GERAWAN FARMING v. AGRICULTURAL LABOR RELATIONS BOARD (UNITED FARM WORKERS OF AMERICA)

Petitioner’s Answer Brief on the Merits

Cal.February 25, 2016

Case No. 8227243 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA SUPREME COURT GERAWANFARMING,INC., PILE D Petitioner, FEB 95 2016 V. AGRICULTURAL LABOR RELATIONS BOARD; Frank A. McGuire Clerk Deputy Respondent, FILED WITH PERMISSION UNITED FARM WORKERS OF AMERICA, Real Party in Interest. Fifth Appellate District, Case No. F068526 ALRB Case No. 2013-MMC-003 [39 ALRB No.17] Fifth Appellate District, Case No. F068676 Fresno County Superior Court, Case No. 13CECG01408 The Honorable Donald S. Black, Judge COMBINED ANSWERINGBRIEF OF PETITIONER David A. Schwarz (159376)* C. Russell Georgeson (53589) TIRELL & MANELLA LLP GEORGESON & BELARDINELLI 1800 Avenue ofthe Stars, Suite 900 7060 N.Fresno Street, Suite 250 Los Angeles, California 90067-4276 Fresno, California 93720 Telephone: (310) 277-1010 Telephone: (559) 447-8800 Facsimile: (310) 203-7199 Facsimile: (559) 447-0747 Ronald H. Barsamian (81531) Michael P. Mallery (116345) BARSAMIAN & MOODY General Counsel 1141 West Shaw,Suite 104 GERAWAN FARMING,INC. Fresno, California 93711 7108 N. Fresno St. Ste 450 Telephone: (559) 248-2360 Fresno, CA 93720 Facsimile: (559) 248-2370 Telephone: (559) 272-2310 Facsimile: (559) 500-1079 7310176 Case No. 8227243 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA GERAWANFARMING,INC., Petitioner, V. AGRICULTURAL LABOR RELATIONS BOARD, Respondent, UNITED FARM WORKERS OF AMERICA, Real Party in Interest. Fifth Appellate District, Case No. F068526 ALRB Case No. 2013-MMC-003 [39 ALRB No.17] Fifth Appellate District, Case No. F068676 Fresno County Superior Court, Case No. 13CECG01408 The Honorable Donald S. Black, Judge COMBINED ANSWERINGBRIEF OF PETITIONER David A. Schwarz (159376)* IRELL & MANELLA LLP 1800 Avenueofthe Stars, Suite 900 Los Angeles, California 90067-4276 Telephone: (310) 277-1010 Facsimile: (310) 203-7199 Ronald H. Barsamian (81531) BARSAMIAN & MOODY 1141 West Shaw, Suite 104 Fresno, California 93711 Telephone: (559) 248-2360 Facsimile: (559) 248-2370 7310176 C. Russell Georgeson (53589) GEORGESON & BELARDINELLI 7060 N.Fresno Street, Suite 250 Fresno, California 93720 Telephone: (559) 447-8800 Facsimile: (559) 447-0747 Michael P. Mallery (116345) General Counsel GERAWAN FARMING,INC. 7108 N. Fresno St. Ste 450 Fresno, CA 93720 Telephone: (559) 272-2310 Facsimile: (559) 500-1079 TABLE OF CONTENTS Page ISSUES PRESENTED...cccscccseeessesessessessessesesssssesssesssesesessesesssesesassesseaesesaenes l INTRODUCTION o.oo eesecssseseceeeeeecestcesceeessestsceaecessacseescecsesesateaesetaseeeneeaeegs 1 BACKGROUND 1...cee csscscesesesssesessesseseneesessesesassesasseessenavssnesetsseeesasseaceseaseasseees 5 I. 1990 Through February 1995 oo...eeeceessseeseesereeeceteeseeersnseeseeens 5 I. October 2012 Through The Present...cccceeseesseeseeeeeeereeeeeees 6 Ill. The ALRB Compels Gerawan Into MMC.avcccsssssssseesscccessssceeveeees 7 IV. The Off-The-Record MMC Proceedings............scscceseesseseseeseees 7 V. The On-The-Record MMC Proceedings............sccssesssesseeseeseeseees 8 VI. The Mediator’s Report.........ccsssssssessessessssessessesseseesseserseseeeneeenees 9 VIL The Decertification Petition ..........seeseeeesesecsceentennerseneeenees 12 VII. Post-Election Efforts To Enforce The MMC Contract............... 14 IX. The Post-Election Hearing ...........cccessssssccesseeesscsseescessseceessenesenes 15 X. The MMCStatute 0...eseeeceessessseeseeesseesecaecacsesenseaeseseetereaes 16 XI, The MMCProcess... escccssesssecsessessececseeseesssceeesesssercasareeeees 18 ARGUMENT.....ceessesesceeseeseesssecescescescsessneseeaeacsaescaesesscensesseessenstaceassacseeaesnensets 20 I. NoState Has Ever Before ImposedInterest Arbitration On A Private Company By GovernmentFiat....eeeeeeeseeeees 20 A. Consentis the linchpin ofarbitration; there is no CONSENE NTE. oeseeeseeseesesseeneeseceeeesectsneseesteeesesseseneeses 21 B. The public safety justification for compulsory interest arbitration is not applicable here; Wolff CONTOIS.0.eeeeeeeeseesesseeeeceseneescesecseseesetscseescsaceeensesseeeseees 23 C. Government imposedinterest arbitration infringes employer and employeerights...............ceee 28 7310176 -1- Page Il. The Fifth District Correctly Held That The ALRB Must Consider The AbandonmentIssue On The Facts Of This CASC....cssscssesscescccsccsccssssscssseccccescasscescecescsescesesessesseescscensnsesenaeneseess 31 A. The decertification processis an illusory alternative to ALRB consideration of abandonment. .0.......cccccscccsecscccesecssssssssssssessssssssseseeeeveess 33 B. The Act’s “rebuttable presumption” rule supports an employer’s right to raise abandonment as a defense to the MMC proceS..........ccssesssecsseessceeseerentes 34 C. The abandonmentdefense vindicates the Act’s core purpose ofprotecting the workers’ right to freely choose their bargaining representative................. 39 II. The MMCStatute Violates Equal Protection By Empowering A Self-Interested Union To Compel Arbitrary, Individualized Legislative Decisions................-:.es00 4] A. The classifications drawn by a statute must be rationally related to the statutory purpoSe............ccsccee 43 B. There is no rational relationship between the terms of any individual CBA and promoting Collective bargaining............. ce eeesseeeesesteceeereetseesseeeees 46 IV. The MMCStatute Is An Unconstitutional Delegation Of Legislative AUthosity ..........ccccsscsssssssccsssessesserseseeseseesesssecesseeeens 51 A. The MMCstatute lacks standards to guide the exercise Of CISCTELION. .......c.cesccessssssesseseeeeesseescesteresseneees 51 B. The MMCstatute lacks adequate procedural safeguards to ensure that policy determinations are madebypolitical representatives, and not PYUVAtE ACCOTS. ..... ee eeeseseceeeeeseeecesetseseeeseeceereessseeeseneseneens 56 CONCLUSION.......cccessscsssssssnesseeecsesccneeecssesesecsesenseseeseesesenesseeseceessesseeenessneaee 59 CERTIFICATE OF COMPLIANCE.........ccccccssssseseeceseseeescsesesereessececsenessesaeeeters 60 7310176 -ll- TABLE OF AUTHORITIES Page(s) Cases 14 Penn Plaza LLC v. Pyett (2009) 556 U.S. 247... cecccscssseeccrecseceececesceessesseesessecarsaeseecensateaseaetaees 22, 29 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216occccsccsessssseeeseeseseeeesesceeseeseessesseeseeveeeeseeseeaees 55 Ace Tomato Co. (2012) 38 ALRB NO.8 .u..ceeeescsssecsscesceesesetseceeecesessecseseneenesseaecsessseseseseess 14 Adair v. United States (1908) 208 ULS. 161.cceteseessceesessetsescereecsscesseasenesaresecseseeenseseteseesaees 26 Allen v. Cal. Bd. ofBarber Exam’rs (1972) 25 Cal.App.3d 1014 woeceseeseeecsececeesnetseesseceenseacesseesenseaes 55, 56 Am. Acad. ofPediatrics v. Lungren (1997) 16 Cal4th 307 oo. cscssssseseessessscereesssecsseasssesacesessseaeeeesseeesseenees 46 American Foundries v. Tri-City Council (1921) 257 U.S. 184oeceecssecessecnensereeenseecsesceseseeseeetsessesseeeseseseeeess 26 Arnel Dev. Co. v. City ofCosta Mesa (1980) 28 Cal.3d 511 ooecessessesseseteeseeecssesecteesesseessseseesseseessessesess 50 AT&TTechs., Inc. v. Commc’ns Workers ofAm. (1986) 475 U.S. 643 ooo ecsctecseestseseesesssecseeesseeseeaseeeseessessrsaesseeseseeeeeeees 21 Barsky v. Bd. ofRegents of Univ. (1954) 347 U.S. 442oecseeeseeeseseecessnessaceseaseaesesteesaevateareserseaserseeenes 47 Bayscene Resident Negotiators v. Bayscene Mobilehome Park (1993) 15 CalApp.4th 119 ooceecceeeecteceeeseesecsseseesneseeesees 24, 27, 56 Bd. ofLocomotive Firemen & Enginemen v. Chicago, B. & Q. R. Co. (D.D.C.) 225 F.Supp. 11, aff'd (D.C.Cir. 1964) 331 F.2d 1020... 23 Birkenfeld v. City ofBerkeley (1976) 17 Cal.3d 129 oocccsccesseesecseesesceececsessesecsecssesstesseesesesseseesneats 54 Carson Mobilehome Park Owners’ Assn. v. City ofCarson (1983) 35 Cal.3d 184 oocscceesseecsssssecceeessecessenesesasssesseeeessessesesseeees 51 7310176 - ili - Page(s) Carter v. Carter Coal Co. (1936) 298 US. 238oeeessscceteeseesersecsstsceeesetsersseerseresseesesserseserseeatentes 55 Charles WolffPacking Co. v. Court ofIndus. Relations (1925) 267 U.S. 552... ccsesececeeeecesseeeenseceneesceneecsensenseesseaneeneeesees 25, 26, 27 Charles WolffPacking Co. v. Court ofIndus. Relations (1923) 262 U.S. 522...eeccsccseecseeseeseseesecsrsecsesscessseeeeeesnenseasenenteas passim Chicago Teachers Union, Local No. 1 v. Hudson (1986) 475 U.S. 292oeeeccccsecssecseecnecnceeseseeeseeeeseaeseeeeeeesesseesnesssecseeseneenss 33 City ofBiddeford by Bd. ofEd. v. Biddeford Teachers Ass’n (Me. 1973) 304 A.2d 387... ce ccecessecesseesesecseesceseeseceesseeceeeseesesesseeteneeeaees 24 City of Warwick v. Warwick Regular Firemen’s Ass’n (R.L. 1969) 256 A.2d 206...eeessessescesetessnesersecstcnetserseseeessarsassesersaseeees 54 Clean Air Constituency v. State Air Resources Bd. (1974) 11 Cal.3d 801 oooceeessccsscseesecssecneceeeseseeeessaceessseeaeeeeserseeeeees 51 Cooley v. Superior Court (2002) 29 Cal.4th 228 ooo. cecssccssescceeesesececceeeessecessceneeseaeeasecesseseeesensens 45 Coppage v. Kansas (1915) 236 U.S. Lieececcesecseececceceseeeseseseesteecasesesseeersesessanseeesarseneres 26 County ofSonoma v. Superior Court (2009) 173 Cal.App.4th 322 occecscscsessesssscesesecesesseceesecesesessesssseneeens 52 Davis v. Mun. Ct. (1988) 46 Cal.3d 64 oecccssecsecceseesseessessetsceesceessescessseeaseesssaeeeseneens 50 Dep't ofAlcoholic Beverage Control vy. Alcoholic Beverage Control Appeals Bad. (2006) 40 Cal4th1ccsescececeseessesstesesseessecsceesresseeerseeeseesesesseaseas 58 Dep’t ofTransp. v. Ass’n ofAm. Railroads (2015) 135 S.Ct. 1225ecceececeseececseeneseaessesscenecseeeeeseesecerseneesesseeenes 55 Dole Fresh Fruit (1996) 22 ALRB NO.4 .ceeccssscsccesncesessesessesseseeeeacecsseneeseseeseecssssessesenens 37 Dorchy v. Kansas (1924) 264 U.S. 286... essececeeeecrssescsscnceesesseeesesseenasneteueeensecsseateaeeneens 25 7310176 -IvV- Page(s) Emporium Capwell Co. v. W. Addition Cmty. Org. (1975) 420 U.S. SO...eeceeceseseceesacessetseceeaessceseceesaesesessneesseseeenseenss 29, 30 Engquist v. Or. Dep’t ofAgric. (2008) 553 U.S. 591eeceeesseeessecesesseneeseeseeesaseccaeeceesseesseseeseseaes 49, 54 F & P Growers Assn. v. ALRB (1985) 168 Cal.App.3d 667 oo... eeeecscccssessecssseseseceeeseetecsecnesesstesenenees 36, 37 Fairview Hosp. Ass’n v. Pub. Bldg. Serv. & Hosp. & Institutional Emp. Union (Minn. 1954) 64 N.W.2d 16.0... ccecsceesessccssseseescessseseeseceeesessesssessensesseaes 24 Fed. Power Comm'n v. Hope Nat. Gas Co. (1944) 320 U.S. 591eeeeccesseeeseeesenseseesseteceeseesssenseeseeesssssesseeseeeerees 55 Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 oooceccccecesseesseesseesesseessaeesseessesesecssssseeesenes 23, 54 Fisher v. City ofBerkeley (1984) 37 Cal.3d 644 wccesceceseeseesnsssssessseessesseesssesessesesessecaseessesassesees 55 Gateway Coal Co. v. Mine Workers (1974) 414 U.S. 368occesecseseeesceecesesescseessseesstesecsssseseesessceeeesseeseseces 22 Gerawan Farming (2013) 39 ALRB No. 11eeeeecssssscsseesessesceecersssecsesssessseecstessesseanesseees 18 Gerawan Farming, Inc. v. ALRB (2015) 236 Cal.App.4th 1024 oo...cesscssessesecssecsrecssssssessseseeenses passim Gerhart v. Lake Cnty., Mont. (9th Cir. 2011) 637 F.3d 1013 vecccecesesesseeessecstsessecseeeseeseeeseneens 44, 45 HK. Porter Co. v. NLRB (1970) 397 U.S. 99... cccecsccsesccssseeccessseessssessseseuscesssceecessssecssssessesesensesees 22 Hays v. Wood (1979) 25 Cal. 3d 772 oo. eeeesesessecceseeseeesesescsesceacsceaecsesseseesesesssaeesseses 43, 52 Healy v. Onstott (1987) 192 Cal.App.3d 612 occesseseeseseescseseeseecessetaesetseaeeseenes 27, 56 Heller v. Doe (1993) 509 ULS. B12.cessecessceccesssetcessessccesssecesssneecsssecsessessssssensesennes 46 7310176 -V- Page(s) Hess Collection Winery (2003) 29 ALRB NO.6 uo... eecsssstcsctsessesessecesesnevsesenseseeaeseesseeaceneaecarennseas 58 Hess Collection Winery (2009) 35 ALRB NO,3 uu... cescscescesssenssesceeteesscessessnessseeceateneesesseeneeas 14, 57 Hess Collection Winery v. ALRB (2006) 140 CalApp.4th 1584 uo...cccsccescstcessseceteeesseneessseceseerseesreenees . 26 Hodelv. Indiana (1981) 452 U.S. 314ecccecesecesnecscesenecseneceenseseseesseescecsssectssesenessreeaes 45 Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal4th 348 ooceceseccssessessceesseeseecseesssensescesseeeseesseeaeses 26, 27 JR. Norton Co. v. ALRB (1979) 26 Cal.3d. 1 oeecceesessccscecsescssssessessstecesssscesessseeescesesessrseesenenseees 4 Johnson v. Dep’t ofJustice (2015) 60 Cal.4th 871 ooecesssccssstsesssessesesseecesscssseesecseneesseesseeesaseaees 46 Kaplan’s Fruit & Produce Co., Inc. (1977) 3 ALRB NO.28 ou... eceeseseceescesstessssesessesessecsseaseesensesasseees 35, 37, 39 Kasler v. Lockyer (2000) 23 Cal4th 472oeeecsscessesssecssessseesceeseesensseeceeesaesassesseeeesseesees 44 Kavanauv. Santa Monica Rent Control Bd. (1997) 16 Cal4th 761 oo. eeccececeesnseesseessssesseeseeesesseeseeseeesesseeseeessaseness 55 Knudsen Creamery Co. v. Brock (1951) 37 Cal.2d 485oeccccsseccseesesessesseseceesseceseesessseeesnsssessessesenesees 44 Kugler v. Yocum (1968) 69 Cal.2d 371 oceeeescsseccescesseeesessesseccesecesescesesersssssecseesneesnenes 56 Las Lomas Land Co., LLC v. City ofL.A. (2009) 177 Cal.App.4th 837 oo... cecsssscstssscesssssesssecsecessesseesesesessrssreesseaes 50 Lincoln Federal Labor Union No. 19129 v. Northwestern Iron & Metal Co. (1949) 335 U.S. 525oeeeesssseesseesneesesceseneeeeseesnecseseeseeeneceseessesesessesseenees 26 Litton Fin. Printing Div. v. NLRB (1991) S01 U.S. 190.eeeececsneecesceseeeeseeaeeneeceaeeseeeseeseeessessetsesresseeess 22 7310176 -Vi1- Page(s) Maislin Indus., U.S., Inc. v. Primary Steel, Inc. (1990) 497 ULS. 116. ceeccceceseccseersceseesesessceeseseeseesesseeseserssesseesssasenseneaees 55 Mastro Plastics Corp. v. NLRB (1956) 350 U.S. 270... eecesssessceseesseessescceeesessreceessescesesenersrsseseeernsnsaees 29 Medford Firefighters Ass’n, Local No. 1431 v. City ofMedford (Or. App. 1979) 595 P.2d 1268.....ccccccesssseesesseeeseseecsesseescsesnsssneseeseeesecees 23 Metro. Edison Co. v. NLRB (1983) 460 U.S. 693cececccssescsceessceessssecsessceresesscassssseesnecceseseeesetsessesees 29 Montebello Rose v. ALRB (1981) 119 CalApp.3d 1 oeeeeeseseesesecessceensecssssseesseesensesseeeneeeenes 35, 39 Mount St. Mary’s Hosp. ofNiagara Falls v. Catherwood (1970) 260 N.E.2d 508.00... cecescesscscceecscsseseseeseeceeseecseesseeaseneseesceeeses 24, 27 NJ. Bell Tel. Co. v. Commc’ns Workers ofAm., N. J. Traffic Div. No. J3 (N.J. 1950) 75 A.2d 721i.ccsesccsssescseceessesesseecsnecseeeeneesareeescseseeseeesenseas 30 NLRBv. Allis-Chalmers (1967) 388 U.S. 175 vccccscccccescseesssesseescescsscsesseseseeceaseaeecaceeesenseeesserseeenens 28 NLRBv. American Nat’l Ins. Co. (1952) 343 U.S. 395oeecsesceseesseescscessceseserseeeeesecnseeeesaseneessssssnseeestenseasees 22 NERBv. Jones & Laughlin (1937) 301 ULS. Lice cecsseccssesseesesscessesesseensceseesseeseessenseesesaeesseeaeees 22, 27 NEIRB v. K&K Gourmet Meats, Inc. (1981) 640 F.2d 460.00.eeesseereeceeseeesssseeeeecnesseesessesaresersseeeereasenseeens 4] NLRB v. Magnavox Co. (1974) 415 US. 322 vicecsccscsscssccssereceescecessenesecssecuecenssaesaeenaeceesenesenaeeaseaes 29 Pac. Legal Found. v. Brown (1981) 29 Cal.3d 168 oceccsescessecssessenceseeceeesesaceaecseesaesersesacsesseserees 52 Pasillas v. ALRB (1984) 156 Cal.App.3d 312 occeccscssssessnsesereesesecsreseesnessessseeacaeeeseeeens 30 Peick v. Pension Benefit Guaranty Corp. (7th Cir. 1983) 724 F.2d 1247 ooecceessscesesteceeceeeseteasesasescecsserseserseeneees 27 7310176 - Vu - Page(s) People v. Romo (1975) 14 Cal.3d 189 ooeecccsseeceesseeceecceecssessssasesesseseeesseseesassaseseaeens 50 People v. Wilkinson (2004) 33 Cal.4th 821 oecssccsecsesecescsssesssseseeseeneeeesseaceceseserseeaeeceneesees 50 People v. Wright (1982) 30 Cal.3d 705... .sessecsscserseseesestssseesneennsssennenecenssnseaesnsenesneres 51, 54 People’s Fed. Sav. & Loan Ass’n v. State Franchise Tax. Bd. (1952) 110 CalApp.2d 696 oo...ecccccccesccssssseeeenseceseeesterseenesetacessnerseenenees 53 Pinnacle Museum Tower Assn. v. Pinnacle Mkt. Dev. (US), LLC (2012) 55 Cal4th 223 ooocsceescesesceceeesecececeeeseeaeenseesaeeatcnaeeressaeeneees 21 Railway Express v. New York (1949) 336 U.S. 106...eeseeeenecesnessessssesenseecesseescesecaeeseeetoneeseesasnaesaseas 52 RUI One Corp.v. City ofBerkeley (Oth Cir. 2004) 371 F.3d 1137 ..ceesecesesesssssssesseseseseesesesesceeseenseseseeseseseness 49 Ruiz v. Podolsky (2010) 50 Cal4th 838 ooecscecescecssesctcsesaseseeeseseeeseteecneeeeeaessesaeerecanens 21 Schaezlein v. Cabaniss (1902) 135 Cal. 466 0.eeeccescessstccsseeessesssecsseeeeeseesesseseseeears 44, 45, 48 Spiritual Psychic Sci. Church v. City ofAzusa (1985) 39 Cal.3d 50]ccceeeesseetcessesessssecesesseseessseesessessecsesessesseseeseeneaes 46 Squires v. City ofEureka (2014) 231 CalApp.4th 577 oo... ccccescssccsstescssescsenscesseccseseeseesercssssseesseneens 50 Steele v. Louisville & N.R. Co. (1944) 323 U.S. 192.ecccsecsscsseesssceessesscsesseseeessecseesseseeesesenscseseaeeensesees 28 Terminiello v. Chicago (1949) 337 US. Linceceeesseseecesecsecsscesssesesenseseereseseseccaeseeeseenennesaeeaeteesenens 33 Tex-Cal Land Mgmt., Inc. v. ALRB (1979) 24 Cal.3d 335 w.ccceccsssscssssesesecssscsseetsesessseseseenseeesceaseeesessenesseteeeess 58 Textile Workers vy. Lincoln Mills ofAla. (1957) 353 U.S. 448occesecesscreessnecsecsesetcesetceesesssssessesecessesnsenseneeuseasees 28 Town ofArlington v. Bd. ofConciliation & Arbitration (Mass. 1976) 352 N.E.2d 914... ceccccsssssscsessceeeseessesesseseeeescseeneessseneseeens 23 7310176 - Vili - Page(s) Tri-Fanucchi Farms v. ALRB (2015) 236 Cal.App.4th 1079 uo... ceccscsscsssssesescesecssecessssssesasenseesaeseneeaees 37 United Farm Workers Nat. Union v. Babbitt (D. Ariz. 1978) 449 F.Supp. 449, vacated on other grounds (1979) 442 U.S. 936...eee 27 United Steelworkers ofAm. v. United States (1959) 361 U.S. 39... essesssssssestesssesnsssessianssesssessnssaiasssssressnsenserssessesses 26 United Steelworkers ofAm. v. Warrior & GulfNavigation Co. (1960) 363 U.S. 574... ececcsecsceeseeseceersesetseescacessseacenseaseceeneseaeeeesteaeeaneesens 27 Vill. of Willowbrook v. Olech (2000) 528 U.S. 562.0... eesescesssesscssescsseersesseessesesesetsesscesesenssessesseessessens 44 Volt Info. Scis., Inc. v. Bd. ofTrs. ofLeland Stanford Junior Univ. (1989) 489 US. 468...ecseccsseessesceseseseseseaceseseseeateceseceeeaseneesseesneeenees 21 Wilson v. New (1917) 243 U.S. 332... ececscccescesseseceesseeseceseeseeeseeaessessesssessssaseceessnessesesens 25 Yick Wo v. Hopkins (1886) 118 U.S. 356.eeceseeeceescenerenseetseesseesesceesneesesacesseseesenaseaeanens 44 Statutes Cal. Code. Regs. tit. 8, §20407(a)(2) ......ececssssessesseecscseneesecesesseseceeneteeersseseeenens 8,58 Cal. Lab. Code §1140.2 oo. ccciccccccssssscessssecseesssesssesesesseceecessssessesseseessesseeesereeatens 29 Cal. Lab. Code §1155.2(a)......ceccesccssssecessceeneessssesneceentecesteesseesserseuevssesseessteseases 23 Cal. Lab. Code §1155.2(D)....cc cscssscessecssecsescecsseseeseesseesesaaeeeseaeeeeseseeeeesneeeesatees 34 Cal. Lab. Code §1156.4 wo... cccccsccsssecsessscssnsesseeeesesrescsseeeseesseseeseaeseneesssesarseneeseaees 12 Cal. Lab. Code §1164. et Sq. .eceeeeccsssseesessssesecseneeeseaneesaeseaestacseasenaeeees 8, 34, 48, 57 Other Authorities Grodin, Political Aspects ofPublic Sector Interest Arbitration (1976) 64 CalL.Rev. 678 ..c.cecsescecccsssssecsseceseeeessecssceseseesseesesessenseeees 52, 57 McGregor, Remembering Cesar Chavez (2000)... eseesccssscrenessssccessseseeensesesscscsessssseseseeassecsesessesnesensseseaeseesarscneneees 17 7310176 ~ 1X - Page(s) Moreno, The American Statefrom the Civil War to the New Deal (2013). eecseccsscessssctstcesesseesscestesseaessceseessscnsesaeesscateasesceetseressseseaseaceaesaeeees 25 7310176 “X- ISSUES PRESENTED 1. Whether the California Agricultural Labor Relations Board (“ALRB”) erred by failing to consider the UFW’s abandonmentof Gerawan’s employeesasa statutory defense to the invocation of Mandatory Mediation and Conciliation (“MMC”) proceedings. 2. Whether the MMCstatute violates the Equal Protection Clause of the Federal and California Constitutions by providing no rational basis for a mediator to distinguish between similarly situated employers. 3. Whether the MMCstatute is an unconstitutional delegation of legislative authority lacking sufficient standards or safeguards to guide a mediator’s discretion. INTRODUCTION By the ALRB’s reasoning, the State of California could, in the interest of “stability” in the agricultural fields, appoint a mediatorat the request of a union and give that mediator the virtually unfettered powerto bar strikes, limit the workers’ access to courts, set wages, compel agency fees, and otherwise dictate all of the rules between a farmer andits employees. The Fifth District correctly held that such a law is unconstitutional. The MMCschemechallengedhere is, to our knowledge, the only law in the United States that permits a state agency to impose a contract on private citizens. Compulsory interest arbitration, the generic name for what 7310176 -1- happens in an MMC,is only imposed by consentofthe parties or in governmental or quasi-governmental settings where strikes are barred. The ALRB makesthe circular argumentthat the statutory purpose of MMCisto allow a mediator to make individualized, discretionary decisions, and, on that basis, any decision the mediator makesis rationally related to that purpose. By design, the process necessitates that individuals, all similarly situated with respectto the statute’s aim, be treated distinctly. And because the MMCstatute provides no guidelines to instruct (or limit) the mediator’s reordering of these economicrelationships, and no direction as how to achievethe legislative goal of “moreeffective collective bargaining”or “stability” in agricultural labor, the door is flung open to unchecked, unreviewable, and arbitrary special legislation. The Fifth District was the first appellate court to review an MMCcontract and, havingstudied its sprawling provisions, concludedthat this schemeis the “antithesis of equal protection” and an improper delegation oflegislative authority. (Gerawan Farming, Inc. v. ALRB (“Gerawan Farming”) (2015) 236 Cal.App.4th 1024, 1069.) Because MMC maybe demandedbyanycertified union that satisfies the ALRB’s woodenapplication ofthe statutory criteria to invoke the process, it empowersa self-interested union to pick one employer when the timing suits the union and force that employer into non-consensual interest arbitration, backed by the powerofthe State to compel compliance. 7310176 -2- The ALRB analogizesthese arbitrary choices to discretionary acts, such as charging decisions by a prosecutoror criminal sentencing by a judge. A private union is not a prosecutor. The MMC mediatoris not a judge ora legislator, though he dictates one contract through a “quasi-legislative” process. The discretion as to enforcementofthe law as a threshold matter is given to a private union. The discretion as to writing this special legislation is given to a private mediator, without any definite policy direction, goal, or standards, and without any safeguards to check the use of that delegated power. The ALRB and the UFW (collectively, “Respondents”) argue that the law was intended to address “egregious”instances ofpersistent bad faith bargaining, but no such finding is required or was made here. As interpreted by the ALRB,the MMCstatute makesno allowancefor the possibility that the lack of an agreement was due to dereliction by the union. The ALRB presumes that a heretofore moribund union has the consent of today’s workers to bind them to a contract based on an election that took place decades ago when most(and perhapsnearlyall) of the workers were not employed by Gerawan. According to the ALRB,the employer may not raise abandonmentas a defense, and the ALRB maynot considerit. The workers can test the representational standing of the union by filing a petition for a decertification election, but the ALRB barely 7310176 -3- mentions that a majority of today’s workers at Gerawan asked for an election—and the ALRB ordered one. The ALRB doesnot acknowledge that its decision to conduct an election on one day (but not count the ballots) and then to impose the MMCcontract on the next fueled what the Fifth District called a “crisis of representation” at Gerawan. It has been over two years since the November5, 2013 election. Whatfollowed was a multi-million dollar investigation by the ALRB’s General Counsel, based onits view that free choice by Gerawan workersis “impossible.” In tandem with the incumbent union, the General Counsel conducted a six-month hearing in orderto set aside the election. The ballots remain impounded pending a decision by the ALRB based on the de novo review of the ALJ’s findings—including the central allegation which the UFW and the ALRB General Counselfailed to prove—that Gerawan instigated the decertification campaign rather than its workers. The Fifth District analyzed the constitutional and statutory issues based on the organizing principle of the Agricultural Labor Relations Act (“ALRA”)—which““‘is not exclusively to promote collective bargaining, but to promote such bargaining by the employees’ freely chosen 999 representatives.’” (Gerawan Farming, supra, at p. 1061 [quoting JR. Norton Co. v. ALRB (1979) 26 Cal.3d 1, 34] [emphasis original].) The decision ofthe Fifth District should be affirmedin all respects. 7310176 -4- BACKGROUND I. 1990 Through February 1995 In May 1990, the UFW won a runoffelection at Gerawan. Thefinal tally was 654 votes for the UFW,410 votes for “No Union,” and 103 unresolved challenges out of 1,121 votes cast. (Certified Record (“CR”) 1233.) Less than half the workers voted. Gerawan objected, arguing the turnout was low because of inadequate notice to workers. The ALJ held that, standing alone, the low voter turnout did not require a new election. (CR 1076.) The ALRB certified the UFW on July 8, 1992. (CR 1282.) On July 21, 1992, Cesar Chavez, the founder of the UFW,sent Gerawan letter requesting negotiations.’ (CR 6.) Gerawan responded on August 13, 1992, “formally accept[ing] [the union’s] offer to commence collective bargaining negotiations.” (CR 28.) Gerawan invited the UFW to submit proposed groundrules for the negotiations and a proposedcollective bargaining agreement (“CBA”) becauseit was “anxious to commence negotiations” and wantedto reach “an early agreement.” (CR 27.) Once received, Gerawanstated that it would immediately review them andset up a mutually convenient time and place to begin bargaining. (Ibid.) The union did not provide the documents until November 22, 1994, two years later. (CR 8.) ‘Mr. Chavez passed awayshortly thereafter on April 23, 1993. 7310176 -5- The UFW held onebrief, introductory meeting with Gerawan in February 1995. (CR 23.) At the meeting, the UFW agreed to submit a revised CBA proposal. It never did. (CR 23-24.) The UFW thereafter made noattemptto initiate further negotiations until October 2012, a decade after the 2002 MMC amendments became law. (CR 358.)In the record of this proceeding, there is no explanation from the UFW as to why it disappeared. II. October 2012 Through The Present On October 12, 2012, the UFW sent letter to Gerawan requesting negotiations and information about Gerawan’s employees, including their names, mailing addresses, wage rates, and benefits.” (CR 10.) On October 30, 2012, the UFthreatenedto file an unfair labor practice (“ULP”) charge if Gerawan failed to comply.? (CR 13.) Gerawan asked the UFW for an explanation ofits lengthy absence. (CR 36.) The UFW refused. (CR 39.) The parties conducted nine bargaining sessions between January 17 9 2013 and March 29, 2013, when the union demanded MMC. (CR 358.) ? The request was made when the company’s harvest season was winding down, making it impossible for employees to request an election be conducted before MMCinitiated. (CR 31.) > Gerawan advised its employees of the UFW’s demand: “As your employer, we did not want[to give your personal information to the UFW,] but we have no control over this.” (CR 1386.) In response, the union filed a charge claiming that Gerawan was engagingin the “unlawfulinitiation of a decertification campaign.” (CR 1337.) 7310176 -6- During that period, the UFW never made an economic proposal regarding wages. (CR 634.) On January 18, 2013, Gerawan filed a ULP charge against the UFW for failing to designate a negotiator, make CBAproposals, and communicate with Gerawan for approximately two decadesafter being certified. (CR 42.) On May 13, 2013, the ALRB Regional Director dismissed the charge. Citing the six-month statute of limitations for filing ULPs,he determinedthatit is not permissibleto file a charge “approximately 17 years after the union allegedly failed to exercise due diligence in the course of contract negotiations with Gerawan.” (Regional Director’s Letter (May 13, 2013) [RJN, Ex. A].) Gerawan appealedthis decision to the General Counsel, as per ALRB regulations. (Gerawan’s Request for Review (May 28, 2013) [RJN, Ex. B].) The General Counsel never respondedor acted onthis request. Iii. The ALRB Compels Gerawan Into MMC On April 16, 2013, the ALRB issued an order directing the parties to MMC,rejecting Gerawan’s argumentsthat the prerequisites for invoking MMChad not been met. (CR 146.) The ALRB rejected Gerawan’s abandonment defense in one sentence. (CR 148.) IV. The Off-The-Record MMC Proceedings As required underthe statute, the parties conducted mediation sessions under the supervision of the mediator, Matthew Goldberg. On 7310176 -7- June 11, 2013, a 23-year Gerawan employee, Lupe Garcia, and 15 other Gerawan farm workers, asked to attend the mediation. (CR 231.) Mr. Goldberg informed them that the mediation was confidential and open only to the parties. (Jbid.) Mr. Garcia asked the ALRB for permission to intervene. It denied this request on July 29, 2013, concluding thathe is not a party to the MMC process and therefore lacked sufficient “‘interest in the outcome of the proceeding’ to confer standing.” (CR 232.) The ALRB decidedthat, “even assuming that Garcia had ‘an interest’ in the outcome of MMC,” he was “adequately represented” by the UFandsuchintervention “would be fundamentally inconsistent with the union’s status as bargaining representative.” (CR 235, 237.) V. The On-The-Record MMC Proceedings After declaring that mediation was “exhausted,” Mr. Goldberg conducted two days of “on-the-record” hearings in which he received testimony and evidence. (CR 361.) The proceedings weretranscribed. The mediator, now acting as the decision-maker, is required to issue a report to the ALRB resolving disputed issues and fixing the terms ofthe contract, based on the sworn testimony and evidencereceivedat that hearing (the “Report”). The Report must “be supported bythe record,” (Lab. Code §1164(d)), and the mediator is required to “cite evidence in the record.” (8 C.C.R. §20407(a)(2).) 7310176 -8- On August 2, 2013, Mr. Garcia asked to observe in silence the on- the-record process. (CR 167.) The ALRB denied his request on August 21, 2013. (CR 275.) It held that “strategic compromises[that] are often made that further the goals of achieving a contract... would not be made with the prospect of real-time publicity of those compromises and demandsfor explanations prior to the conclusion of negotiations,” ignoring that this was an on-the-record, adversarial proceeding. (CR 281.) Accordingly,“the public interest” would not be served by the “public presence”atthis hearing, including Mr. Garcia’s presence. (CR 284.)* VI. The Mediator’s Report On September 28, 2013, the mediator submitted his Report. (CR 357-609.) The term of the contract was for three years. (CR 412.) Several of the dozens of terms fixed by Mr. Goldberg are noteworthy. First, he imposed a provision whereby Gerawan shall recognize the UFW as the “sole and exclusive labor organization representing all of the agricultural employees” of Gerawan. (CR 366.) Second, he imposed wage increases, including retroactive increases as to workers whose employment had been completed. The undisputed evidence was that Gerawan historically already paid higher wages than any competitor or other growers * Gerawan and Mr. Garcia each filed challenges to this order. Gerawan Farming, Inc. v. ALRB et al., Case No. 13CECG03374 (Fresno Super. Ct.) (filed Oct. 28, 2013), appeal pending Case No. F069896 (Fifth Appellate District).) 7310176 -9- in the region. (CR 366-67.) Third, Mr. Goldberg adopted comprehensive grievance andarbitration proceduresas to individual disputes, as well as interest arbitration as to any disputes concerning the contractitself. (CR 384-85.) Fourth, he adopted the union’s “Length of Service”(i.e., seniority) provisions, notwithstanding Gerawan’s concerns that employees wouldlose credit for past employmentif (as is frequently the case) they took breaks in service. (CR 374-77.) Though there was nofactual basis upon which to determine whether the current system required a complete overhaul, he determinedthat seniority systems are “common”in CBAs. (CR 377.) Fifth, he adopted “nostrike/no lockout” provisions proposed by the union, finding that these would “promote[] labor peace andstability” and “are generally viewed[as] a trade-off for grievance andarbitration rights.” (CR 386.) Sixth, Mr. Goldberg imposed a “non-disparagement”clause on Gerawan;he erroneously believed that this provision was mutual. (CR 367-68, 723.) That misunderstanding aside, he viewed such “language” as not “atypical” among other UFW agreements and would assist the parties to mutually recognize “a new set of ground rules governing their interactions, and will hopefully wipe the slate clean.” (CR 368.) Seventh, he adopted the UFW’sso-called “union security” provision which enables the UFW to require Gerawan to terminate any employee whorefuses to pay dues or agency fees to the UFW. (CR 368— 7310176 - 10- 71.) The wage increase he ordered would partially offset the three percent to be charged workers by the UFW. The compulsory fee provision was termed by Mr. Goldberg as “decidedly the thorniest” issue presented. (CR 370.) He wrote: “Undeniably, for a considerable period, the Union has absenteditself from acting in any representative capacity for these employees. Theelection whichresulted in its certification occurred so long agothatit is highly unlikely that any membersofits current work force participated in it. All other things being equal, the imposition of membership fees to support an organization that most of the Employer’s employees havehadlittle if anything to do with would appear to be a bit of an overreach.” (CR 370.) Nonetheless, he concluded that such clauses “are the rule rather than the exception in agricultural labor contracts. ...Without them, the Unionis placed at a decided disadvantage in providing to the membersofthis bargaining unit the full range of representational services.” (CR 371.) Gerawanpetitioned the ALRB to review the Report. (CR 640-707.) On October 25, 2013, without hearing, the ALRB remandedasto six issues and denied review asto all others. (CR 721-31.) (Of the provisions discussed above, only the non-disparagement clause was reviewed by the ALRB.) The mediator issued a second report on November6, 2013. (CR 745-47.) On November 19, the ALRB summarily adopted the mediator’s 7310176 -11- Report and directedthat it “shall take immediate effect as a final order of the Board.” (CR 800.) VIL. The Decertification Petition During the summer of 2013, Gerawan workersinitiated a petition drive to seek decertification of the UFW. (CR 304-07.) The ALRA requires at least half the peak workforce be currently employedto run an election and that 50% of those currently working employees must have signed the petition. (Lab. Code §1156.4.) As Gerawan employs over 5,000 full-time direct-hire workers during the year, the number of signatures required, and the task involved, is substantial. (CR 358.) Duringthis time, there were numerous workerprotests directed at the ALRB andthe union. On October 25, 2013, a Gerawan worker, Silvia Lopez, submitted a petition to decertify the UFW. (Order, Gerawan Farming, Inc. (Nov.1, 2013) Case No. 2013-RD-003-VIS, Admin. Order No. 2013-46 [RJN, Ex. C].) On October 28, 2013, the Regional Director dismissedit as untimely, concluding that the ALRB’s order imposing an MMCcontract created a collective bargaining agreement, thereby resulting in a “contract bar” that precluded the holding of the election. (/d.) The ALRB vacatedthat dismissal, noting that immediate effectuation of that agreement was precluded because Gerawan had challengedit in its petition for review with the ALRB. (Id.) 7310176 -12- The Regional Director dismissed the petition again on October 31, 2013. (RJN, Ex. C].) Although he concluded that petitioner had met the statutory requirements for holding an election—i.e., a majority showing of interest—he determinedthat the election should be blocked based on the pendencyofthree unfair labor practice complaints against Gerawan. (Jd.) The ALRB again vacated this dismissal, notingits “serious doubts” as to the propriety of using an “eleventh-hour” complaint asto “stale” chargesas a basis to block an election. (RJN, Ex. C.) Asto one ofthe pending complaints (alleging employer interference in a decertification petition), the ALRB noted that the Regional Director failed to mention “the degree to which remedial efforts by the General Counsel and agreed upon by Employer, which were allegedly represented by the General Counsel to the Fresno Superior Court in injunctive relief proceedings as having remedied someofthe alleged unfair labor practice charges, in fact did so.” (Id.) The ALRB instructed the Regional Director not to file any further dismissals and ordered an election, holding that “there are enough questions as regarding the degree to which anytaint had been remedied, as well as questionsas to the appropriateness of relying on the late-filed complaint to block the election.” (/d.) 7310176 - 13 - The election was held on November5, 2013. The ballots were impounded pendingresolution of election objections andlitigation of the complaints. (/d.) VIII. Post-Election Efforts To Enforce The MMC Contract On November13, 2013, eight days after the election—but before the MMCorder issued—Gerawan asked the ALRB to temporarily stay MMC, so that the ALRB could decide whetherto count the ballots before it issued its final decision and order approving the contract. (CR 748-96.) The ALRB summarily denied this request the following day. (CR 797-98.) The final order issued five days later. (CR 799-803.) The UFWandthe General Counsel then separately filed ex parte enforcementactions in Superior Court to compel immediate compliance with the order. These requests were denied (Minute Order, UFv. Gerawan Farming, Inc. (Nov. 27, 2013) Case No. 34-2013-0015803-CL- MC-GDS[RJN Ex. D]; Order, ALRB v. Gerawan Farming, Inc. (June2, 2014) Case No. 14CECG00987 [RJN, Ex. E]), in part because they contradicted prior ALRB decisions that an MMCorderis not enforceable until affirmed following Court of Appeal review. (See Hess Collection Winery (2009) 35 ALRB No.3, at pp. 14-15; Ace Tomato Co. (2012) 38 ALRB No.8,at p. 7.) 7310176 -14- IX. The Post-Election Hearing A post-election hearing began on September 29, 2014. On September 9, 2014, the General Counselfiled a 28-page amended complaint covering 21 separate charges, some of which alleged events occurring one year beforethe election. The ALJ commentedthatthefiling of the amended complaint three weeks before the hearing “had the general feel of trial by ambush.” (Decision, Gerawan Farming, Inc. (Sept. 17, 2015) Case No. 2013-RD-003-VISat p. 5, fn.4 [RJN, Ex. F].) Noneofthe charges alleged misconducton the day ofthe electionitself. This hearing took six months. The Regional Director acted as the General Counsel’s “lead prosecutor.”* Following the ALJ’s decision, the parties filed exceptions with the ALRB. The UFW andthe General Counselfiled (in total) 61 exceptions to his decision, including asto his conclusionthat there was “no persuasive evidence of companyinstigation” of the decertification drive. (RJN, Ex. F, at p. 165.) The ALRB has notyet ruled on these exceptions. > The ALJ expressed “serious reservations regarding a Regional Director serving as the General Counsel’s lead prosecutor in an election matter.... By assuming the ‘hat’ as the General Counsel’s lead prosecutor in a consolidated election case, the Regional Director may simultaneously become an unadulterated advocate for one side over the other as to the election objections, which then undermines the Regional Director’s ability to be persuasive as a potential percipient witness.” (RJN, Ex. F, at p. 164, fn.40.) 7310176 -15- X. The MMCStatute The UFW discussesthe history of the 2002 MMC amendments without mentioningits history in this case, or the reasonsforits failure to invoke MMCfor morethan a decadeafter its enactment. The UFW claims that by early 1995, its negotiations with Gerawan “proved futile.” (UFW Br. at p. 26.) Thereafter, the UFW filed no grievances or ULPsagainst Gerawan. The UFW claims that MMC made “eminentsense,” given that “the threat of strikes proved insufficient to producefirst contracts.” (UFW Br. at pp. 36-37.) Strikes and in particular boycotts were used by the UFW,often with great effect, before and after the enactment of the ALRA, becausethey threatened growers with the destruction of perishable crops or the destruction oftheir reputations.’ The “unique circumstances” of ° In its Petition for Review (at p. 26, fn.9), the UFW states that it “is aware of at least 50 bargaining units throughout California for which the MMCprocess could be invoked.” (Compare UFW Br. at p. 19 [citing legislative history] [185 out of 428 UFW certified bargaining units reached initial contracts as of 2002].) Setting aside the reasons for why MMC was not demandedasto these 50 (or 233) certified bargaining units since MMC was enacted, the ALRB’s public records indicate that MMC has been invoked fewer than a dozen timessince passageofthestatute. 7 Governor Jerry Brown recountedhis conversation with Mr. Chavez in which they discussed the merits of what became the ALRA: Chavez pulled up to my Laurel Canyon house in an old car with a German shepherd dog named Huelga—Spanish for “strike.” We talked for several hours about whether the proposed state law or any labor law could actually help farmworkers. Chavez repeatedly said that his boycott was a 7310176 - 16- agriculture gave farm labor unions a degree of “leverage” (UFW Br.at p. 54), which may explain why,at the time of the Act’s passage, the ALRB was“inundated”with election petitions. According to the ALRB’s Chairman, “[uJnion organizational activity in California agricultureat this moment is completely moribund, notwithstanding the passage of [the MMC statute].” William B. Gould IV (Jan. 28, 2016) Agricultural Personnel Management Association’s 36th Annual Forum at p. 5 [RJN, Ex. G].) As of 2012, the UFW reported 3,391 active members. More workers askedfor a decertification election in 2013 than voted in the certification election in 1990. This reflects the substantial change in the size of Gerawan’s work force at the time the UFW reemergedin 2012. (CR 24.) It also reflects the extent to which Gerawan’s business,andits business model, changedin the two decadessince that election. (Jbid.) In the intervening 18 years, Gerawan added roughly 8,000 acres under muchbetter organizing tool because the law would always be captured by the powerful economic interest that control politics. I argued with him andsaid that a law would be his best protection. He finally agreed, but remained skeptical. (McGregor, Remembering Cesar Chavez (2000)at p. 48.) * U.S. Department of Labor, 20/2 LM-2 Labor Organization Annual Report of the UFW, at p. 15 (RJN, Ex. H). The ALJ “reach[ed] the inescapable conclusion that [UFW National Vice-President Armando Elenes] was lying whenhestated that he was unable to give an estimate as to the number ofUFW dues-paying members.” (RJN, Ex. F, at pp. 69-70.) “Most probably Elenes was concerned about conceding the smallness of existing UFW membership, especially in comparison to the number of Gerawan workersat stake.” (Jbid.) 7310176 -17- cultivation and planted morelabor-intensive crops, such as table grapes. (CR 65, 358.) During the UFW’s absence, the companybuilt a vertically integrated business and “developed uniqueinteractive methods to maintain quality control and paid workers above the industry average.” (Gerawan Farming, supra, at p. 1037.)° Asthe Fifth District noted, the UFW’s long absence gaveit no basis to understand the company,its business, or its workers. Mr. Goldberg acknowledgedthat “[t]he party offering a proposal which seeks to modify the status quo bears the burden of demonstrating if and how its proposal satisfies the [statutory] considerations.” (CR 364.) The “status quo”at Gerawan included the absence of the union. With only one exception—the imposition of compulsory dues and agency fees—Mr. Goldberg madeno mention of the UFW’sabsence in applying his judgments. (CR 368.) XI. The MMCProcess The ALRB views MMCas a meansof“changingthe attitudes toward collective bargaining” so that employers “will learn that collective bargaining can be mutually beneficial.” Gerawan Farming, (2013) 39 ALRB No.11, at 7.) Here the Fifth District had an actual MMC “Report” to consider. > In 2012, Gerawan paid its employees who only pick grapes an average of $13.48 per hour, which was about 48% more than the average for Fresno County. It contributes 50% ofthe total cost for medical, dental, and vision insurance for its employees and eligible family members. (CR 65-66.) 7310176 -18- The Report to a significant degree based its conclusions on CBAs submitted by the parties, or Mr. Goldberg’s views concerning current labor shortages, the possibility of a drought, or what he felt would be in Gerawan’sbest interests—suchas a wage increase. (CR 415.) Mr. Goldbergconceded that there was no evidence based on the CBAs submitted that would establish that other farm operations were “similar” in terms of any of the categories listed in the statute, or provide guidanceas to any economic terms. (CR 362-63.) In fact, Gerawan submitted several CBAsto highlight differences as to certain terms proposed by the UFW. (CR 395, 727.) He nonetheless accepted most of the non-economic terms proposed by the UFW,basedonhis view that they were not “atypical” from, or “common”in, other agricultural labor agreements. This was the basis for adopting the union’s security provision (CR 371), grievance and arbitration procedures (CR 384), no strike/lock-out provisions (CR 386), seniority requirements (CR 375—76), disciplinary procedures, and just- cause termination requirements. (CR 388.)'° Faced with the undisputed fact that Gerawan pays wageshigher than its competitors, and that no comparability analysis (even if one had been offered by the union) could support a wageincrease, Mr. Goldberg cited a "© Gerawan submitted expert testimony that the UFW’s proposed disciplinary provisions would slow down or interrupt quality control processes, including Gerawan’s ability to use corrective actions, such as repacking for instructional purposes. (CR 1052-54.) Mr. Goldberg rejected this claim as “unsubstantiated” and “self-serving.” (CR 388.) 7310176 -19- CBAfor a boutique vineyard near Montereyto justify a wage increase at Gerawan, concluding that raising wages “is in the Company’sbest interests, allowing it to maintain its competitiveness for a quality, stable and loyal work force.” (CR 415.) Mr. Goldberg dismissed First Amendment _ concerns implicated by the compulsory fee provision, as “workers retain their freedom ofassociation by opting for agency fees rather than Union dues, and by refraining from participating in any Unionactivities.” (CR 371.) ARGUMENT I. No State Has Ever Before ImposedInterest Arbitration On A Private Company By GovernmentFiat The UFWaccusesthe Fifth District of “ignoring the long history of interest arbitration” and treating the MMCprocessas a “new andstrange phenomenon.” (UFW Br. at p. 30.) But, as its seven-page exegesis on interest arbitration demonstrates, interest arbitration is limited to two categories, neither of which is applicable here. First, where the parties have “voluntarily agreed.” (/d. at p. 31.) Gerawan neveragreedto interest arbitration, nor did its employees. Second,to “prevent labor disputes that could adversely impactthe public interest [i.e., public health and safety],” suchasfor police, firefighters, transit workers, and hospital workers. (/bid.) Almost invariably, these situations involve governmental or quasi-government employers and they almost always involvesituations 7310176 - 20- wherethe law prohibits the workers from striking. That does not exist here. As the UFW recognizes, “farm workers in California have the right to strike.” (/d. at p. 36.) At the UFW’surging, California has pushedinterest arbitration whereit has never gone before—to private sector companies engaged in ordinary commerce. The fact that compulsory interest arbitration is recognized in the public employment context does not create a basis for the State to imposeit in the private employer context. Missing entirely from the ALRB’sbrief, and relegated to a footnote in the UFW’sbrief,is Wolff—a U.S. SupremeCourt case that struck downan interest arbitration system similar to the MMCstatute, and which remains good law. A. Consentis the linchpin of arbitration; there is no consent here. Arbitration “is a matter of consent, not coercion.” (Volt Info. Scis., Inc. v. Bd. ofTrs. ofLeland Stanford Junior Univ. (1989) 489 U.S. 468, 479.) “[A] party cannot be required to submit to arbitration any dispute whichhe has not agreed so to submit.” (Pinnacle Museum TowerAssn.v. Pinnacle Mkt. Dev. (US), LLC (2012) 55 Cal.4th 223, 236; see also AT&T Techs., Inc. v. Commc’ns Workers ofAm. (1986) 475 U.S. 643, 648-49.)"! "! Even in those rare cases in which a party has the unilateral power to bind a non-signatory to arbitration, this Court has required either that the parties be in a special agency or fiduciary relationship or that the non- signatory be given adequate notice. (Pinnacle Museum Tower Assn., supra, 55 Cal.4th at p. 238; Ruiz v. Podolsky (2010) 50 Cal.4th 838, 853-54.) 7310176 -21- The notion that an agreement to arbitrate is a “bargained-for” exchange holds in the labor context as well. (14 Penn Plaza LLCv. Pyett (2009) 556 U.S. 247, 257; Litton Fin. Printing Div. v. NLRB (1991) 501 U.S. 190, 199-200) [arbitration is “a consensual surrender of the economic powerwhichthe parties are otherwisefree to utilize” in the absence of agreement]; Gateway Coal Co. v. Mine Workers (1974) 414 US. 368, 374 (“The law compels a party to submit his grievanceto arbitration only if he has contracted to do so.”’].) In NLRB v. Jones & Laughlin (1937) 301 U.S. 1, the Supreme Court upheld the NLRA againsta constitutional due process challenge specifically because “[t]he Act does not compel agreements between employers and employees. It does not compel any agreement whatever.” (/d. at p. 45.) The right to freedom of contract has been cited repeatedly as the basis for upholding the constitutionality of collective bargaining. (See, e.g., H.K. Porter Co. v. NLRB (1970) 397 US. 99.) In H.K. Porter, the Court held that the right to resist concessions meant that the employerdid not have to accept a dues check-offprovision, and the NLRB could not impose them. To do so “would violate the fundamental premises on which the Act is based—private bargaining under governmental supervision of the procedure alone, without any official compulsion overthe actual terms of the contract.” (/d. at p. 108 [footnotes omitted]; see also NLRB v. American Nat’l Ins. Co. (1952) 343 U.S.395, 7310176 - 22 - 404 [“[T]he Board maynot, either directly or indirectly, compel concessionsor otherwisesit in judgment uponthe substantive terms of collective bargaining agreements.”’].) The ALRA is patterned after the NLRA and includes language identical to Section 8(d) of the national act, which provides the constitutional safeguard against forced contracting. (See Lab. Code §1155.2(a).) This provision was not changed by the MMCstatute. B. The public safety justification for compulsory interest arbitration is not applicable here; Wolff controls. Non-consensual compulsoryarbitration is rarely, if ever, imposed except in public or quasi-public employmentsituations wherestrikes are prohibited. This tradeoffis at the core of every case Respondentscite,” suchas public utilities,’ police, firefighters, and other public employees,“Pp ” E.g., Medford Firefighters Ass’n, Local No. 1431 vy. City of Medford (Or. App. 1979) 595 P.2d 1268, 1270-71 [“One of the differences [between collective bargaining in the public and private sectors], binding arbitration, is essentially a quid pro quo for the prohibition ofstrikes by firemen.”]; Town ofArlington v. Bd. of Conciliation & Arbitration (Mass. 1976) 352 N.E.2d 914, 922 [same]. 3 E.g., Bd. ofLocomotive Firemen & Enginemen v. Chicago, B. & Q. R. Co. (D.D.C.) 225 F.Supp. 11, 21, aff'd (D.C.Cir. 1964) 331 F.2d 1020 [“[I]t is elementary that railroads, as commoncarriers for hire, are engaged in a public employment affecting the public interest and, therefore, are subject to legislative control.”’]. '* E.g., Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 622-23 [“[T]he arbitration and no-strike provisions were interdependent.”’]. 7310176 - 23 - and hospitals receiving public funding.’* (See Bayscene Resident Negotiators v. Bayscene Mobilehome Park (1993) 15 Cal.App.4th 119, 132.) Exceptin cases of national emergency, such as war, no legislature has adopted, and no court has approved, any scheme that would compel a private employer to adjudicate the terms of employment with its employees or force workers to surrendertheir right to strike. (See Catherwood, supra, 260 N.E.2d at 510-11 [“compulsory arbitration has been used hardlyatall andthere is a dearth of legal analysis and precedentin the courts to illuminate the principles to be applied to this drastic remedy”].) Even in situations where public sector interest arbitration is used, the state has made the deliberate choice as to its own employmentrelationships with its own employees to offer binding interest arbitration as a fair exchange for depriving its employees “of such economic weaponsasstrikes and work stoppages whichare available to employeesin private employment.” (City ofBiddeford by Bd. ofEd. v. Biddeford Teachers Ass'n (Me. 1973) 304 A.2d 387, 398.) E.g., Fairview Hosp. Ass’n v. Pub. Bldg. Serv. & Hosp. & Institutional Emp. Union (Minn. 1954) 64 N.W.2d 16, 28 [characterizing hospitals as part of “a field of enterprise in which the public has a direct andvital interest, distinct from almost any other type of business.”]; Mount St. Mary’s Hosp. ofNiagara Falls v. Catherwood (1970) 260 N.E.2d 508, 518 [same]. 7310176 - 24- The constitutional foundation for these limiting principles is Charles WolffPacking Co. v. Court ofIndus. Relations (“WolffP’) (1923) 262 U.S. 522. Writing for a unanimouscourt, Chief Justice Taft struck down the Kansas Industrial Relations Act, which gave a three-judge industrial court the powerto resolve labor disputes as to a single employerbysetting wages, hours, and conditions of employment, and to barstrikes if it found “the peace and health of the public imperiled by such controversy” in any industry “affected with a public interest.” (/d. at p. 524.) The Court stated that the Kansas act “curtails the right of the employer on the one hand, and of the employeeonthe other, to contract abouthis affairs.” (WolffI, supra, at p. 534; see also Dorchy v. Kansas (1924) 264 U.S. 286; Charles WolffPacking Co. v. Court ofIndus. Relations (WolffIT) (1925) 267 U.S. 552, 569 [collectively, “Wolff’].)'® The Court condoned such “joint compulsion” only where required by exigent circumstances,or as to those industries, such as public utilities, “where the obligation to the public of continuousserviceis direct, clear, and mandatory, andarises as a contractual condition express or implied of entering the business either as owner or worker.” (Wolff, supra, at p. 543 [citing Wilson v. New (1917) 243 U.S.332, 364].) 16 See P. Moreno, The AmericanStatefrom the Civil War to the New Deal (2013) at p. 194 [“[AFL President] Samuel Gompers had denounced the Kansas statute, which prohibited strikes, as establishing involuntary servitude.”].) 7310176 - 25 - Wolffechoed Taft’s earlier admonition that collective action “was essential to give laborers [the] opportunity to deal on equality with their employer.” (American Foundries v. Tri-City Council (1921) 257 U.S. 184, 209 [cited with approval in Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 400, fn.3 (conc. & dis. opn. of Werdegar,J.)].) The Wolffscheme “involves a more drastic exercise of control . . . upon the employee than upon the employer,” and could not be justified as to private employees who,unlike public sector employees, have no “obligation to the public of continuousservice. . . somewhat equivalent to the [obligation] of officers and the enlistment of soldiers andsailors in military service.” (WolffI, supra, at p. 541.) These distinctions drew the constitutional line between private and public sector interest arbitration, and the trade-off where the public employees’ obligation of “continuous service” was a condition of employment, and notsubject to a strike.’’ (See United Steelworkers ofAm. " Hess dismisses Wolff as a relic of the “bygone” Lochner era. (Hess Collection Winery v. ALRB (“Hess”) (2006) 140 Cal.App.4th 1584, 1598-99.) This is not a basis to avoid those aspects of Wolff that remain good law. While the Court disapproved Wolff's holding concerning wage- fixing, Lincoln Federal Labor Union No. 19129 v. Northwestern Iron & Metal Co. (1949) 335 U.S. 525, Lincoln expressly noted that “(considerations involved in the constitutional validity of those other parts of the [Kansas] statute are not relevant here.” (/d. at p. 536, fn.6.) Wolff did not rely on decisions such as Adair v. United States (1908) 208 U.S. 161 or Coppage v. Kansas (1915) 236 U.S. 1, 17, which invalidated legislative protections from “yellow dog” contracts on substantive due process grounds. Unlike these cases, Wolffhighlighted the need to protect 7310176 - 26 - v. United States (1959) 361 U.S. 39, 75 [dis. opn. Of Douglas, J.] [citing Wolffas the reason whycollective bargaining, not compulsory arbitration, is the norm].) Wolffis often cited by modern courts when discussing whether non-consensualbinding arbitration is constitutional. (See Catherwood, supra, 260 N.E.2d at pp. 500, 503; see also Healy v. Onstott (1987) 192 Cal.App.3d 612, 616 [due process requires de novo review of arbitral determination]; Bayscene, supra, 15 Cal.App.4th at p. 13 [same]; Peick v. Pension Benefit Guaranty Corp. (7th Cir. 1983) 724 F.2d 1247, 1277 [distinguishing between compulsory arbitration of public and private disputes]; United Farm Workers Nat. Union v. Babbitt (D. Ariz. 1978) 449 F.Supp. 449, 466, vacated on other grounds (1979) 442 U.S. 936.) Wolffsets out the conditions for the imposition of compulsory arbitration that every court, and every case cited by Respondents, has followed since. (United Steelworkers ofAm. v. Warrior & GulfNavigation Co. (1960) 363 U.S. 574, 578, fn.4 [compulsory arbitration is deemed a necessary “‘quid pro quo’ for the agreementnotto strike”].) collective rights, a view later vindicated by the New Deal Court, which upheld “‘the legality of collective action on the part of employees in order to safeguard their proper interests’ . . . against constitutional challenge.” (skanian, supra, 59 Cal.4th at pp. 400-01 [conc. & dis. op. of Werdegar,J.] [citing Jones & Laughlin, supra, 301 U.S. at pp. 33-34].) 7310176 -27- C. Government imposedinterest arbitration infringes employer and employeerights. The MMCstatute here empowers a union, upon demand,to enable a private mediator to imposerestrictions on employees’ rights of free association, of access to courts to hear individual grievances againsttheir employer, and on free speech through the imposition of agency fees, among otherrestrictions. It does so without any indicia of the individual’s consent to grant such power. Theindividual consensuallink giving the union the right to give awayindividual rights or to demand compulsory fees either does notexist at all or has been broken. Collective bargaining rests on the premise of majority rule. This ““majority-rule concept is unquestionablyat the center of our federal labor policy’” (NLRB v. Allis-Chalmers (1967) 388 U.S. 175, 180 [quotation omitted]), and is a fundamental componentofthe ALRA. A duly elected union is given “powers comparable to those possessed bya legislative body both to create andrestrict the rights of those whomit represents.” (Steele v. Louisville & N.R. Co. (1944) 323 U.S. 192, 202.) In the collective bargaining setting, majority rule gives a union the authority to “forfeit the economicrights of the bargaining unit, including the rightto strike as a trade-off for the employer’s acceptance of grievance andarbitration procedures.” (Textile Workers v. Lincoln Mills ofAla. (1957) 353 U.S. 448 9 455.) It may require employeesto arbitrate certain statutory claims, 7310176 - 28 - including those involving the employees’ individual, non-economicrights. (14 Penn Plaza, supra, 556 U.S. at pp. 256-57.) It may limit, or abolish, the ability of workers to picket. (Emporium Capwell Co. v. W. Addition Cmty. Org. (1975) 420 U.S. 50, 69-70.) A court may not nullify such “contractual concessions.” (NLRB. v. Magnavox Co. ofTenn. (1974) 415 U.S. 322, 328 [conc. & dis. opn. of Stewart, J.].) The legitimacy of that powerin laborrelations derives from employees’ “full freedom” to designate representatives of their own choosing for the purposesofcollective bargaining. (Lab. Code §1140.2.) That power “presuppose[s] that the selection of the bargaining representative ‘remainsfree.’” (Magnavox Co., supra, 415 U.S.at p. 325 [quoting Mastro Plastics Corp. v. NLRB (1956) 350 U.S. 270, 280].) A union “may not surrenderrights that impair the employees’ choice of their bargaining representative.” (Metro. Edison Co. v. NLRB (1983) 460 U.S. 693, 708 [quotations and citations omitted].) Where, as here, the right of employeesto that choiceis at issue, “it is difficult to assumethat the incumbent unionhasnoself-interest of its own to serve by perpetuating itself as the bargaining representative.” (Magnavox Co., supra, 415 U.S. at p. 325 [citation omitted].) Therisk of forfeiture of the workers’ right to choose is magnified here by the powerof the union to compel contractual arrangements based on so-called “dormantcertifications.” So viewed, the principle of 7310176 - 29 - “exclusive representation,” without some checkasto the legitimacy of the union’s standing to represent the workers,risks making the workers “prisoners of the Union.” (Emporium Capwell Co., supra, 420 U.S.at p. 73 [dsn. opn. of Douglas, J.].) The imposition of the “security agreement”illustrates this, as would the potential “election” bar, should the MMCcontract be imposed. Because “the question ofunion security [is premised] on collective bargaining and not compulsion,. . . [a] requirement that employees be compelled to become or remain membersofa labor organization” would have noplace in the compulsory interest arbitration process. (N.J. Bell Tel. Co. v. Comme’ns Workers ofAm., N. J. Traffic Div. No. 55 (N.J. 1950) 75 A.2d 721, 728.) Here, the mediator imposed his own vision of public policy in spite of California’s position of “benign neutrality” toward union security agreements, which shouldbeleft “to collective bargaining agreements freely entered into.” (Pasillas v. ALRB (1984) 156 Cal.App.3d 312, 346.) The MMCstatute not only constrains employers. It allows a union to compel employeesto give up their representative rights even when they have not consented to compulsoryinterestarbitration, let alone to a union which choosesto invokeit. There is no explicit consent, as employees are formally barred from the MMCprocess, and cannotratify the contract. There is no implicit consent, as the employeesare not engagedin critical 7310176 - 30 - public services that justify the quid pro quo of bindinginterest arbitration, or are not adequately represented by a conflicted union with the power (but not the legitimacy) to bargain awaytheir rights. There is no consent atall. II. The Fifth District Correctly Held That The ALRB Must Consider The Abandonment Issue On The Facts Of This Case The Fifth District held that “an employer, in defending against a union’s request to institute the MMCprocess, maychallenge the union’s status as the employees’ bargaining representative by raising a claim of abandonment .. .” (Gerawan Farming, supra, at p. 1064.) The Fifth District concludedthatif it were to decide the case on this basis, remand to the ALRB to decidethe issue in the “first instance” would be the proper remedy. (d. at p. 1065 & fn. 33.) The Fifth District’s conclusion that the ALRB should have considered the abandonmentissuein this caseis correct, and its analysis supporting that conclusion is well-reasoned. Citing its own “certified until decertified” rule, the ALRB argues that an employer cannot ask—and the ALRB maynot consider—whethera union’s disappearance andfailures to act over decadesare a basis for declining to institute MMC. The ALRB identifies twoerrors in the Fifth District’s decision, neither of which is a basis for reversal. (ALRB Br.at pp. 44-45.) First, the ALRB argues that the MMCisjust part of the bargaining process. (ALRB Br.at p. 43.) The Fifth District correctly observed that 7310176 -31- state-imposed nonconsensualinterest arbitration is fundamentally different from voluntary resolution of a dispute. MMCis not “simply an additional bargaining obligation”to “facilitate conclusion ofelusive first contracts.” (ALRB Br. at p. 16.) MMCis not “bargaining”at all—it is, by design, a coerced contracting process. The ALRB’s MMCorderdid not“facilitate” a consensual agreement. It imposed a contract without the consent of the employeror its workers. The “crux of the MMCprocess”is the compelled imposition of a CBA “whether the employees wantit or not; and it will be imposed with the formerly absent union, whether the employees wantits representation or not.” (Gerawan Farming, supra, at p. 1061.) For the purposes of deciding this issue, this Court must accept the allegations in Gerawan’s answer as true and assumethat the UFW did abandon the workers. With that assumption, the UFW should have noright to imposeitself or its views on workers through the MMCprocess—including a requirementthat the abandoned workerspay that union a fee. Second, the ALRB arguesthat there are “policy reasons” to bar employers from pointing out that the union disappeared. (ALRB Br.at p. 45.) The UFW similarly argues that “there are sound policy reasons to allow certified unions to revive dormant bargaining relationships and request MMC.” (UFW Br.at p. 57). But there are also policy reasons to address (and not ignore) abandonment. The Fifth District was correct when 7310176 - 32- it concluded: “Without disturbing the well-settled rule that an employer’s duty to bargain is a continuing one, we conclude that abandonment may be raised defensively in response to a union’s demandto invokethe substantial legal measures of the MMC process.” (Gerawan Farming, supra,at p. 1054.) A. The decertification process is an illusory alternative to ALRB consideration of abandonment. The ALRB suggests that the timing of a decertification election obviates the Fifth District’s concern that“a decertification option would often be too late to stop the MMCprocess.” (ALRB Br.at p. 42, fn.17; see also UFW Br. at p. 50.) The ALRB improperly placed on workers the burden ofprotecting their associational rights while the government machinery was working to take them away. (See generally Terminiello v. Chicago (1949) 337 U.S. 1.) The burden should be on the UFW to demonstrate that it has the consent of the employees before it may intrude on such rights. (See Chicago Teachers Union, Local No. I v. Hudson (1986) 475 U.S. 292, 306.) When the ALRB placed the burdenofself- protection on the workers, it fueled what the Fifth District correctly called “a crisis of representation.” (Gerawan Farming, supra, at p. 1061.) A majority of Gerawan’s workers asked for an election. The ALRB held that the workers satisfied the statutory requirements to hold an election. At minimum,this should have caused the ALRB to stay the 7310176 - 33 - compulsory contracting proceduresso that the ballots could be counted before the agency-ordered CBA wasfinalized. It refused, and then the ALRB General Counsel and the UFtried, unsuccessfully, to enforce the MMCcontract. The ALRB never acknowledgesthat the “decertification option”is a “Catch-22” risk for workers. Because an MMCcontract may be imposedif the decertification election is set aside due to unlawful employer conduct, (Lab. Code §1164(a)(4)), the workers will learn that, through no fault of their own, their failed effort to oust a union and avoid the MMCcontract would assure that result. Many workers might now conclude that they would have been better off had they not sought an election in thefirst place. B. The Act’s “rebuttable presumption”rule supports an employer’s right to raise abandonmentas a defense to the MMC process. To invoke MMC,a union mustbe “certified as the exclusive bargaining agent of a bargaining unit of agricultural employees.” (Lab. Code §1164(a).) The initial certification lapses 12 months after being granted by the ALRB. (/d.; §1155.2(b).) The certification may be extended for one 12-month period, but only “[i]f the board finds that the employer has not bargained in good faith” with the currently certified labor organization. (Jbid.) It is undisputed that the UFW failed to seek the extension ofits certification in 1993. The ALRB deemedthat lapse to be irrelevant, citing 7310176 - 34- the continuing obligation of an employerto bargain after the end of the initial certification period. But that continuing obligation is not an all- purpose and perpetual license to compel an employer into compulsory bargaining. (Gerawan Farming, supra, at 1058 [citing Kaplan’s Fruit & Produce Co., Inc. (“Kaplan's”) (1977) 3 ALRB No.28 at pp. 2, 4].) The ALRB’sownprecedent (nevercited by Respondents) distinguishes between the employer’s ongoing duty to negotiate andits right to resist compelled concessions. Montebello Rose “held that after the initial certification year expired, there was a rebuttable presumption that a certified union continued to enjoy majority support.” (Gerawan Farming, supra, at p. 1055 [citing Montebello Rose v. ALRB (1981) 119 Cal.App.3d 1, 24].) Adopting the ALRB’s “somewhatstrained” analysis in Kaplan’s, Montebello Rose held that “after the one-year period expired, certification lapsed for the purpose of the election bar, but not for the purposeofthe bargaining duty.” (Gerawan Farming, supra, at pp. 1055-56.) That duty “did not ‘alter[] the statutory protection given to employers’ because‘[t]heir duty to bargain, no matter how longits duration, does not compel them to agree to a proposal or require them to 999make a concession.’” (Gerawan Farming, supra, at pp. 1058-59 [quoting Kaplan’s, supra, at p. 7].) To the contrary, Kaplan’s held that the certification is not “a single, all-purpose concept, but rather serves two 7310176 - 35 - distinct functions”—it creates a duty to bargain, and it creates a one-year election bar, during which “no one mayraise a question as to the union’s representative status.” (Kaplan's, supra, at pp. 2,4.) Accordingly, and of critical importance here,“‘certification’ may lapse for one purpose, but not for another.” (Jd. at p. 3.) No subsequent decision has extendedthis so- called “certified until decertified” rule outside the bargaining context. (Gerawan Farming, supra, at p. 1059.) Respondents suggest an equivalence between an affirmative defense to an MMC demand and a unilateral refusal to bargain. This comparison quickly breaks down once oneconsiders the difference between consensual bargaining and compulsory contracting. A refusal to bargain would,in effect, permit an employerto act “as though the union were in fact decertified.” (F&P Growers Assn. v. ALRB (1985) 168 Cal.App.3d 667, 677.) This would violate the “distinctive provisions” of the Act, which (unlike the NLRA) removed the employer from exercising any influence over the selection or deselection of a union. (Jbid.) In the MMCcontext, the abandonment defense would negate a statutory prerequisite to compel an employerinto the process. (Gerawan Farming, supra, at p. 1054.) The employeris not acting “as though the union werein fact decertified.” It is asking the ALRB to decide whether there are groundsto relieveit of a compulsory contracting process before it begins. 7310176 - 36- Noris it clear why posing that question, any morethan getting the answerfrom the ALRB, amounts to an employer’s “active participation in choosing or decertifying a union.” (P&P, supra, 168 Cal.App.3d at p. 678.) The ALRB,and not the employer, would make that determination. And while the answer maycall into doubt the union’s presumptive majority status, it is, as a matter of fairness to all involved, difficult to accept the proposition that the question should not be askedat all.’® Interest arbitration is not merely “part and parcel of the collective bargaining process.” (ALRB Br.at p. 44). The ALRB recognizes the fundamental difference between collective bargaining and compelled arbitration. (Kaplan’s, supra, at p. 7.) “Any process by which parties are compelled to agree to imposed terms—whichis the crux of the MMC process—doesnotfit into the parameters of bargaining under the ALRA.” (Gerawan Farming, supra, at p. 1059.) This much was concededin the only prior judicial interpretation of the MMCstatute. (Hess, supra, at 1597.) 8 The ALRB acknowledges its obligation to police the failure of a labor organization to represent employees, including under circumstances of abandonment. (Dole Fresh Fruit (1996) 22 ALRB No.4 at pp. 16-17.) Gerawan did what Dole instructed it to do (see supra at p. 7), and what the Fifth District said it should do in lieu of refusing to bargain. (Tri-Fanucchi Farms v. ALRB (2015) 236 Cal.App.4th 1079.) '? The Board’s citation ofpublic sector cases is inapposite. (ALRB Br. at p. 31, fn.14.) In that setting, the public employer may displace the workers’ right to strike with interest arbitration as part of its collective bargaining process. 7310176 -37- The Fifth District did not ignore any “implicit acquiescence” by the Legislatureto this rule.”” The Legislature was awareofprior judicial construction of the rebuttable presumption rule. “In light of the particular judicial decisions that have explained and fleshed out the meaning ofthe union’s certification status under the ALRA,we do not operate on a blank slate and neither did the Legislature when it enacted the MMCstatute in 2002.” (Gerawan Farming, supra, at p. 1055.) As “no contrary intention wasindicated in the MMCstatute,” the Fifth District correctly concluded that the Legislature intended to adopt the same meanings and implications of the certification status(i.e., its nature and duration) as was decided by said prior judicial construction.” (/d. at p. 1058.) This, as the Fifth District held, “opened the door” to the abandonmentdefense, as that concept is “analogous”to a “loss of majority status” and in many wayssharesthe identical objective features. (/d. at p. 1063.) © But if such inferences are to be drawn,then they may be supported by the rejection of legislation as well. (See Governor’s Veto Message (Senate Bill 25) (Sept. 28, 2014) [proposing expansion of MMCstatute] {“Both contract enforcement and election disputes should be dealt with so the process is balanced and fair. This bill only addresses contract enforcement. We should look at the entire process before making further changes.”] [available at https://www.gov.ca.gov/docs/SB 25 Veto Message.pdf].) 7310176 - 38 - C. The abandonmentdefense vindicates the Act’s core purpose of protecting the workers’ right to freely choosetheir bargaining representative. Asthe Fifth District here concluded, the reasons which support the extension of the certification for bargaining purposescut decisively against ‘permitting the “decertified until decertified” rule to bar the abandonment defense in the MMCsetting. The Fifth District framed its analysis based on the core purposeofthe Act, which is to protect worker choice. But given the difficult if notillusory nature of decertification as the only means for workers to stop the MMCprocess,the employer’s ability to raise the abandonmentdefenseis, as the Fifth District correctly held, the only way to protect the workers’ right to choose. Kaplan’s held that the “Legislature could not have intended to ‘make the process of collective bargaining into a kind of sporting event in which the parties played against each other and against the clock at the sametime, with the employees’ right to effective representation as the stakes.’” (Montebello Rose, supra, 119 Cal.App.3d at p. 26 [citing Kaplan’s, supra, at pp. 6—7].) Given the burdensassociated with the election process, there was“‘no need to conducta ritual reaffirmance of a union’s certification 3999where the employeesare satisfied with their representative.’” (Gerawan Farming, supra, at p. 1056 [quoting Montebello Rose, supra, 119 Cal.App.3d at pp. 25—26].) “So long as the employees can petition for a new election if they wish to remove the union, the employerhasnoreal 7310176 - 39- concern about whetherit is bargaining with the true representative ofits employees.” (Montebello Rose, supra, at p. 28.) Here there is no reason to presume that Gerawan’s employeesare “satisfied” with the UFW,and real reason for concern that the decertification option is “too late” to stop the MMCprocess. (Gerawan Farming, Inc., supra, at p. 1062.) The efforts leading to the decertification drive and the election did not take place in a vacuum. They wereset in motion by the UFW (whenit reappeared and invoked MMC), the ALRB (when it ordered MMC), and the Regional Director (who repeatedly dismissed or blocked worker efforts to obtain the right to vote). The ALRB says nothing about its unprecedentedintervention in the election process. It asked the Superior Court to issue orders protective of the workers’ right to vote, which the court did. It asked Gerawanto give it unfettered access to “notice” and “educate” its employeesas to their right to vote, which Gerawan did. When the ALRB vacated the Regional Director’s decision to block the election, it pointedly observed that the Regional Director made no mention ofthe ALRB’sefforts to remediate any “taint” or comment on the degree to which these efforts worked. The same staff which sought to block the election led the prosecution in the post-election hearing of chargesto obtain that result. A decertification election “is not a game of chance but a matter of the highest importance to employees and employers alike. ... Only in 7310176 - 40 - exceptional circumstances, whereit is obvious that the extensive machinery and power of the NLRB is inadequate to ensure free election, should employees be deniedtheir right to cast a secret ballot for or against an exclusive bargaining agent.” (NLRB v. K&K Gourmet Meats, Inc. (3d Cir. 1981) 640 F.2d 460, 469.) As this case demonstrates, it can be delayed for years by the incumbent(anti-election) union, working in tandem with the ALRB staff,” to such an extent that farmworker voting rights risk becominga theoretical possibility rather than reality. Iii. The MMCStatute Violates Equal Protection By Empowering A Self-Interested Union To Compel Arbitrary, Individualized Legislative Decisions. Respondents contendthat the legislative choice to impose individuated compulsory arbitration is rationally related to the statute’s purposeoffostering collective bargaining and consummatingfirst contracts. First, it is not clear that such a legislative decision is rational, given the dangerposedto constitutionally protected rights. Second, it does not answerthe question at issue in this case: Whether a unique CBA, targeted by one union and imposed by quasi-legislative decree, has any discernible rationality between the statutory goal and the special legislation imposed. 7! RIN,Ex. F, at pp. 163-164, fn.40 [“The record should makeclear, should the General Counsel and UFW attempt to characterize their litigation strategy [at the post-election hearing] as completely independent, that portrayal would be inaccurate.”]. 7310176 - 4) - The core of equal protection is equal treatment—thosethat are similarly situated shall be treated similarly. The corollary is that the state cannot“pick and choose” only a few to whom it will apply legislation. Both principles are violated by the MMCstatute: first, by empowering a self-interested union to compelthe regulation of individual employersofits choosing, and, second, by requiring a private mediator to draw individualized classifications that have no rational relationship to the statute’s purpose. Respondents compare the MMCstatute to discretionary actions of criminal] sentencing and prosecutorial discretion. A private MMC mediator is not a judge, but acts as a quasi-legislator, subject only to a highly deferential standard of administrative and judicial review. A private union is not a prosecutor. But, just as a prosecutor can choosehis defendants, here a union can decide, whether for reasons of expediency,profit, or punitive intent, to invoke a “dormant”certification and target a weak employer (with fewer employees) or a successful employer (with many employees). The union has unilateral power to decide which employerwill be targeted (some perhapsnever), or when (a decadeafter the law is passed). A legislative body may adopt lawsof a “less than comprehensive fashion by merely ‘striking the evil where it is felt most,’ [but] its decision as to where to ‘strike’ must havea rationalbasis in light of legislative 7310176 - 42 - objectives.” (Hays v. Wood (1979) 25 Cal. 3d 772, 791.) Respondents argue that the law was intended to address “egregious” instances of bad faith bargaining, but the law makesno allowancefor the possibility that the lack of an initial agreement was dueto gross dereliction by the union now seeking to invoke this remedy. In essence, Respondents assert that the statutory purposeis to allow a mediator to make individualized, discretionary decisions, and, on that basis, any decisionis rationally related to that purpose. But reducing rational basis scrutiny to such a tautology violates equal protection by necessitating that individuals, all similarly situated with respectto the statute’s aim, be treated distinctly. What results from this processis “special legislation” without any rationalbasis to distinguish whythis employer was singled out, why the differences or similarities as to its businessjustify treating it differently from other employers, or how such “cedistinctions were made. Thisis, as the Fifth District said, “‘the very 999antithesis of equal protection.’” (Gerawan Farming, supra, at p. 1071.) A. Theclassifications drawn by a statute must be rationally related to the statutory purpose. Legislatures maynot “discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation.” (Hays, supra, 25 Cal.3d at p. 787.) This Court must engage in “a serious and genuine judicial inquiry into the correspondence between the 7310176 - 43 - classification [at issue] and the legislative goals.” (/bid.) The California and Federal Constitutions are in accord asto this standard (Kaslerv. Lockyer (2000) 23 Cal.4th 472, 481-—82.), which applies with equal force to administrative orders of a quasi-legislative character. (Knudsen Creamery Co. v. Brock (1951) 37 Cal.2d 485, 494; see also Hess, supra, at 1597-58.) A statute violates equal protection ifit “intentionally treated [one individual] differently from others similarly situated and[] there is no rationalbasis for the difference in treatment.” (Vill. of Willowbrookv. Olech (2000) 528 U.S. 562, 564.) Such an equal protection claim can give rise to a facial constitutional violation where the disparate treatmentis “occasioned by express termsofa statute.” (Ibid.; see also Gerhart v. Lake Cnty., Mont. (9th Cir. 2011) 637 F.3d 1013, 1022.) While evidence of unequalorarbitrary application (present here) certainly supports a finding that a statute facially violates equal protection,if a statute “lays down no rules by whichits impartial execution can be securedorpartiality and oppression prevented,” and thereby allows arbitrary distinctions to be drawn,it necessarily violates equal protection. (Yick Wo v. Hopkins (1886) 118 U.S. 356, 372-23.) Schaezlein v. Cabaniss (1902) 135 Cal. 466, a case cited by Hess for the proposition that “the Legislature has the authority to regulate employment” (Hess, supra, at 1597), points out why the exercise of that authority in this case violates equal protection. By delegating powerto a 7310176 - 44 - union to compel contracting and unrestrained authority to a mediator to fix the contract’s terms, the Legislature left “the question as to whether and how these things shall be done or not done to thearbitrary disposition of [an] individual.” (Schaezlein, supra, 135 Cal. at p. 470.) Equal protection requires that such singularized treatment be rationally related to the statute’s purpose. Respondents can offer none. It is these specific distinctions as to how similarly-situated persons are treated, and notthe legislative device of compulsory arbitration in the abstract, that must berationally related to the legislative goals. (Gerhart, supra, 637 F.3d at p. 1022.) In Gerhart, the Ninth Circuit explainedthat the district court had madea “crucialerror in its analysis of the rational basis requirement” by misconstruingfor what there mustbea rationalbasis. The court explained that it was notthe legislative act—in that case, denying Gerhart’s construction permit application—that must bejustified as rational, but rather the decision to “treat[] Gerhart differently” than similarly situated individuals underthe statute. (/d. at p. 1023; see also Hodelv. Indiana (1981) 452 U.S. 314, 332.) Equal protection “compels recognition of the proposition that personssimilarly situated with respect to the legitimate purposeofthe law receivelike treatment.” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) The classifications mustbe rationally related to the specific, expressed purposeofthe legislation. (Jbid.) The MMCstatute allows for 7310176 ~45 - no rational relationship between a particular CBA andthestatute’s general aim of “promoting peaceandstability in agricultural laborrelations.” (ALRB Br.at p. 3.) B. Thereis no rational relationship between the terms of any individual CBA and promotingcollective bargaining. Where,as here, constitutionally protected rights are threatened by a statute, “the ordinary deference a court owesto any legislative action vanishes.” (Spiritual Psychic Sci. Church v. City ofAzusa (1985) 39 Cal.3d 501, 514; see also Am. Acad. ofPediatrics v. Lungren (1997) 16 Cal.4th 307, 348.) But “[e]ven under deferential rational basis review, justifications for legal discrimination ‘must find somefooting in the realities of the subject addressed by the legislation.’”” (Johnson v. Dep’t of Justice (2015) 60 Cal.4th 871, 903 [Werdegar,J. dissenting] [quoting Heller v. Doe (1993) 509 U.S. 312, 321].) This “footing” is missing here. The only stated purpose of the MMCstatute is to promotestability in bargaining relationships and foster collective bargaining. But the objective of imposing some CBA on some employers is accomplished no matter which employer a union chooses to compel into MMC,and no matter what terms the mediator ultimately supplies. The imposition of any individual term of a CBA on particular employer, then, is not rationally related to the statute’s purpose—all terms, whatever their content, would be equally related to the statutory goal of imposing some CBA. 7310176 - 46 - Basedonthis statutory objective, the statute might plausibly differentiate between those employers with an existing CBA and those without—treating those classes of employers distinctly may beara rational relationship to the statutory purpose of promoting collective bargaining. But even within that class, the statute does not discriminate rationally. The only difference between Gerawan and those employers not forced into MMCisthat the union chose Gerawan, for reasons that the statute does not does not consider, and the ALRB will not consider. “[B]because the mediator has no powerto extend the enactment[of a CBA]to other agricultural employers,” each regulated employer forms a “class of one,” without any meansto insure the differences or similarities between contracts bear a rational relationship to the statutory purpose. (Gerawan Farming, supra, at pp. 1069, 1071.) It is not the potential for an individuated outcome,but the certainty that each employer will be subjected to an “individual legislative act,” which makestheclassification intentional. (/d. at p. 1069.) It is the lack of any nexus between the statutory purpose and the distinctions drawn by any individual mediator which makesthe classification arbitrary. (Barsky v. Bd. ofRegents of Univ. (1954) 347 U.S. 442, 470 [finding constitutional violation where “a State licensing agencylaysbare its arbitrary action, or if the State law explicitly allowsit to act arbitrarily’’].) 7310176 - 47 - Respondents contend that the mediator is guided by variousstatutory factors that ensure that similarly situated individuals will be treated alike. (See Lab. Code §1164(e)[listing “factors commonly considered in similar proceedings”].) These are not standardsatall. It is impossible to replicate bargaining (because the mediator cannot understand, based on his review of “comparable” CBAs,the trade-offs that were madeas part of a consensual negotiation); he cannot find any equivalencefor a fair adjustment of dozens of competing terms in any agreement. Becausethe statute does not pass any judgmentsasto the sort of terms that would foster collective bargaining andstability, a mediator could consider one employer’s wages with relation to “comparable firms” and choose to impose a wageincrease, a wage decrease, or no changeatall, with equaljustification. (See Gerawan Farming, supra, at p. 1071, fn.37; Schaezlein, supra, 135 Cal. at p. 470.) The mediator imposed a wage increase on Gerawan,despite the undisputed record that Gerawan paysits employees the highest average wages among anyofits competitors. The mediator may nominally have considered comparable wages in making that determination, but there is noclarity in the statute as to why one standard of wages would be any more conduciveto “creating stability” than another. Respondents claim that because the statute requires that the mediator make “subjective, individualized determinations,” disparate treatment is to be expected and, therefore, there is no equal protection violation. 7310176 - 48 - Respondents cite public employmentcases involving highly discretionary governmentactions basedonlegislative choices as to how its employees would be differentiated, based on standards to guide the implementation of those distinctions. (Engquist v. Or. Dep’t ofAgric. (2008) 553 U.S. 591, 598.) These cases are not applicable to private employers, particularly where the Legislature ceded responsibility for making these choices through quasi-legislative regulation applicable to only one regulated individual. The difference between the present case and a case like RUI One Corp. v. City ofBerkeley (9th Cir. 2004) 371 F.3d 1137 is stark. RUI upheld the city’s imposition of a Living Wage Ordinance ona select few businesses operating on public land specifically because the city council chose the means of determining whethera particular business should be subject to regulation or not-—basingthe classification on a company’s geographical location andsize of its business. (Jd. at pp. 1155-56.) Here, by contrast, the Legislature has not made any such decision and hasnotlaid out any such classification. Thestatute’s lack of an independent purpose cannot be rescued by analogyto the exercise of prosecutorial discretion. A prosecutor exercises discretion against a background of “permissible factors such as the circumstances of the crime, the background of the minor, or a desire to show leniency”that are expressed in a criminal statute’s purpose, as well 7310176 - 49 - as. (People v. Wilkinson (2004) 33 Cal.4th 821, 838-39; see also Squiresv. City ofEureka (2014) 231 Cal.App.4th 577, 596-98; People v. Romo (1975) 14 Cal.3d 189, 196-97.) Similarly, in cases involving the discretionary power of permitting and regulation of land use, the state acts as a trustee of public land and operates against a backdrop ofclear standards and objectives to guideits discretion. (See Las Lomas Land Co., LLC v. City ofL.A. (2009) 177 Cal.App.4th 837, 860.) The exercise of discretion in zoning decisionsis checkedby safeguards against the risk of confiscation, and constrained by specific and general plans “which must conform to requirements established by state statute” and “reasonably relate to the welfare of the region affected.” (Arnel Dev. Co. v. City ofCosta Mesa (1980) 28 Cal.3d 511, 524.) The basic constitutional defect of the MMCstatute is thatit provides only “arbitrary classification[s].” (Davis v. Mun. Ct. (1988) 46 Cal.3d 64, 88.) Respondents’ contention that the MMCprocessis, by design, so discretionary as to be impervious to equal protection review proves the point. The ALRB cannotsimultaneously argue that the MMCstatute affords adequate guiding standards to the mediator andthatit is intended to enable subjective determinations that are insulated from rational basis review. 7310176 - 50 - IV. The MMCStatute Is An Unconstitutional Delegation Of Legislative Authority A. The MMCstatute lacks standards to guide the exercise of discretion. A legislative body may not delegate its authority in a mannerthat “(1) leaves the resolution of fundamental policy issues to others or (2) fails to provide adequate direction for the implementation ofthat policy.” (Carson Mobilehome Park Owners’ Assn. v. City ofCarson (1983) 35 Cal.3d 184, 190; People v. Wright (1982) 30 Cal.3d 705, 712-13.) In order to makethese “fundamental policy determinations,” a legislature must both declare “the legislative goals” and establish “a yardstick guiding the administrator” in effectuating those goals. (Wright, supra, 30 Cal.3d at p. 713; Clean Air Constituency v. State Air Resources Bd. (1974) 11 Cal.3d 801, 816-17.) Respondents claim that imposition of a CBA on a private employer is “not a ‘fundamental’ issue of public policy.” (UFW Br.at pp. 43-44; ALRB Br.at p. 27.) But, the fact is that for Gerawan and its employees, the mediator’s decisions fix “fundamental” policies as to their economic relations and asto their constitutional rights, even thoughthatis not the law. When the Legislature empowered the mediator to dictate a generalized code governing the one employer’s relationship with its workers, it made a “fundamental policy decision” not to make any policy 7310176 -51 - decisions as to how CBAswereto be imposedasto a discrete set of growers.” The Legislature could have set down rules governing ail agricultural businesses, or only those where a union had once wonanelection, but where no CBA wasin place. It could have dictated “security agreements” in every CBA;it could have enjoinedstrikes asto all agricultural growers in exchange for mandatory interest arbitration. By not making these controversial (and likely unconstitutional) decisions, it made a different policy choice—to invest that power in a mediator, without risking the political consequences of making decisions of general application. (Hays, supra, 25 Cal. 3d at p. 787 [quoting Railway Express v. New York (1949) 336 U.S. 106, 112-13 (conc. op. of Jackson,J.)}.) In County ofSonoma v. Superior Court, the court echoed Justice Grodin’s concern that public sector interest arbitration may “push the arbitrator into the realm of social planning andfiscal policy,”areas of involvement“that extend beyond” bargaining subjects in private sector disputes. ((2009) 173 Cal.App.4th 322, 342 [citing Grodin, Political Aspects ofPublic Sector Interest Arbitration (1976) 64 Cal.L.Rev. 678].) In the public arena, the concern is the risk to majoritarian principles of self- 22 A state, when acting as a public employer, does not make fundamental policy decisions by setting the wages and working conditions of its own employees. (Pac. Legal Found. v. Brown (1981) 29 Cal.3d 168, 201.) That holding has no bearing when a state makes these choices as a regulator of private sector employees. 7310176 - 52- governance and the non-delegable nature of certain decisions that must be madebyelected (and accountable) officials. But this danger is different and more apparent when bindinginterest arbitration is imposed on private businesses, where there are no majoritarian checks on the potential for arbitrary decision-making. Although “it seems clear that the parties should. not be forced to arbitrate non-mandatory bargaining issues,” even in public sectorinterest arbitration (Grodin, supra, 64 Cal.L.Rev.at p. 697), Mr. Goldberg wasrequired to resolve all “disputed issues” based on an agendaset by the UFW,not the Legislature. Because he had no discernible guideposts, he resolved these issues by making policy choices as to non- mandatory subjects of collective bargaining, deciding internal matters between workers and a union, including whether the workers should be put to the choice of paying dues and fees or losingtheir jobs. Because the MMCstatute contains only the vague standard— stability—without operationalizing how to apply it, such standards are meaningless “unless one knows whatbasic public policy the mediator must vindicate.” (Gerawan Farming, supra, at p. 1073; see also People’s Fed. Sav. & Loan Ass’n v. State Franchise Tax. Bd. (1952) 110 Cal.App.2d 696, 700 [striking down delegation of “uncontrolled and unguided power”to determine averagerate entirely of administrator’s own selection].) By comparison, a statute providing “that the [sentencing] criteria be based on the absenceor presence of aggravating or mitigating circumstances” would 7310176 - 53 - be constitutional. (Wright, supra, 30 Cal. 3d at p. 713.) Without that guidance,the statute’s purpose ofpromoting “uniformity” in sentencing “may notprovide a sufficient standard.””° Respondents rely on Birkenfeld v. City ofBerkeley (1976) 17 Cal.3d 129, which, by contrast to the MMCstatute, contained a discernible statutory objective that the individual exercise of delegated authority was designedto effectuate. Birkenfeld held that the rent control schemeat issue gave adequate guidance inits delegation to the rent control board because, in addition to providinga list of factors to be considered, the stated purpose of the charter amendmentfurnished an implied standard by which the board could apply those factors. (/d. at p. 168.) Respondentscite similar rent control cases, but, in each, the court found a discernible policy choice that the administrator was tasked with fulfilling, and regulations setting forth specific, attainable standardsas to their application in individual cases. (Gerawan Farming, supra, at p. 1072 3 ‘The delegation issues present here are not as problematic where the employer is a public entity. The state is afforded greater constitutional leeway as an employer managing its ownaffairs (Engquist, supra, 553 U.S. at p. 598), and courts are able to evaluate the delegation against known policy goals—namely,“the public safety, and . . . the public’s interest in an uninterrupted operation of the public safety services.” (City of Warwick v. Warwick Regular Firemen’s Ass’n (RI. 1969) 256 A.2d 206, 212.) “[A]rbitration of public employment disputes has been held constitutional. . . [t]o the extent that the arbitrators do not proceed beyond the provisions of the [city] charter there is no unlawful delegation oflegislative power.” (Fire Fighters Union v. City of Vallejo, 12 Cal.3d at p. 622.) The private sector lacks the built-in regulations and norms (and political checks) that guide andrestrain the delegation of public employmentdecisions. 7310176 - 54- [distinguishing Fisher v. City ofBerkeley (1984) 37 Cal.3d 644 and Kavanau vy. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 768— 69].) In each case, the /egis/ature determined what standard to apply, and the specific formula or objective pursuant to which the delegee would operate.“ Both are lacking in the MMC statute. Because the mediator has no guiding standards,“the risk is simply too great that results will be based largely on the subjective leanings of each mediator.” (Gerawan Farming, supra, at p. 1071.) These risks are magnifiedby the ability of a union to pick and choose which growerwill be subjected to this process. (Cf. Dep’t ofTransp. v. Ass’n ofAm. Railroads (2015) 135 S.Ct. 1225, 1238 (conc.op. of Alito, J.) [citing Carter v. Carter Coal Co. (1936) 298 U.S. 238, 311 [“one person maynot be [e]ntrusted with the powerto regulate the business of another, and especially of a competitor”]]; Allen v. Cal. Bd. ofBarber Exam’rs (1972) 25 Cal.App.3d 1014, 1020.) Once the employer is compelled into this process, the union haslittle incentive to “trade off” terms that would neverbe acceptable to an employerandlittle reason to offer concessions. As Mr. Goldberg’s * Accord 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 273, 283 [noting distinction between adoption of rate regulations and individualized rate-making decisions, the latter requiring “independent judgment-on-the-evidence standard of review”]; Maislin Indus., U.S., Inc. v. Primary Steel, Inc. (1990) 497 U.S. 116, 120; Fed. Power Comm’n v. Hope Nat. Gas Co. (1944) 320 U.S. 591, 605. 7310176 -55 - decision shows,the likelihoodis that the union will get nearly all of whatit demands(andit did in this case), based on the mediator’s conclusion that the terms demanded werenot“atypical” from those found in other UFW CBAs, without regard as to tradeoffs the union and the employer made to through consensual bargaining. B. The MMCstatute lacks adequate procedural safeguards to ensure that policy determinations are madebypolitical representatives, and not private actors. A legislative delegation must have adequate procedural safeguards to protect against the arbitrary exercise of discretionary authority. (Kugler v. Yocum (1968) 69 Cal.2d 371, 376.) In the context of compulsory arbitration, the availability of adequate judicial review is one suchcritical safeguard. (See Bayscene, supra, 15 Cal.App.4th at pp. 133-34; Healy, supra, 192 Cal.App.3dat p. 616.) Where a statute delegates aspects of regulatory authority to a self-interested actor, courts “insist upon stringent standards to contain and guidethe exercise of the delegated power.” (Allen, supra, 25 Cal.App.3d at p. 1018.) The statute provides no checks on the union’s decision as to which employerto regulate; ALRB review amounts to “rubber-stamp approval”as long as there is “at least a small kernel of plausible support” in the record. (Gerawan Farming, supra, at p. 1073.) Public sector interest arbitration requires “[s]ome form of meaningful review . . . to ensure these [legislative] bounds are not 7310176 - 56 - overstepped.” (Grodin, supra, 64 Cal.L.Rev.at p. 698.) The need for review “becomes even more substantial” where parties are compelled into interest arbitration. (/bid.) Given the risk of confiscatory rule-making and forfeiture of both the employer’s and employees’ constitutionalrights, a most exacting level ofjudicial review would be a bare minimum under due process. But here, the boundaries were not defined. The level ofjudicial review wasdeferential in name,butillusory in fact, because neither the mediator, nor the ALRB,nor the reviewing court was given a policy destination or legislative map. The only judicial review of the mediator’s determination afforded by the MMCstatute is the highly deferential “arbitrary and capricious” standard. (Lab. Code §1164.3(a).) While the statute also allows the ALRB to disapprove the Report if any provision is “unrelated to wages, hours or other conditions of employment”oris “based on clearly erroneousfindings of fact,” these protections are illusory. (/bid.) Becausethestatute lacks clear legislative standards, intelligible judicial review is impossible and, as Justice Nicholson noted, “virtually meaningless.” (Hess, supra, at p. 1612 [dis. op. of Nicholson,J.].) Without such guidance, the mediator would be free to considera fact and then derive any conclusion from that fact, so long as the conclusion pertained to “working conditions.” As the Fifth District found, delegations of legislative power require adequate procedural safeguards “to assure a fair 7310176 -57- and evenhanded implementation ofthe legislative mandate.” (Gerawan Farming, supra, at p. 1075.) Whether an action is quasi-adjudicative or quasi-legislative, individual agency determinations require basic due process protections. Wherethe statute provides for only limited—if any— judicial review of the mediator’s decision upona partial record, those protections are absent. The ALRB regulations prohibit the admissibility of “off-the-record” communications in challenging the mediator’s report. (Cal. Code. Regs. tit. 8, §20407(a)(2).) These communicationsare not, by definition, a part of the record, and becausetheyare absolutely barred from discovery, they cannot and maynot be reviewed in evaluating a mediator’s decisions. (bid.; see also Hess Collection Winery (2003) 29 ALRB No.6 at p. 7.) But a complete record is necessary under the ALRA for adequate judicial review. (See Tex-Cal Land Mgmt., Inc. v. ALRB (1979) 24 Cal.3d 335, 345.) Judicial review presumesthe ability of the parties to present, and the court to consider, the substantive communicationsin the underlying proceeding. This review is impossible wherethe record does not disclose the evidence and communications that may haveinfluencedthe decision- maker. (See Dep’t ofAlcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, 16.) These infirmities give the court no meansto assess whether exparte or “off-the-record” communications “decisively influenced” the mediator’s decisions. 7310176 - 58 - (Gerawan Farming, supra, at p. 1075.) Whether they may have doneso is secondary to the fact that no reviewing tribunal may obtain an answerto that question, thus magnifying the potential for “unfairness or favoritism.” (Ibid.) CONCLUSION Gerawan respectfully requests that the Fifth District’s decision be affirmed inall respects. Dated: February 15, 2016 7310176 - 59 - Respectfully submitted, IRELL & MANELLA LLP David A. Schwarz BARSAMIAN & MOODYP.C. Ronald H. Barsamian GEORGESON AND BELARDINELLI C. Russell Georgeson Michael P. Mallery GERAWANFARMING,INC. By:C NidCervera David A‘ Sttwarz Attorneysfor Petitioner Gerawan Farming, Ine. CERTIFICATE OF COMPLIANCE I hereby certify pursuant to Rule 8.520(c)(1) of the California Rules of Court that the foregoing brief contains 13,990 words, including footnotes, and excluding the cover, tables, signature block, andthis certificate. Counsel relies on the word count function of the word processing program usedto preparethis brief. Dated: February 15, 2016 Respectfully submitted, IRELL & MANELLA LLP David A. Schwarz David ASchwarz Attorneysfor Petitioner Gerawan Farming, Inc. 7310176 - 60 -