Nishikawa Farms, Inc. v. Mahony

• Decision Date: 03 February 1977
• Docket Number: AFL-CIO
• Citation: 136 Cal.Rptr. 233,66 Cal.App.3d 781
• Parties: , 95 L.R.R.M. (BNA) 2387, 81 Lab.Cas. P 55,031 HISHIKAWA FARMS, INC., etc., Plaintiff and Appellant, v. Roger MAHONY et al., Defendants and Respondents, UNITED FARM WORKERS OF AMERICA,, etc., Real Party in Interest. Civ. 39253.
• Court: California Court of Appeals Court of Appeals

Page 233

136 Cal.Rptr. 233

66 Cal.App.3d 781, 95 L.R.R.M. (BNA) 2387,

81 Lab.Cas. P 55,031

HISHIKAWA FARMS, INC., etc., Plaintiff and Appellant, v. Roger MAHONY et al., Defendants and Respondents UNITED FARM WORKERS OF AMERICA, AFL-CIO, etc., Real Party in Interest.

Civ. 39253.

Court of Appeal, First District, Division 4, California.

Feb. 3, 1977.

Littler, Mendelson, Fastiff & Tichy, George J. Tichy, II, James J. Meyers, Jr., San Francisco, Purtell & Hoppin, Inc., Thomas A. Purtell, Woodland, for plaintiff-appellant.

Harry J. Delizonna, Gen. Counsel, Robert Le Prohn, Sacramento, for defendants-respondents.

Jerome Cohen, Sanford N. Nathan, E. Michael Heumann, II, W. Daniel Boone, Glenn Rothner, Salinas, for real party in interest.

CHRISTIAN, Associate Justice.

Nishikawa Farms, Inc. appeals from a judgment which denied a writ of mandate to compel the Agricultural Labor Relations Board to set aside a representation election. We affirm the judgment.

On September 8, 1975, the United Farm Workers of America, AFL-CIO filed with the ALRB at its Sacramento Regional Office a petition for certification pursuant to section 1156.3 of the Labor Code, seeking a representation election among appellant's employees. The petition was accompanied by authorization cards signed by 104 of the persons then employed by appellant. It was alleged in the petition that appellant then had approximately 150 agricultural employees.

As required by the regulations which had been adopted by the ALRB (Cal.Admin. Code, tit. 8, § 20310), appellant delivered to the ALRB a list of employees for the payroll period immediately preceding the filing of the petition for certification. The list contained 246 names. Appellant informed the ALRB in writing that during the preceding year the highest level of employment during any single week had been approximately 200 employees.

Agents of the ALRB investigated whether there was reasonable cause to believe that a bona fide question of representation existed; on the basis of this investigation, ALRB's regional director ordered that a representation election be held among appellant's employees. The election was conducted on September 15, 1975. There were 160 votes cast: 113 were for the UFW and 47 were for no union. The results of the election were certified by the board.

Appellant contends that in the present case both the decision to hold a representation election and the certification of its results by the ALRB were improper because the board, acting through its regional director, had erred when it concluded that the UFW had made a sufficient 'showing of interest' within the meaning of section 1156.3, subdivision (3), of the Agricultural Labor Relations Act (ALRA). ¹ The argument is that the board acted in excess of its statutory authority because it scheduled, conducted and certified an election in the absence of a petition supported by a majority of the persons then employed in the bargaining unit.

Respondents first urge that the claim is premature; they contend that the orders directing that an election be conducted and certifying the election results are not final orders of the board subject to judicial review under Labor Code section 1160.8, and that judicial review must await an appeal from an unfair labor practice order of the board.

Secondly, respondents contend that although judicial review of some matters pertinent to certification is available incident to review of an unfair labor practice order issued by the board, the 'showing-of-interest' determination is merely an administrative matter and is not reviewable at all under the ALRA.

The California statute is closely modeled on the National Labor Relations Act (hereinafter NLRA; 29 U.S.C., §§ 151--168 (1970)), with certain changes to accommodate the special problems of agriculture. Section 1160.8 ² of the Agricultural Labor Relations Act provides for judicial review of 'final orders' of the ALRB. The language of that section closely follows that of section 10, subdivision (f), of the National Labor Relations Act (29 U.S.C., § 160, subd. (f)). Section 1158 of the ALRA and section 9, subdivision (d), of the NLRA (29 U.S.C., § 159, subd. (d)) are also substantially parallel provisions. It is required by section 9, subdivision (d), of the NLRA that whenever a petition is filed with a federal Court of Appeals for review of an NLRB order in an unfair labor practice proceeding, the record of the certification proceeding becomes part of the record for review. Orders in certification proceedings are not directly reviewable in the courts but only become reviewable through section 9, subdivision (d), and section 10, subdivision (e), of the NLRA (29 U.S.C., § 159, subd. (d), § 160, subd. (e)) whereby an employer may, by resistance to an unfair labor charge, obtain review of some issues which may be involved in such certification. (See Boire v. Greyhound Corp. (1964) 376 U.S. 473, 476--477, 84 S.Ct. 894, 11 L.Ed.2d 849; see also Groendyke Transport, Inc. v. Davis (5th Cir. 1969) 406 F.2d 1158, 1163--1164, cert. den. 394 U.S. 1012, 89 S.Ct. 1628, 23 L.Ed.2d 39; Boire v. Miami Herald Publishing Co. (5th Cir. 1965) 343 F.2d 17, 20, cert. den. 382 U.S. 824, 86 S.Ct. 56, 15 L.Ed.2d 70; Eastern Greyhound Lines v. Fusco (6th Cir. 1963) 323 F.2d 477, 479.)

When legislation has been applied in judicial decisions and then a subsequent statute on an analogous subject employs identical language, it is to be presumed that the Legislature intended that the language be given a like interpretation in applying the new enactment. 'This rule is applicable to state statutes which are patterned after federal statutes.' (Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen (1960) 54 Cal.2d 684, 688-- 689, 8 Cal.Rptr. 1, 3, 355 P.2d 905, 907; see Englund v. Chavez (1972) 8 Cal.3d 572, 591, 105 Cal.Rptr. 521, 504 P.2d 457; Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 852--853, 94 Cal.Rptr. 785, 484 P.2d 953.) In light of the foregoing principle, we conclude that a certification order under section 1156.3 of the ALRA is not a 'final order' of the board; therefore, it is not normally subject to judicial review except as it may be drawn in question by a petition for review of an order made under section 1160.3 of the act restraining an unfair labor practice. (See also Lab.Code, § 1158.)

Appellant points out, however, that under the federal cases the proscription on direct judicial review of certification orders issued by the NLRB is not absolute. In two cases the Supreme Court has permitted a federal District Court to entertain a suit for an injunction where questions of representation were involved. But these cases involved 'exceptional factual situations of such urgency as to warrant the overriding of the congressional policy against such immediate review.' (Greensboro Hosiery Mills, Inc. v. Johnston (4th Cir. 1967) 377 F.2d 28, 31.) A third exception has been carved out by the Second Circuit. These three limited exceptions to the proscription are summarized in Boire v. Miami Herald Publishing Co., supra, 343 F.2d 17, 21:

One exceptional set of circumstances is presented where the suit tenders 'public questions particularly high in the scale of our national interest because of their international complexion.' McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 17, 83 S.Ct. 671, 675, 9 L.Ed.2d 547, 552 (1963). Another exception, which has been fashioned primarily by the Second Circuit, comes into play where there is a substantial showing that Board action has violated the constitutional rights of the complaining party. See Fay v. Douds (2 Cir. 1949) 172 F.2d 720. The third exception, on which the appellee relies strongly, is predicated on the Supreme Court's decision in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). There the court upheld a district court injunction setting aside a Board election and certification where the Board had clearly acted 'in excess of its delegated powers and contrary to a specific prohibition in the Act.' 79 S.Ct. at 184, 3 L.Ed.2d at 214. The courts have generally interpreted Kyne as sanctioning the use of injunctive powers only in a very narrow situation in which there is a 'plain' violation of an unambiguous and mandatory provision of the statute. See Eastern Greyhound Lines v. Fusco (6 Cir. 1963) 323 F.2d 477; Consolidated Edison Co. v. McLeod (S.D.N.Y.) 202 F.Supp. 351, aff'd 302 F.2d 354 (2 Cir. 1962); Local 1545, United Bhd. of Carpenters v. Vincent (2 Cir. 1960) 286 F.2d 127; International Ass'n of Tool Craftsmen v. Leedom (1960) 107 U.S.App.D.C. 268 276 F.2d 514. This exception has been applied to an affirmative requirement of the Act as well as a statutory prohibition. See Miami Newspaper Printing Pressmen's Union Local 46 v. McCulloch (1963) 116 U.S.App.D.C. 243, 322 F.2d 993. Nevertheless, 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.

(See Teamsters, Chauffeurs, Help. & Del. Dr., Local 690 v. N.L.R.B. (9th Cir. 1967) 375 F.2d 966, 968.) Here, appellant relies heavily upon the Leedom v. Kyne exception, Supra, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210, to support its argument that direct judicial review of the certification order should be available in this case. In Kyne, the Supreme Court upheld direct intervention by a federal district court to strike down an order of the NLRB 'made in excess of its delegated powers and contrary to a specific prohibition in the Act.' (Leedom v. Kyne, supra, 358 U.S. at p. 188, 79 S.Ct. at p. 184). In that case, the NLRB had included both professional and nonprofessional employees in the bargaining unit without granting professional employees ...