Andrews v. Agricultural Labor Relations Bd.

• Citation: 623 P.2d 151,171 Cal.Rptr. 590,28 Cal.3d 781
• Decision Date: 29 January 1981
• Docket Number: R,AFL-CI
• Court: United States State Supreme Court (California)
• Parties: , 623 P.2d 151, 93 Lab.Cas. P 55,331 Robert S. ANDREWS et al., Petitioners, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA,eal Party in Interest. L.A. 31237.

Page 590

171 Cal.Rptr. 590

28 Cal.3d 781, 623 P.2d 151, 93 Lab.Cas. P 55,331

Robert S. ANDREWS et al., Petitioners, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest.

L.A. 31237.

Supreme Court of California, In Bank.

Jan. 29, 1981.

Rehearing Denied March 16, 1981.

Cohen, Freeman & Broker, John Clark Brown, Jr., Haight, Dickson, Brown, Bonesteel & Rigg and Roy G. Weatherup, Los Angeles, for petitioners.

Dressler, Stoll, Hersh & Quesenbery, Sacramento, Sarah A. Wolfe, Bakersfield, Ronald A. Zumbrun and Robert K. Best, Sacramento, as amici curiae on behalf of petitioners.

Ellen Lake, Manuel M. Medeiros, Sacramento, Deborah Warren, Ruth Rokeach, Berkeley, Daniel G. Stone, Sacramento, Harry J. Delizonna, San Jose, Dennis M. Sullivan, Marvin J. Brenner and Thomas M. Sobel, Sacramento, for respondent.

Fred Okrand, Los Angeles, and Gary Williams, Sacramento, as amici curiae on behalf of respondent.

Dianna C. Lyons, Sacramento, Marco E. Lopez, Carlos M. Alcala, Francis E. Fernandez, Carmen S. Flores, Daniel A. Garcia, Federico G. Chavez, Ellen J. Eggers, Jerome Cohen, Keene, Sanford N. Nathan, W. Daniel Boone, San Francisco, Glenn Rothner, Los Angeles, E. Michael Heumann, II, Keene, Tom Dalzell, Salinas, Linton Joaquin, Keene, and Deborah Peyton, Timothy H. McCarthy, Salinas, Albert H. Meyerhoff, Richard M. Pearl, Valeriano Saucedo, Fred H. Altshuler, Altshuler & Berzon, Vilma S. Martinez, Morris J. Baller, Joel G. Contreras, Ronald T. Vera, John H. Erickson, Alice M. Beasley, Henry Hewitt, Erickson, Beasley & Hewitt, Lois Salisbury, Mark N. Aaronson, San Francisco, Anthony G. Amsterdam, Stanford, Jerome B. Falk, Jr., Ephraim Margolin, Miguel A. Mendez, Charles J. Meyers, Gary J. Near and E. Robert Wallach, San Francisco, as amici curiae on behalf of respondent and real party in interest.

MOSK, Justice.

Pursuant to Labor Code section 1160.8, petitioners seek a writ of review to set aside a decision and order of the Agricultural Labor Relations Board (Board). Because we granted petitioners' petition to explicate the grounds upon which a finding of bias sufficient to compel disqualification may be based, we will recite only those facts relevant to the contention that the administrative law officer (ALO) erred when he failed to disqualify himself.

The Board's general counsel initiated the underlying proceeding by filing complaints pursuant to Labor Code section 1160.2 alleging that petitioners agricultural employers of workers covered by the Agricultural Labor Relations Act (ALRA) had committed various unfair labor practices in connection with a union representation election held among petitioners' employees. The general counsel charged petitioners with unlawfully discharging and demoting nine of their employees, with engaging in unlawful surveillance and interrogation of employees, and with otherwise restraining and interfering with the employees' rights under the ALRA. The general counsel's complaint and objections to the election filed by the United Farmworkers of America, AFL-CIO (UFW), which lost the election to the Teamsters Union, were consolidated for evidentiary hearing before an ALO.

The Board appointed Armando Menocal as a temporary ALO, pursuant to Labor Code section 1145, to conduct the hearings which took place in December 1975 and January 1976. At that time, Menocal was an attorney in private practice with Public Advocates, Inc., a public interest law firm in San Francisco. Petitioners' counsel first learned of this fact approximately one hour before the hearing commenced. He immediately moved to disqualify Menocal under California Administrative Code, title 8, section 20230.4, the then current regulation on disqualification of ALOs. After denying counsel's request to question him about his employment, the ALO permitted counsel to make an oral affidavit as follows:

"MR. BROWN: My affidavit would be this that I understand that Mr. Menocal is employed by Public Advocates which is a firm that I understand does a good deal of work in the area of employment discrimination. I believe they also do work on behalf of labor unions. It is my understanding that they do not work on behalf of employers. I understand the Hearing Officer is presently involved in an employment discrimination case in part involving race, involving Blacks, Orientals, and Mexican-Americans against the J. C. Penny Company, that Mr. Menocal has been involved in that case in the spring of 1974, and on those grounds and other grounds which I am sure I could possibly find out with further inquiry into the specific cases which Public Advocates is now handling, that there is certainly the appearance of bias, and I do not feel that my client can get the type of unbiased hearing that he is entitled to."

After hearing argument on the motion, the ALO ruled as follows:

"Mr. Brown, I deny your motion. I don't believe it's sufficient on its face. I have never represented the United Farm Workers Union, the Teamsters Union or any other union. I don't believe I've ever represented a grower or farmer although, thinking back to the years I was in private practice, there is a chance that I once represented a grower against a packing house dealing with peaches that weren't ripe.... A race discrimination case involving employment is not the same thing as a labor union dispute such as we have here and is not solely a suit against management. Indeed, in that case, we represent a class of both non-management and management personnel."

During a week's recess, petitioners appealed the disqualification decision to the Board and received an adverse ruling. They then petitioned the Court of Appeal, Fourth Appellate District, for a writ of certiorari which was summarily denied. When the hearings resumed, petitioners renewed their motion to disqualify the ALO with the filing of the following written declaration of counsel:

"1. I am an attorney licensed to practice law in the State of California and represent Sam Andrews' Sons in the above matters.

"2. I believe Armando Menocal, the hearing officer in the within matters, has a personal and professional bias and therefore, is not qualified within the meaning of Regulation Section 20230.4 to act as the hearing officer for the following reasons:

"(a) Mr. Menocal informed me on December 8, 1975, that he is presently employed with Public Advocates, a San Francisco law firm.

"(b) The 1974 and 1975 Docket sheets for Public Advocates, true and correct copies of which are attached hereto and incorporated herein as Exhibits A, B, and C establish that Public Advocates regularly represents Spanish-surnamed persons and farm workers against agricultural employers, other private employers, as well as governmental agencies in law suits and other legal matters challenging a variety of employment practices including national farm labor policies. Attention is called to 250 Farm Workers vs. Secretary of Labor and the comments attached thereto as set forth at page 12 of Exhibit 'C.'

"(c) On December 8, 1975, Mr. Menocal informed me that since 1974 he has been involved in representing Spanish-surnamed persons in a suit challenging the employment practices of J. C. Penny Company. Reference is hereby specifically made to the comments on Sebastian v. J. C. Penny Company, Inc. as set forth at item 12 of Exhibit 'A' attached hereto.

"I declare under penalty of perjury that the foregoing is true and correct.

"Executed at Los Angeles, California, on December 11, 1975."

Upon examining this material, the ALO concluded: "I do not find that the declaration or the exhibits attached to it are sufficient to show any grounds for bias or disqualification. The motion is denied."

The hearings proceeded to the merits of the unfair labor practice charges, and the ALO filed a recommended decision adverse to petitioners on most of the major issues. The Board issued its final decision without treating the disqualification issue; it essentially adopted the ALO's findings and recommendations. The Board did declare that it had considered and made an independent review of the entire record in the case.

Although petitioners make a number of supplementary arguments, we will address only their major contention that the ALO improperly failed to disqualify himself pursuant to the Board's regulation 20230.4. As will appear, we conclude that contention lacks both legal and factual support.

I.

At the time of the hearings, regulation 20230.4 governed the disqualification of ALOs. It provided:

"Disqualification of Administrative Law Officer When Conducting a Hearing. An administrative law officer may withdraw from a proceeding whenever he deems himself disqualified. Any party may request the administrative law officer at any time following his designation, and before filing of his decision, to withdraw on ground of personal bias or disqualification by filing with him promptly upon the discovery of the alleged fact, a timely affidavit setting forth in detail the matters alleged to constitute grounds for disqualification. If, in the opinion of the administrative law officer such affidavit is filed with due diligence and is sufficient on its face, he shall forthwith disqualify himself and withdraw from the proceeding. If the administrative law officer does not disqualify himself and withdraw from the proceeding, he shall so rule upon the record, stating the grounds for his ruling and proceed with the hearing, or, if the hearing has closed, he shall proceed with issuance of his decision, and the provisions of section 20220.2 with respect to review of rulings of administrative law officers, shall thereupon apply." ¹

Petitioners first contend that regulation 20230.4 was the analogue of Code of Civil Procedure section 170.6 and should be interpreted accordingly to give them the right to automatically disqualify an ALO. The texts of the two sections lend no support to such construction....