Dessert Seed Co. v. Brown (1979)
96 Cal. App. 3d 69
96 Cal. App. 3d 69
[Civ. No. 18472. Fourth Dist., Div. One. Aug. 16, 1979.]
DESSERT SEED COMPANY, INC., Plaintiff and Appellant, v. GERALD A. BROWN, as Chairman, etc., et al., Defendants and Respondents; UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest and Respondent.
(Opinion by Brown (Gerald), P. J., with Cologne and Staniforth, JJ., concurring.) [96 Cal. App. 3d 70]
Byrd, Sturdevant, Nassif & Pinney and Scott A. Wilson for Plaintiff and Appellant.
Marvin J. Brenner, Ellen Lake, Daniel G. Stone and Byron Georgiou for Defendants and Respondents.
Jerome Cohen, Sanford N. Nathan, Tom Dalzell, Ellen Greenstone, Diana Lyons, James Rutkowski and Kirsten Zerger for Real Party in Interest and Respondent. [96 Cal. App. 3d 71]
BROWN (Gerald). P. J.
Dessert Seed Company, Inc. (Dessert) an agricultural employer subject to the Agricultural Labor Relations Act (ALRA), petitioned the superior court for a writ of mandate (Code Civ. Proc., §§ 1084-1086) to set aside a decision of the Agricultural Labor Relations Board (ALRB) which dismissed without a hearing Dessert's objections to the conduct of a representation election resulting in the election of the United Farm Workers of America, AFL-CIO (UFW) to represent Dessert's agricultural employees. Dessert filed its objections under Labor Code section 1156.3, subdivision (c), which provides: "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. ..." The ALRB dismissed the petition because in its opinion the declarations submitted in support of Dessert's objections failed to establish a prima facie course of conduct constituting grounds to set the election aside. fn. 1 Dessert contends entitlement to a hearing on the issue, under the mandatory statutory language.
The superior court declined to issue a writ of mandate because it believed (1) the ALRB has discretion to dismiss without hearing objections not equivalent to a prima facie showing of conduct warranting setting aside the election (Radovich v. Agricultural Labor Relations Bd. [96 Cal. App. 3d 72] (1977) 72 Cal. App. 3d 36, 45 [140 Cal.Rptr. 24]), and (2) the employer is not entitled to judicial review of the ALRB's nonfinal orders, but is relegated to the remedy of challenging the election by refusing to bargain with the union and ultimately, if found guilty of an unfair labor practice charge, seeking judicial review under Labor Code section 1160.8. (United Farm Workers v. Superior Court (1977) 72 Cal. App. 3d 268, 275 [140 Cal.Rptr. 87]; Nishikawa Farms, Inc. v. Mahony (1977) 66 Cal. App. 3d 781, 788 [136 Cal.Rptr. 233].)
Both in federal precedent under the NLRA and in the few California cases under the ALRA which have considered the issue of intermediate review of the agency decisions, the normal rule is nonreviewability of intermediate decisions unless the order falls within the narrow exceptions summarized in Belridge Farms v. Agricultural Labor Relations Bd. (1978) 21 Cal. 3d 551, 556-557 [147 Cal.Rptr. 165, 580 P.2d 665]: "Although recognizing a general immunity from judicial review of determinations other than final orders of the board, federal courts have exercised their equitable powers to review such determinations when the complaining party raises a colorable claim that the decision violates constitutional right [citations] or exceeds a specific grant of authority [citations]. Refusal to issue a complaint based on an erroneous construction of an applicable statute also has been held reviewable under the court's general equitable power. [Citation.]" The origin of the exception in federal law is Leedom v. Kyne (1958) 358 U.S. 184, [3 L.Ed.2d 210, 79 S.Ct. 180]. The Kyne exception is viewed as a narrow one permitting intermediate review only where "the fact of a statutory violation cannot seriously be argued" (Boire v. Miami Herald Publishing Co. (5th Cir. 1965) 343 F.2d 17, 21, quoted in United Farm Workers v. Superior Court, supra, 72 Cal. App. 3d 268, 274), or where the agency transgression is "'"the type of gross transgression for which we invoke the label 'jurisdictional' or 'clear errors of law' ..."'" (Cadiz v. Agricultural Labor Relations Bd. (1979) 92 Cal. App. 3d 365, 382 [155 Cal.Rptr. 213].) The cases granting or denying intermediate review separate according to whether the agency decision involves fact finding exercise of discretion, for which review is not available, or whether it involves interpretation of its statutory powers or other clear cut legal issues, which will sometimes be reviewable, particularly if constitutional issues are involved or there is serious harm to the aggrieved party resulting from the denial of intermediate review.
So far, the following precedent has developed under the ALRA regarding intermediate review of nonfinal ALRB orders. Declaratory relief is not available to test validity of an order to bargain (United Farm [96 Cal. App. 3d 73] Workers v. Superior Court, supra, 72 Cal. App. 3d 268). Board orders certifying a bargaining representative are nonreviewable by administrative mandamus (Code Civ. Proc., § 1094.5; Nishikawa Farms, Inc. v. Mahony, supra, 66 Cal. App. 3d 781). A board order dismissing without a hearing objections to an election where no declarations were filed in support of the objection is nonreviewable (Radovich v. Agricultural Labor Relations Bd., supra, 72 Cal. App. 3d 36). The decision of general counsel for the ALRB not to file an unfair labor practice charge complaint is nonreviewable (Belridge Farms v. Agricultural Labor Relations Bd. supra, 21 Cal. 3d 551). But the superior court may review by writ of mandate a board order nullifying a decertification petition, where the board action was premised on its erroneous interpretation of the time limits for filing such a petition under the applicable statute, Labor Code section 1156.7 subdivision (c) (Cadiz v. Agricultural Labor Relations Bd., supra, 92 Cal. App. 3d 365, hg. den. July 27, 1979).
 Here, Dessert seeks review of the ALRB's decision to dismiss without a hearing election objections which in its opinion do not state a prima facie factual case. These facts are nearly identical to those in Radovich v. Agricultural Labor Relations Bd., supra, 72 Cal. App. 3d 36, except in Radovich no declarations at all were lodged, whereas here declarations were lodged which the agency deemed insufficient. The reasoning of Radovich, however, is nevertheless relevant. There the court ruled the decision to dismiss without hearing was an exercise of factual assessment discretion, within the agency