United Farm Workers of America, AFL-CIO v. Agricultural Labor Relations Bd. (Sam Andrews' Son)

• Decision Date: 08 April 1987
• Docket Number: AFL-CI,P
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 201 Cal.App.3d 1213 201 Cal.App.3d 1213 UNITED FARM WORKERS OF AMERICA,etitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent, and SAM ANDREWS' SONS, Real Party in Interest. B018251.

Page 38

236 Cal.Rptr. 38

Previously published at 201 Cal.App.3d 1213

201 Cal.App.3d 1213

UNITED FARM WORKERS OF AMERICA, AFL-CIO, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent, and SAM ANDREWS' SONS, Real Party in Interest.

B018251.

Court of Appeal, Second District, Division 7, California.

April 8, 1987.

Review Granted June 18, 1987.

Daniel A. Garcia and Dianna Lyons, Sacramento, for petitioner.

Daniel G. Stone, Sol. of the Bd., and Cathy Christian, Deputy Sol., for respondent.

Seyfarth, Shaw, Fairweather & Geraldson, and George E. Preonas, Los Angeles, for real party in interest.

THOMPSON, Associate Justice.

In this case we must decide whether the Agricultural Labor Relations Board (ALRB or Board), although acting reluctantly under the compulsion of the Court's remand order in Sam Andrews' Sons v. Agricultural Labor Relations Bd. (1984) 162 Cal.App.3d 923, 927, 208 Cal.Rptr. 812 ("Andrews I "), properly imposed limitations with respect to the number of and time when labor union representatives may enter the Lakeview labor camp. We shall hold that restrictions imposed by the ALRB impinged on constitutionally protected speech rights.

This case arose when the United Farm Workers of America, AFL-CIO (UFW or union) filed an unfair labor practice charge against Sam Andrews' Sons (Andrews or Company), an agricultural grower and owner of the Lakeview labor camp (camp), alleging in pertinent part that Andrews violated section 1153, subdivision (a) of the Agricultural Labor Relations Act (ALRA or Act), by denying union representatives access to employees residing at the camp. The ALRB ruled against Andrews and ordered the Company, inter alia, to cease and desist from " 'preventing, limiting, or restraining any union organizer or agents from entering and remaining on the premises of [the company's] labor camp for the purpose of contacting, visiting or talking to any agricultural employee on the premises.' " (Andrews I, supra, 162 Cal.App.3d at p. 927, 208 Cal.Rptr. 812, quoting from 8 ALRB No. 87).

In Andrews I, Andrews petitioned this Court for review of the Board's order in 8 ALRB No. 87, pursuant to section 1160.8 of the Act. Division Four of this Court vacated the order insofar as it permitted unrestricted access to the camp, but otherwise affirmed the order and remanded the case. (Andrews I, supra, 162 Cal.App.3d at p. 938, 208 Cal.Rptr. 812.) Division Four directed the ALRB on remand, "to reframe its order so as to require reasonable access to the camp, with specific detail as to time and number of organizers." (Id., at pp. 937-938, 208 Cal.Rptr. 812.)

Pursuant to the directions of the court in Andrews I, the ALRB on remand issued the modified order (11 ALRB No. 29) disputed herein. The modified order states that access shall be granted to nonresident union representatives except in three circumstances: (1) where the number of representatives present in a bunkhouse exceeds one for every ten employees residing therein; (2) during an eight-hour sleep period, to be designated by the Regional Director The Union has petitioned for review of the modified order pursuant to section 1160.8 of the Act.

and (3) where the number of representatives exceeds the number of employees present in the camp. (11 ALRB No. 29, at pp. 11-12.)

We address the following questions: (1) whether the UFW waived its right to petition for review by failing to file a timely brief with the ALRB and by failing to address any of the issues before the ALRB on remand; (2) whether we should reconsider issues decided in Andrews I notwithstanding the rule of law of the case, (3) whether the rule of National Labor Rel. Bd. v. Babcock & Wilcox Co. (1956) 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 ("Babcock & Wilcox "), is applicable to determining the union representatives' right of access to the camp, and (4) whether the Board's time and number restrictions violated the workers' and union representatives' free speech rights under the federal and state constitutions. For the reasons that follow, we answer questions (1) and (3) in the negative, and questions (2) and (4) in the affirmative.

I FACTS

The pertinent facts are set forth in Andrews I, from which we quote:

"Andrews, an agricultural employer, has a labor camp surrounded by a chainlink fence. The compound contains two barracks that are in a separately fenced area. The barracks house employees during the summer melon harvest and during the fall and spring lettuce harvests. The entrance to the compound is a gate separating the compound from the parking area. There is also an equipment storage area surrounded by barbed wire, and a separately fenced kitchen-dining facility.

"Each barrack contains 60 double bunks arranged in rows and divided into cubicles by open plywood dividers. Each cubicle has four beds in it. The aisle side of the cubicle is open. Each barrack has a shower and toilet, and a 'lounge area,' containing tables, benches and trash cans. The residents use the lounge area to play cards, watch T.V., and use a pay phone.

"Breakfast is served from 5:30 a.m. to 6 a.m. A company lunch wagon makes its rounds to various crews on a staggered basis. Evening meal is served in the dining facility from 6 p.m. to 6:30 p.m. The workers go to the barracks, or the company park, and some go to town, although most do not have transportation to get to town. The park area is primarily used by the company employees (not harvest employees) who live in the trailers, and the park is only rarely used by harvest employees. However, other employees may use the park.

"In 1979 the Union became the collective bargaining representatives of Andrews' employees. The company did not enforce its rule prohibiting nonemployees from visiting the barracks compound. Andrews denied Union representatives access to the workers in the fields after the Union mounted a strike, and the company began to strictly enforce a rule barring visitors from entering the compound. In 1981 the guards were told to find out to whom visitors wished to speak, to take the named worker to the visitor (assuming the worker wanted to see the visitor) and to let them meet outside the camp. When the gates were locked, the workers depended on the cooperation of the guards to leave camp.

"Villarino, a Union representative, testified that more than once when he arrived at camp, the gates were locked and no guard was around. A guardhouse was built in October 1981.

"Early in 1981 camp residents used to talk to UFW representatives through the chain link fence. After the strike began, the company put up many yards of thick black tarp over the fence, making it impossible for workers and Union people to talk at the fence. Villarino and other representatives were denied access to the camp.

"During a strike of tractor drivers and irrigation workers, some of the picketers "Villarino believed meeting with workers at the Union hall and during lunch breaks would be inadequate because the lunch breaks were too short and were monitored by company officials, and few employees had transportation to get to the Union hall 30 miles away. [Fn. omitted.]" (Andrews I, supra, 162 Cal.App.3d at pp. 927-929, 208 Cal.Rptr. 812.)

engaged in loud protest activities, honking horns, and other loud disruptive behavior. After the Union got a temporary restraining order permitting access to the workers in the field, the disruptive incidents by picketers discontinued.

II DISCUSSION

A. Waiver

Upon remand of the case after Andrews I was decided, the Union requested the Board to permit the parties to brief the "entirely new issues not yet argued or briefed during the course of this case or, it seems, any other ... [concerning the Court's direction that the Board] determine what, if any, 'reasonable restrictions' are necessary...."

Ironically, the Union did not file a timely brief; its attorney claimed that she had not been served with notice of the briefing schedule. The Board did, however, consider the Union's arguments in its motion for reconsideration. The Board's order denying the motion noted that "the Union has mitigated any prejudice which may have resulted from the service by taking the opportunity to brief the issues in this motion."

Andrews contends that the Union waived its right to bring this petition by failing to file a timely brief with the ALRB on remand. We reject this argument given the fact that the Board considered all of the Union's arguments in the motion for reconsideration.

Andrews further contends that the Union waived its right to bring this petition by failing to address the issues before the Board on remand. We disagree. The argument raised by the Union in its motion for reconsideration was that "absent clear proof that access poses a threat of imminent harm to bona fide employer interests, no Board imposed restrictions are reasonable." The Union reasoned that because "Andrews has not demonstrated so much as a bona fide interest, much less an imminent threat of harm to such interest[,] [t]he Board, therefore, should rule that no restrictions are reasonable on the facts of this case." We find that the Union's argument squarely addressed the issue before the Board and this Court. There was no waiver.

B. Law of the Case

Andrews argues that this court should not reconsider the issues already decided in Andrews I. We disagree.

Our Supreme Court set forth the modern view of the doctrine of the law of the case in England v. Hospital of Good Samaritan (1939) 14 Cal.2d 791, 795, 97 P.2d 813: "The doctrine of the law of the case is recognized as a harsh one [citation] and the modern view is that it should not be adhered to when the application of it results in a manifestly unjust decision. [Citation.] However, it is generally followed in this state. But a court is not absolutely precluded by the law of the case from reconsidering questions decided upon a former appeal. Procedure and not jurisdiction is involved. Where...