Opinion
KAUFMAN, J. We granted petitions of the Agricultural Labor Relations Board (ALRB or Board) and the United Farm Workers of America, AFL-CIO (UFW or union) for review of a Court of Appeal decision which vacated portions of the Board’s order in the underlying unfair labor practice proceedings against Sam Andrews’ Sons (the grower), and which also struck the Board’s award to the UFW of costs and attorney fees.
The case primarily concerns the authority of the Board to award attorney fees, the scope of union access to a labor camp for organizational purposes and the rights of a labor camp operator to promulgate reasonable regulations for access to a labor camp.
I. Facts and Procedural History
The grower raises alfalfa, cotton, melons, lettuce and other vegetable crops in Kern and Imperial Counties. It is an agricultural employer subject [161]to the Agricultural Labor Relations Act (ALRA). (Lab. Code, § 1140.4, subd. (c).) The Board upheld a 1977 representation election and, as a result, on August 21, 1978, certified the UFW as the exclusive bargaining agent for the grower’s agricultural workers. (Sam Andrews’ Sons (Aug. 21, 1978) 4 ALRB No. 59.)
There had been a history, both before and after certification, of difficulties between the grower and the union regarding access to agricultural employees at the grower’s labor camps. (See Robert S. Andrews (June 10, 1977) 3 ALRB No. 45 [camp rules excluded families and friends of workers from labor camp barracks and camp kitchen, and restricted union organizers to the company park outside the camp compound; Board ordered grower to cease and desist from denying access to buses and premises, including labor camps, to organizers acting “in accordance with Board’s access regulations”]; Sam Andrews’ Sons (Nov. 30, 1979) 5 ALRB No. 68 [armed security guards at labor camp directed union organizers to meet in the company park outside the camp compound, refused permission to union organizers to enter the barracks, and watched union organizers who did visit workers in barracks; Board orders grower to cease and desist from surveillance of employees during contacts with union organizers].)
A. Labor Camp Facilities
The grower operates labor camps to house agricultural workers at both its Kern County and Imperial Valley operations. The Lakeview labor camp, southwest of Bakersfield in Kern County, consists of separately fenced areas containing two barracks buildings or bunkhouses, a kitchen and dining facility, and an equipment storage area. The separately fenced kitchen and dining facility is connected to the barracks area by a fenced walkway. The entire compound is also surrounded by a chain link fence. Immediately outside the camp is a company-owned park.
The nature of the facility in which the workers here live—a communal barracks—is deserving of specific mention. Each of the bunkhouses at the Lakeview camp consists of a single dormitory room containing 60 double bunks (120 beds) arranged in 4 rows. The two outside rows are separated from the two center rows by aisles six to eight feet wide. Partitions are set up to create three-sided cubicles for two double bunks (four beds). The cubicles are open on the side that faces the aisle. The double bunks in each cubicle stand only four feet apart. Each bunkhouse contains a shower and toilet facility and there is also a “lounge” area approximately 10 to 15 feet wide spanning the width of the dormitory room at one end. A single switch controls overhead lights for the entire dormitory room.
[162]In the Imperial Valley, the grower leases a camp facility near Holtville and operates it for its agricultural employees. There is one entrance to the fenced camp, which consists of four concrete block buildings. Two of the buildings are used as bunkhouses, one building contains the kitchen and dining facilities, and another contains shower and bathroom facilities. The bunkhouses are similar to the ones at the Lakeview camp. Each bunkhouse consists of a single room, approximately 20 feet by 70 or 75 feet in size. There are two rows of double bunks in the bunkhouse. Plywood partitions form cubicles around sets of double bunks four feet apart, in a similar fashion to the bunks at the Lakeview camp.
B. Background—Summer Strike
The unfair labor practices under review in the instant case, and in a contemporaneous separate but similar case, arose against the background of a strike against the grower’s Kern County operation near Bakersfield mounted by the union in the summer of 1981. Contract negotiations broke down as the summer melon harvest began. The union therefore mounted a strike among the grower’s tractor drivers and irrigators. The union decided not to call out the melon pickers (harvest workers), although some harvest workers did participate in the strike.
Apparently, both the union and the grower engaged in abusive conduct at the grower’s Kern County fields during the strike. The grower denied access by union representatives to workers in the fields. The union engaged in massive, sometimes destructive and violent, picketing. There were at times as many as 350 pickets at the grower’s fields. Picketing at the fields continued on an almost daily basis from the beginning of the strike in July 1981 through January 1982. The field pickets destroyed several thousand feet of irrigation pipe, damaged tractors and buses, and slashed tires and broke car windows of cars belonging to nonstriking workers.
Pickets were also stationed at the grower’s Lakeview labor camp nearly every day from July 9, 1981, through the end of November. The Lakeview labor camp primarily housed harvest workers, who were by and large not participating in the strike, although some of the nonstriking tractor drivers and irrigators also moved to the Lakeview camp compound. There was no damage to property at the camp, but nonstriking harvest workers as well as camp security personnel were sometimes pelted with rocks, dirt and eggs as they went in and out of the camp compound, or attempted to prevent picketers from climbing the fences. In August 1981, picketers at the Lake-view labor camp began night picketing in a manner calculated to harass camp residents. The strikers would use bullhorns, bang on trash can lids, [163]yell at the workers and shine spotlights into the barracks area to prevent the workers from sleeping.1
In early August 1981 the union obtained a temporary injunction ordering the grower to allow union representatives access to workers in the Kern County fields. After the union obtained the injunction, the nighttime harassment at the Lakeview camp subsided, and picketing continued without further disruptive incidents. Although there was evidence indicating the Kern County strike continued through January 1982, at the time of the conduct at issue in this case the melon harvest was essentially over. The nonstriking tractor drivers and irrigators were no longer residing at the Lakeview camp and by November 1981 the Lakeview camp was occupied by lettuce harvest workers.
C. Camp Access Rules
In the summer of 1981, when the strike among tractor drivers and irrigators began during the melon harvest, the grower began to strictly enforce its previously poorly enforced rule prohibiting visitors from entering the Lake-view labor camp compound.2
Under the grower’s rules, all visitors—including family and friends as well as union representatives or Board agents—were required to present themselves to company security officials and identify the camp resident they wished to see. The security guards would locate the worker and advise him of the visitor’s presence. The resident worker would meet with the visitor in the parking lot or in the company park outside the camp compound, but no visitor was allowed inside the camp compound.
D. Separate Similar Case (8 ALRB No. 87)
It was against this background that unfair labor practice charges in both the instant case and a separate but similar case arose. The similar case [164]involved roughly contemporaneous alleged denials of labor camp access by the grower in Kern County, while the instant case involves alleged denials of field access in Imperial Valley and alleged denials of camp access in both Kern County and Imperial Valley. The similar but separate case (Sam Andrews' Sons [referred to hereafter for convenience as 8 ALRB 87]) was considered twice by the Board (8 ALRB No. 87 (Nov. 30, 1982) and 11 ALRB No. 29 (Dec. 10, 1985)) and generated two conflicting Court of Appeal opinions, as to the latter of which this court granted review. That review remains pending.
Nevertheless, the background of the separate, similar case is significant with respect to the labor camp access issues in this case because both the Board and the Court of Appeal in this case relied on the evidence and the reasoning on the access issues in the separate, similar case (8 ALRB 87).3 In addition, to avoid confusing the two cases, it is necessary to outline the facts and procedural history of the separate but similar case.
1. The Board's Original Order
In 8 ALRB 87 the grower was charged with two instances of denying union representatives access to the Lakeview labor camp on October 28 and 29, 1981. The grower admitted its agents refused admission to the bunkhouses or the dining hall on the dates in question, in accordance with its policy as outlined above. It argued, however, its visitor rules were justified by the need for security at the camp and the privacy concerns of all camp residents and because admission of visitors to the barracks and dining hall would be unreasonable and disruptive. In addition, the grower asserted the union had reasonable alternative means to communicate with the workers.
The Board found the grower’s denial of access constituted an unfair labor practice and ordered the grower to “Cease and desist from: [][] (a) Preventing, limiting, or restraining any union organizers or agents from entering [165]and remaining on the premises of Respondent’s labor camps for the purpose of contacting, visiting, or talking to any agricultural employee on the premises. [j|] (b) In any like or related manner, interfering with, restraining, or coercing agricultural employees in their right to communicate freely with union organizers or agents on the premises of Respondent’s labor camps.”
2. First Court of Appeal Opinion in 8 ALRB 87
On the grower’s petition for review, the Second District, Division Four issued an opinion (Sam Andrews’ Sons v. Agricultural Labor Relations Bd. (1984) 162 Cal.App.3d 923 [208 Cal.Rptr. 812] [the first Court of Appeal decision in 8 ALRB 87])4 upholding the unfair labor practice finding but vacating the access order as overbroad because it granted the union an unlimited right of access to the labor camp. The court held that (1) the ALRA was intended to provide only a qualified statutory right of access to the grower’s property5 (Agricultural Labor Relations Bd. v. Superior Court (Pandol & Sons) (1976) 16 Cal.3d 392 [128 Cal.Rptr. 183, 546 P.2d 687]), based on similar National Labor Relations Board (NLRB) precedent defining a statutory right of access and embodied in Labor Board v. Babcock & Wilcox Co. (1956) 351 U.S. 105 [100 L.Ed. 975, 76 S.Ct. 679]; (2) the statutory standard under the Babcock & Wilcox rule permitted access to a grower’s property where there were no reasonable, practical and effective alternative means of communication; but that (3) the union had sufficiently demonstrated there were no reasonable, practical or effective means of communication other than access to the workers at the camp, particularly in view of the grower’s access policies and apparent hostility to attempts to communicate. The court further held that, even if there were a right of access under the federal or California Constitution, a matter which it expressly declined to decide, a First Amendment right of access is not absolute but is subject to the owner’s right to make reasonable rules to prevent unnecessary interference with its business activity. (Petersen v. Talisman Sugar Corporation (5th Cir. 1973) 478 F.2d 73, 82.) The Court of Appeal judgment vacated the Board’s order insofar as it included no limitations as to time or number of organizers, and remanded the case to the Board with directions to reframe its order to require reasonable access to the camp and to specify in detail appropriate times and numbers of organizers.
[1663]. Board’s Order After Remand
On remand, the Board issued a supplemental decision and order (Sam Andrews’ Sons, supra, (Dec. 10, 1985) 11 ALRB No. 29). The Board reiterated that, in view of the grower’s repeated and egregious violations of employee organizational rights, it believed unrestricted access was appropriate and stated its view that an unrestricted access order would not sanction abuses by workers or union organizers. Nevertheless, in order to comply with the remand order, the Board modified its order to restrict access during an eight-hour period when workers could be presumed to be sleeping and during times when no employees were in the camp. The Board refused to prohibit organizers from entering the bunkhouses, but did limit the number of organizers permitted in a bunkhouse to one for each ten residents, and set an overall limit that the number of organizers permitted in the camp was not to exceed the number of employees present at the camp at any one time.
In pertinent part, the Board’s modified order in 8 ALRB 87 commanded the grower to: “Cease and desist from: [fl] (a) Preventing, limiting or restraining any non-resident union organizers or agents from entering and/or remaining on the premises of Respondent’s labor camps for the purpose of contacting, visiting or talking to any agricultural employees on the premises, unless such organizers or agents, [fl] (1) are present in a bunkhouse in numbers which exceed one organizer for every 10 employees residing in the bunkhouse; [If] (2) seek to enter the camp or remain in the camp during an eight-hour period, to be designated by the Regional Director, when the camp residents are usually sleeping; or [fl] (3) exceed in number the number of employees present in the camp, [fl] (b) In any like or related manner, interfering with, restraining, or coercing agricultural employees in their right to communicate freely with union organizers or agents on the premises of Respondent’s labor camps.” (Italics added. Original italics deleted.)
4. Second Court of Appeal Opinion in 8 ALRB 87
A different division of the Second District Court of Appeal reviewed the Board’s modified order in United Farm Workers v. Agricultural Labor Relations Bd. (1987) 201 Cal.App.3d 1213 [236 Cal.Rptr. 38], review granted June 18, 1987 (S000868), which shall be referred to hereafter as the second Court of Appeal decision in 8 ALRB 87. This time, Division Seven of the Second District held: (1) The law of the case doctrine did not preclude reconsideration of issues decided in the first review because the court in the first review ignored controlling precedents in reaching its decision (in other words the first decision was legally incorrect). (2) The federal work site [167]access rule of Labor Board v. Babcock & Wilcox Co., supra, 351 U.S. 105, relied on by the court in the first decision, is inapplicable to access at a residential labor camp during nonworking time. (3) Although the speech and privacy rights of workers and organizers are not absolute, and although the grower (but not the Board) may impose reasonable restrictions to protect business interests, no restrictions were shown to be necessary. The modified order was therefore vacated and the Board was ordered to reinstate its former order permitting unrestricted access to the camp.
This court granted review as to the second Court of Appeal decision on June 18, 1987, and that review remains pending in this court.
E. The Instant Case (10 ALRB No. 11)
1. The Charges and Board Order
The case at bench is a separate although similar case arising out of alleged incidents at the Lakeview camp in November 1981 and incidents in the Imperial Valley in December 1981 and January 1982. (Sam Andrews' Sons (Mar. 13, 1984, mod. July 20, 1984) 10 ALRB No. 11, referred to for convenience hereafter as 10 ALRB 11.) The specific charges against the grower in the instant case were: Two instances of denying UFW representatives access to the Lakeview labor camp on November 10 and 11, 1981, a separate violation for forcibly ejecting UFW representatives from the Lake-view camp on November 10, 1981, two instances of denying UFW representatives access to the grower’s Imperial Valley labor camp on December 7 and 8, 1981, and two instances of denying UFW representatives postcertification access to the grower’s Imperial Valley fields on December 17, 1981, and January 6, 1982.
On November 10, at approximately 7 or 8 p.m., UFW representative David Villarino and two or three other persons went to the Lakeview camp. According to Villarino’s version of events, the grower’s security guards confronted them at the front gate and asked Villarino if he was going into the camp. Villarino replied “yes,” and entered the barracks with his companions.
One of the security personnel, Steve Rodriguez, testified that a camp resident informed him and two other security guards that nonresident UFW organizers were inside the barracks. Rodriguez and another security guard went inside the barracks where they saw Villarino, whom Rodriguez knew, and two other nonresidents. Rodriguez asked Villarino and his companions to leave. When they refused, Rodriguez escorted them out of the camp.
[168]On November 11, Villarino and several companions attempted to gain access to the camp pursuant to a temporary restraining order (TRO) served on the grower that day. The TRO permitted access by six UFW organizers between 6 and 8:30 p.m. Villarino and three others whom Rodriguez had not seen before approached the camp gate. Rodriguez admitted Villarino, who was known to be a representative, so that Villarino could make a phone call. Villarino’s companions were denied entry to the camp, however, assertedly because they did not have proper identification. Villarino and his companions eventually left sometime between 8:30 and 9 p.m.
With regard to the forcible ejection of Villarino from the Lakeview camp on November 10, the evidence showed that security guard Rodriguez physically grabbed Villarino’s arm, possibly twisting it behind his back, and at least placed the other hand around Villarino’s shoulder while walking him out of the room. Villarino testified he was pushed and shoved out of the barracks.
The grower conceded that it had denied union representatives access to the Imperial Valley labor camp on December 8, 1981.
The grower also conceded it had denied union representatives access to its Imperial Valley fields on December 17, 1981, and January 6, 1982. On December 17, the grower denied field access to a UFW representative. On January 6, a UFW field office director notified the grower, pursuant to the requirements of O.P. Murphy Produce Co., Inc. (Dec. 27, 1978) 4 ALRB No. 106 (the leading ALRB case on field access), of the UFW’s intent to take field access. The grower stated he would call the UFW representative back, but never returned the call. The UFW representative also contacted the grower’s attorney regarding the intended access, but the attorney merely stated that he was unsure of the grower’s position with regard to field access in the Imperial Valley.
The ALJ found the denials of access at the Lakeview camp on November 10 and 11, 1981, and at the Imperial Valley camp on December 7 or 8, 1981, were in all respects similar to the denials of access found in 8 ALRB No. 87, and therefore incorporated by reference the Board’s decision and order in that case in concluding the grower’s conduct violated Labor Code section 1153, subdivision (a). In addition, the ALJ concluded the ejection of Villarino from the bunkhouse on November 10 was forcible and constituted a separate unfair labor practice. The ALJ further concluded the denials of field access were in violation of Labor Code section 1153, subdivision (a). The ALJ therefore recommended a cease and desist order and an order requiring certain affirmative actions by the grower.
[169]The Board “affirmed” (approved and adopted) the findings of the ALJ that the grower had committed unfair labor practices by denying access to the Lakeview camp on November 10 and 11, and to the Imperial Valley camp on December 7 and 8,6 by forcibly ejecting union representatives from the Lakeview camp on November 10, and by denying access to the Imperial Valley fields on December 17 and January 6.
The Board ordered the grower to “Cease and desist from: [fl] (a) Preventing, limiting, or restraining any union organizers or agents from entering and remaining on the premises of Respondent’s labor camps for the purpose of contacting, visiting, or talking to any agricultural employee on the premises. [fl] (b) Denying [union] representatives access to bargaining unit employees, at reasonable times, on the property or premises where they are employed, for purposes related to collective bargaining between Respondent and the UFW. fl|] (c) In any like or related manner interfering with, restraining, or coercing any agricultural employee in the exercise of the rights guaranteed by section 1151 of the Agricultural Labor Relations Act (Act).” (Italics added.)
In addition, the Board “. . . also directed| the Regional Director to seek contempt citations against Respondent for any on-going or further violations of our access orders.” (Italics added.)
The grower was ordered to take affirmative actions, including: “At a time to be determined by the Regional Director, provide the UFW with access to its employees for one hour during regularly scheduled work time, for the purpose of talking with the employees about matters related to collective bargaining between Respondent and the UFW. Access may be taken by two UFW representatives for every fifteen employees in each of Respondent’s work crews. After conferring with both the UFW and Respondent, the Regional Director shall determine the manner and most suitable time for the special access. During the one-hour access period, no employee shall be required to be involved in the access activities. All employees shall receive their regular pay for the time away from work. The Regional Director shall determine an equitable payment to be made to nonhourly wage earners for their lost productivity.”
Finally, in an expansive order the Board required the grower to pay the union’s attorney fees and costs. The Board, citing recent NLRB precedent [170]in Autoprod, Inc. (1982) 265 NLRB 331 [111 Lab.Rel.Ref. Manual (Bur.Nat. Affairs) p. 1521], purported to require the grower to reimburse the union for an extensive array of “costs,” stating: “On the authority of Auto-prod, Inc., we shall attempt to restore the status quo ante by ordering Respondent to reimburse the Charging Party [UFW] for: [fl] ‘. . . its costs and expenses incurred in the investigation, preparation, presentation, and conduct of this proceeding, including salaries, witness fees, transcript and record costs, printing costs, travel expenses and per diem, and such other reasonable costs and expenses as are found appropriate.’ 265 NLRB No. 42 at p. 7.” (Italics added.)
2. The Court of Appeal Decision in This Case
The Court of Appeal in this case noted the facts with respect to the unfair labor practice allegations were nearly identical to those in the first decision of the Court of Appeal in 8 ALRB 87. There, the court upheld findings of unfair labor practices but concluded the remedial order was overbroad.
The Court of Appeal here followed the lead of the court in the first Court of Appeal decision in 8 ALRB 877 and held both that the record supported findings of unfair labor practices,8 and that the Board’s order was over-broad.
In particular, the Court of Appeal here adopted the reasoning that (1) the right of access was statutory and not necessarily based on the First Amendment, (2) whether the right of access was statutory or based on the First Amendment, the union’s right of access was not unlimited, (3) access could be denied altogether if other reasonable means of communication were available, and (4) the union here made a sufficient showing that in fact there were no alternative reasonable means of communication.
From these principles, extracted from the first Court of Appeal opinion in 8 ALRB 87, the court in this case concluded that, although the union had established a right of access, the Board’s order for unlimited access was overbroad. The Court of Appeal here, as in the first Court of Appeal opinion in 8 ALRB 87, vacated the access order and remanded the matter [171]to the Board. The Board was directed to reword the order to require the grower to permit reasonable access to the labor camp and work place and to make specific provisions in detail setting limits on time and numbers of organizers. The court also struck the award of attorney fees and costs as invalid. In addition, the Court of Appeal vacated a portion of the Board’s order for one hour of remedial field access on company time, on the ground that the order would permit access to be taken an unlimited number of times and that the financial burden of providing such access on company time was punitive. The Court of Appeal remanded that issue to the Board for further clarification.
We granted review of the court’s decision. As shall be seen, we conclude that the Court of Appeal’s primary holdings—striking the award of attorney fees, upholding the unfair labor practice findings and vacating the camp access order as overbroad—were correct and should be affirmed. Part of the reasoning underlying the Court of Appeal’s conclusions with respect to the unfair labor practice findings and overbreadth of the Board order was erroneous however. Further, the Court of Appeal’s order that the Board should make specific detailed provisions setting limits on access was improper and will be reversed. Finally, the portion of the Court of Appeal judgment vacating and remanding the order for one hour of compensated field access was based on a misapprehension of the Board’s order and will be reversed.
II. Discussion
A. Attorney Fees and Costs
The Board’s award of costs and attorney fees to the UFW was based solely on federal NLRB precedent, Autoprod, Inc., supra, 265 NLRB 331, which allowed an award of litigation costs against an employer based on the “patently frivolous” actions of the employer. There is, however, no basis for an award against the grower here, even assuming the NLRB precedent was applicable, because there was not nor could there be a finding that the grower’s litigation was frivolous or even meritless.
However, the Court of Appeal was correct in further basing its holding on the decision of the United States Supreme Court in Summit Valley Industries, Inc. v. Carpenters (1982) 456 U.S. 717 [72 L.Ed.2d 511, 102 S.Ct. 2112]. In that case the court held that nothing in the Labor Management Relations Act supports an award of attorney fees in NLRB proceed[172]ings or creates an exception to the “American Rule” that attorney fees are generally not recoverable by the prevailing party.9
The authority of the Board to award fees is contraindicated by the language of the ALRA and is contrary to Code of Civil Procedure section 1021. Section 1021 provides: “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties . . . .” (Italics added.)
Labor Code section 1160.3 provides in pertinent part that, if the Board finds an unfair labor practice, it “shall issue and cause to be served ... an order requiring such person to cease and desist from such unfair labor practice, to take affirmative action, including reinstatement of employees with or without backpay, and making employees whole, when the board deems such relief appropriate, for the loss of pay resulting from the employer’s refusal to bargain, and to provide such other relief as will effectuate the policies of this part. . . .” (Italics added.) The general provision that the Board may order such other relief as will effectuate the policies of the Act does not “specifically [provide] ... by statute” for attorney fees, (See Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891 [160 Cal.Rptr. 124, 603 P.2d 41] [statute granting broad general powers to Public Utilities Commission is subject to Code Civ. Proc., §1021 and does not authorize attorney fee award unless under a recognized exception to § 1021]10.)
[173]We note also that the Legislature expressly provided in Labor Code section 1160.3 for “make whole” as to employees and for the Board to order the grower to pay employees for lost wages, even though the NLRA does not contain such specific provisions. (29 U.S.C.A. § 160(c); Porter Co. v. NLRB (1970) 397 U.S. 99 [25 L.Ed.2d 146, 90 S.Ct. 821]; Holtville Farms, Inc. v. Agricultural Labor Relations Bd. (1985) 168 Cal.App.3d 388, 397 [214 Cal.Rptr. 241].) The Legislature was, of course, well aware of the general rule of the nonrecoverability of attorney fees in this state under Code of Civil Procedure 1021, and the absence from the ALRA of any express provision for the payment of costs and fees to either employees or the union must be considered a deliberate omission by the Legislature.
B. The Unfair Labor Practice Findings
In affirming the Board’s findings that the grower had unlawfully interfered with the union’s right of access to the labor camps, the Court of Appeal relied extensively on the first decision of the Court of Appeal in 8 ALRB 87. (Sam Andrews’ Sons v. Agricultural Labor Relations Bd., supra, 162 Cal.App.3d 923.) One conclusion in both decisions was that the federal access rule found in Labor Board v. Babcock & Wilcox Co., supra, 351 U.S. 105, requiring the union to show it has no reasonable alternative means of communication with the workers, is applicable to the labor camp access problem. Although that did not cause the Court of Appeal here to reverse the unfair labor practice findings, we conclude that the Babcock & Wilcox standard is not fully applicable to the labor camp access problem and that therefore some of the language used by the Court of Appeal in both cases was improvident.
[174]Babcock & Wilcox involved an employer’s no-solicitation rule barring distribution of union literature at the work site on non work time. The United States Supreme Court held that a no-solicitation rule could be valid “if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message . . . .” Conversely, “[W]hen the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize.” (Babcock & Wilcox, supra, 351 U.S. 105, 112 [100 L.Ed. 975, 983].)
In Republic Aviation Corp. v. Board (1945) 324 U.S. 793 [89 L.Ed. 1372, 65 S.Ct. 982, 157 A.L.R. 1081], a predecessor case to Babcock & Wilcox, the court had stated by way of example that reasonable alternatives to communication at the work site would not be available in a case in which the employees lived in “a mining or lumber camp where the employees pass their rest as well as their work time on the employer’s premises, so that union organization must proceed upon the employer’s premises or be seriously handicapped.” (Republic Aviation, supra, 324 U.S. 793, 799 [89 L.Ed. 1372, 1377].)
Thus, although Babcock & Wilcox, supra, 351 U.S. 105, and Republic Aviation, supra, 324 U.S. 793, discussed the labor camp example in the context of determining a lack of alternatives to communication at the work site, both cases imply that the denial of access to a labor camp would be an unfair labor practice, precisely because of a lack of alternative means of communication at the camp.
Although this court referred to the Babcock & Wilcox rule in Agricultural Labor Relations Bd. v. Superior Court (Pandol & Sons), supra, 16 Cal.3d 392, that case, like Babcock & Wilcox itself, involved workplace (field) access, not labor camp access.
The Board has repeatedly stated in its decisions that access to agricultural labor camps under the ALRA “is not only legitimate, but crucial to the proper functioning of the Act. See 8 Cal. Admin. Code Sections 20310 (a)(2), 20313, and 20910 (1976); Mapes Produce Co., 2 ALRB No. 54, slip pp. 7-8 ([Oct. 20,] 1976).” (Silver Creek Packing Company (Feb. 16, 1977) 3 ALRB No. 13, at p. 4; accord, Anderson Farms Company (Aug. 17, 1977) 3 ALRB No. 67, at pp. 21-22; Merzoian Brothers Farm Management Company, Inc. (July 29, 1977) 3 ALRB No. 62.) And the statutory right to communication by the union with workers living in a labor camp has been [175]repeatedly acknowledged by this court. (Lab. Code, § 1152;11 Vista Verde Farms v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307, 317 [172 Cal.Rptr. 720, 625 P.2d 263]; Carian v. Agricultural Labor Relations Bd. (1984) 36 Cal.3d 654 [205 Cal.Rptr. 657, 685 P.2d 701].)
As a case in point, this court upheld Board regulations requiring an agricultural grower, upon proper notification by a union of taking access, to provide the union with a “prepetition list” including, among other things, the employees’ current street address. (Carian v. Agricultural Labor Relations Bd., supra, 36 Cal.3d at p. 668.) In Carian, we noted that, in many cases, the employees’ “current street address” would be at the grower’s labor camp and that the purpose of providing the prepetition list with “current street addresses” was precisely to permit employees to receive information at locations other than the work site. We acknowledged the Board’s conclusions with respect to field access, that because of “ ‘. . . the presence of employer representatives, the short time available [at the work site] during non-working time, plus the limits on the numbers of organizers who may be present under the [access] rule[,]. . .’” field access was “ ‘. . . not the ideal setting for extended or thoughtful discussion of controversial issues.’” (Carian, supra, 36 Cal.3d 654, 667, citing Henry Moreno (May 11, 1977) 3 ALRB No. 40.) “In light of these practical limitations, the board decided ‘to intensify employee access to information during the period when that information is most relevant by providing for unions to receive prepetition lists.’ [Citation.] Rather than abandon the access rule, the board explained, it considered the ‘goal [of maximizing employee access to information] sufficiently important, and the constraints imposed on the exchange of information as a result of seasonal and migratory labor patterns sufficiently severe, to warrant attempting these two complementary solutions, rather than selecting between them.’ [Citation.]” (Carian, supra, 36 Cal.3d at p. 667.)
Thus, it is clear that the right of agricultural employees and union representatives to exchange information at an agricultural labor camp is guaranteed under Labor Code section 1152 and does not depend upon proof in each case of the inadequacy of alternative means of communication.
That is not to say, however, that the question of alternative means of communication has no place at all in the resolution of the labor camp access [176]problems. Labor camp access is subject to reasonable time, place and manner regulation, and the reasonableness of regulations in a particular case may properly involve a consideration of the existence of alternative means of communication. The burden will be upon the grower, however, to show the existence of such alternative means of communication and their bearing upon the reasonableness of the regulations prescribed.
The Court of Appeal in this case erroneously relied on the workplace access rule requiring a showing of lack of alternative means of communication.12 Nevertheless, because the court in fact found a lack of reasonable alternative means of communication aside from labor camp access, it properly affirmed the unfair labor practice finding, even though for an erroneous reason. (See Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329 [48 P. 117].)
C. The Board’s Camp Access Order
1. The Board’s Order Was for Unrestricted Access
The Board’s order here, like that considered in the first Court of Appeal decision in 8 ALRB 87, mandated unlimited and unrestricted access to the labor camp.
The Court of Appeal here held, correctly, that the right of access is not unlimited but is subject to reasonable regulation. (Sam Andrews’ Sons v. Agricultural Labor Relations Bd., supra, 162 Cal.App.3d 923, 936; see also Petersen v. Talisman Sugar Corporation, supra, 478 F.2d 73, 82; United Farm Workers Union, AFL-CIO v. Mel Finerman Co. (D.Colo. 1973) 364 F.Supp. 326.)
The Board, as it did on remand after the first Court of Appeal decision in 8 ALRB 87, attempts to justify its access order on the ground that, though unlimited, the order would not sanction abuses by the union and would not prevent the grower from filing unfair labor practice charges if such abuses occurred. Unfortunately, however, the Board’s access order is in fact unlimited and is thus fundamentally at odds with the grower’s right to promulgate reasonable time, place and manner regulations. First, the order is by its own terms explicitly unrestricted. It orders the grower to “Cease and desist from . . . \\p\\reventing, limiting, or restraining any union organizers or agents from entering and remaining on the premises of Respondent’s labor [177]camps for the purpose of contacting, visiting, or talking to any agricultural employee on the premises.” (Italics added.) The grower is further forbidden “In any like or related manner [from] interfering with, restraining, or coercing any agricultural employee in the exercise of the rights guaranteed by [the Act]. ...” (Italics added.) Second, the unlimited camp access order is in stark contrast to the field access order. The field access order is expressly made subject to access at reasonable times. The labor camp access order is clearly not. Third, the Board’s decision itself expressly “direct\\s\\ the Regional Director to seek contempt citations against Respondent for any ongoing or further violations of our access orders.” (Italics added.) Finally, the Board itself clearly intended to order unrestricted access as it candidly stated in respect to its almost identical order in 8 ALRB 87.
The only plausible reading of the Board’s decision and order is that it intended—exactly as stated—to preclude the grower from adopting any limitations or restrictions whatever on labor camp access. In view of the grower’s right to make reasonable regulations as to camp access (see infra, section C.2.), the Court of Appeal properly held the order was overbroad and properly vacated the overbroad portion of the order. Its remand to the Board with directions to reframe its order to require the grower to allow reasonable access to the camp will be affirmed.
2. Who Shall Establish Reasonable Restrictions
As just concluded, the Court of Appeal correctly remanded the case to the Board “for the purpose of rewording its order to require the employer to permit reasonable access to the camp” but, following the lead of the court in the first Court of Appeal decision in 8 ALRB 87, the Court of Appeal in this case added that the Board should make “specific provisions in detail, limiting the time, hours of the day or night, number of days per year, number of organizers or United Farm Workers representatives and all in conformity with the views expressed herein.” The Board is not, however, the proper entity to establish reasonable restrictions on access in the first instance.13
Petersen v. Talisman Sugar Corporation, supra, 478 F.2d 73 indicates that, even in cases where the right of access is based on the First Amend[178]ment, the owner of a labor camp is the proper party entitled to make reasonable regulations for access. The court stated “[w]hile we hold that Talisman must grant access to the migrants in the labor camp, we nevertheless observe that the owner-employer may establish reasonable rules for granting access to prevent unnecessary interference with its business activities.” (Italics added, Petersen, supra, 478 F.2d at p. 82.)
Similarly, in National Labor Rel. Bd. v. Lake Superior Lumber Corp. (6th Cir. 1948) 167 F.2d 147 it was not the NLRB which created the restrictions at issue there. Rather, the court stated that, “The Board recognized . . . that such right [of access to the employer’s property under the NLRA] of an employee or a union representative is not unlimited. Reasonable rules by the employer limiting the exercise of this right, which are necessary in order to maintain production or discipline, will be upheld. The ‘lights out at 8:00 p.m.’ rule in the present case, which would bar union activities after that hour is an example of such a rule.” (Id., at p. 151, italics added.)
The nature of restrictions which are deemed “reasonable” will of course depend upon the circumstances. It is beyond cavil that union organizers and others do not have an unfettered right of access to the camp at all hours of the day or night. (See Velez v. Amenta (D.Conn. 1974) 370 F.Supp. 1250, 1256.)
In National Labor Rel. Bd. v. Lake Superior Lumber Corp., supra, 167 F.2d 147 the Sixth Circuit Court of Appeals, applying federal labor standards under Republic Aviation, supra, 324 U.S. 793 to access to a lumber camp, upheld a lights-out rule excluding all visitors from the camp after 8 p.m. The exclusion of visitors from the bunkhouses and restriction of visitation to the recreation hall before lights-out was a “much closer question.” The court ultimately affirmed an NLRB order permitting access to the bunkhouse upon a showing that employees spent most of their limited free time socializing in the bunkhouse, no evidence that any of the woodsmen objected to union activities in the bunkhouse, and that no rule prohibiting union activities in bunkhouses was in effect in other camps throughout the territory.
On the other hand, the United States District Court in United Farm Workers Union, AFL-CIO v. Mel Finerman Co., supra, 364 F.Supp. 326, considering the scope of access to an agricultural labor camp consisting solely of group living facilities, upheld exclusion of all visitors from the bunkhouses and dining hall. “Ordinarily, the Court would permit the designated representatives to have access to the facilities (bunkhouse, dining hall and bath and toilet facilities) upon invitation by any occupant. Because of [179]the nature of the facilities . . . it is not feasible for [the union’s] designated representatives to carry on their organizing efforts within the facilities without invading the privacy of those migrants who have not invited the designated representative into the facilities. Therefore, the realities of the factual situation require that the designated representatives shall not enter any of the facilities to carry on their organizing efforts.” (Id., at p. 329.)14
3. Restrictions on Access “in the Home”
The fact that the employees live at the camp does not preclude the grower from making reasonable regulations governing access to a communal bunkhouse simply because the bunkhouse is the workers’ “home.” The employees’ statutory right of access, characterized in some cases as a right to be visited “in the home,” in fact refers to the right to communicate with union representatives where the employees live, i.e., at the labor camp, not necessarily in the communal bunkhouse.15
Rather, a reasonable construction of the prior cases supports the view that workers in a labor camp have a right to be visited at the camp (the workers’ “home”). Any rule to the contrary would most certainly impinge upon the rights, both statutory and constitutional, of employees residing in the communal bedroom not to suffer visits by unrestricted numbers of union representatives at any and all hours of the day and night and upon the grower’s right to insure peace and quiet for the employees during normal sleeping hours.
For example, Merzoian Brothers Farm Management Company, Inc., supra, 3 ALRB No. 62, involved the complete denial of access to the camp by locking the gates of the fenced camp compound at night. In finding such conduct to be an unfair labor practice the Board majority stated: “The right of employees who are residents of a labor camp to receive visitors is akin to [180]the rights of a person in his own home or apartment. The owner or operator of a labor camp cannot exercise for the worker his right not to receive visits from union organizers. . . . [Accommodation must be made for the rights of not just the owner and the organizer, but also for the tenant who has a basic right to control his own home life." (Id., at p. 4, italics added.)
By a parity of reasoning, where the living situation is not akin to one’s own home or apartment, and where exercise by one tenant of “control” over his or her “home life” by inviting visitors into the communal bunkhouse will inevitably impinge on the right of others in the group living situation to exercise control over their “home life,” reasonable time, place and manner restrictions may, where appropriate, exclude visitors from a communal bunkhouse. Indeed, a grower/labor camp operator charged with the duty to maintain order in its group housing facilities must of necessity make reasonable time, place and manner restrictions on visitation.
D. The One-hour Expanded Field Access
The Board ordered the grower to provide one hour of compensated access time during working hours.16 The Court of Appeal reversed the order for one hour of expanded field access as indefinite and overbroad, reading the order to place “no limit on the number of times the union could utilize the right of access” and “purely punitive.”
The field access order is reasonably interpreted to refer to one and only one hour of expanded field access, on one agreed-upon day, not one hour each day. Moreover, the grower’s argument that the extra hour of affirmative field access, at company expense, was punitive because the unfair labor practices involved denial of labor camp access is easily answered: The expanded field access was justified in this case on the basis of the grower’s admitted denials of field access. There is no need whatever to attempt to justify it on the basis of wrongful denial of labor camp access.
[181]III. Disposition
The portions of the Court of Appeal’s judgment vacating the special compensated one-hour field access provision of the Board’s order and directing the Board to establish specific limitations on access are reversed. Otherwise, the judgment of the Court of Appeal is affirmed and each party is ordered to bear its own costs on review.
Lucas, C. J., Panelli, J., and Eagleson, J., concurred.
After the strike began, one of the grower’s actions was to place tarpaulins over the chain link fence surrounding the compound. Although reference has been made throughout the history of this case to the grower’s placing the tarpaulins to prevent communication between strikers or union organizers outside the fence with workers inside the compound, the grower’s representatives testified the tarpaulins were placed to prevent the shining of lights into the barracks area at night. Nevertheless, even if preventing the pickets from shining lights into the barracks was the true reason for the tarpaulins, the grower was not justified in keeping the tarpaulins in place after the night harassment had stopped for a substantial time.
The grower’s “no visitors” rule appears to have been unenforced for a time. However, the grower had a rather consistent policy of restricting access to the camp by nonresidents, having suffered two previous findings of unfair labor practices based on its denial of access to the labor camp. (See Robert S. Andrews, supra, 3 ALRB No. 45; Sam Andrews’ Sons, supra, 5 ALRB No. 68.)
At the hearing before the administrative law judge (ALJ) in the instant case, the grower argued that the camp access charges should be dismissed because precisely the same issues were being considered by the Board in 8 ALRB 87. The ALJ denied the motion to dismiss, but incorporated the testimony of the grower’s witnesses from 8 ALRB 87 into the record of the instant case. After the Board issued its first decision in 8 ALRB 87, the ALJ in the instant case found that the camp access violations here were identical to the access violations in 8 ALRB 87. Thus, the ALJ incorporated by reference the Board’s order and decision in 8 ALRB 87. The Board in the instant case approved and adopted the ALJ’s decision with respect to the access issue, including the incorporation of the order and decision from 8 ALRB 87, with only minor modifications.
The Court of Appeal in the instant case also relied heavily on the first Court of Appeal opinion in 8 ALRB 87 in affirming the unfair labor practice findings.
A petition for rehearing was denied (Jan. 4, 1985), and petitions for hearing in this court were also denied (Feb. 21, 1985).
In its discussion of the statutory right of access to the grower’s property the Court of Appeal did not apparently differentiate between access to the fields (work site) and access to property operated as a labor camp (nonwork site).
The grower stipulated to a denial of access to the Imperial Valley camp on December 8, 1981. The ALJ found a denial of access on or about December 7 or 8, 1981. The Board purported to “affirm” the ALJ’s finding of denials of access on December 7 and 8, 1981. To the extent that the Board decision purported to find two violations of access at the Imperial Valley camp, it was clearly in error. The parties have not raised this issue, however. Thus, we do not deal with it.
Notably, at the time of the decision in this case, only the first Court of Appeal decision in 8 ALRB 87 had been rendered.
The Court of Appeal based its upholding of the unfair labor practice findings on the additional principle of deference to the Board’s ability to evaluate the testimony of witnesses or to exercise informed judgment about matters within its area of special competence. (Cf. Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474, 490 [95 L.Ed. 456, 468-469, 71 S.Ct. 456].)
Autoprod, Inc., the Board’s sole authority for the award of attorney fees and costs herein, did not involve reimbursement to a union or an award of attorney fees at all, but rather ordered the employer to reimburse the NLRB for the agency’s expenses in hearing the employer’s frivolous claims.
The NLRB in Autoprod, Inc. relied exclusively on its decision in J.P. Stevens & Co., Inc. (1979) 244 NLRB 407, 408, 409, 458-459, in which the NLRB ordered an employer to reimburse the NLRB and the union for a broad range of expenses, including counsel fees, for its “contumacy” and frivolous litigation. The United States Supreme Court, however, granted certiorari in that case, vacated the judgment of the court of appeals enforcing the NLRB’s order (J.P. Stevens Co., Inc. v. N.L.R.B. (4th Cir. 1982) 668 F.2d 767) and remanded for further consideration in light of Summit Valley Industries, Inc. v. Carpenters, supra, 456 U.S. 717. (J.P. Stevens & Co., Inc. v. National Labor Relations Board (1982) 458 U.S. 1118 [73 L.Ed.2d 1381, 102 S.Ct. 3505].) Upon remand, the Fourth Circuit Court of Appeals, upon motion of the NLRB, remanded the case to the NLRB for further proceedings. The parties ultimately entered into a stipulated settlement expressly making no award for attorney fees or litigation expenses (J.P. Stevens & Co., Inc. (1983) 268 NLRB 89 [114 Lab.Rel.Ref. Manual (Bur.Nat.Affairs) p. 1246]; J.P. Stevens & Co., Inc. (1983) 268 NLRB 8 [114 Lab.Rel.Ref. Manual (Bur.Nat.Affairs) p. 1241]).
Thus, the sole authority cited for the award in Autoprod, Inc. does not in fact support it. Autoprod, Inc. was never itself the subject of enforcement or other review in the federal courts.
It is worthy of note that this court in Consumers Lobby Against Monopolies v. Public Utilities Com., supra, 25 Cal.3d 891, held that an award of attorney fees by the PUC was not au[173]thorized in ratemaking cases. While this court did authorize an award of attorney fees in reparation cases, we did so on the carefully limited basis that reparation cases create a “common fund”—one of the recognized exceptions to section 1021. (Id. at pp. 907 and 908 [“[W]e conclude that the commission possesses equitable power to award attorney fees under the common fund doctrine in quasi-judicial reparation actions. ”].)
This court has generally recognized only three exceptions to the application of section 1021: the common fund, substantial benefit, and private attorney general theories. (See Consumers Lobby, supra, 25 Cal.3d 891, 906; Serrano v. Unruh (1982) 32 Cal.3d 621, 627, fn. 8 [186 Cal.Rptr. 754, 652 P.2d 985] [Serrano IV; noting that, although an exception for bad faith or vexatious conduct is recognized in the federal courts, this court has not considered such an exception]; Serrano v. Priest (1977) 20 Cal.3d 25, 34 [141 Cal.Rptr. 315, 569 P.2d 1303] [Serrano III; adopting private attorney general theory and declining to address any exception for bad faith or oppressive conduct]; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 [112 Cal.Rptr. 786, 520 P.2d 10] [declining to recognize the private attorney general doctrine pending consideration by the United States Supreme Court and declining to address the question of an exception for bad faith conduct]; cf. Bauguess v. Paine (1978) 22 Cal.3d 626 [150 Cal.Rptr. 461, 586 P.2d 942] [attorney’s alleged misconduct causing mistrial is not within judicially recognized exceptions to section 1021, nor may trial court award fees as sanction under court’s inherent supervisory authority].)
Labor Code section 1152 provides: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of continued employment as authorized in subdivision (c) of Section 1153.”
To the extent it also adopted the workplace access rule as applicable to labor camp access, the first Court of Appeal decision in 8 ALRB 87, Sam Andrews’ Sons v. Agricultural Relations Bd., supra, 162 Cal.App.3d 923, is disapproved.
This is not to say that the Board could never, in a proper case, make an order regarding reasonable limits on camp access. If, after a grower’s right to establish reasonable time, place and manner restrictions was confirmed, the grower continued to promulgate unreasonable rules regarding labor camp access, the Board might in such a case properly set reasonable limitations on access. The grower’s visitation policies in the instant case were rather clearly not reasonable and, if it were to persist in such policies in the future, it might well be subject to a detailed Board order on the matter.
The first Court of Appeal decision in 8 ALRB 87, Sam Andrews’ Sons v. Agricultural Labor Relations Bd., supra, 162 Cal.App.3d 923, is also disapproved to the extent it employed the same procedure of ordering the Board to establish restrictions in the first instance.
Notwithstanding occasional references to the right of a worker to communicate with union representatives in the worker’s “home,” a close examination of the prior decisions reveals that exclusion from the camp generally is what had occurred. (Vista Verde Farms v. Agricultural Labor Relations Bd., supra, 29 Cal.3d 307 [complete exclusion of union organizers from the labor camp]; Karahadian Ranches, Inc. v. Agricultural Labor Relations Bd. (1985) 38 Cal.3d 1, 8 [210 Cal.Rptr. 657, 694 P.2d 770] [union organizer lawfully present in the camp kitchen]; Silver Creek Packing Company, supra, 3 ALRB No. 13 [exclusion of outsiders from locked and guarded camp; also, workers actually housed in separate cabins]; Anderson Farms Company, supra, 3 ALRB No. 67 [all access to camp barred except between 5:30 and 8:30 p.m.]; Merzoian Brothers Farm Management Company, Inc., supra, 3 ALRB No. 62 [complete denial of access to camp by locking gates at night].)
That portion of the order read: “At a time to be determined by the Regional Director, [Respondent is ordered to] provide the UFW with access to its employees for one hour during regularly scheduled work time, for the purpose of talking with the employees about matters related to collective bargaining between Respondent and the UFW. Access may be taken by two UFW representatives for every fifteen employees in each of Respondent’s work crews. After conferring with both the UFW and Respondent, the Regional Director shall determine the manner and most suitable time for the special access. During the one-hour access period, no employee shall be required to be involved in the access activities. All employees shall receive their regular pay for the time away from work. The Regional Director shall determine an equitable payment to be made to nonhourly wage earners for their lost productivity.”