Pasillas v. Agricultural Labor Relations Board (156 Cal. App. 3d 312, 1984)

Opinion

SMITH, J.

In these consolidated cases, we consider the extent of a union’s authority under the Agricultural Labor Relations Act (Lab. Code, § 1140 et seq., hereinafter ALRA or the Act) to compel a worker’s discharge from employment, pursuant to a “union security” provision of a collective bargaining agreement, for the worker’s failure to maintain union membership in good standing. We granted the petitions of Severo Pasillas, Maria Navarro and the United Farm Workers of America (UFW or Union) to review the decisions of the Agricultural Labor Relations Board (ALRB or Board) in three related cases arising out of the Union’s suspension or expulsion of four member workers for crossing picket lines to work during 1979 strikes called after expiration of prior collective bargaining agreements but before new agreements had been reached. Pursuant to union security provisions in the new agreements, the workers were fired by their employers at Union request.

Background

Petitioners Pasillas and Navarro, along with two other workers, Juan Martinez and Odis Scarbrough, were all UFW members in good standing and were working for employers who were parties to collective bargaining agreements containing union security provisions. In December of 1978, those agreements expired without new agreements having been reached. Navarro worked as a lettuce wrapper for Growers Exchange, Inc. (sometimes called the El Toro Company); Martinez worked as a broccoli cutter for Mann Packing Company, Inc.; and Scarbrough worked as a tractor driver for Sun Harvest, Inc. (formerly InterHarvest, Inc.), which was also Pasillas’ most recent employer. (See fn. 2, ante.)

In January 1979, the UFW called strikes at Sun Harvest, Inc. (Sun Harvest) and Growers Exchange, Inc. (Growers Exchange). There were occasional work stoppages at Mann Packing Company, Inc. (Mann Packing), Martinez’s employer, but no formal strike was called. Pasillas, Navarro and Scarbrough each initially respected the strikes but later crossed picket lines and returned to work before the strikes were settled. Martinez joined in all work stoppages at Mann Packing but was later accused of having crossed picket lines to work at Growers Exchange. None of the workers sought to resign from union membership.

The strikes against Sun Harvest and Growers Exchange were settled, and new collective bargaining agreements were signed with all three employers (including Mann Packing) in September and December of 1979. Each new agreement contained a union security provision which conditioned a worker’s employment on his maintaining union membership in good standing. The four workers continued working for their respective employers after the new contracts took effect.

Thereafter, each worker was charged with violating union prohibitions against strikebreaking and each was found guilty as charged in separate disciplinary proceedings. The discipline imposed was a two-year suspension of Navarro’s membership and outright expulsion for the others. By successful internal appeals to the UFW’s national executive board (NEB), Scarbrough and Martinez had their expulsions reduced to two-year and one-year suspensions, respectively. An attempted appeal by Navarro was rejected by the NEB as untimely, and Pasillas did not file an appeal. Following each worker’s suspension or expulsion—and NEB appeal, if any—notice of each worker’s “bad standing” was given to his or her employer, and the workers were thereupon terminated from employment pursuant to the union security provisions in the new collective bargaining agreements.

Only Scarbrough proceeded to the next internal union appeal level, the public review board (PRB).* *** Finding that the Union had failed to demonstrate the membership of persons voting at Scarbrough’s trial and had failed to provide a complete trial record, the PRB overturned both the trial and NEB decisions and restored Scarbrough to full union membership. Due to delay caused largely by the apparent loss of Scarbrough’s first PRB appeal notice filed in May 1980, the PRB decision and Scarbrough’s subsequent reinstatement did not occur until May 1981.

Meanwhile, Scarbrough and the other workers each challenged his or her discharge by filing unfair labor practice charges against the Union (§ 1154, subds. (a)(1) and (b)). Pasillas and Martinez filed charges against their employers as well (§ 1153, subds. (a) and (c)). The Board ordered the charges of Pasillas, Scarbrough and Martinez consolidated, and Navarro’s case proceeded separately.

Hearings on the consolidated cases were held in April of 1981 before an administrative law judge (ALJ), and the ALJ’s written decision was filed on the following October 9th. The ALJ concluded that, although the Union had power to suspend and hence cause the discharge of its members for strikebreaking, each charging party had been denied due process in the course of the disciplinary proceedings. The discharges were therefore held improper and all unfair labor practice charges were sustained. The ALJ ordered make-whole remedies, retroactive union membership in good standing and immediate offers of reinstatement for all charging parties.

On May 4, 1982, at a prehearing conference before an ALJ in Navarro’s case, both sides waived an ALJ hearing and submitted the matter directly to the Board on stipulated facts and certain other documentary evidence, pursuant to Board regulation. (Cal. Admin. Code, tit. 8, § 20260.)

Board review of the ALJ decision in the consolidated cases of Pasillas, Scarbrough and Martinez culminated in a decision and order dated December 30, 1982. A majority of the Board upheld the ALJ’s disposition as to Martinez, concluding that he was denied a fair hearing. As to Scarbrough, the Board agreed with the ALJ that a September 1979 layoff caused by the Union constituted a violation of the Act. However, the Board dismissed allegations concerning his subsequent January 1980 discharge from employment in light of remedial actions already taken by the Union and declined to maintain jurisdiction over the matter. Portions of the consolidated complaint relating to Pasillas were dismissed by the Board for his failure to adequately exhaust internal union procedures.

By a supplemental decision and order of April 15, 1983 (9 A.L.R.B. No. 17), the Board modified its prior decision as to Scarbrough after granting his motion for reconsideration. The Board reversed its position on the January 1980 discharge and accordingly issued a remedial order. Noting that Scarbrough had recently died, the Board ordered his estate entitled to back-pay.

The Board issued its decision in Navarro’s case (8 A.L.R.B. No. 104) on December 30, 1982, the same day as its decision in the consolidated cases. Concluding that the strikebreaking charges against Navarro were preferred well beyond the 60-day time period specified in the UFW Constitution (art. XVIII, § 4) and that extensions of time authorized by UFW President Cesar Chavez were ineffectual, the Board found a violation of Navarro’s right to due process in the disciplinary proceedings and, due to the gravity of the violation, excused her failure to exhaust internal union procedures. The Board ordered retroactive restoration of union membership and reinstatement to employment, plus make-whole remedies.

On January 28 and 31, 1983, timely petitions were filed for review of the Board’s two December 30, 1982 decisions. Pasillas and Navarro each petitioned in their respective cases, and the Union cross-petitioned in both cases (8 A.L.R.B. No. 103, 8 A.L.R.B. No. 104). Neither Martinez nor representatives of Scarbrough sought review. On May 16, the Union petitioned for review of the Board’s supplemental decision of April 15, 1983 (9 A.L.R.B. No. 17). (§ 1160.8.) We denied respondent Board’s motion to dismiss Navarro’s petition (see fn. 12, post). The five petitions were consolidated for review; we issued writs of review on January 18 and 26, 1984.

Review

I

Preliminary to addressing several of the various issues presented herein, it is important to examine the language and history of the Act as it relates to the use of union security provisions.

The ALRA was enacted in 1975 to fill a long-standing void left by the National Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq.), which expressly excludes agricultural laborers from its definition of “employees.” (NLRA, § 2(3) [29 U.S.C. § 152(3)].) Our state Supreme Court has noted: “[T]he entire ALRA is designed to provide agricultural workers with protection of their collective bargaining rights comparable to that provided nonagricultural workers by the NLRA. To that end the ALRA was patterned after the NLRA, with changes necessary to meet special needs of California agriculture. [Citation.] . . . [H] The Legislature thus intended to adapt to California needs the proved federal instrumentality for protecting rights of employees and employers with respect to collective bargaining. [Citation.]” (Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 345 [156 Cal.Rptr. 1, 595 P.2d 579]; see generally, Levy, The Agricultural Labor Relations Act of 1975—La Esperanza de California Para El Futuro (1975) 15 Santa Clara L.Rev. 783 [hereinafter cited as Levy].) That intent is clear from the Act itself, section 1148 of which directs that “[t]he board shall follow applicable precedents of the [NLRA], as amended.” State courts similarly will “look to established administrative and judicial interpretations of the federal act as persuasive indicants of the appropriate interpretation of the state legislation. [Citations.]” (Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848, 855-856 [176 Cal.Rptr. 753, 633 P.2d 949].)

Both the state and federal acts permit union security agreements which require membership in a labor organization as a condition of continued employment.

The ALRA borrows word for word from the NLRA in, first, declaring expansive rights of employees to freely organize and participate in concerted activity directed at collective bargaining and, then, declaring a converse right to disassociate from such activities—but subject to the effect of union security agreements authorized by the Act.

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 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.” (Italics added.) Thus the section announces two complementary rights, one to associate and one to disassociate with concerted activities aimed at collective bargaining. It is apparent from the italicized language—its use of the word “right” in the singular and its position immediately following the announced right to refrain from concerted activities—that an authorized agreement conditioning continued employment on union membership is expected to adversely affect the i/z'sassociational right.

Again following the federal model, the ALRA states in section 1153: “It shall be an unfair labor practice for an agricultural employer to do any of the following: [Í] (a) To interfere with, restrain, or coerce agricultural employees in the exercise of the rights guaranteed in Section 1152. . . . [f] (c) By discrimination in regard to the hiring or tenure of employment, or any term or condition of employment, to encourage or discourage membership in any labor organization.” Subdivision (c) of section 1153 continues, in part: “Nothing in this part,[] or in any other statute of this state, shall preclude an agricultural employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this section as an unfair labor practice) to require as a condition of employment, membership therein on or after the fifth day following the beginning of such employment, or the effective date of such agreement whichever is later, ...”

Therefore, in defining what actions of an agricultural employer will constitute unfair labor practices, section 1153 carves out an exception for certain actions taken pursuant to an authorized union security agreement. Section 1154, defining what actions of a labor organization constitute unfair labor practices, similarly leaves room for the effects of such an agreement.

With minor drafting differences, the federal act operates in much the same way. It declares the identical associational rights plus the disassociational right made subject to authorized union security agreements. (29 U.S.C. § 157 [formerly NLRA § 7].) It also defines unfair labor practices for both employers and labor organizations so as to accommodate the effects of such agreements. (29 U.S.C. § 158(a)(1), (a)(3) [formerly NLRA § 8(1), (3)], (b)(1) and (b)(2).)

Central to the controversy here is our state Act’s divergence from the federal model in setting forth what conduct of an employee may result in his or her forced discharge from employment under a valid union security agreement.

Ever since the Taft-Hartley Act amendments in 1947, forced discharge under the NLRA has been explicitly restricted to instances wherein an employee’s union membership is denied or terminated for nonpayment of periodic dues or initiation fees. The beginning language of section 158(a)(3) (29 U.S.C.) reads essentially the same today as its predecessor section in the Wagner Act of 1935. The section presently provides, in part, that it shall be an unfair labor practice for an employer, “by discrimination in regard to hire or tenure of employment or any term or condition of employment[,] to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization ... to require as a condition of employment membership therein . . . .” (Cf. 29 U.S.C. § 158(a)(3), with Act of July 5, 1935, ch. 372, § 8(3), 49 Stat. 452.) Thus, as originally enacted, the NLRA placed no express limits on use of the union security agreement.

The Wagner Act’s provisions were reenacted in 1947 as part of the Taft-Hartley Act (see fn. 8, ante), and the union security section was thereby amended in an effort by Congress to cure serious abuses of union security arrangements—particularly the closed shop. (Labor Board v. General Motors (1963) 373 U.S. 734, 738-741 [10 L.Ed.2d 670, 673-675, 83 S.Ct. 1453].) The amendments abolished the closed shop by extending the section’s original proviso so that an employee could satisfy the union membership condition imposed by a union security agreement by becoming a member of the union “on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, . . .” (29 U.S.C. § 158(a)(3).) More important to our discussion, however, was the addition of a further proviso, “That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.” (Ibid.; italics added.)

The practical effect of the Taft-Hartley amendments was to make “significant alterations in the meaning of ‘membership’ for the purposes of union-security contracts, ... It is permissible to condition employment upon membership, but membership, insofar as it has significance to employment rights, may in turn be conditioned only upon payment of fees and dues. ‘Membership’ as a condition of employment is whittled down to its financial core. . . .” (Labor Board v. General Motors, supra, 373 U.S. 734, 742 [10 L.Ed.2d 670, 676].) Thus the amendments “were designed to allow employees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without imperiling their livelihood. . . . Congress intended to prevent utilization of union security agreements for any purpose other than to compel payment of union dues and fees. ...” (Radio Officers v. Labor Board (1954) 347 U.S. 17, 40-41 [98 L.Ed. 455, 477, 74 S.Ct. 323]; Labor Board v. General Motors, supra, 373 U.S. at pp. 740-741 [10 L.Ed.2d at p. 675].)

In contrast, our Legislature departed from the federal act’s example, preferring the following limitation on “membership” for purposes of union security agreements: “For purposes of this chapter, membership shall mean the satisfaction of all reasonable terms and conditions uniformly applicable to other members in good standing; provided, that such membership shall not be denied or terminated except in compliance with a constitution or bylaws which afford full and fair rights to speech, assembly, and equal voting and membership privileges for all members, and which contain adequate procedures to assure due process to members and applicants for membership.” (§ 1153, subd. (c).)

n

We decide first the question of whether the union security provisions utilized in these cases were properly given what the parties term “retroactive” effect. Each of the disciplined workers herein was expelled or suspended for alleged strikebreaking activities occurring during a hiatus between valid collective bargaining agreements, when no union security provisions were in force. The Union then compelled each of their discharges for “bad standing” after newly negotiated collective bargaining agreements containing union security provisions went into effect. Rasillas argued before the Board that this “retroactive” application of a union security provision is improper, but the Board did not address the issue in its decision and thus impliedly decided the issue against him.

Rasillas, joined in argument by Navarro, contends that retroactive application violates the Act, conflicts with controlling federal precedent and, as an “ex post facto” deprivation of statutory rights, impermissibly abridges a worker’s fundamental right to pursue a livelihood and violates substantive due process rights. The Board and the UFW strenuously argue that the wording and legislative history of the Act dictate a departure from federal Act precedent and mandate retroactive enforcement of all union security provisions.

We conclude that the provisions here at issue were correctly applied although, as will appear, we are not entirely in accord with the position of the Board and Union.

The language of the Act is neutral. It neither requires nor forbids retroactive application. Section 1152 grants the right to refrain from organizational 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.” While a section 1153-authorized agreement is clearly the only permitted intrusion on an employee’s right to refrain (cf. Radio Officers v. Labor Board, supra, 347 U.S. 17, 41-42 [98 L.Ed. 455, 478]; but see N. L. R. B. v. International Union, United A., A. & A. I. Wkrs. (1st Cir. 1963) 320 F.2d 12, 15-16 [a union’s constitution and bylaws may to some extent circumscribe the right, irrespective of the existence of a union security agreement]), the language of section 1152 just quoted does not limit the scope of such an agreement except in its cross-reference to section 1153.

Nor is the answer to retroactivity found in the guiding words of subdivision (c) of section 1153, defining an authorized agreement as one which may “require as a condition of employment [union membership], on or after the fifth day following the beginning of such employment, or the effective date of such agreement whichever is later, ...” That language clarifies that continued employment may be conditioned upon union membership no earlier than five days after the agreement takes effect, but it does not indicate whether the required membership may be denied a then-current member for conduct predating the agreement. Subdivision (c)’s limiting definition of “membership” as “the satisfaction of all reasonable terms and conditions uniformly applicable to other members in good standing . . .” is equally unhelpful for it does not indicate whether the terms and conditions of which it speaks must be satisfied only after the agreement comes into existence.

We therefore conclude that the terms of the Act do not require or forbid retroactive application. Before asking whether any policy of the Act was offended in these cases by retroactive application, however, we first must examine the language of the union security provisions here in question to determine whether they are susceptible of the retroactive construction impliedly given them by the Board. (Cf. Colonie Fibre Co. v. National Labor Relations Board (2d Cir. 1947) 163 F.2d 65, 67 & fn. 1, 69-70.)

The identical operative language is found in all three union security provisions utilized in these cases: “Any worker . . . who has been determined to be in bad standing by the Union pursuant to the provisions of the Union’s constitution, shall be immediately discharged or suspended upon written notice from the Union to the Company, ...” Key here are the words “has been determined to be in bad standing” (italics added), for they connote past discipline and, necessarily, past conduct. This use of the past tense is in contrast with the wording of the two preceding conditions: “Any worker who fails to become a member . . . , or who fails to pay the required initiation fee, periodic dues or regularly authorized assessments . . . .” (See fn. 3, ante, for full text.) In view of this parallel construction, it is reasonable to assume that, if the “bad standing” clause had been meant to operate only prospectively, it would have read, “Any worker . . . who is determined to be in bad standing ...” shall be discharged or suspended upon request, and even that wording would leave open the possibility that the conduct for which a member is disciplined, as opposed to the imposition of discipline itself, could predate the signing date of the agreement. Therefore, the intention of the parties to the agreement to allow retroactive application appears clearly from the language of the instrument itself and its clauses taken as a whole. (Civ. Code, §§ 1636-1639, 1641.) No resort to further constructional aids is appropriate. (Civ. Code, §§ 1639, 1649.)

In conclusion, although we are not bound under these circumstances by the Board’s implied interpretation (cf. Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866 [44 Cal.Rptr. 767, 402 P.2d 839]), we agree as a matter of law with the retroactive interpretation placed on the union security provisions.

The remaining question is this: Did retroactive application in this case, something which the literal terms of both the Act and the provisions allowed, nevertheless offend against a legislative policy inherent in the Act? We conclude that it did not.

Pasillas and Navarro rely on long-settled federal precedent holding that retroactive application of a union security agreement to, in effect, require an employee to pay periodic dues or initiation fees for periods predating the signing of that agreement (and when no other such agreement was in effect) violates the terms and policy of the NLRA. The federal circuit courts have consistently found that discharges or threats of discharges under such circumstances constitute unfair labor practices whether brought about by union or employer. (See, e.g., N. L. R. B. v. International Union, United A., A., A. Imp. Wkrs. (1st Cir. 1961) 297 F.2d 272, 274-275 [union]; N. L. R. B. v. Spector Freight System, Inc. (8th Cir. 1960) 273 F.2d 272, 276-278 [union and employer], cert. den., 362 U.S. 962 [4 L.Ed.2d 877, 80 S.Ct. 879]; National Labor Relations Bd. v. International Ass'n (9th Cir. 1953) 203 F.2d 173, 174-175, 177 [union]; National Labor Relations Bd. v. International Union (7th Cir. 1952) 194 F.2d 698, 701-702 [union]; Colonie Fibre Co. v. National Labor Relations Board, supra, 163 F.2d 65, 67-70 [employer]; see also Industrial Union of Marine & Shipbuilding Wkrs. v. N. L. R. B. (3d Cir. 1963) 320 F.2d 615, 619 [no employer violation in discontinuing enforcement of union shop and dues checkoff where agreement had expired], cert. den. (1964) 375 U.S. 984 [11 L.Ed.2d 472, 84 S.Ct. 516], sub nom. Bethlehem Steel Co. v. National Labor Relations Board.) They urge that those cases are “applicable [NLRA] precedents” within the meaning of section 1148 of our Act and hence must be followed. However, we find that the federal precedents conflict with the evident legislative intent behind our state Act and that, on the facts before us, no labor policy of our state was violated by retroactive application.

The rationale supporting the federal rule against retroactivity finds perhaps its clearest expression in an early case, Colonie Fibre Co. v. National Labor Relations Board, supra, 163 F.2d 65. Two employees in Colonie Fibre were discharged at the request of the American Federation of Labor (AFL) shortly after the signing of a new contract with their employer containing a union security maintenance-of-membership agreement. They had both been AFL members during a prior AFL contract also containing a maintenance-of-membership agreement, but had ceased paying AFL dues toward the end of that contract’s term and had joined and begun organizing for the rival Congress of Industrial Organizations (CIO), openly identifying themselves as CIO supporters and soliciting CIO membership from among their coemployees at work. The old contract then expired without a new one being signed, negotiations having been forestalled by a pending CIO-backed petition for investigation and certification of representatives filed as the result of the two employees’ efforts. After the ensuing election resulted in recertification of the AFL, the new contract was entered into amidst AFL and employer complaints about the two CIO members. The AFL then demanded and obtained the company’s discharge of the two employees under the newly effected security agreement because of their CIO activities and their failure to pay past AFL dues over the interim period when no contract was in force. (163 F.2d at pp. 65-67.)

On those facts, the Second Circuit in Colonie Fibre agreed with the conclusion of the NLRB that the retroactive maintenance-of-membership feature of the union security agreement rendered it invalid as being beyond the authorization of section 8(3) (now part of § 8(a)(3)) of the federal act (see fin. 14, ante). (163 F.2d at pp. 67, 70.) The court quoted at length from, and apparently adopted, the NLRB’s reasoning that retroactive application in that case was inconsistent with both the terms of the act and its policy of promoting free self-organization. (Id., at p. 67.) The Board had relied on language in Labor Board v. Electric Cleaner Co. (1942) 315 U.S. 685 [86 L.Ed.1120, 62 S.Ct. 846], in “literally” construing section 8(3)’s proviso (now the first proviso of the amended section) as permitting only “ ‘contracts which require membership during their term . . .’” and hence as not sanctioning. “ ‘contracts which require past membership . . . .’ ” (Colonie Fibre, supra, 163 F.2d at p. 67.) Thus, it reasoned, to require past dues was to require past membership in violation of the NLRA’s terms. (Pp. 67-68.) Next, the Board found as a matter of NLRA policy that “ ‘[a]pproval of a contract which made it possible for the contracting union to require payment of past dues as a condition of future employment would have a seriously detrimental effect upon freedom of organization,’ ” a goal of the federal act. (P. 68.) ‘“[I]n actual practice,”’ the board observed, “ ‘the employee’s right to support and select the bargaining representative he wanted would largely be reduced to the right to guess which of two or more competing unions would ultimately be chosen by the majority. Thus, approval of the contract before us would substantially impair freedom of choice at a time when the statute requires such freedom [i.e., during an election campaign between contracts]. To permit this impairment would make it difficult for advocates of a change in representation to present their case to their fellow employees.’ ” (Ibid.)

In contrast with the result and reasoning in Colonie Fibre, we feel compelled by our state Act’s distinctive legislative history and treatment of union security to reject the federal rule insofar as it flatly forbids, as a matter of statutory construction, all retroactive application of union security devices. The federal precedent relied on by Pasillas and Navarro is to that extent inapplicable and not to be followed. (§ 1148.) We further conclude, on the facts before us, that retroactive application did not substantially impair protected associational activities of Pasillas or Navarro.

Addressing first the right of Pasillas and Navarro to refrain from associational activities (§ 1152), there is simply no record evidence that either worker’s strikebreaking was motivated by a desire to organize on behalf of a rival labor organization or even to protest the UFW’s position as their certified union, and neither worker attempted to resign his or her membership at any time before or during the strikes. Their discharges therefore cannot be in any way attributed to an improper retaliatory purpose by their union or employers that might offend principles of free self-organization, a concern which permeates many of the federal cases. (See, e.g., N. L. R. B. v. International Union, United A., A., A. Imp. Wkrs., supra, 297 F.2d 272, 273 [employees discharged following a close election had formed an antiunion committee and resigned from the union during a hiatus between contracts]; National Labor Relations Bd. v. International Ass'n, supra, 203 F.2d 173, 174-175 [discharged employees had campaigned before and after expiration of a prior contract to oust the union as the employees’ representative and were later expelled from membership on charges of “dual unionism”]; Colonie Fibre Co. v. National Labor Relations Board, supra, 163 F.2d 65 , 66-67 [also involving “dual unionism” charges following organizational activity].) The financial hardships of prolonged concerted efforts such as the 1979 strikes shown here are, of course, potentially devastating to all members. However, we are confident that section 1152 was not designed to allow a member to freely disassociate from a collective strike effort based on financial hardship alone. Such a result would give every member an unassailable “right to refrain” and effectively undermine a union’s power at a critical time in its representative capacity. Neither Pasillas nor Navarro opposed their strikes in principle. The interests which they assert are purely financial.

Absent demonstrated and substantial infringement of associational rights which the Act is designed to protect, we must respect “the power in the chosen union to protect against erosion its status . . . through reasonable discipline of members who violate rules and regulations governing membership. That power is particularly vital when the members engage in strikes. The economic strike against the employer is the ultimate weapon in labor’s arsenal for achieving agreement upon its terms, and ‘[t]he power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent . . . .’” (NLRB v. Allis-Chalmers Mfg. Co. (1967) 388 U.S. 175, 181, fns. omitted [18 L.Ed.2d 1123, 1128, 8 S.Ct. 2001]; cf. Machinists Local 1327 v. N.L.R.B. (9th Cir. 1984) 725 F.2d 1212, 1218.) Under the ALRA, a union’s vital power to expel a strikebreaker carries with it the power to later force the strikebreaker’s discharge under an authorized union security provision. This is an easily foreseeable consequence under the statutory scheme which was plainly anticipated by the Legislature since our Act envisions possible discharge for strikebreaking, or for a host of other union rule violations, so long as that action is not arbitrarily or selectively taken and fairness attends the disciplinary process. (§ 1153, subd. (c).)

Furthermore, although we have already noted that the Act’s wording itself is neutral on the issue of retroactivity, committee debate in the California Legislature and the Act’s expansive authorization of the union security agreement device leads us to conclude that the framers of the Act specifically contemplated and accepted retroactive application as a permissible component of California agricultural labor policy.

In hearings before the Assembly Labor Relations Committee, Teamster Attorney Cross voiced concern that the wide latitude given a union through union security agreements might be misused by a victorious union, in the aftermath of a contest between rival unions, to exact reprisals against workers who had supported the losing union. “If . . .the [victorious] union were successful in getting the union security clause,” he hypothesized, “the union could then turn around and exclude the people who worked or didn’t support the boycott, who crossed the picket line and turn to the employer and say ‘ [Fibre this man because he is no longer a member in good standing’. It’s a novel proposition of the law and we feel that there should be language in the law which provides that no conduct which receives [“precedes” probably intended] the certification date should be a basis for expulsion from membership. ...” (Hearing before Assem. Lab. Relations Com. on Assem. Bill No. 1533 (Reg. Sess., May 12, 1975) [hereinafter Assembly Committee Hearing] p. 41.) Although Mr. Cross’ concerns centered on the kind of retaliatory, postcampaign tactics which we find lacking in the present cases, his example assumed without dispute retroactive application. No comment came in response to his assumption, and the proposed amendment found no support.

Aside from that legislative history, there is further circumstantial support for retroactivity in the operation of the statute. First, the NLRA’s dues-and-fees limitation results naturally in a class of employees who have been expelled or suspended for nondischargeable grounds, and who are therefore not formal members in good standing yet are dues-paying “members” for purposes of retaining their jobs. The added distinctions in status arising from the operation of a nonretroactivity rule simply compound an existing NLRA phenomenon. The ALRA, on the other hand, equates bad standing with threat of discharge, subject of course to the safeguards of section 1153, subdivision (c), and there is therefore no phenomenon of dual membership status. To impose a rule of nonretroactivity onto the state scheme would introduce for the first time in California agriculture an area of uncertainty. This uncertainty would be greatly compounded under the state Act due to an agricultural worker’s tendency to change employment seasonally and oftentimes to work for more than one employer at a time. Overlapping employment periods and frequent gaps between them, coupled with staggered expiration of collective bargaining agreements containing varying union security arrangements, would play havoc with an otherwise stable scheme. From this we further conclude that a rule of nonretroactivity was not envisioned for the ALRA.

Second, a discharged employee under the federal act can presumably effect his own reinstatement by paying back dues and fees, new initiation fees, etc., and in that way cure his bad standing. (Cf. DeMille v. American Fed. of Radio Artists, supra, 31 Cal.2d 139, 155.) However, an employee may lose good standing and be discharged under the ALRA on nonmonetary grounds which he or she is helpless to cure, and thus may have to ride out a specific term of suspension or an uncertain period of bad standing following outright expulsion. We do not think that our Act, which sanctions non-curable, set periods of bad standing and hence loss of employment, was intended to allow a discharged worker to avoid those results by shopping for an employer whose current union contract was, for example, fortuitously signed one week following the conduct which brought about the discipline.

In summary, we conclude that retroactive application of union security agreements in general is allowed though not required by the Act. Because the particular union security provisions examined here allowed for retroactive application and because no countervailing associational rights were substantially impaired thereby, the provisions were properly given retroactive effect.

III

Pasillas and Navarro contend that section 1153, subdivision (c), of the Act, both by its enactment and in its application in the instant cases, impermissibly abridges their fundamental rights to free speech and association guaranteed them by the First and Fourteenth Amendments of the federal Constitution and by article I, sections 2 and 3, of the California Constitution. Section 1153, they argue, in authorizing union security agreements which require a worker to join and maintain membership in good standing in a union, is unconstitutional because it does not serve a compelling state interest by the least intrusive means available. Further, Pasillas maintains that the section’s uniquely expansive authorization of the union security device in California agriculture, where workers are predominantly Mexican-American or of hispanic origin, violates the equal protection clause of the Fourteenth Amendment. The common starting point for these claims is the question of “state action.” (Lugar v. Edmondson Oil Co. (1982) 457 U.S. 922, 936-937 [73 L.Ed.2d 482, 495, 102 S.Ct. 2744]; see Rendell- Baker v. Kohn (1982) 457 U.S. 830, 837 [73 L.Ed.2d 418, 425, 102 S.Ct. 2764].)

Does the enactment or application of section 1153, subdivision (c), constitute state action? No reported decision has yet passed on the question. However, we are guided by federal decisions which have examined the issue of state action in the context of union security agreements authorized under the NLRA and the Railway Labor Act (RLA) (45 U.S.C. § 151 et seq.).

In Railway Employees' Dept. v. Hanson (1956) 351 U.S. 225 [100 L.Ed. 1112, 76 S.Ct. 714], the United States Supreme Court found state action in the operation of the RLA’s provision authorizing union security agreements (45 U.S.C. § 152 Eleventh) and thereby reached state and federal constitutional questions in the case. The court observed that, while the RLA section did not compel but merely permitted union shop agreements, it specifically preempted state law, thereby conflicting with a state law in that case that would have invalidated the agreement. “If private rights are being invaded,” the court reasoned, “it is by force of an agreement made pursuant to federal law which expressly declares that state law is superseded. [Citation.] In other words, the federal statute is the source of the power and authority by which any private rights are lost or sacrificed. [Citations.] The enactment of the federal statute authorizing union shop agreements is the governmental action on which the Constitution operates, though it takes a private agreement to invoke the federal sanction.” (351 U.S. at p. 232 [100 L.Ed. at p. 249]; fn. omitted and italics added.)

In two subsequent cases, both involving employee challenges to the use of union dues collected from them under the same RLA provision at issue in Hanson, the Supreme Court grounded its decisions on a construction of the statute that forbids use of dues for political purposes which an employee opposes. (Machinists v. Street (1961) 367 U.S. 740, 768-769 [6 L.Ed.2d 1141, 1160-1161, 81 S.Ct. 1784]; Railway Clerks v. Allen (1963) 373 U.S. 113, 118 [10 L.Ed.2d 235, 239, 83 S.Ct. 1158].) Constitutional issues, and hence the question of state action, therefore did not arise.

Then, in Abood v. Detroit Board of Education (1977) 431 U.S. 209 [52 L.Ed.2d 261, 97 S.Ct. 1782], the Supreme Court was faced with challenges to the exaction and use of service charges (equivalent in amount to member dues) paid by nonmember employees pursuant to an agency shop arrangement authorized by a state statute allowing union representation of local government employees. (431 U.S. at pp. 212-215 [52 L.Ed.2d at pp. 269-271].) Relying on Hanson and Street, and drawing parallels between the operation and purposes of the state act and the RLA, the court upheld the validity of the agency shop arrangement itself and concluded that the union expenditures were valid for purposes related to the union’s collective bargaining role but not for unrelated political purposes to which the employee objected. (Id., at pp. 226-227, 233-237 [52 L.Ed.2d at pp. 278, 283-285].)

On the issue of state action, the Abood court noted that the affected employees worked directly for the state and that “the actions of public employers surely constitute ‘state action,’ ...” In a footnote, the majority added this clarification of its position, quoting from and responding to remarks made by Justice Powell in his concurring opinion: “Nothing in our opinion embraces the ‘premise that public employers are under no greater constitutional constraints than their counterparts in the private sector,’ . . . or indicates that private collective-bargaining agreements are, without more, subject to constitutional constraints .... We compare the agency-shop agreement in this case to those executed under the Railway Labor Act simply because the existence of governmental action in both contexts requires analysis of the free expression question.” (Id., at p. 226, fn. 23 [52 L.Ed.2d at p. 279]; see conc. opn. of Powell, J., id., at pp. 245, 252 [52 L.Ed.2d at pp. 290, 295].) By that footnote, the majority made it clear that state action in Abood was furnished by the actions of a public employer and not by reliance on any rationale of the RLA cases. The majority had emphasized in an earlier footnote that state action in the Hanson decision, supra, 351 U.S. 225, had depended on the RLA’s preemption of contrary state law; it had further noted in passing that the NLRA, unlike the RLA, does not preempt state right-to-work laws but in fact expressly authorizes them. (P. 218, fh. 12 [52 L.Ed.2d at p. 273]; 29 U.S.C. § 164(b).)

Recently, the high court once more considered challenges to the use of dues compelled under an RLA-authorized union security agreement and, as in Hanson, had occasion to reach constitutional claims. In Ellis v. Brotherhood of Railway, Airline and Steamship Clerks (1984) — U.S. — [80 L.Ed.2d 428, 104 S.Ct. 1883], employees of a private airline argued that use of fees to finance various union expenditures was improper and that a union rebate program devised to protect the rights of protesting employees was deficient. The court agreed on the latter score (— U.S. at p. — [80 L.Ed.2d at p. 439]) and then examined each of the fee-funded union activities at issue, applying the statutory construction standard previously utilized in the post-Hanson cases of Street and Allen (both discussed supra). Finding that funding of three of the six activities was indeed authorized by the RLA, the court subjected those expenditures to First Amendment scrutiny and upheld them. (Id., at pp.---[80 L.Ed.2d at pp. 446-447].)

Ellis appears to pose conceptual difficulties as regards state action. The objecting employees there worked for a private rather than a state entity, and although the dispute arose under an RLA-authorized agreement which would have preempted any contrary state law, the case originated in California which, we are authorized to notice (Evid. Code, § 451, subd. (a)), has not enacted right-to-work legislation. Despite this theoretical problem (see discussion in Wicks v. Southern Pacific Co. (9th Cir. 1956) 231 F.2d 130, 135-137, cert. den., 351 U.S. 946 [100 L.Ed. 1471, 76 S.Ct. 845]), the practical answer appears to be that the state action issue was simply never raised or preserved for review. The Supreme Court opinion does not address it, and the decision below by the Ninth Circuit Court of Appeals seems to assume in a footnote, without analysis, that the Hanson decision is controlling on the point. (Ellis v. Broth. of Ry., Airline & S. S. Clerks (9th Cir. 1982) 685 F.2d 1065, 1067, fn. 1.)

While the United States Supreme Court has not directly spoken on the state action question in the context of NLRA section 8(a)(3), the parallel provision to our Act’s section 1153, subdivision (c), several federal circuit courts have specifically addressed the question and differed in their conclusions. In the most recent and by far most thorough analysis, the District of Columbia Circuit in Kolinske v. Lubbers (D.C. Cir. 1983) 712 F.2d 471, argued persuasively and concluded that an agency shop clause conditioning access to strike benefits on, among other things, participation in strike activities, did not constitute state action. Noting that “section 8(a)(3) of the NLRA at most merely authorizes the use of agency shop fees” and the “crucial distinction” that the NLRA, unlike the RLA, does not preempt state right-to-work laws, the court found no direct governmental involvement and thus distinguished the Hanson rationale. (712 F.2d at p. 476.) The Kolinske court next went on to distinguish the public employer rationale of Abood, since the actor in Kolinske was a private entity—a union. (Pp. 474, 476-477.) Finally, facing what it concluded was an open question requiring independent inquiry, the court exhaustively studied the various strands of state action doctrine, ultimately concluding that the indirect action of the government in authorizing union security provisions through the enactment of the NLRA did not sufficiently involve the government so as to trigger First Amendment scrutiny. (Pp. 477-480.)

In a much earlier case, the Tenth Circuit had reached the same result, even without the benefit of the Supreme Court’s later decision in Abood. In Reid v. McDonnell Douglas Corporation (10th Cir. 1971) 443 F.2d 408, no state action was found in the compulsory exaction of agency fees from nonmembers pursuant to an NLRA-based union security clause, and the constitutional claims of the plaintiff class, who objected to use of the fees for union political purposes, could not be reached. The RLA rationale was perceived as hinging on the preemption of state law and possibly on the comprehensive regulatory scheme evident in the RLA. As to the latter point, the court stated, “Whatever the wisdom of this reasoning for the [RLA], it has no applicability to the [NLRA],” concluding that “the policy with respect to union security agreements expressed in the NLRA is more neutral and permissive than the policy of the RLA.” (443 F.2d at p. 410; see also Peltzman v. Central Gulf Lines, Inc. (2d Cir. 1974) 497 F.2d 332, 334 [summarily rejecting constitutional attacks on a union security clause under the NLRA], cert. den. (1976) 423 U.S. 1074 [47 L.Ed.2d 83, 96 S.Ct. 857].)

Standing against the Kolinske and Reid cases is the First Circuit decision in Linscott v. Millers Falls Company (1st Cir. 1971) 440 F.2d 14 (cert. den., 404 U.S. 872 [30 L.Ed.2d 116, 92 S.Ct. 77]), where a two-member majority of the court found state action in an NLRA-authorized union shop agreement entered into between a private employer and the union. The court was therefore able to reach the plaintiff’s First Amendment claim that coerced payment of dues violated her right to free exercise of religion, a claim which the court ultimately rejected on the merits. (440 F.2d at pp. 17-18.) Dismissing the argument that Hanson, an RLA case, should be distinguished because of the preemption feature of that act, the majority reasoned that, by necessary implication from the RLA’s preemption provision, “federal approval, and hence federal enforcement, will exist in those states that do not enact such a law. [Citations.]” (P. 17.) The concurring member in Linscott, who would have affirmed solely on the basis that there was no state action, argued forcefully that the NLRA provision (29 U.S.C. § 164(b)) allowing state right-to-work laws “is not only incapable by its terms of overriding any inconsistent state legislation but, unlike the [RLA] provision, represents a weakening rather than a strengthening of federal policy toward union shop. . . . [I]t would follow logically from a ruling that [the NLRA provision] constitutes federal support and authority for union shop that [its preenactment] Congressional silence also constituted federal support and authority. From that logical point it is but a short step to the conclusion that all Congressional silence constitutes endorsement or, put another way, that all federal inaction is really federal action.” (Id., conc. opn. of Coffin, J., at pp. 19-20.)

Two other circuit court opinions of approximately the same vintage as Linscott implicitly assume without discussion that state action exists in the NLRA context. (Hammond v. United Papermakers & Paperworkers Union (6th Cir. 1972) 462 F.2d 174, 175 [citing Linscott], cert. den., 409 U.S. 1028 [34 L.Ed.2d 322, 93 S.Ct. 464]; Seay v. McDonnell Douglas Corporation (9th Cir. 1970) 427 F.2d 996, 1003 [citing Hanson].) However, the issue appears not to have been disputed in either case.

We are satisfied, upon this survey of federal precedent, that the reasoning of the Kolinske and Reid decisions is sound and should be applied in analyzing our own Act. The Linscott majority opinion stands alone, in its finding of state action, among all circuit courts to have expressly considered the question in the NLRA context. To the extent that the Linscott majority relied on Hanson for its finding of state action, we are confident that a different conclusion would have been reached had that court had the benefit of the 1977 Supreme Court decision in Abood, which removed any doubt that the state action in Hanson depended on the preemptive feature of the RLA, a feature not found in the NLRA. To the extent that the Linscott majority relied on the NLRA’s antipreemption provision as an indicant of state action, we are persuaded by the concurring opinion’s argument that such inaction could not constitute action.

Bringing the principles of the federal decisions to bear on our state Act, we initially conclude that nothing in its provisions compels the use of union security agreements. Our Act, like the NLRA, is neutral in this respect and leaves the parties free to accept or reject such agreements. The Act carefully leaves that component of free choice intact in defining associational rights of employees (§ 1152), unlawful restraint or coercion of an employee’s exercise of those rights (§§ 1152, 1153, subd. (a), 1154, subd. (a)(1)) and unlawful discrimination on the basis of union membership (§§ 1153, subd. (c), 1154, subd. (b)).

But does our Act, like the RLA, preempt a preexisting bar to the inclusion or enforcement of such agreements by authorizing them? We conclude not. No preexisting statute established such a bar, and the common law labor policy of California embraced a wide variety of union security agreements, including those calling for the closed or union shop. (Messner v. Journeymen Barbers etc. International Union (1960) 53 Cal.2d 873, 877-879, 882-883 [4 Cal.Rptr. 179, 351 P.2d 347]; Petri Cleaners, Inc. v. Automotive Employees, etc., Local No. 88 (1960) 53 Cal.2d 455, 470-471 [2 Cal.Rptr. 470, 349 P.2d 76].) Suspension or expulsion under such agreements was permissible, subject to rudimentary due process requirements of notice and hearing in the case of discipline for charges other than nonpayment of dues and fees. (DeMille v. American Fed. of Radio Artists, supra, 31 Cal.2d 139, 154-155.) It was observed in Gabaldon v. United Farm Workers Organizing Committee (1973) 35 Cal.App.3d 757 [111 Cal.Rptr. 203] (cert. den. (1974) 416 U.S. 957 [40 L.Ed.2d 307, 94 S.Ct. 1972]), just two years before enactment of the ALRA, that “California has no statute or policy either requiring that collective bargaining agreements include union shop provisions or invalidating such agreements. ...” (35 Cal.App.3d at p. 763.)

There being no element of compulsion in the Act favoring the use of union security agreements, the question becomes whether the Act’s mere authorization and protection of them constitutes state action.

Helpful in this part of the analysis is Gabaldon v. United Farm Workers Organizing Committee, supra, 35 Cal.App.3d 757, for that case considered the question of whether, in a pre-ALRA setting, the actions of a union and an employer in entering into a union security agreement under which a worker charged with “antiunion activity” could be discharged at union request, constituted state action by virtue of California’s (pre-ALRA) policy to encourage and protect union shop agreements. (35 Cal.App.3d 757, 760-761, 764.) Farm worker class action plaintiffs in Gabaldon sought damages and declaratory and injunctive relief in a suit against the union and 26 growers, alleging deprivation of numerous constitutional rights. (Id., at pp. 759-762.) The appellate court found no state action, however, and therefore affirmed a judgment on the pleadings in the defendants’ favor. (P. 768; in accord is the companion case in federal court, Mendoza v. United Farm Workers Organization Committee (9th Cir. 1973) 487 F.2d 311, 312, cert. den. (1974) 415 U.S. 918 [39 L.Ed.2d 472, 94 S.Ct. 1416].)

Plaintiff-appellants in Gabaldon argued that there was state action in California decisions upholding the validity of union security agreements, in decisions holding local right-to-work ordinances invalid as preempted by state statutes, and in Labor Code provisions which outlawed yellow-dog contracts, provided for enforcement of collective bargaining agreements, declared associational and self-organizational rights for workers and made coercion of employees regarding union membership illegal. The Court of Appeal responded: “In our view ... the state policy so announced and the case decisions referred to do not change the fundamental fact that California has taken no action to require the inclusion of a union shop provision in a collective bargaining agreement or to invalidate such a provision. A collective bargaining agreement without a union shop covenant is entitled to legal protection. The position of the state can best be characterized as one of benign neutrality in that labor and management are free from any hindrances upon opportunities to bargain collectively. The Legislature has in effect left the field unregulated, neither requiring nor prohibiting union shop provisions but lending its support and encouragement to collective bargaining agreements freely entered into and making them equally enforceable in the courts whether such agreements do or do not contain union shop provisions. Such passivity falls far short of the state action required to bring the federal constitutional protections into operation. ” (35 Cal.App.3d 757, 764-765.)

On the issue of whether preemptive state statutes invalidating local right-to-work ordinances created a Hanson-type state involvement, the Gabaldon court distinguished Hanson, in part, by this reasoning: “[T]he union shop has always been lawful in California and thus the enactment of the [complained of] Labor Code sections did not divert from the traditional policy of the state. [Citation.] Furthermore, the local right to work ordinances did not originate until well after the enactment of the controlling sections of the Labor Code, while in Hanson the right to work laws were enacted prior to the union shop provision of the [RLA] which was designed to supersede them. ...” (P. 767.)

Pasillas and Navarro do not argue against the reasoning in Gabaldon; rather, they argue that subsequent enactment of the ALRA inaugurated a deeper involvement of the state into privately negotiated union security agreements which now sufficiently imbues those private actions with the imprimatur of the state to trigger constitutional scrutiny. We have to disagree.

California’s previous position of “benign neutrality” regarding the freedom of labor and management to include or exclude union security agreements remains unchanged with the advent of the ALRA. Measuring the ALRA against the NLRA, Pasillas and Navarro would find an increased state involvement in our Act’s rejection of the NLRA dues-and-fees limitation on discharges and its broad tolerance of discharges for suspensions and expulsions grounded on other disciplinary charges. (§ 1153, subd. (c).) However, in this regard the ALRA is no different from federal law under the original Wagner Act, which lacked the dues-and-fees limitation. The ALRA, by not imposing that limitation, thus constitutes less of a governmental intrusion than its present day federal counterpart. Also, it must be remembered that Pasillas and Navarro, who belong to a class of workers (agricultural employees) not covered by the NLRA and its dues-and-fees limitation, would enjoy no greater protection against use of union security agreements if the ALRA were repealed or invalidated. In fact they would lose protections granted them under the Act which were traditionally unknown in the area of internal union discipline. (See discussion in part IV, post.) But more importantly, the state and federal differences in the permitted scope of union security operation once agreements are reached does not alter either act’s passive neutrality regarding the freedom to include or exclude those agreements in the first place.

The Act similarly does not change prior law in its neutral enforcement of collective bargaining agreements. As before, enforcement is available whether or not they contain union security provisions. (§ 1165.)

The pre-ALRA reasoning of Gabaldon is, in our view, still valid. It was noted there that the Legislature had “in effect left the field unregulated, neither requiring nor prohibiting union shop provisions but lending its support and encouragement to collective bargaining agreements freely entered into and making them equally enforceable” regardless of the inclusion of union security provisions. (35 Cal.App.3d 757, 765; italics added.) In enacting the ALRA, however, the Legislature has essentially codified the state’s previous policy as to union security agreements. As already noted, such agreements are still neither required nor prohibited, and collective bargaining agreements continue to be equally enforced, with or without them. The characteristics of support and encouragement and freedom of choice also remain evident not only in the operation of the Act, but also in the statement of policy found in section 1140.2. The state’s policy under the Act is to “encourage and protect” the right of agricultural employees to, among other things, full freedom in “designation of representatives” and freedom to “negotiate the terms and conditions of their employment, ...”(§ 1140.2.)

We hold that neither the inclusion of union security agreements authorized by the Act nor their enforcement against Pasillas and Navarro constituted state action; constitutional protections therefore did not attach.

We reach the same result notwithstanding rel