JACK RADOVICH, Plaintiff and Appellant, v. AGRICULTURAL LABOR RELATIONS BOARD, Defendant and Respondent; UNITED FARM WORKERS OF AMERICA, AFL-CIO et al., Real Parties in Interest and Respondents.
Civ. No. 3073, Civ. No. 3087
Court of Appeal of California, Fifth Appellate District
July 27, 1977
72 Cal. App. 3d 36
Seyfarth, Shaw, Fairweather & Geraldson, Joseph Herman and Bette Bardeen for Plaintiffs and Appellants.
Jerome Cohen, Sanford N. Nathan, W. Daniel Boone, Glenn Rothner, E. Michael Heumann II, Tom Dalzell, Linton Joaquin and Deborah Peyton for Real Parties in Interest and Respondents.
OPINION
HOPPER, J.—These matters are consolidated appeals from judgments of the Superior Court of Tulare County. In each case after a hearing on a petition for administrative mandamus, the court found that the Agricultural Labor Relations Board did not act in excess of its jurisdiction; the jurisdiction of the regularity of elections was part of the function and jurisdiction reserved to the Agricultural Labor Relations Board and the superior court was without jurisdiction.1
Appellants contend: (1) That the superior court has jurisdiction under
For the same reasons set out in Nishikawa Farms, Inc. v. Mahony (1977) 66 Cal.App.3d 781 [136 Cal.Rptr. 233], we hold the first contention to be without merit. We therefore proceed to discuss the second contention.
In 5 Civil 3073 the petition alleged that on September 8, 1975, real party in interest United Farm Workers of America, AFL-CIO (hereinafter UFW or real party) filed with respondent Board a petition to be certified as the collective bargaining agent of appellant Radovich‘s agricultural employees. Subsequently the Western Conference of Teamsters, Agricultural Division, filed a petition to intervene in the election. An election was held, resulting in 83 votes for real party, 46 votes for no union, 17 votes for the Teamsters, 2 unresolved challenges, and 1 void
“(i) whether the UFW made a proper showing of interest in support of its Petition, as required by Section 1156.3(a) of the Act;
“(ii) whether the ALRB properly utilized symbols on the election ballot and whether the use of symbols on the ballot confused or otherwise misled voters;
“(iii) whether the failure of the ALRB to provide ‘Notices of Election’ until approximately 1:00 p.m. the day before the election resulted in inadequate notice to eligible voters and, consequently, disenfranchised many eligible voters;
“(iv) whether the failure of the ALRB to provide a Sample Ballot with the Notice of Election resulted in the voters being unnecessarily confused at the time of the election by the choices on the ballot;
“(v) whether the UFW‘s failure to provide a list of election observers at the pre-election conference prejudiced Petitioner and improperly affected the results of the election.”
Respondent directed that a hearing be held on appellant‘s other objections. By a decision issued January 20, 1976, respondent rejected appellant‘s contentions and ordered real party certified as bargaining agent for appellant‘s employees. The Board found:
“(i) that statements prior to the election by UFW agents to various of Petitioner‘s employees, to the effect that there would be no hiring hall if the UFW won the election, did not warrant setting aside the election;
“(ii) that statements prior to the election by UFW agents to various of Petitioner‘s employees, to the effect that there would be no dues charged for one year if the UFW won the election, did not warrant setting aside the election;
“(iii) that the offer of free medical care to one of Petitioner‘s employees by UFW agents prior to the election did not warrant setting aside the election;
“(iv) that the promise by UFW agents of a party for Petitioner‘s employees if the UFW won the election did not warrant setting aside the election;
“(v) that threatening statements made prior to the election by UFW agents to certain of Petitioner‘s employees in order to coerce support for the UFW did not warrant setting aside the election.”
Appellant‘s petition alleged that respondent abused its discretion in making these findings, and that it also denied appellant the right to a fair trial in failing to hold a hearing on appellant‘s other objections listed above.
In 5 Civil 3087 the petition alleged that on September 8, 1975, the UFW filed with respondent a petition to be certified as the collective bargaining agent of appellant Cesare and Sons’ agricultural employees. An election was held, resulting in 13 votes for the UFW and 10 votes for no union. Appellant thereupon filed objections to conduct which it alleged affected the election. On October 3, 1975, the Board notified appellant that certain of its objections were being dismissed without hearing. These objections related to the following issues:
“(i) whether the UFW made a proper showing of interest in support of its Petition, as required by Section 1156.3(a) of the Act;
“(ii) whether the ALRB properly utilized symbols on the election ballot and whether the use of symbols on the ballot confused or otherwise misled voters;
“(iii) whether the failure of the ALRB to provide a Sample Ballot with the Notice of Election resulted in the voters being unnecessarily confused at the time of the election by the choices on the ballot.”
Respondent directed that a hearing be held on appellant‘s other objections. By a decision issued January 8, 1976, respondent rejected appellant‘s contentions and ordered real party certified as bargaining agent for appellant‘s employees. The Board found:
“(i) that the failure of the ALRB to conduct the election within seven days of the filing of the Petition, as expressly mandated by Section 1156.3(a) of the Act, did not warrant setting aside the election;
“(ii) that the closing of the polls 15 to 30 minutes earlier than scheduled did not warrant setting aside the election;
“(iii) that a statement by UFW agents to several of Petitioner‘s employees on the day before the election, to the effect that if the UFW won the election, the employees could get a reelection within 60 days if they were unhappy with the UFW or any contract it negotiated, did not warrant setting aside the election.”
Appellant‘s petition alleged that respondent abused its discretion in making these findings, and that it also denied appellant the right to a fair trial in failing to hold a hearing on appellant‘s other objections listed above.
Appellants argue that portions of their petitions fall within the exception to the rule that a certification order may not be directly challenged, carved out by Leedom v. Kyne, supra, 358 U.S. 184. In Kyne, the NLRB conducted an election in a unit containing professional and nonprofessional employees without giving the professionals an opportunity to vote on whether they wished to be included with the nonprofessionals in one unit. This was in direct violation of
The exception of Kyne has been narrowly construed. Boire v. Greyhound Corp. (1964) 376 U.S. 473, 481 [11 L.Ed.2d 849, 855, 84 S.Ct. 894], stated: “The Kyne exception is a narrow one, not to be extended to permit plenary district court review of Board orders in certification proceedings whenever it can be said that an erroneous assessment of the particular facts before the Board has led it to a conclusion which does not comport with the law.”
Nor does the fact that the issue is a legal rather than a factual one invoke the exception. An erroneous assertion of the Board‘s authority is insufficient: “... it seems clear that, in light of the congressional purpose behind limited review of certification proceedings, representation matters are enjoinable only where the fact of a statutory violation cannot seriously be argued and where the deviation resulted in a deprivation of a ‘right’ guaranteed by the Act.” (Boire v. Miami Herald Publishing Co. (5th Cir. 1965) 343 F.2d 17, 21; see also McCulloch v. Libbey-Owens-Ford Glass Co. (D.C. Cir. 1968) 403 F.2d 916, 917 [131 App.D.C. 190].)
The Kyne exception provides for an action under the National Labor Relations Act itself. The petitions here attempt to invoke the court‘s jurisdiction under
The vast majority of the allegations of the two petitions are complaints that there was no evidence to support the Board‘s conclusions. These clearly are factual questions not within the purview of the Kyne exception. Appellants do assert two specific situations falling, they say, within the Kyne exception.
First, appellants argue that the Board acted improperly in dismissing some of their objections without a hearing. This, they claim, is in direct violation of
“(c) Within five days after an election, any person may file with the board a signed petition asserting that allegations made in the petition filed pursuant to subdivision (a) were incorrect, that the board improperly determined the geographical scope of the bargaining unit, or objecting to the conduct of the election or conduct affecting the results of the election.
“Upon receipt of a petition under this subdivision, the board, upon due notice, shall conduct a hearing to determine whether the election shall be certified.” (Italics added.)
Both respondent and real party rely on Dyestuffs and Chemicals, Inc. v. Flemming (8th Cir. 1959) 271 F.2d 281, certiorari denied, 362 U.S. 911 [4 L.Ed.2d 619, 80 S.Ct. 681]. In that case the court, faced with a provision in the Food and Drug Act similar to the one in the Act, stated: “The hearing is solely for the purpose of receiving evidence ‘relevant and material to the issues raised by such objections.’ Certainly, then, the objections, in order to be effective and necessitate the hearing requested, must be legally adequate so that, if true, the order complained of could not prevail. The objections must raise ‘issues.’ The issues must be material to the question involved; that is, the legality of the order attacked. They may not be frivolous or inconsequential. Where the objections stated and the issues raised thereby are, even if true, legally
As stated above, the five objections raised by appellant Radovich which respondent dismissed without a hearing were (1) whether the UFW made a proper showing of interest in support of its petition; (2) the effect of respondent‘s failure to provide “Notices of Election” until 1 p.m. on the day before the election; (3) the propriety of respondent‘s use of symbols on the ballot; (4) the effect of respondent‘s failure to provide a sample ballot with the notice of election; and (5) the effect of the UFW‘s failure to provide a list of election observers at the pre-election conference. The dismissed objections raised by appellant Cesare and Sons are identical to issues (1), (3), and (4) above.
The showing of interest objection was dismissed under the Board regulation (
The objection that the Board failed to provide written notice of election until approximately 1 p.m. on the day prior to the election was dismissed because the employer failed to provide supporting
The record is not clear as to the objection regarding symbols. However, regulations cover this subject (
Our law favors the holding of hearings by administrative bodies. However,
None of the dismissed objections required a hearing under the totality of the circumstances presented in these consolidated cases.6 There was no flagrant violation warranting review under Kyne. We conclude that the situation in these cases does not fall within the narrow confines of the Kyne exception. Of course, this holding does not prevent a possible later hearing and review under chapter 4 of the Act in an unfair labor practice proceeding. Our interference at this time would prevent achievement of the legislative goals of the Act. Under the statutory scheme, review is postponed until there is a finding as to an unfair labor practice.
In 5 Civil 3087 the appellant argues that the Board did not hold the election until nine days after the election petition was filed and therefore
The Board conducted a hearing on this issue; it concluded that the statute had been violated but that no prejudice had resulted from the error. The Board in examining the possible prejudice to the parties and interested persons pointed out in its opinion at 2 ALRB No. 6: “The list of employees submitted by the employer pursuant to section 20310(d)(2) of our regulations indicates that 25 employees were on the payroll during the period immediately preceding the filing of the petition. Of this total number of eligible voters, 23 cast valid ballots. No new employees were hired during that period, and only two employees were absent from work on election day. No ballots were challenged on the ground that the voter‘s name did not appear on the eligibility list. It is clear, therefore, that employee turnover between the date of the employer‘s list and the date of the election was negligible. The voter participation in this election was an uncommonly high 92.7 percent, and the number of employees absent from work on election day was less than the margin of the UFW‘s victory on the tally. Furthermore, we find no evidence suggesting that any party was prejudiced in any way by the delay in holding the election. Accordingly, we conclude that the delay in holding the election does not warrant setting aside the election in this case.”
We hold that the narrow exception of Kyne is inapplicable. We do not believe that the time limit in
The judgments are affirmed.
Gargano, J., concurred.
BROWN (G. A.), P. J.—I concur in the judgment.
In doing so I wish to make my position clear with regard to those objections filed by the appellants which were dismissed without a hearing.
The objection that the respondent did not make a proper showing of interest was properly dismissed under Nishikawa Farms, Inc. v. Mahony (1977) 66 Cal.App.3d 781 [136 Cal.Rptr. 233] (see
As to the balance of the objections which were dismissed without a hearing, the record before us contains no showing that the appellants complied with the legally adopted Board regulation requiring the objector to “file with the petition declarations or other evidence establishing a prima facie case in support of the allegations of said
However, had appellants filed the appropriate declarations in support of the objections contained in their petition before the Board, I am not prepared to say that the Board could not have been compelled by court action to hold a hearing on those objections instead of summarily dismissing them. (Leedom v. Kyne (1958) 358 U.S. 184 [3 L.Ed.2d 210, 79 S.Ct. 180].)
The failure to accord a party a fair hearing not only has due-process/fair-trial overtones (see English v. City of Long Beach (1950) 35 Cal.2d 155 [217 P.2d 22, 18 A.L.R.2d 547]), but the statute expressly mandates that “[u]pon receipt of a petition under this subdivision, the board, upon due notice, shall conduct a hearing to determine whether the election shall be certified.” (Italics added.) No equivalent provision is found in the National Labor Relations Act; consequently, federal precedents under that act are of little value. Lacking such cases, the principal opinion has gone far afield in search of authority. Some precedent has been found in a less authoritative lower federal court case
Keeping in mind that the ALRA makes a hearing mandatory, the language of Leedom v. Kyne, supra, would permit judicial review of the ALRB‘s intermediate action dismissing charges without a hearing. Among other teachings, that case permits judicial review of intermediate acts of the Board when the actions are “contrary to a specific prohibition in the Act” (358 U.S. at p. 188 [3 L.Ed.2d at p. 214, 79 S.Ct. at p. 184]) and the Board action deprives a party of a right which has been assured by the legislative body. (See Boire v. Miami Herald Publishing Co. (5th Cir. 1965) 343 F.2d 17, 21.) There is nothing in Boire v. Greyhound Corp. (1964) 376 U.S. 473 [11 L.Ed.2d 849, 845 S.Ct. 894] or Boire v. Miami Herald Publishing Co., supra, 343 F.2d 17, contrary to this position. In both of those cases a hearing in fact was held by the National Labor Relations Board.
The case primarily relied upon by the principal opinion is Dyestuffs and Chemicals, Inc. v. Flemming, supra, 271 F.2d 281, which is clearly distinguishable. In that case Dyestuffs, a manufacturer of food dye, sought judicial review of an order promulgated by the Secretary of Health, Education and Welfare. The order decertified and prohibited certain dyes from use in foodstuffs. Prior to the issuance of the order no hearing was held, though a provision of the Federal Food, Drug and Cosmetic Act provides that before an order is issued “the Secretary [of Health, Education and Welfare], after due notice, shall hold such a public hearing....” (
The Supreme Court held in an analogous case (Flemming v. Florida Citrus Exch. (1958) 358 U.S. 153, 167 [3 L.Ed.2d 188, 197, 79 S.Ct. 160, 168]) that under the statute “where a coal-tar color is not harmless, it is not to be certified” and agreed with the Secretary‘s contention that he “is without power to permit the use of harmful coal-tar colors in specific foods through a system of tolerances.” (358 U.S. at p. 166 [3 L.Ed.2d at p. 196, 79 S.Ct. at p. 168].) The dye involved in the Dyestuffs case was a coal-tar dye.
Dyestuffs sought to have the Secretary authorize the use of the prohibited dye by establishing tolerances in violation of the specific holding in the Supreme Court case.
This is not the situation in the case at bench. No decision or statute prohibits the ALRB from making an order that the election would not be certified because of the irregularities and objections stated by appellants. To the contrary, it is clearly the Board‘s duty to refuse to certify the election if it finds after the hearing “that any of the assertions made in the petition filed pursuant to this subdivision are correct, or that the election was not conducted properly, or misconduct affecting the results of the election occurred, ....” (See
It is one thing to hold that the determination by the Board that a sufficient interest exists to order an election is not subject to judicial review except later in resistance to an unfair labor charge (see Nishikawa Farms, Inc. v. Mahony, supra, 66 Cal.App.3d 781); it is quite another matter to hold that the Board may by administrative ukase determine all issues relative to the election process without according a hearing to the parties if one is properly requested pursuant to the mandatory terms of the statute. I can scarcely think of a right more fundamental than that of a fair hearing before the tribunal which purports to adjudicate a matter having far-reaching consequences to the contestants. Pragmatically, it is apparent to all who are acquainted with the practicalities of the situation that requiring the employer to wait and proceed by way of an unfair labor practice charge and subsequent refusal to bargain, with all its
Appellants’ petition for a hearing by the Supreme Court was denied November 23, 1977. Bird, C. J., did not participate therein. Sullivan, J.,* participated therein. Clark, J., Richardson, J., and Newman, J., were of the opinion that the petition should be granted.
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
Notes
Regulation 20315, subdivision (a) provides: “(a) The Board or the regional director shall determine administratively whether there exists an adequate showing of employee support as required by Sec. 1156.3 of the Labor Code to warrant the conduct of an election.”
“(c) Within five days after an election, any person may file with the board a signed petition asserting that allegations made in the petition filed pursuant to subdivision (a) were incorrect, that the board improperly determined the geographical scope of the bargaining unit, or objecting to the conduct of the election or conduct affecting the results of the election.
“Upon receipt of a petition under this subdivision, the board, upon due notice, shall conduct a hearing to determine whether the election shall be certified. Such hearing may be conducted by an officer or employee of a regional office of the board. He shall make no recommendations with respect thereto. If the board finds, on the record of such hearing, that any of the assertions made in the petition filed pursuant to this subdivision are correct, or that the election was not conducted properly, or misconduct affecting the results of the election occurred, the board may refuse to certify the election. Unless the board determines that there are sufficient grounds to refuse to do so, it shall certify the election.”