I would reverse the order of the superior court for the reasons given in the amicus curiae brief of the Agricultural Labor Relations Board.
It is first necessary to collate the material facts upon which the superior court based its decision.
The manager of a farm presented to the District Attorney of Ventura County declarations stating under penalty of perjury the following: On February 17, 1979, Banales and 33 other persons interfered with the business of Bob Gill Farms, running into a field towards 8 workers who were picking celery, causing the workers to run away from their work stations. The 34 intruders were waving red rags attached to heavy sticks which were 12 to 48 inches in length and as much as IV2 inches in diameter. As the intruders advanced they shouted threats and degrading comments at the work crew. Sheriff’s deputies came and took the intruders into custody.
The district attorney filed in the municipal court separate misdemeanor complaints charging each of the 34 with violation of Penal Code section 602, subdivision (j), which makes it an offense to trespass “for the purpose of injuring any property or property rights or with the intention of interfering with, obstructing, or injuring any lawful business ...”
*74Banales et al. filed in the municipal court motions to dismiss, accompanied by a declaration of their attorney stating that at the location of the alleged offenses farm workers were involved in a labor dispute, and that the defendants had entered the field to communicate with strikebreaking workers. The motions to dismiss were denied. Banales et al. then filed in the superior court a petition for a writ prohibiting the municipal court from trying the misdemeanor charges.
On April 23, 1979, the superior court made the order from which this appeal was taken.
The superior court did not purport to decide any factual issue. It treated the issue before it as one of law, and based its decisions upon the fact that Banales et al. were involved in a labor dispute.
The brief of the Agricultural Labor Relations Board sets forth this proposition derived from the reasoning of the Supreme Court in Kaplan’s Fruit & Produce Co. v. Superior Court (1979) 26 Cal.3d 60 [162 Cal.Rptr. 745, 603 P.2d 1341]: The Agricultural Labor Relations Board has exclusive primary jurisdiction when the conduct which is proscribed is arguably protected under the Agricultural Labor Relations Act.
The board’s brief then goes on to say: “The first level of inquiry in analyzing the Municipal Court’s jurisdiction in the instant case is to determine whether the conduct which was sought to be regulated is arguably protected under the ALRA. If it is, then the Municipal Court would be without jurisdiction to proceed.”
The law of California protects the access of union representatives to the employer’s property when a legitimate union activity requires it. (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392 [128 Cal.Rptr. 183, 546 P.2d 687]; In re Catalano (1981) 29 Cal.3d 1, 17 [171 Cal.Rptr. 667, 623 P.2d 228].) Such access is not a trespass. At the same time the decisions recognize that the access privilege is limited to the needs of legitimate union activity. The Catalano opinion plainly states “Only lawful union activity is exempt from prosecution for trespass.” (29 Cal.3d at p. 15.)
We do not know whether the 34 petitioners were union representatives or not, nor do we know whether they entered the celery field with criminal intent. Those facts may be determined upon the evidence pro-*75died at the misdemeanor trial. The principle that the accused is p;sumed innocent until found guilty, and the possibility that Banales et a will contest the charges do not make their conduct “arguable” within te meaning of the jurisdictional rule.
The possibility that the accused individuals may be found innocent joes not deprive the municipal court of jurisdiction. The civil cases involving the use of injunctions to deal with lawless conduct make that point clear. (See Kaplan, supra, 26 Cal.3d 60; Bertuccio v. Superior Court (1981) 118 Cal.App.3d 363, 371 [173 Cal.Rptr. 411]; cf. Vargas v. Municipal Court (1978) 22 Cal.3d 902 [150 Cal.Rptr. 918, 587 P.2d 714] (unlawful detainer action).) In Kaplan at page 70 the court said: “The possibility that the Union is innocent of the charged conduct may be grounds for denying injunctive relief, but it does not invoke the preemptive jurisdiction of the board. Indeed, whenever any accusation is brought against a union, the charge may be groundless—the union may have engaged only in protected conduct—but to rest preemptive jurisdiction on that possibility would project the board’s preemptive jurisdiction into all cases of charges against a union, rendering the arguably prohibited branch of the preemption doctrine superfluous.”
The jurisdictional test is the nature of the conduct which the courts seek to regulate or punish. Thus, in the Kaplan case, which involved unlawful mass picketing, the Supreme Court said: “We conclude that so long as the court’s injunction does not restrain conduct which is arguably protected by the ALRA, it does not invade ALRB’s preemptive jurisdiction to adjudicate controversies concerning arguably protected activity.” (26 Cal.3d at p. 71.)
The conduct proscribed by subdivision (j) of Penal Code section 602 is entry for the purpose of injuring property or obstructing a lawful business. As the brief of the board points out “Entry upon an employer’s land with this stated purpose is not even arguably protected under the Agricultural Labor Relations Act.”
The action of the District Attorney of Ventura County in charging the 34 invaders with a misdemeanor offense does not in any way conflict with any action which the Agricultural Labor Relations Board may have taken or wished to take concerning a labor dispute. Nor was the board in any position to take effective action to prevent or remedy the alleged breach of the peace by the 34 individuals. There is no conflict between the function of the board and the function of the municipal *76court in this situation. At this time, three years after the commissioiof the alleged offenses, there may be valid reasons for dismissing \e charges, but preemption by the Agricultural Labor Relations Boards not one of them.
Appellant’s petition for a hearing by the Supreme Court was denie July 22, 1982. Bird, C. J., did not participate therein. Richardson, J! was of the opinion that the petition should be granted.
Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.