I dissent.
The Legislature was obviously aware of the role of labor contractors in agriculture in our state. In unequivocal language, it exempted them from the unfair labor practice provisions of the Agricultural Labor Relations Act (ALRA). The majority do not contend otherwise and there is sound reason for the legislative determination.
To avoid the legislative determination on a theory that the labor contractor—apart from “exceptional” circumstances (ante, p. 328)—is the agent of the employer to whom he furnished farm workers is not only to repudiate the legislative determination but also to sacrifice the most immediate and direct interests of agricultural employees—their jobs. Requiring innocent agricultural employees to sacrifice their jobs because a labor contractor allegedly acted improperly during an election campaign places the purity of their votes ahead of their jobs—a mistaken priority.
The Statutory Exemption
Labor Code section 1153 of the Agricultural Labor Relations Act makes it an unfair labor practice “for an agricultural employer” to interfere with agricultural employees in the exercise of the rights guaranteed by section 1152.1 Section 1153 also grants employers certain rights.
Section 1140.4 provides definitions of the terms used in the act. Section 1140.4, subdivision (c), provides: “[t]he term ‘agricultural employer’ shall be liberally construed to include any person acting directly or indirectly in the interest of an employer in relation to an agricultural employee, any individual grower, corporate grower, cooperative grower, harvesting association, hiring association, land management group, any association of persons or cooperative engaged in agriculture, and shall include any person who owns or leases or manages land used for agricultural purposes, but shall exclude any person supplying agricultural workers to an employer, any farm labor contractor as defined by Section 1682, and any person functioning in the capacity of a farm labor contractor. The employer engaging such labor contractor or person shall be deemed the employer for all purposes under this part.”
*332The underscored language establishes, that a labor contractor cannot be an “agricultural employer” within the meaning of Agricultural Labor Relations Act, and that he may not be held liable for unfair “employer” labor practices under the act. It was so held in People v. Medrano (1978) 78 Cal.App.3d 198, 206-209 [144 Cal.Rptr. 217], involving the same factual circumstances presented in the instant case.
The court pointed out: “The exclusion of farm labor contractors from ALRA coverage as agricultural employers reflects a deliberate legislative choice. The creation of stable collective bargaining relationships in agriculture is hindered by shifting employment and fluidity of the work force. To class farm labor contractors, along with farmers and farmer associations, as parties to collective bargaining would augment the difficulties. In the process of creating a collective bargaining relationship— from the initial organizing efforts, into the petition and election stages and ultimately to the contractual culmination—the statute views farmers or associations of farmers as the only employers (see §§ 1156-1159). A farm labor contractor may actually hire, supervise and pay the workers, becoming their actual employer (see, § 1682, subd. (b), fn. 2, ante). The ALRA excludes him from the statutory category of agricultural employers because he is excluded from the unionization and collective bargaining processes.” (78 Cal.App.3d at p. 207.)
Section 1154 lists unfair labor practices for “a labor organization or its agents.” Again labor contractors are excluded from the definition of labor organizations. (§ 1140.4, subd. (f).)
There was sound reason for the Legislature to exclude labor contractors from the unfair labor practice jurisdiction of the Agricultural Labor Relations Board (ALRB). In representation elections, the labor contractor, unlike an employer, is the competitor of the union or unions.
A labor contractor, of course, is a middleman. In furnishing persons to work for an agricultural employer, he is furthering the employer’s interests. But in securing pay and other working conditions, he is furthering the employee’s interests. His interests will often depart from that of both the employer and the employees. The labor contractor often works with several growers, and his conduct in a labor dispute may be dictated not by the interests of the grower involved in the dispute but by other grower clients or by purely selfish interests.
*333In representation elections, the labor contractor’s role as a competitor of the union or unions seeking representation is a most significant factor. While a grower expects to continue in business notwithstanding a union victory at the election, the concerned labor contractor faces the likelihood he will no longer serve the employees and employer should the union subsequently obtain a hiring hall provision in a collective bargaining contract. The fundamental purpose of the representation election is to afford the employees a choice between expected benefits and burdens of union representation and continuation of employment and other benefits afforded by the labor contractor. (§ 1140.2.) Effectuation of the fundamental purpose of employee free choice precludes imposition of section 1153 employer liability—directly or indirectly—to labor contractors.2
Because in a representation election the labor contractor is the competitor of the labor organization, the unfair practice provisions, if any, which might be applied to labor contractors are those applicable to unions. However, it is apparent that most of such provisions are inapplicable to labor contractors. Most of those provisions deal with collective bargaining agreements, picketing, and boycotts. (§ 1154.) Labor contractors either cannot or do not engage in the conduct governed by those provisions.
The foregoing considerations provide ample reason for the Legislature to exclude labor contractors from the unfair labor practice jurisdiction of the ALRB under sections 1153 and 1154. It is apparent that regulation of labor contractors required different provisions. The Legislature so recognized and chose to regulate labor contractors under separate provisions under the jurisdiction of the Labor Commissioner and the courts. (§ 1682 et seq.) The pattern of exempting the labor contractor from the unfair labor practice provisions is followed by these statutes. Thus, section 1697, subdivision (b), permitting any employee to maintain an action for violation of the chapter specifically exempts actions based on conduct “proscribed by Section 1153 [unfair labor practices by employer], 1154 [unfair labor practices by unions . . .
*334The Majority Agency Theory
While there may be some arguments which would warrant the granting of jurisdiction by the Legislature to the ALRB to directly regulate contractor conduct, the Legislature has chosen not to do so. To judicially grant ALRB indirect jurisdiction to regulate contractors by punishing employers on an agency theory repudiates the legislative choice to deny it regulation of contractors. In response to a claim that a contractor should be characterized as a “supervisor” working for the employer, the court in People v. Medrano, supra, 78 Cal.App.3d 198, 209, responded: “The California Legislature did not exclude farm labor contractors from the law in the belief that the ALRB could reinsert them by labeling them as ‘supervisors.’” Similarly, we should not frustrate the legislative intent in the guise of an agency doctrine.
Indirect regulation of contractors by ALRB through an agency doctrine has an additional unfortunate effect which alone requires repudiation of the doctrine. Such indirect regulation has the unfortunate effect of punishing innocent agricultural employees whose rights the majority purport to protect.
Imposing upon a grower a principal’s liability for labor contractor misconduct can only encourage, if not coerce, the grower to sever relations with a labor contractor who has or may expose the grower to charges of unfair labor practices. When that relationship is terminated, the employer will necessarily discharge the contractor’s crew consisting of the same agricultural employees whose voting rights assertedly have been infringed.3
While maintenance of the integrity of representational elections is an important consideration, it is the rights of farm workers with which we are ultimately concerned. Certainly, they should not be required to sacrifice their jobs because of campaign conduct on the part of their labor contractor. The majority solution, however, would kill those farm workers with kindness.
*335In exempting labor contractors from unfair labor practice provisions of the ALRA, the Legislature obviously realized, as we should, that not only are such provisions inappropriate for labor contractors, but that an employer—to avoid liability for contractor conduct—should not be coerced to cause the discharge of the very employees whose voting rights the act seeks to protect.
A refusal to impose agency liability upon employers for acts of contractors does not mean the employer may engage in unfair labor practices with impunity. Should an employer specifically direct or even encourage a contractor to engage in conduct in violation of unfair labor practice prohibitions, the employer will be liable for his own conduct. (See 1 Witkin, Summary of Cal. Law (8th ed. 1973) pp. 753-754, 756-757.)4
Federal Law
Federal labor law does not warrant repudiation of the clear legislative intent or embracing an agency doctrine harmful to the workers. Such law does not contain any provision comparable to that in section 1140.4 specifically excluding labor contractors from the definition of agricultural employer and thereby excluding them from the unfair labor practice provisions applicable to employers. Thus that law is not helpful.5
Moreover, under proper application of federal precedents there has been no unfair labor practice.
Before an employer or union may be held vicariously liable for the acts of a third party, the National Labor Relations Board and the federal courts have held that it must be shown that there was an agency relationship. Pointing out that the same rules are applicable to claims of *336employer misconduct as to union misconduct, the National Labor Relations Board reiterated the settled rules: “‘1. The burden of proof is on the party asserting an agency relationship, both as to the existence of the relationship and as to the nature and extent of the agent’s authority. (Mechem, Outlines of Agency (3d ed.) Secs. 106, 223.) In this case, for example, it was incumbent upon the General Counsel to prove, not only* that the acts of restraint and coercion alleged in the complaint were committed, but also that those acts were committed by agents of the Respondent Unions, acting in their representative capacity. The Respondents’ failure to introduce evidence negating the imputations in the complaint did not relieve the General Counsel of that burden. [11] 2. Agency is a contractual relationship deriving from the mutual consent of principal and agent, that the agent shall act for the principal. But the principal’s consent, technically called authorization or ratification, may be manifested by conduct, sometimes even passive acquiescence as well as by words. Authority to act as agent in a given manner will be implied whenever the conduct of the principal is such as to show that he actually intended to confer that authority. (Restatement Agency (1933) Sections 1, 15.) [1Í] 3. A principal may be responsible for the act of his agent within the scope of the agent’s general authority, or the ‘scope of his employment’ if the agent is a servant, even though the principal has not specifically authorized or indeed may have specifically forbidden the act in question. It is enough if the principal actually empowered the agent to represent him in the general area within which the agent acted. This is the effect of Section 2(13) of the Act.... The Section restores the common law rule in cases arising under the Act, and avoids the construction which the Supreme Court gave to Section 6 of the Norris-LaGuardia Act in United Brotherhood of Carpenters v. U.S., 330 U.S. 395 [19 LRRM 2406].)’” (International Longshoremen’s and Warehousemen's Union, C.I.O. (Sunset Line & Twine Co.) (1948) 79 N.L.R.B. No. 207, pp. 1487, 1508-1509 [23 L.R.R.M. 1001, 1005-1006].)
The settled rules requiring that the party asserting the agency relationship must establish the existence of the relationship based on consensual conduct has been followed in numerous cases. (Shimman v. Frank (6th Cir. 1980) 625 F.2d 80, 95; North American Coal Corp. v. Local Un. 2262, U. M. W. of Am. (6th Cir. 1974) 497 F.2d 459, 466-467; Hyster Company v. N. L. R. B. (5th Cir. 1973) 480 F.2d 1081, 1083; National Labor Relations Board v. Mayer (5th Cir. 1952) 196 F.2d 286, 290; Johnston-Tombigbee Furniture Co. (1979) 101 L.R.R.M. 1515, 1516-1517.)
*337There is no evidence in the instant case warranting a conclusion that the labor contractor was authorized to act as agent of the employer. Rather, the record shows that he was an independent contractor.
Nor does the record contain evidence showing ratification of the labor contractor’s conduct. The employer arrived at the labor camp after the physical confrontation, and it does not appear that he was advised of the confrontation. When he arrived at the camp, the sheriff's deputies were there, and although he observed the labor contractor, the deputies, and the union organizers talking, he did not participate in the discussions and remained a substantial distance—150 feet—away. The contractor told the employer that he was trying to get the organizers to leave but he did not discuss the circumstances occurring earlier. After more conversation between the labor contractor, deputies, and organizers—witnessed by numerous workers—the employer observed the deputies give the organizers a piece of paper and then leave the labor camp. Again, the activities took place a substantial distance away from the employer. Afterwards, the employer spoke with the workers.
In the absence of any evidence that the employer was aware of the physical confrontation or the circumstances leading to the arrival of the deputies, there is no basis for a finding of ratification or other condonation of coercive conduct.
The majority, relying on federal authorities, conclude that the employer will be held liable for the acts of third persons for unfair labor practice purposes “(1) if the workers could reasonably believe that the coercing individual was acting on behalf of the employer or (2) if the employer has gained an illicit benefit from the misconduct and realistically has the ability either to prevent the repetition of such misconduct in the future or to alleviate the deleterious effect of such misconduct on the employees’ statutory rights.” (Ante, p. 322.) However, the cases relied upon are either cases where the actor was a low level employee— necessarily an agent for some purposes—(e.g., I. A. of M. v. Labor Board (1940) 311 U.S. 72 [85 L.Ed. 50, 61 S.Ct. 83]; H. J. Heinz Co. v. Labor Board (1941) 311 U.S. 514 [85 L.Ed. 309, 61 S.Ct. 320]) or where there was substantial circumstantial evidence that the actor was an agent in regard to activities closely related to the challenged activities (Cagle's Inc. v. N. L. R. B. (5th Cir. 1979) 588 F.2d 943; N. L. R. B. v. General Metals Products Company (6th Cir. 1969) 410 F.2d 473). In the latter cases, the agents did not have the same direct and immediate personal interest in the election as does a labor contractor.
*338The federal cases relied upon by the majority reflect that once an agency relationship is established by showing that the actor was an employee or otherwise acted as an agent, the National Labor Relations Board and the federal courts will not be bound with ordinary agency principles in determining whether specific acts were within the scope of the agent’s authority. (§ 1165.4.) Those cases do not eliminate the burden of proving the agency.
Generally, a labor contractor is—as in this case—an independent contractor with a direct, immediate, and independent personal interest in a representation election. Generally—again, as in this case—he serves many growers. We cannot assume that because a representation election is to be had as to one of such growers, that grower can control the contractor’s activities. Nor cari we assume in the lack of evidence that the grower’s and the contractor’s interests are identical. The contractor is not an agent of the grower, and the cases relied on by the majority do not justify a conclusion that notwithstanding the lack of evidence of such agency, vicarious responsibility for the contractor’s conduct attaches to the grower.
Finally, the majority cite no federal cases, and I am not aware of any, where an employer, to avoid liability was encouraged or coerced to discharge innocent workers whose rights were to be protected. The federal cases reflect greater compassion for the workers.
A peremptory writ should issue directing ALRB to set aside its decision and order and to enter an order dismissing the charges.
Richardson, J., concurred.
Unless otherwise indicated, all statutory references are to the Labor Code.
While, as the majority point out, one of the purposes of excluding labor contractors from the definition of “agricultural employer” was to establish bargaining units (ante, p. 323), the definition in section 1140.4 applies to the entire “part,” and we cannot assume that the Legislature ignored the definition it had chosen when it adopted the important unfair labor practices provisions of the “part.”
The majority recognize that discharge of the contractor is the method by which the employer would prevent unfair labor practices. “[Bjecause a grower does have the power to retain or discharge a farm labor contractor and the contractor accordingly has a direct incentive to comply with the grower’s directives, a grower will generally be in a position to prevent the repetition of unlawful activities by the labor contractor in the same way that it could generally control the conduct of its own supervisors.” (Ante, p. 328.)
However, the majority fail to recognize that discharge of the contractor also results in discharge of his crew.
Employer liability based on his own misconduct does not encourage discharge of the concerned farm workers. An employer punished for his own misconduct is not coerced into discharging an innocent—insofar as the employer’s liability is concerned—labor contractor and his crew.
lt is true that, as has been repeatedly pointed out, in fashioning the provisions of the ALRA the drafters drew heavily upon the provisions of the National Labor Relations Act (e.g., Belridge Farms v. Agricultural Labor Relations Bd. (1978) 21 Cal.3d 551, 556 [147 Cal.Rptr. 165, 580 P.2d 665]), and section 1148 provides that “[t]he board shall follow applicable precedents of the National Labor Relations Act, as amended.” However, such matters must give way when, as here, it is evident that the Legislature has departed from the federal law.