UNITED FARM WORKERS OF AMERICA, AFL-CIO, Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; MOUNT ARBOR NURSERIES et al., Real Parties in Interest.
Civ. No. 3426
Fifth Dist.
July 29, 1977
72 Cal. App. 3d 268
Jerome Cohen, Sanford N. Nathan, W. Daniel Boone, Glenn Rothner, E. Michael Heumann II, Tom Dalzell and Linton Joaquin for Petitioner.
Harry J. Delizonna, Dennis M. Sullivan and Manuel M. Medeiros as Amici Curiae on behalf of Petitioner.
No appearance for Respondent.
Thomas, Snell, Jamison, Russell, Williamson & Asperger, Jay V. Jory, Howard A. Sagaser and Nickolas J. Dibiaso for Real Parties in Interest.
HOPPER, J.—In this case we are called upon to determine whether the superior court has jurisdiction to entertain an action for declaratory relief as to bargaining rights of agricultural employers and agricultural employees. We conclude that the Agricultural Labor Relations Board1 has exclusive jurisdiction and that the superior court may not entertain such an action.
Real parties grow roses and employ farm workers in their operations. In November 1975, petitioner (herein UFW) won elections held under the Act with respect to employees of real parties. On December 3, 1975, the UFW was certified by the Board as the bargaining representative for real parties’ employees. No collective bargaining agreement has been entered into between the UFW and real parties.
Prior to the expiration of 12 months following certification, the UFW requested extension of its certification. That request (as was a subsequent one for reconsideration) was denied. By a letter received by real parties February 3, 1977, the UFW demanded that real parties bargain with it. No response was made to that demand. On February 4, 1977, real parties filed in the Superior Court of Kern County the complaint for declaratory relief which is the subject of this dispute. That complaint sought a declaratory judgment informing real parties as to their obligation with regard to the UFW. On March 10, 1977, the UFW demurred to the complaint, alleging failure to plead exhaustion of all remedies open to real parties, lack of jurisdiction of the court, and defect or nonjoinder of parties in that the Board was not joined. On March 28, 1977, the Board issued a decision in the unrelated case of Kaplan‘s Fruit & Produce Company, Inc. (1977) 3 ALRB No. 28. In this case the Board addressed the issue raised in the present case, and ruled that the employer‘s duty to bargain does not expire at the end of a year‘s time, holding that the employer must continue to bargain with the union until the employees elect to the contrary. A copy of this opinion was provided to the trial court at the hearing on the UFW‘s demurrer. On April 4, 1977, respondent court overruled the demurrer. On April 20 the UFW filed the instant petition for writ of prohibition and/or mandamus, alleging that respondent court has determined that it has jurisdiction to hear the action, that it will do so unless restrained by this court, and that it has no jurisdiction to do so.
The UFW and the Board2 contend that the superior court‘s jurisdiction to entertain the petition for declaratory relief has been preempted by the Act. The Act was an attempt to apply the basic concepts embodied in the National Labor Relations Act (herein NLRA) to farm labor disputes in California. Much of the Act is copied verbatim from the NLRA, and the Act goes so far as to provide that the Board must follow applicable NLRA precedent (
The court in Nishikawa Farms, Inc. v. Mahony (1977) 66 Cal.App.3d 781 [136 Cal.Rptr. 233] held that the procedure under the Act could not be circumvented by seeking mandamus in the superior court challenging the Board‘s orders certifying elections. The same reasoning applies to the facts of this case.
We hold that the Board has exclusive primary jurisdiction over all phases of the administration of the Act as regards unfair labor practices.
The Act provides in section 1166.3, subdivision (b): “If any other act of the Legislature shall conflict with the provisions of this part, this part shall prevail.”3 The Act also provides in section 1160.9: “The procedures set forth in this chapter shall be the exclusive method of redressing unfair labor practices.”
Real parties argue that the Board‘s exclusive jurisdiction only goes to “redressing” unfair labor practices; that in the present case they are not asking the superior court to redress an unfair labor practice; rather, they are requesting it to determine if they have a duty to bargain with the UFW. This contention is fallacious. Whether real parties have a duty to bargain with the UFW is incident under the Act to many possible future unfair labor practices and is inseparable therefrom, much in the same way that an easement appertains to or is tied to a tenement. If every time an incident or condition precedent were involved in an alleged unfair labor practice and any party could first obtain declaratory relief in the superior court instead of from the Board, the Board would be replaced by ad hoc determinations by already overcrowded courts. The legislative effort to bring order and stability to the collective bargaining process would be thwarted. The work of the Board would be effectively impaired, its decisions similar in impression to that of a tinkling triangle practically unnoticed in the triumphant blare of trumpets.
Under the NLRA, the federal district courts do not have jurisdiction to issue declaratory relief in labor-management disputes. (California Ass‘n v. Building and Const. Tr. Council (9th Cir. 1949) 178 F.2d 175; International Brotherhood, Etc. v. International U., Etc. (9th Cir. 1939) 106 F.2d 871; Bradley Lumber Co. v. National Labor Relations Board (5th Cir. 1936) 84 F.2d 97.) The United States Supreme Court has not specifically stated that the federal district courts have no jurisdiction to issue declaratory relief. However, that court has made general statements that federal and state courts do not have jurisdiction to involve themselves in matters within the purview of the National Labor Relations Board. As the court stated in Garner v. Teamsters Union (1953) 346 U.S. 485, 490-491 [98 L.Ed. 228, 239, 74 S.Ct. 161]: “Congress did not
We believe that in the Act (containing provisions for appellate review almost identical to the NLRA‘s) the California Legislature similarly intended to foreclose actions for declaratory relief in the superior court, when the issue could be raised in an unfair labor practice proceeding.
The particular issue sought to be answered in the instant declaratory relief action could not arise under the NLRA. Only the Act prohibits bargaining with other than a “certified” union (
Real parties contend the present case falls within the exception of Leedom v. Kyne (1958) 358 U.S. 184 [3 L.Ed.2d 210, 79 S.Ct. 180]. In Kyne, the NLRA 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 a portion of
That is an overstatement of the holding in Kyne. As was stated in Boire v. Miami Herald Publishing Co. (5th Cir. 1965) 343 F.2d 17, 21: “[I]t 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.” (See also Boire v. Greyhound Corp. (1964) 376 U.S. 473 [11 L.Ed.2d 849, 84 S.Ct. 894]; McCulloch v. Libbey-Owens-Ford Glass Co. (D.C. Cir. 1968) 403 F.2d 916, 917 [131 App.D.C. 190].)
We cannot say that a statutory violation can be seriously argued in the present case. Nor is there any deprivation of a right guaranteed by the Act. We conclude that the Kyne exception does not apply here.
Real parties are correct in asserting that a further exception has been recognized by some courts, i.e., when the constitutional rights of the complaining party have been violated. (Fay v. Douds (2d Cir. 1949) 172 F.2d 720.) That exception is also limited. There must be a substantial showing that Board action has violated due process or some other constitutional right. Real parties request that the court take judicial notice of the fact that real party Mount Arbor Nurseries charged the UFW with unfair labor practices in its threats of bodily injury and death (as well as union disfavor and economic reprisal) to nonstriking employees, trailing of nonstriking employees from their places of work to their residences, blocking of entrances to work areas, and “residential picketing” of individual employee homes. Notwithstanding the fact that there were employees who testified in support of these allegations, the regional director concluded that there was insufficient evidence to support the charge in light of existing case precedent and First Amendment protections. Real parties also allege harassment and delays by the Board in connection with the unfair labor practice charges presently pending against them. It appears to be real parties’ contention
However, there were no allegations of bias made by the real parties in the complaint for declaratory relief. The Board was not even named as a party to the litigation. The asserted exception is therefore not applicable. Furthermore, the continued validity of the Fay v. Douds exception is questionable. (See cases cited in Moshlak v. American Broadcasting Co. (S.D.N.Y. 1976) 423 F.Supp. 774, 778.)
Real parties claim that they face “irreparable injury” by being subjected to the possibility of an unfair labor practice. We recognize that any party to a labor dispute faces that dilemma of the familiar rock of Scylla and the whirlpool of Charybdis. However, if a party (employer or union) were allowed to bypass the Board and go directly to the court seeking declaratory relief on the ground of irreparable injury, the result would substitute the court for the Board as the exclusive adjudicative body established under the Act. That would fly in the face of the legislative will. (See Myers v. Bethlehem Corp. (1938) 303 U.S. 41, 50-51 [82 L.Ed. 638, 643-645, 58 S.Ct. 459]. See also Walker v. Munro (1960) 178 Cal.App.2d 67, 77 [2 Cal.Rptr. 737].)4 In the absence of arbitrary and clearly unreasonable actions tantamount to gross abuse, pursuant to the legislative mandate the courts should leave the matter in the first instance to the Board—a centralized agency. The Legislature has in effect concluded that the inconvenience of deferring judicial review is a lesser evil than the potential chaos which would be created by permitting initial jurisdiction in the courts. Real parties express a fear that the injury is more irreparable under the Act than under the NLRA, since the Act specifically provides that the Board may order a “make whole” remedy when the employer engages in unfair labor practices. Although the NLRA does not specifically provide for a “make whole” remedy and thus far the NLRB has declined to utilize it, nevertheless several cases have held that this remedy is in fact available to the NLRA (International Union of E., R. & M. W., AFL-CIO v. N.L.R.B. (D.C. Cir. 1970) 426
In Kaplan‘s Fruit & Produce Company, Inc., supra, 3 ALRB No. 28, the Board addressed itself to the precise issue framed in real parties’ petition for declaratory relief. It concluded that, although the statutory language is slightly different from that of the NLRA, the rule to be followed is the same—that the duty to bargain with the union does not expire after one year, but rather continues, the union enjoying a rebuttable presumption that its majority representative status continues.
Real parties are correct that there is no statutory authority for the Board to write an advisory opinion such as Kaplan‘s.5 Real parties claim that they did not know what to do and that they were afraid of committing an unfair labor practice. While Kaplan‘s is not binding on the Board or real parties, that ALRB opinion does notify real parties as to how the Board felt at that time the statute was to be interpreted. The Board would be hard pressed to assert the contrary in an unfair labor practice suit so long as Kaplan‘s remained a guideline. After Kaplan‘s was decided, the real parties could no longer logically assert that they were in the dark as to what steps to take to avoid commission of an unfair labor practice. Should real parties disagree with the Board‘s interpretation, they could request their own hearing on the issue and in the event of a subsequent unfair labor practice proceeding have judicial review under the Act.6
In summary, the Legislature, confronted with violence in the fields, sought peace and stability in agricultural relations by adoption of the Act. That Act established a centralized expert agency with a primary jurisdiction over agricultural labor disputes. With limited exceptions not applicable to the facts of this case, the judiciary enters the scene only
Let a peremptory writ of mandate issue directing the respondent court to vacate its order overruling the demurrer of petitioner and enter an order sustaining the demurrer, without leave to amend, and dismissing the complaint of real parties.
Gargano, J., concurred.
BROWN (G. A.), P. J., Concurring and Dissenting.—I concur generally in the reasoning and conclusion of the principal opinion. The result is clearly compelled by the statutory scheme and, of course, short of constitutional considerations, which are not involved in the case at bench, this court does not make the law but is bound by what the Legislature has enacted. Therefore, if there is to be a change it must be made at the legislative level and not by the courts.
The dilemma with which the farmer was confronted in this case could have been wholly avoided if the Agricultural Labor Relations Board had acted more expeditiously. In this regard I perceive in the act a legislative purpose that labor disputes in the fields are intended to be resolved with dispatch and that the contemplated speedy result is not a one-way street in favor of the union. I should think, therefore, that the Board would treat all parties in an even-handed manner and do everything possible to expedite proceedings involving refusal to bargain and unfair labor practice charges.
Lastly, I cannot agree with the implication of the majority opinion that the Agricultural Labor Relations Board is an “expert agency.” While that was undoubtedly the intention of the Legislature, there is no information in the record regarding the expertise of the persons occupying the positions on the Board. If we could take judicial notice of the political inclinations and formal and practical background and intellectual qualities of the members of the Board, our assessment might be far less complimentary than implied by the principal opinion.