event regulation any expressly ing period of “the or agricultural prohibits any employer’s property disruption (Fn. ante.) or machinery.” including injury crops operations, letter thus with the not the if spirit quoted comports Hardware, of Central and cannot be deemed contravene language 1148. of section asserted implication with an conflicts that the

Next is contended access regulation thereof but derived not from intent the ALRA provision implied one stress that The real of such a the absence from parties provision. (Assem. into law which farm labor bills was enacted the proposed 1149.3, subd. (§ Sess.)) contained No. (1975-1976 Bill provision Reg. (b)) access farm labor expressly permitting by organizers employers’ while bill which became the ALRA (Sen. Bill No. 1 property, finally (1975 Third Ex. is silent on the Sess.)) This fact is said reveal an point. unstated intent of the that no such access be Legislature permitted. best,

The contention is not At is a silence persuasive. “Legislative (Alabama-Tennessee divination.” Natural Gas Co. v. Federal Delphic 318, (5th Power Com’n Cir. It is 1966) F.2d true that in supra, two recent cases we have to an given argument weight superficially now similar to that advanced real v. by parties. (Cooper Swoap Cal.3d 863-865 524 P.2d Clean Air 97]; Cal.Rptr. State Air Resources Bd. 11 Cal.3d Constituency supra, California But in the 817-818.) circumstances which led to the of the passage ALRA, the of those decisions reasoning inapposite. situation,

This was not in which the Cooper Legislature rejected three successive to add a certain ato welfare bill attempts provision law, which thereafter became and the agency administering ensuing statute nevertheless a Nor adopted regulation “reviving” provision. relevant, is Clean Air for in that case an administrative agency charged a certain declined to do so promptly adapting antipollution program even after the itself considered and no less than five Legislature rejected to order or proposals delay. permit

In the us in case before there was no such this sequence: respect Senate Bill No. was an amended version of Bill merely Assembly Indeed, No. but an new when the bills are entirely closely approach. it becomes the absence of a access compared apparent specific is, Bill Senate No. if an indication that the provision anything, intended to rather than the access Legislature adopt reject principle. Bill No. 1 contained a number of sections Assembly proposed declaring various and duties derived from NLRA precedents, including 1, however, Bill access. Senate No. a different specific right adopted instead of the substance of NLRA individ- technique: listing precedents as did Bill No. them ually Assembly simply incorporated reference via section 1148. Thus the omission in Senate Bill No. 1 of any Bill No. 1 was a natural foregoing provisions Assembly device and rather consequence than legislative employed; being now stressed negative real significance, statutory history can be taken to mean that the parties plausibly Legislature affirmatively intended to the access of Babcock & Wilcox as herein adopt principle defined. violates another that the access yet it is

Lastly urged “An unconstitutional 816): Cal.3d (11 Air rule discussed Clean confers occurs when upon Legislature power delegation make unrestricted authority administrative agency fundamental case added.) (Italics Again present determinations. [Citations.]” policy determination” the “fundamental In Clean Air policy is distinguishable. established reverse legislative was clearly totally agency air—and environmental general protection priority pollution-free cases cited In the concern for increased consumption. gasoline ly—over (id., administrative decisions of 816-817), on this Clean Air pp. point were involved. similar magnitude was made

In the case at bar the “fundamental determination” policy decided, much when that after body study by discussion, Legislature California the workers throughout grant agricultural and collective so denied to long self-organization bargaining of that momentous them under federal law. Seen in the perspective decision, the board’s access much less qualified provision appears would us believe. As a than real have regulation important parties one which in essence statutory merely implements aspect to a elections—it does not amount of secret holding program—the within determination” “fundamental quoted meaning policy rule.

IV tack, the access the real contend a different parties Taking with the conflicts invalid because is general assertedly regulation Code, fails The contention 602.) statute. (Pen. § criminal largely trespass have for reasons we already explored. that violate acts

It is settled that “Administrative regulations an are and no void they merely protestations Legislature must can them. of administrative discretion exercise They sanctify will if we are to conform to the orderly system preserve legislative 733, Nor 67 Cal.2d v. Williams (Morris (1967) supra, government.” that an relevant: “It is fundamental motivation of the is the agency function, no matter administrative legislative agency may usurp v. State Bd. its motives are.” San how altruistic (City Joaquin 365, 374 12].) 9 (1970) Cal.Rptr. Cal.App.3d [88 Equalization 420

The doctrine has been most invoked to strike down frequently administrative in conflict with the statute which created regulations or which the (See, authorized to administer. agency agency e.g., 237, v. Brian 11 Cal.3d (1974) Rights Organization California Welfare 242-243 520 P.2d 4 970]; (1971) Pickett Mooney Cal.Rptr. [113 Cal.3d 680-681 483 P.2d 1231]; Sch. Cal.Rptr. [94 California Assn. v. 3 Cal.3d 143-144 (1970) Personnel Commission Employees P.2d But 436].) 474 Cal.Rptr. principle equally applicable [89 when the contravenes a different statute. (See, provision Los Club Cal.2d P.2d 449]; e.g., Angeles [227 Orloff v. Turf Tolman v. Cal.2d Underhill P.2d 280]; Harris v. [249 Alcoholic Bev. etc. Bd. Appeals Cal.App.2d Cal.Rptr. 192].) hand,

On the other it is no less settled when a and a special conflict, Proc., statute are in Civ. (Code former controls. general “ act will be considered as an to the § special exception ‘[T]he statute whether it was before or after such general passed general ” enactment.’ re Williamson 43 Cal.2d P.2d {In 593]; [276 accord, Gilbert (1969) Cal.3d 479-480 People Cal.Rptr. [82 462 P.2d 580], cited.) cases This rule of construction is reiterated and made to the ALRA in section specifically applicable 1166.3, act, (b), subdivision which states: “If other act of the any shall conflict with the of this [i.e., the Legislature ALRA], provisions part this shall part prevail.”

If the can thus from its on a Legislature depart existing dispositions it can authorize an administrative to do so on its given topic, agency behalf. in cases conflict Accordingly, regulation validly adopted to a under a statute likewise pursuant authority delegation special over can the terms of a statute. The prevails Legislature general surely it which could do accomplish indirectly directly.

The access rule here such a For the reasons challenged'is regulation. hereinabove, stated at in section 1152 of the length incorporation NLRA, section 7 with the direction in language together express section 1144 that board out make carry regulations necessary act and in section 1148 that it follow NLRA applicable precedents, least mean that intended the to structure board Legislature onto for qualified right entry agricultural property organizational The access was as an of that purposes. regulation adopted expression statute, intent. It therefore over prevails general trespass by operation of both the rule of construction and the statutory foregoing specific 1166.3, directive of section No act subdivision with the (b). compliance access can be criminal as a In re (See Zerbe regulation punished trespass. 60 Cal.2d 666 388 P.2d 10 A.L.R.3d 840].) Cal.Rptr.

Let a writ of mandate issue as peremptory prayed. J., Tobriner, J., Sullivan, J., C. concurred.

Wright, CLARK, J.I dissent. Board is Labor Relations

The access Agricultural regulation First, law has established that invalid on three federal grounds. of access have no employer’s nonemployee organizers are whenever other reasonable means communication available. access it Even when is restricted to permissible, nonworking areas. The California Relations Act 1975 (Lab. Labor Agricultural Code, law; 1140 et the federal § board’s seq.) incorporated access when other means of communication regulation, authorizing available, areas, and in access permitting working contrary federal law Second, and therefore violates the state statute. because the board’s is in conflict with the statute regulation penal trespass usurps function, and is Third, thus invalid. legislative constitutes an unwarranted infringement constitutionally protected property rights. Regulation Agricultural

The Conflicts With The Labor Relations Act

A. The Federal Law dealt

Two United Court decisions have States Supreme specifically with the issue union access organizer private nonemployee In Board v. Wilcox Co. 351 U.S. 105 Labor Babcock & property. S.Ct. from L.Ed. 679], prohibited employers nonemployees [100 literature on lots. The union distributing parking employer-owned board) National Labor Relations Board ruled that the (labor employers’ conduct constituted unfair labor based labor board its practice. on a decision could use ruling establishing employees nonworking areas of the for activities. employer’s premises organizational (Republic Aviation v. Board 324 U.S. 793 L.Ed. 65 S.Ct. Corp. [89 157 A.L.R. 1081].)

The court in Babcock ruled that the labor board had unanimously erred in “to make a distinction rules of law failing between applicable and those employees U.S. at (351 applicable nonemployees.” p. L.Ed. 983].) atp. [100 identified the source of the error, labor board’s

Having Supreme Court stated the which access legal cases. principles govern nonemployee his employer may validly “[A]n post property against nonemployee distribution of union literature if reasonable efforts the union through other available channels communication will enable it to reach the with its and if the notice or order does employees message employer’s not discriminate the union other distribution. In against by allowing these circumstances not be to allow employer may compelled distribution even under such reasonable as the orders in regulations these cases U.S. at (351 L.Ed. at permit.” 982].) p. [100 p.

In Central Hardware Co. v. NLRB 407 U.S. 539 L.Ed.2d [33 122, 92 S.Ct. 2238], second decision, United States Court Supreme the labor board found an to have in an unfair again employer engaged labor union from its practice by excluding nonemployee organizers lot. In this the labor board decided parking that the making ruling, had violated First Amendment employer under employees Food Plaza (1968) 391 U.S. 308 L.Ed.2d Employees Logan [20 S.Ct. 1601], reversed, Court Plaza’s First Amend- Supreme ruling Logan

ment was and that if analysis the labor board’s inapplicable, attempt stand, Plaza to were allowed apply Logan nonemployee organizers would “constitute an unwarranted infringement long-settled rights the Fifth and Fourteenth Amendments.” private property protected by U.S. at (407, L.Ed.2d at 129].) p.

The Court reiterated its Babcock that Supreme holding nonemployee not be allowed access when other reasonable means of organizers may communication are available. The court added: “The of principle Babcock is limited to this accommodation between organization rights This of property rights. principle requires ‘yielding’ property rights in the context Moreover, of an the allowed only organization campaign. intrusion on to to facilitate is limited property rights necessary exercise of After the need for access to § employees’ rights.[1] requisite 1Section 7 of the National Labor Act is Relations identical to Labor Code substantially section 1152. shown, is to (i) the access limited union has been employer’s property areas of (ii) nonworking premises; employer’s organizers; prescribed short, of In of duration (iii) activity. principle organization announced limited to accommodation in Babcock is labor organization is both campaigns, property rights may require ‘yielding’ and minimal.” U.S. 544-545 L.Ed.2d at (407 temporary pp. The in not to the 127].) dissent Central Hardware did relate points stated that labor involved here. Even justices dissenting expressly should have followed board Babcock. settled, establish- therefore access is

The federal law of nonemployee alternative methods no access where there is right ing methods, the If there are no alternative communication exist. nonemploy- areas of access is limited to ees’ prescribed nonworking right (cid:127) held that the Court has expressly employer’s premises. Supreme activities recog- broader engage organizational right employees Board, U.S. does not Aviation v. nized supra, apply by Republic are to the upon organizers legally organizer. Employee nonemployee thus, does not as their usually premises employees; presence employer’s interfere with the interest employer’s property rights. employer’s effective work interfer- interest securing only subject potential ence. the limitation on relates Accordingly, right organize employees’ however, are not invited on the discipline. Nonemployee organizers, situation, In this is the interest in only premises. employer’s securing effective his under the work but United jeopardized, with as States Constitution interfered well.

B. The Federal Law Legislature’s Incorporation of

Labor Code section establishes the employees That section contains identical to section organize. language Act,2 the National Labor Relations section in Babcock and applied Labor Central Hardware. Code section 1148 states: “The board shall Act, Labor follow National Relations as applicable precedents (Italics added.) amended.” construed and a has

“When been subsequent judicially legislation is framed in the identical on the same statute analogous subject intended that the it will Legislature ordinarily presumed language, to section 7. The difference only 1152 identical section 2The operative language federal statute while to another is that section 7 cross-references the statutes between cross-references, course, a state to statute. section that the as used in the later enactment would be a like language given This rule is to state statutes which interpretation. applicable after the federal statutes. patterned Met. (Los Angeles [Citations.]” Transit v. Brotherhood Railroad Trainmen Authority Cal.2d 684, 688-689, 1, 355 P.2d 905].) Cal.Rptr.

In Los Met. Transit case, as in the Angeles instant Authority, had used from section 7 of the Legislature language National Labor that, Relations Act. court held because the federal courts had This of the strike, include the interpreted part language right intended to to strike Legislature the fact that grant despite state statute who have no applied governmental employees ordinarily such right. of section manifested

By using language Legislature clearly its intention to the federal construction of section 7. In Babcock adopt Hardware, and. Central the United States Court construed Supreme section 7. That construction was therefore our adopted by Legislature when it enacted section 1152. doubt in the matter was eliminated Any when the in section the board to Legislature, expressly required follow federal applicable precedents. Accordingly, inescapable conclusion is that the intended the board to the rule of Legislature apply Hardware, Babcock and Central which denies access to non employ- ee when reasonable alternative methods of communication organizers are available.3

It is that the Labor Relations Act of generally recognized Agricultural 1975 is a the various interests. compromise among (Levy, Agricultur- al Relations Act de Para El Futuro Esperanza 1975.—La California 15 Santa Clara Law. When 783.) interests competing agreed was faced with three choices: it could turn compromise, Legislature duties, the board loose with little definition of its limitations on powers, 3The to characterize the access majority as “limited in attempts regulation purpose, time and ....”(Ante, the number of place, But in organizers p. characterizing limitations, these as relies on the irrelevant. These majority limitations in no way indicate the of alternative means of unavailability communication—the very showing access, limited, Moreover, that must be made before of how any regardless permitted. statement that elections under the ALRA are to be held majority’s within required 416), true, {ante, time short while has periods to do the access nothing The elections must be held within seven regulation. of a days filing petition signed Code, 1156.3, However, (Lab. (a).) subd. by majority access currently employed. § does not limit access to the of a regulation period following filing petition. is thus and the infringement it sanctions— open-ended property rights therefore neither limited in time nor is it contrary majority’s implication—is minimal. hand, could, the on other to or be standards those applied; powers, standards; limitations, or it could duties, and define powers, sharply law, had over of federal which a period highly developed incorporate and of both the interests arrived at definitions years duties, limitations, and standards as as the affected well powers, parties, of the administrative agency. law. federal to chose highly developed incorporate Legislature 1152, which is is from its substantially

This clear section adoption Act, and Relations of the National Labor to section 7 adoption identical federal the board to on which of section rely applicable requires precedents. course, to resort to is not unmindful necessity majority, the act of a of access in There is no mention

federal law. right specific no and officials) than for board (other delegation empowering express in a a access. The the board to right majority, finding adopt law, and access, and which federal relies sections 1148 adopt upon to board. section which general rule-making grants powers to no as what a with general rule-making power specification Obviously, to access as create rules relate is not the same those express power to find It resort to federal law is evident that must majority rights. to create access board authority rights. is unfair to the

It history manifestly Legislature, light act, federal to law establish board rely power language the standards and create an access the same time to right, ignore Rather, the same federal law. limitations right by placed upon duties, of the federal law includes the powers, Legislature’s incorporation limitations, and standards. board given general rule-making power, regulations

Although this must conform to the command power legislative adopted pursuant v of federal law. As this court stated in Morris requiring application 433 P.2d “Under Williams Cal.2d Cal.Rptr. 697]: . state Code section ‘Each Government [by adopted effective, within conferred. must be scope authority agency], ‘to ...’ Whenever state authorized statute adopt regulations agency out or otherwise make carry specific implement, interpret, statute, unless is valid no regulation adopted provisions effective Code, . . .’ (Gov. § statute. consistent conflict the Administrator therefore, whether is to determine first Our duty, exercised within the bounds of the authority statutory quasi-legislative mandate. While the construction of a statute officials its by charged administration, of the invested in their including interpretation authority them to and out its is entitled to carry great implement provisions, ‘Whatever the nevertheless force of administrative construction weight, . . . final for the of the law rests with responsibility interpretation v. courts.’ Hotel Com. Cal.2d (Whitcomb (1944) Emp. California , 757 .. . and there authorities Administrative collected.) regulations alter or amend the statute or or its are void and enlarge impair scope courts not but it is their to strike down such only may, obligation Com., Hotel v. v. regulations. Emp. supra; Hodge {Whitcomb California .; McCall 185 Cal. 334 . . v. (1921) Boone 206 Cal. Kingsbury .; 161-162 . . First Industrial Loan Co. v. 26 Cal.2d Daugherty .; 550 . . see Brock Court 11 Cal.2d 688 .. ..)” Superior Cal.2d (67 atp.

C. The With the Federal Law and the Statute Regulation’s Conflict seen, law in the act

As we have the federal incorporated by denies access to whenever reason- Legislature organizers nonemployee Further, able alternative means of even communication available. allowed, when access is is restricted to areas. nonworking By blanket access to all of the permitting agricultural property, regardless communication, existence of means of alternative by permitting areas, access to the board’s to Babcock working contrary Hardware, Central command to follow federal violating statutory precedent.

The conflict not be avoided on the of the basis board’s may finding there is no alternative means of communication. The “[generally” absence of alternative means of communication in cases does not most relieve board of its to adhere to Babcock Central obligation Hardware more than an N.L.R.B. availability any finding would alternative means communication in most cases justify N.L.R.B. from access in all cases. denying nonemployee Trespass With Conflict Statute

Penal Code section relevant who provides part: “Every person commits a acts is of a willfully trespass by any following guilty lands, whether unenclosed or enclosed misdemeanor: by (j) Entering any fence, or or with for the injuring property rights purpose any lawful with, or any injuring obstructing, the intention interfering land, or his of such the owner agent carried on or by business occupation lands under (k) any in lawful Entering possession. [H] person another... to, fence, or by, enclosed occupied belonging cultivation land, or his of such agent the owner of written without the permission to leave or and (1) failing Refusing in lawful [It] possession, person land, of such the owner by such lands being immediately upon requested [II] lands,... leave such lawful or his possession person agent without kind of or structures any real (/) property Entering occupying in lawful owner, or possession his the consent of agent, person vehicle . . . real thereof. (m) belonging Driving any upon [If] to the another and known not to be or general open lawfully occupied owner, or the without the consent of his agent, person public, land, real or to leave lawful thereof. (n) Refusing failing possession [H] another and structures to or lawfully occupied by belonging property, to leave not to the being by peace open general public, upon requested owner, in lawful officer and the his or the agent, possession person thereof.” and the statute conflict between the access trespass

apparent.

The law conflict between administrative acts legislative regarding violate acts is well-settled. “Administrative acts regulations and no are an exercise void merely Legislature they protestations to the must conform discretion can them. administrative They sanctify will if we are to legislative preserve orderly system government.” Williams, 737; 733, “It is added.) v. 67 Cal.2d italics supra, {Morris that an fundamental administrative legislative may usurp agency function, San how its motives are.” no matter altruistic {City Joaquin 365, 374 Bd. 9 v. State (1970) Cal.Rptr. Cal.App.3d [88 Equalization 12].) not exercise

Administrative sublegislative “may agencies [their] act alter or legislative modify, enlarge powers provisions in conflict with which is administered. Administrative being regulations be null or void. or statutes are declared to the Constitution generally McCall, McDonald, 671, .; v. 679 . . v. 49 Hodge Cal.App.2d {Hammond 330, 334 . . v. etc. Bd. (1964) 185 Cal. . Alcoholic Bev. .)” Appeals {Harris Williams, v. Accord: Morris 192]; Cal.Rptr. Cal.App.2d [39 748-749; v. Board Cleaners 67 Cal.2d Duskin State Dry supra, 468]; P.2d (1962) 58 Cal.2d 161-162 Schenley Cal.Rptr. [23 Industries, Inc. v. (1965) 237 Munro Cal.App.2d Cal.Rptr. [46 Am. v. 678]; Co. St. Bd. Distilling Equalization Cal.App.2d 799, 805-806 P.2d 609].) Bd., As the court in etc. Harris Alcoholic Bev. noted: Appeals supra, “The order of with is as priority respect jurisdiction, accordingly, follows: The Constitution is the the extent expression; supreme Constitution, that it does not act; conflict the Legislature may Constitution, the extent (3) to that it does not conflict with the or with acts Legislature, department agencies] [administrative lawful act its rules 7; may (228 through regulations.” Cal.App.2d added.) italics The doctrine that administrative and must regulations subordinate to enactments

give way when the legislative equally applicable contravenes of a statute or code other regulation than the provision statutes or administered it. v. creating (Tolman agency Underhill by 708, 39 Cal.2d (1952) 712 P.2d 280]; Los Club [249 Angeles Orloff v. Turf 734, 36 Cal.2d (1951) 737-738 P.2d 449]; In re Potter (1913) Cal. [227 735, 739 P. 721]; Cleveland v. State [130 Bd. Chiropractic College 25, Examiners 34-35 Chiropractic Cal.App.3d [89 Cal.Rptr. Bd., Harris 572]; 1, Alcoholic Bev. etc. Appeals supra, 228 Cal.App.2d out, to as the make majority may exceptions Legislature, points and authorize an administrative other statutes agency may expressly also be made make Such incorpora exceptions. exceptions may by law, addition, other In an tion of federal law. including agency’s right be make an exception statutory provisions might implied general to the cases of when exercise of a necessity, expressly granted power will involve a of the other statute. In these violation agency circumstances, necessarily are warranted by general

exceptions principle Proc., Civ. ones. (Code specific statutory provisions govern general 1859; 1 Cal.3d v. Gilbert 479-480 § People Cal.Rptr. [82 462 P.2d 580].)

However, does not when the special-general principle apply to act is not but Because the agency’s power express merely implied. it can never be in relation to a power agency’s implied, special otherwise, If declaration. the rule were conflicting express legislative in their field of would be free to almost all agencies expertise ignore enacted statutes Legislature. for access not by nonemployee has provided expressly Legislature Nor has expressly Legislature to employer property.

organizers rule. an access to formulate Having to the board authority delegated law, the and the federal and Central Hardware to follow Babcock refused that the claim not Legislature incorporated may properly majority or the has the board federal law. Nor majority reference to access rule of the Penal violations sanction it shown necessary absolutely to the board. to effectuate the Code order granted expressly powers relations; it Act deals with labor Labor Relations The Agricultural Penal Code section 602 with to real does not deal property. trespasses do to real its relevant deals with trespass provisions property; instant case with labor deal with labor relations. The deals expressly other, Thus relations and each statute is on trespasses. par enactment, Penal Code it must take provision legislative being over the administrative based on a precedence power implied Moreover, from the labor statute. if either act or Penal Code must be as in relation to the activities provisions categorized special us, before Code Penal should be so Related provisions categorized. of the Penal Code deal with both provisions expressly trespasses Code, 552.1, labor relations re (Pen. in In Zerbe 555.2), §§ Cal.2d 668-669 P.2d 840], A.L.R.3d Cal.Rptr. held the those be read into section was that of sections must provisions us. of the subdivisions before (/), subdivision one presently Constitutionality Regulation Of The Access is constitutional and that access

The concludes regulation majority a rational because not does rights impinge upon private property of access and exists between purposes relationship test is that the rational act. The finds relationship proper majority issue here for constitutional review present- standard by analogizing ordinance is of a to the issues' raised when ed zoning validity however, in its The has erred analogy, applied challenged. majority, review, and sanctioned an standard of constitutional thereby improper invasion on protected property rights.4 constitutionally impermissible test on that 4The its of rational relationship grounds majority justifies application a of is “not the access infringement rights deprivation regulation’s property ’’ However, are fundamental ‘fundamental liberties.’ personal property rights Lynch in v. out Household As the United States Court personal. pointed Supreme 1113], dichotomy L.Ed.2d S.Ct. Finance 405 U.S. Corp. “[T]he not does have a false one. Property between liberties and is personal property unlawful without have to enjoy property The rights. rights. People When such as the constitutional regulations zoning challenged, issue raised is the extent which a may government regulate landowner’s use his own The access on the other regulation, property. hand, a distinct situation. In such a presents very promulgating regula- tion the is a owner to surrender the use government requiring property his not for use but the use other private property public private for union organizers. parties—nonemployee

The distinction is of In the access situation major significance. private we must of the interest asserted weigh strength against infringe- ment on function is to private property rights. proper judicial interests; balance the the rational test competing although relationship cases, in the law of is universal solvent applies zoning zoning which are dissolved. property rights

This court court unable to apparently only grasp standard for review is one of and not of rational appropriate balancing Co., In Labor Board Babcock & Wilcox U.S. relationship. supra, 105, the United States Court stated: “This is not Supreme problem closed for doors union always always open organization company . . . Accommodation between the two property. [organizational rights must be obtained as little destruction of one as is rights] (Id., 112; consistent with the maintenance of the other.” at italics p. NLRB, added.) Central Hardware Co. v. 407 U.S. Similarly, supra, 539, the Court stated: “the accommodation an- Supreme principle of nounced in Babcock is limited to labor and the organization campaigns, is both ‘yielding’ property rights may require temporary 545; minimal.” italics (Id., test is one added.) proper not a determination rational balancing, relationships.

The federal Courts of have Appeals fully recognized balancing the standard for review. N. L. R. v.B. Cir. proper (3d (E.g., Visceglia 43, 45; 1974) 498 F.2d McDonnell v. N. L. R. B. (8th Douglas Corporation 544; Cir. 1973) F.2d Diamond Shamrock Co. v. N. L. R. B. (3d 56-58; Cir. 443 F.2d 1971) see Asociacion de Etc. Trabajadores, travel, no less than the or the in deprivation, right speak check, truth a whether the in be a ‘personal’ right, ‘property’ welfare question home, fact, or a In a account. fundamental savings exists between the interdependence and the in liberty Neither could have personal right personal right meaning property. in without the other. That are basic civil has been rights long recognized. property Locke, Adams, (1924); J. Of Civil J. A Defense Constitutions Government 82-85 America, Coker, of the United States of in F. Government and Democracy, Liberty, Blackstone, (Id, (1942); 121-132 1 W. Commentaries 138-140.” Property 434-435].) L.Ed.2d at pp. 135; 518 F.2d Petersen v. Talisman (3d 1975) Green Giant Co. Cir. 1973) Cir. F.2d (5th Sugar Corporation

Indeed, Court case after in the federal decided only Appeals Babcock and Central Hardware discussed specifically majority, this standard for issue is one court that the resolving recognized proper (N. H Inc. Cir. (2d 1967) L. R. B. v. S & of balancing. Grossinger’s Moreover, fact has been in that access 29-30.) F.2d permitted under a test. federal cases is several hardly surprising balancing However, follow, it does as the because majority suggests, will in some has favored access that the balance all cases balance cases were then the States Court’s use so. If this otherwise United do Supreme the federal Courts of the word “accommodate” is as is meaningless, continual use of a balancing Appeals’ approach. United States Court balanced the interests Supreme competing Hardware, because, above, and

Babcock Central as out pointed cases, board’s violates the rule those the access regulation regulation violates constitutional provisions protecting private property.

board’s not even does to balance accommodate regulation attempt interests. It allows access alternative means of commu- when competing nication do in fact And it blanket onto exist. entry permits private hours. The as during working presently promulgated is unconstitutional.

Conclusion this,

In case such as where conviction and run we feeling high, should law to facts to assure apply carefully objectively, the result of our out decision thereby comports carrying precedent, this, To the intent of the In has failed today. Legislature. majority result, reach its relied on it has applied precedent, inapplicable review, nullified constitutional standard Legislature’s wrong board, to an adminis- to the and subordinated the mandate Legislature trative agency.

McComb, J., Richardson, J., concurred. 31, 1976, to read as On March modified was printed opinion above.

Case Details

Case Name: Agricultural Labor Relations Board v. Superior Court

Court Name: California Supreme Court

Date Published: Mar 4, 1976

Citation: 546 P.2d 687

Docket Number: S.F. 23349

Court Abbreviation: Cal.