Jackson & Perkins Co. v. Agricultural Labor Relations Board

Opinion

FRANSON, J.

On April 26, 1977, a decision and order was issued by the Agricultural Labor Relations Board (Board) finding that petitioner had committed an unfair labor practice by denying access to representatives of the United Farm Workers of America, AFL-CIO (UFW), in violation of Labor Code sectibn 1153, subdivision (a). The Board ordered that petitioner cease and desist from the unfair labor practice and take specified affirmative action to effectuate the policies of the act. The decision and order were served by mail on the parties and their counsel on April 27, 1977.

On May 5 the UFW filed a motion for reconsideration with the Board. On May 10 the petitioner likewise filed a motion for reconsideration, which included a response to the UFW motion. On May 31 the petitioner filed a petition for review with this court. On June 7, 1977, the Board denied both motions.

Discussion

A threshold question arises: does petitioner’s failure to file the petition for review within 30 days of the date of the Board’s order bar a review? We hold that it does.

Labor Code section 1160.8 provides in pertinent part: “Any person aggrieved by the

final order

of the board granting or denying in whole or in part the relief sought may obtain a review of such order in the court of appeal having jurisdiction ... by filing in such court a written petition requesting that the order of the board be modified or set aside.

Such petition shall be filed with the court within 30 days from the date of the issuance of the board’s order. ”

(Italics added.) The petition for review was filed 35 days after the Board’s order; however, the motions for reconsideration were pending before the Board at the time.

[833]

The question of the timeliness of the petition for review turns upon whether the Board’s order of April 26 was a “final order” within the meaning of section 1160.8. Petitioner argues that an order is not “final” for purposes of review if it may still be set aside or modified by the body issuing the order. While this usually is a correct statement of the law, we have concluded that this is not the meaning of the term as used in section 1160.8.