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

Real Party in Interest, United Farm Workers of America, Opening Brief on the Merits

Cal.November 17, 2015

SUPREME COURT No. 8227243 FE | | E rT) IN THE SUPREME COURT Nov 17 2015 OF THE STATE OF CALIFORNIA - prank McGuire Clerk GERAWAN FARMING,INC. Deputy Petitioner, Vv. AGRICULTURAL LABOR RELATIONS BOARD, Defendant and Respondent, UNITED FARM WORKERS OF AMERICA, Real Party in Interest. GERAWAN FARMING,INC., Plaintiff and Appellant, Vv AGRICULTURAL LABOR RELATIONS BOARD,: Defendant and Respondent, UNITED FARM WORKERS OF AMERICA, Real Party in Interest and Respondent. Fifth Appellate District, Case No. F068526 ALRB Case No. 2013-MMC-003 [39 ALRB No. 17] bifth Appellate District, Case No. F068676 Fresno County Superior Court, Case No. 13CECG01408 Hon. Donald S. Black, Judge REAL PARTYIN INTEREST UNITED FARM WORKERSOF AMERICA’S OPENING BRIEF ON THE MERITS SCOTT A. KRONLAND (SBN 171693) *MARIO MARTINEZ (SBN 200721) DANIELLE LEONARD (SBN 218201) THOMAS P. LYNCH(SBN159277 ) ALTSHULER BERZON LLP MARTINEZ AGUILASOCHO & 177 Post Street, Suite 300 LYNCIL APLC San Francisco, CA 94108 P.O. Box 11208 Tel: 415/421-7151 Bakersfield, CA 93389 Fax: 415/362-8064 Tel: 661/859-1174 skronland@altshulerberzon.com Fax: 661/840-6154 mmartinez@farmworkerlaw.com Counselfor Real Party in Interest United Farm WorkersofAmerica No. 8227243 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA GERAWAN FARMING,INC. Petitioner, Vv AGRICULTURAL LABOR RELATIONS BOARD, Defendant and Respondent, UNITED FARM WORKERSOF AMERICA, Real Party in Interest. GERAWANFARMING,INC.. Plaintiff and Appellant, Vv AGRICULTURAL LABOR RELATIONS BOARD, Defendant and Respondent, UNITED FARM WORKERSOF AMERICA, Real Party in Interest and Respondent. 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 Hon. Donald S. Black, Judge REAL PARTY IN INTEREST UNITED FARM WORKERSOF AMERICA’S OPENING BRIEF ON THE MERITS SCOTT A. KRONLAND(SBN 171693) *MARIO MARTINEZ (SBN 200721) DANIELLE LEONARD (SBN 218201) THOMASP. LYNCH (SBN159277) _ ALTSHULER BERZON LLP MARTINEZ AGUILASOCHO & 177 Post Street, Suite 300 LYNCH, APLC San Francisco, CA 94108 P.O. Box 11208 Tel: 415/421-7151 Bakersfield, CA 93389 Fax: 415/362-8064 Tel: 661/859-1174 skronland@altshulerberzon.com Fax: 661/840-6154 mmartinez@farmworkerlaw.com Counselfor Real Party in Interest United Farm Workers ofAmerica TABLE OF CONTENTS TABLE OF CONTENTS ooo. cceccccccsceececeeseeeeseeseeeeesaeseaeeeeeaeestsessesseeesseerens 2 TABLE OF AUTHORITIES...eee ecccceceeceeseeseseeeeeeenseeeessesssssseessesesaeeaes 3 ISSUES PRESENTED 0.00. ceececeeeeceeeeseeseeseaeeceseensaeeeesseesaecatensescsseens 13 INTRODUCTION000. cccceeceneeerecseeeeseeeseceeseeaeceaeesseseseeeseaeenseessseeseseseeeses 13 STATEMENT OF THE CASE.............00.teeeeeeeneeceeeesaeeeteeseteateseeteesaeeenes 17 1. The ALRA and MMC Amendment..........cccecccceesseessesseseeenseeees 17 2. Gerawan Farming, Inc. and the ALRB Proceeding................0.... 24 3. Status of the ALRB’s Final Ordet................ deeeaeeaeeeeeeseseseeeeensseees 27 4. The Fifth District’s Decision ........cccceeccecsceeseeceeesseeesensenseeeseeenes 28 ARGUMENTooceecceseeeeeseeseceeeneecseeeeseeeeeeeeesaeeseasessaeeeeseaseessesessseeseeenss 30 I. Interest Arbitration Has Long Been Used to Resolve Labor Disputes in the Public and Private Sectors...........cccccceseseeseesseeees 30 Yl. The MMCStatute Does Not Violate Equal Protection onits FACE oo.eee eeceeeceeeeeseecescesesaeeeesesecseenseeeseseecensueeeeeeesaseessessesessaeesns 37 WI. The California Legislature Did Not Unconstitutionally Delegate Legislative Authority By Creating the MMC PLOCESS 00... cece ccecececneeeseneeeeeneeceseseeeneeseseccaeeeeseeeeeeeeessesesesseeesseesents 4] IV. The ALRA DoesNot Permit an Employer to Avoid the MMC Process By Challenging a Certified Union’s Representative Status Through An “Abandonment”Objection .............ccceeeee 48 CONCLUSION ooo. ccccceceeeseeseeeeeseeeeessessenseseseeeseseenssenseessaeesscseaseesenereas 57 CERTIFICATE OF WORD COUNT.......cccccceccesseeseessceesseessecsesenseeseeees 59 PROOF OF SERVICE.o...cceecceeccceceesseeeesececeeseeseeessessseeeeseaneccsssessseesseseaees 60 TABLE OF AUTHORITIES Page(s) Federal Cases Allen v. Grand Cent. Aircraft Co., (1954) 347 US. S35 oicccccccccccsscccseeeessscesseseseccnssseccesseeecessecnrersseeeens 31, 32 Amalgamated Ass’n ofSt. Elec. Ry. & Motor Coach Employees ofAm., Div. 998 v. Wisconsin Empl. Relations Bad., (1951) 340 US. 383oeccceeeeeeeneeeseeseeecseseseeeseecesecesscsssesseseseesseeante 35 Brotherhood ofLocomotive Engineers v. Chicago, Rock Island and Pacific Railroad Co., (1966) 382 U.S. 423eeeccecceeceeceseeeeeeeesesseecseeesaeessecsecasasessesseseaes 32 Brotherhood ofLocomotive Firemen and Enginemen v. Certain Carriers Represented by Eastern Conference Committees, (D.C. Cir. 1964) 331 F.2d 1020 occecccceccccessecceseeeeeseessesseeseesseseeaes 32 Engquist v. Oregon Dep’t ofAgr., | (2008) 553 U.S. 59Deeveceaeeeseeaesasessstaetaseseeeceaeecereeaettsateaeeerensteas 4] Federal Power Comm’n v. Hope Natural Gas Co., (1944) 320 U.S. S91]ceeceeeeeeeeceseeeeneeeeceseeseeeseseessseseeeseseeseesessenees 38 Ft. Smith Light & Traction Co. v. Bd. ofImp. ofPaving Dist. No. 16, (1927) 274 U.S. 387 iccccceccceeesessecsaeenscseeeseeseseseessaseseecseesscsecsesseeesseenes 39 Hodel yv. Indiana, (1981) 452 U.S. 314occccccssccecessscccsseccessnsseeeseseessnsscessecessteeeensas 36 Maislin Industries, U.S., Ine. v. Primary Steel, Inc., (1990) 497 U.S. 116.cece ccecccccccsssesessececesssssesesesesrseeveneseesteeeeeeans 39 McCleskey v. Kemp, (1987) 481 US. 279eecececeneceeenecneeeeaeesessecseeeseeeeecaeeaeeseseeseesecneesees 40 Mistretta v. United States, (1989) 488 ULS. 36]occccesescecsssccecsscesesssessececensssseessscrsseseeeenaaes 42 Prentis v. Atlantic Coast Line Co., (1908) 211 U.S. 210.cccccccscccessesccenssssesecceessseeseaseesstesesensaes 38 Snowden v. Hughes, (1944) 321 US. Doceceeceeecceseeeecesseeseeesecsseeeseeecsseecsseesseeseeeseeeseaeenes 40 3 Village of Willowbrook v. Olech, | (2000) 528 U.S. 562eee ccccsccsscescsesesesscestcstcsseessecsscasssesevsseeveeateaes 39 WolffPacking Co. v. Court ofIndustrial Relations, (1923) 262 U.S. 522ie eccesesseeecseessestesesecsecsscsecessssesscssessstisseevessenerets 33 WolffPacking Co. v. Court ofIndustrial Relations, (1925) 267 U.S. 552 ec eecccccceeessseessesseeneecsecsscecessccsscsssscsussssstseescarenss 33 Yick Wo v. Hopkins, (1886) 118 U.S. 356.ecececccccesssceesssseeeeeseesttsesectseserseueceens 40, 41 Youngstown Sheet & Tube Co. v. Sawyer, (1952) 343 U.S. 579ieecceeseteeesseseesesessssseesessscsecacesesesscsesecatensessecens 31. California Cases 20th Century Ins. Co. v. Garamendi, (1994) 8 Cal. 4th 216 occccccsccssesscenecsesecescessecsecssseesstesensensevereeeess 38 ~ ALRB vy. Superior Court, (1976) 16 Cal. 3d 392 ooececeeeeeeeetesesesetetseeeeseeessecssseneesesesneststseeees 5] ALRBy. Superior Court (Gallo Vineyards), (1996) 48 Cal. App. 4th 1489 ooo ccccsccscessesecsessccscsesstssrectseseseees 57 Arnel Dev. Co. v. City ofCosta Mesa, (1980) 28 Cal. 3d SUD ee eecceccccccsseessescseseseensccssessecssecssessesssssseessveceresss 38 Birkenfeld v. City ofBerkeley, (1976) 17 Cal. 3d 129cccecceceecseeseeseeteceensleeneeteeenaes 42, 44, 45, 46 ~ Cardinal Distrib. Co. v. ALRB, (1984) 159 Cal. App. 3d 758 oo. ceccccccccsecccssscscesssecssecssvsevseeneeeateasenss 43 ~ Carson Mobilehome Park Owners’ Assn. v. City ofCarson, (1983) 35 Cal. 3d 184 oeccccecseessescsesesscsscsscsseeessensecsecsessssssatenes 42, 45 Davis v. Mun. Court, : (1988) 46 Cal. 3d 64 occciccscsccsscesesescestsessecsresecesecsssessesessesesees 38 F & P Growers v. ALRB, (1985) 168 Cal. App. 3d 667 ....... ccc cccccccesccssccssssceseeesesesesaeeenspassim Fire Fighters Union, Local 1186 v. City of Vallejo, (1974) 12 Cal. 3d 608 oo. eececesseescsesesesscseeassscsescseesesscscsssssesesstsvaceas 45 4 George Arakelian Farms, Inc. v. ALRB, (1985) 40 Cal. 3d 654 woeicececcsssnecececscessenseccevesecsssvevesstsueeesenens 19 George Arakelian Farms, Inc. v. ALRB, (1989) 49 Cal. 3d 1279 ice ecccceeseeeeseeseeeseeesecsseesesseecseeessseesseesesness 19 Gerawan Farming v. ALRB, (2015) 236 Cal. App. 4th 1024 occeceeceeceeseeseeseeeeseeneeseeseeaeeespassim Harry Carian Sales v. ALRB, (1985) 39 Cal. 3d 209 oieeeccccceeeesseeseeeenecneseseesesseeseesessececsecstenees 17, 19 Hess Collection Winery v. ALRB, (2006) 140 Cal. App. 4th 1584oecccececseeseeseeseeeeeeneeeeeeaespassim Highland Ranch v. ALRB, (1981) 29 Cal. 3d 848occcseeeeeeeeeeeeseseesersesseeseseeeeseessaees 19, 57 -J.R. Norton Co. v. ALRB, (1979) 26 Cal. 3d 1 occcccccccceccscsccessecsesssccesssssececsarecsesasesttsssersureeeseeees 18 Kasler v. Lockyer, (2000) 23 Cal. 4th 472oeseeeseeseeseesaeeeeeceeesenseseeeteseesseesteesseess 42 Kavanau v. Santa Monica Rent Control Bd, (1997) 16 Cal 4th 761ccccccececcsssccsssssececssseesessesesessesesestreesensnaa 38 Kugler v. Yocum, (1968) 69 Cal. 2d 371 oieeeeeceeeeeeseteeeeseseseeseeesecsseesecsesstesseereseets 42 Lindeleafv. ALRB, (1986) 41 Cal. 3d 861 ooocceeecseesesseseeeesseeseecaeesseseeessesseesecsesseseeas 18 Montebello Rose Co. v. ALRB., (1981) 119 Cal. App. 3d 1 ooececcsesseccsseceseessessseecssstssersseeseeeenes 52 Murgia v. Mun. Court, (1975) 15 Cal. 3d 286 ooocccceccesesseeseeeseeseecseeessessesseessseseeseseceneneas 40 Pac. Legal Found. v. Brown, (1981) 29 Cal. 3d 168 ooocccceeseesesseseseessseseccsccssessesessesessrecseeseeneas 43 People ex rel. Lockyer v. Sun Pacific Farming Co., (2000) 77 Cal. App. 4th 619 ooo ccccccscsssccsecsseceessseeeessessesseesesseeeeas 46 People v. Wilkinson, (2004) 33 Cal. 4th 820 occccceeseesecsecseeeseeseesesecseseseacasesecseenseneens 38 People v. Wright, (1982) 30 Cal. 3d 705 oooeccceeecceeeseeteeseeetecseeseseeseeneenesereess 42, 44, 45 In re Petersen, 1958) 51 Cal. 2d 177 coc ccccccccccccsccccssscecsssssecssecsssesssusessasensaeeeeneeeens 44( Rivcom Corp. v. ALRB, (1983) 34 Cal. 3d 743 ooo cccccceeeseecseeeseesesessecseesecsesseecesesessaseseeenseesues 18 San Diego Nursery v. ALRB, . (1979) 100 Cal. App. 3d 128 occcccccccscenseneesenseeesseesesseereeseeesee7 Squires v. City ofEureka, (2014) 231 Cal. App. 4th577 ooocccccccccceccscceseeeescseeesssessscsseesesesesness 39 Tri-Fanucchi Farms v. ALRB, (2015) 236 Cal. App. 4th. 1079 occcccccecsecescesecsesecsscessecssssseseesaes 49 Warden v. State Bar, (1999) 21 Cal. 4th 628 wooscccessscsccecssssesssesesssseeeeesestreeeensanes 39 Woodv. Public Utilities Commission, (1971) 4 Cal. 3d 288 oooccccccccccsecsccessssescensssesaseccesssnererersetsneceseaas 38 Other State Cases Caso v. Coffey, (N.Y. 1976) 359 N.E.2d 683 oocccceccceeesessseeesecsecsecseeesesessenseensecseesses 34 City ofAmsterdam v. Helsby, (N.Y. 1975) 332 N.E.2d 290 oc cceccccccceeseeseeesesseeseeseeseeessessecsseeneeens 35, 46 City ofColumbus v. State Employment Relations Bd., (Ohio Com.PI. 1985) 505 N.E.2d 651 o..eccecccccecseeseeseseesseesersseens 35, 46 City ofDetroit v. Detroit Police Officers Ass’n, . (Mich. 1980) 294 N.W.2d 68... ccccccccsetecessenscseseesesssesseseeseeeees 35, 46 City ofRichfield v. Local No. 1215, Int’l Ass’n ofFire Fighters, (Minn. 1979) 276 N.W.2d 42 ooo cccccccccssessccesecsecseeseeesecsssessecsseens 35, 45 City of Warwick v. Warwick Regular Firemen’s Ass’n, (R.T. 1969) 256 A.2d 206oecccccceeseeseeeteeessesseeeeesesseeeneeenees 35, 46, 47 6 City of Washington v. Police Dept. ofCity of Washington, (Pa. 1969) 259 A.2d 437 ooo eecccceccesecsseeceseeenseeseesseesecessteseeneesesees 34-35 Fraternal Order ofPolice, Lodge No. 5 ex rel. Costello v. City of Philadelphia, (Pa. Cmwlth. 1999) 725 A.2d 206 ooo. cccceectcsseeeteseeeeseseneeeesnaseeees 35 Dearborn Firefighters Union Local No. 412 v. City ofDearborn, (Mich. App. 1972) 201 N.W.2d 650.00... ccceeccscceseeeessesesseeseessaeens 35, 46 Division 540, Amalgamated Transit Union, AFL-CIO v. Mercer County Improvement Authority, (N.J. 1978) 386 A.2d 1290,1294 oooccecscctecceececnesesteeseseenees 35, 46 Fairview Hosp. Ass’nv. Pub. Bldg. Serv. & Hosp., (1954) 241 Minn. 523 weeteeee ee tenes neieeneseseeneneeeenenees 34, 46 Harney v. Russo, (Pa. 1969) 255 A.2d 560 oo. ceeeccccecececceeeeetecsceeenstesseeeesseessessseecsseenseeens 46 MedfordFirefighters Association v. City ofMedford, (Or. 1979) 595 P.2d 1268 ooo. eececcceseeeeeeeesecesesseseeesecesseesseeseens 35, 46, 47 Milwaukee County v. Milwaukee Dist. Council 48-American Federation of State, County and Municipal Employees, AFL-CIO, (Wis.App. 1982) 325 N.W.2d 350...ccc cecseeseeseeeseceeeteeeseenes 45, 46, 47 MountSt. Mary ’s Hosp. ofNiagara Falls vy. Catherwood, (1970) 26 N.Y.2d 493 ooo eecccccccccescesseeeeeseeceeseeeseeseessseecssesessecsseseneees 34, 47 Municipality ofAnchorage v. Anchorage Police Dept. Employees Ass’n, (Alaska 1992) 839 P.2d 1080 ececcceecseeeeeceseeseeeeeestessseeseeneens 35, 46, 47 New Jersey Bell Telephone Co. v. Communications Workers ofAmerican, New Jersey Traffic Division No. 55, (N.S. 1950) 75 A.2d 721 oeee cccececeeeceeeesseeeeseesesseeeseeeesaeeesseesesenseens 35, 46 Superintending School Committee ofBangor v. Bangor Education Association, (Me. 1981) 433 A.2d 383oeecceceeceeseeeseeenseesseeeseeeseeesseessens 35, 46, 47 Town ofArlington v. Board ofConciliation and Arbitration, (Mass. 1976) 352 N.E.2d 914 occeeccseeesseceeeeseeeeeeeeeseeenseeneens 35, 46, 47 United Gas, Coke & Chemical Workers ofAmerica, Local 18 v. Wisconsin Employment Relations Board, (Wis. 1949) 38 N.W.2d 692... icccccccccccccsscsssccecesssscecceesssssesesnsecenrerseese 46 ALRB Decisions Bruce Church, (1991) 17 ALRB Nou 1 oecece ccccessessscesesessasscecesessusesestseseeesenaes 50 Dole Fresh Fruit Company, (1996) 22 ALRB NO. 4 wocccicccecccsceseseeeseeeesseseseeeeeeesesesseessesesseseseeaeenes 50 Gerawan Farming, (2013) 39 ALRB NO.5 woeeeecececeesseesseeecensesseneseeeeeseeesesessceneens 24, 24, 26 Gerawan Farming, (2013) 39 ALRB No. 16 wceecccceceseceecneesesseeeeeeseeeeseeesessseesecsseeesseess 27 Gerawan Farming, (2013) 39 ALRB NO. 17 vocecccceccecceeseeeseeseeseeseeseeeseeesaecsaecsessscsecseeaeenes 27 Gerawan Farming, (Sept. 17, 2015) 39 ALRB No. 20 wo... cececceeeseeeseeeseeesseeseeecsssesseeees 25 Gerawan Ranchesetal., (1992) 18 ALRB NO. 5 cecccceecceccccecceescsscesssessesecccessnssuaceversasecsseeenreees 24 Gerawan Ranches, (1992) 18 ALRB No. 16 wo.cceeeesccccescceseceescesenessasesecersassseseaneeers 24 Mario Saikhon, Inc. and United Farm Workers ofAm., (1987) 13 ALRB NO.8 ooecsececseescssneeseneeseceeeeeeeseseseesereasseseeeeates 18 Nish Noroian Farms, (1982) 8 ALRB NO. 25 voeccicccceeccceccesssssscessessssescececsesssasecesessecnrenrecees 50 Paul W. Bertuccio and United Farm Workers ofAm., (1984) 10 ALRB No. 16 woe icceccececesessecseeeeseseeeeeseeesseessecessesecsenessaeees 18 Pictsweet Mushroom Farms, (2003) 29 ALRB NO.3 o.cceccccecccscesesscscesessccssececceeseessuscesecsenscosseeaserees 50 San Joaquin Tomato Growers, (2011) 37 ALRB NO. 5 woeeeceesenceceseeseestseeceeseeeeesseeesecaeecessesessecsseaees 50 Tex-Cal Land Mgmt., Inc. and United Farm Workers ofAm., (1985) 11 ALRB NO. 28 ooo ccccicccccsecsecsecscsecseccscscssceeseeesssvecsstseseatarens 18 Ventura County Fruit Growers, (1984) 10 ALRB NO. 45 ooieecccececscesecseescasseseseasseesssscnecssessstsvssteeavares 59 Federal Statutes TS U.S.C. § TLC.ccctecceesenscnseesecssecaseesesecseesecsessessecsesssessessvaceaesaesateaes 39 17 US.C. § 801 et SOQ. cececeeccecececseeseessssseesscesesscsecsscsecsscescssecssscssssvaseaeeeetats 39 29 USC. § 15203) eee eeccesenccnseeeseecesseessecseesseessessecscsecsessecsecsuseuseasessevstervacesaeareaas 17 © § LSO(C)CL)(B) ooo eee ceeeeeeceseeeeeesesseseaeesaesecsesscssessecsessecseccseseseassessees 16, 51 39 U.S.C. § 1207 occ ecceccseeseessseseessesseeseecsecscsecsessscssseusesesaseussvaseavaneasersveas 32 AZ USC. § F172(a) )(C) .ceececceccccccccccsecseccsccsscecsecsscsessssesensscesevsseeveceaueatens 39 AT U.S.C. § 252 iii cceccceeeceeeeseeseeseeesessseesessesecsecsassacescssesssecsusavertaeteneatens 39 Pub. L. 88-108, 77 Stat. 132 (1963) o.oo. cccccceccscssesscscsscssessccsssscasetsceecseses 32 Pub. L. 91-226, 84 Stat. 118 (1970) ....cccccceccssessscesseecsessecssessesterseseceeees 32 War Labor Disputes Act of 1943, 57 Stat. 163 (1943) ooo.ceeeeeeeeeee 31 California Statutes, Regulations, and Legislative Materials Code of Civil Procedure, § OQSoeee ecccececsesseesceceeseeesseesesseesesscssssesensecsusetaueestaeeesaeesseseeeseeaes 30 Labor Code, § L140 Cf SOQ. eee eicceceseeecceeeetstessessesseseseseeseesecsesessscessesseesasesceveavacees 17 S140eeececeeecssesseeesseseesseeessecessecesecssssssevssessasevaseessaecauseeeseesas 17 § LYAO.A(C) eeccececscssssseessssssssscsecessevecsuscessecssssssesssuesssssessssecaseseusssessssecesen 5] SDSS.Qoccccccccssecsesssessssesssssessessssssssessucsssssesssesssesseecressesseseueessessneaneaseeee 43 8 L1S5.2€a) cee eeeceeseeesecetneeeceeeeeeesseescecseseseesecsseeseeseessesssesesesseanenss 18 § LSBCC) eeece cceeessereneceenececeeeseressaeesasesseessessecessesseescesssessssesesseseseeeeens 18 S LIS6.3eee eee eeeceecseeeeeeeneeeeseteaeeecseeeseesaeesseessessseccseeeteaessssssenseeess 16, 51 § L1SO6.3(D)eee eeeeecceseeceeeceseeeeseeeeeeseeesecssecsecesescseeccseeserseesessesenreccenanens 56 S L1SO.3(1). eeccceseeeeseeeneeeneeeeeeseecaeeeesssesecsecsesaeecseessasessescsscensesenseens 22 S LISOTieee cecesseetsneceneeceneecsaeeseeteaeseeeeseceseeeseesseeeseseesseesesesseesensnens SI SOFeeecee cnecneesneeessseeseeseseeseeesesseessscsseessesesseecessesseesaseeness 29, 45 § L164Beceeceeceeceeeseeeseeecneeeeseessesssseseseseessesesseeesseeesesesensaes 43, 48 § 1164.3(a)eeeeeceececeseeecneceeeeesececseecssesseesessaeesueeecseeessssesennas 21, 23 § L164.3(D)eee ecceececeeeeeesseeeeseeeeseeeseeesecesecseecseceseecesseseesseeceseeseecernses 23 § 1164.3(C)eee eeceeesecenceesseeesseeeeeeesseeseesaeceseessesseeccsseeecseeesesessueeeranees 23 § 1164.30) eee eecccseeceneeeeeeceseeeceseessecsecseessesssseesaseseccsecsesteseesees 23,27 § 1164.3(C)ieceeececeneeesseeceaeeceeessaeeeeseseenseeseeeseeseseeecuscsecesersteseesness 23 § LLO4.3(f)eeeeeeeeeeeeeeeseeeeeeeecseeeeeeesaesseecsscssecseesesseesseceatenes 27, 28, 57 § LO4Sceceeneeeneesneeeteceeeeeeeseeeesesseesecssssaesaeecsseeesecsecsteseeensteesees 23 S L164cececee ceneeeneceeeeneeseeeesessecsssssesesseecsseeesessecstesesessieeetes 20 S L164Qoeececececeneeeeneeeeeeeeeesseeeesesecesecseeeseeeesseesesseessseensneeenneess 25 § L164(a) eeeeee cecececeneeeseeeceeeeeeeeseeeseteseesseessesseseesseesesessecsseenstecenstens 25 § LLO4(a)1) ooo eeeeee eceeeeeececeeeeeseeeceseessecsescseecsescssecesseeeeersteaas 29, 49, 53 § L1O4A)(2) oeeeceeecneeeseesseteeeceaeeeeecsecseseeseeeesecssessseesseesecseeseseneneeseed 21 § L164(a3) ne eeee ee eeeees es eteteneneeeeenensesesesesesesneneneneenesesseeesessnseseetaeeseeeey 21 § L164(a)N(4) woecece cece eecesessssersecseeeesseecseeetsteeseesaesaeeecsensteteteseeersaes 21 § L164(D) ooeeeeeceeeeceeeceeneeeseeseseeesseessesesscseecseecsseeesseessaseneeees 21, 47, 50 § L1O4(C) oeeee ccceceeeeseeescesseeeseensessaeeaecseesssesseseceseesseecsecesstesseesseeneaes 21 § L164(Ce)eeecece cceeeesseeeseeteseeeaeesaeessesseessescsseeesseeeaserseaes 22, 44, 54 SODeeeeee eeccneceeesneeeseeeeeseeeeesceeeesseesesaeesseesseeseeeecsesestessscaseeenaess 39 8 C.C.R. § 203 10(a)(2) oo. eeesseeeseeeseesseceeeceaeceeeesessesseseeeesessseesseecsessesseesseessrecstes 51 § 20900... eeeeeceeseeeesceteceeeeeeseeeeeesseeeteesseeseeseenes eeseeenseesertceeeaeeesesenseens 51 Stats. 1975, Ch. 1, S1 occcecccessecesesssseceessseeeessseessssecessssesscessssesssaneceesees 17 Stats. 2002, ch. 1145, §1 oo. cecsccesseeeseesseessecseecseecsseeeeseesnensseseeeens 13, 53 Governor’s Signing Message, Historical and Statutory Notes, Labor Code §1164, Annotated California Codes (West 2011)........cccecseeeeceeeees 20 August 20, 2002 Senate Floor Analysis of SB 1156..........dese teseeneeeesteaeeees 189 August 31, 2002 Assembly Floor Analysis of SB 1156... 19, 24 10 Other State Statutes Fla. Stat., § 453.01 (repealed 1983) oo... ceceeescesscecesssesteseesecsanerereeens 33 Ind. Code Ann. § 22-6-2-1 ooiciccccccccecssesssecseeessecsecssessccscsscseestesetsavasevseease 33 Kansas Stat. § 44-608, 609 oo...eeeccecccsecsecsecesscessessssesssssvesteestaeeseeneens 33 Maryland Code, Trans. §7-602 (formerly Art. 64B, §37(b) ......ccc eee 34 Mass. Gen. Law Chapter IS0A § 9A oo.ecceccccccsecsseeseeescesecseterseesstesereseees 34 Mass. Gen. Law Chapter 150E § 9... eccccccccsecsseccssecsessssereeseesseessesssevens 35 Mich. Comp. Law § 423.239... ccccsccsssssscsessesesesscsecscessseessssessesssetssesevaeeaes 35 Minn. Stat. § 179.35 occeccccccccccseccssccseesecsecsecsecseceseecsssesssssessessssenevtneseneeens 34 Mo.Ann.Stat., § 295.O10. eeceeceeeeeeeeeeeeseeesetesetesecsesseeseesseseeenaes seveeeneeeseeeneeteeetesseeenes 33 § 295 O80...cccecccececeeenseseecesessecsesecsessesesseesaeesaecssassaseeteesessesevneenss 33 N.JS.A. 34:13B-23 ccccceeecesceeseeseeseesesesseesesesseecsesssccsssecsessesesesessevarenes 32 N.Y. Lab. Law § 716. ceececeesseseeeessessescsesseseeaeesascsecsesseeseseeerscessareseees 34 — Neb.Rev.St. § 48-802, 810 occceceeseneeeeseseseeeseesessesenecscssseeeeseeenaey 33, 34 43 Penn. Stat. §721, (repealed 1978)... ccccccsccescccesssesecssecsssesssersesenaees 33 Wis. Stat. § L1152 eeececeeeseeeeesseseesecsesecseesseccsecsecsecsesseesessscaeerasaes 33 Other Authorities Executive Order 9017 (“Establishmentofthe National War Labor Board”) (January 12, 1942), available at 7 Fed. Reg. 237 ....cccccccccecsesssesecereees 31 California Research Bureau, California State Library, Farmworkers in California (July 1998) available at www.library.ca.gov/crb/98/07/98007a.pdf... ceccecccsessescesssesessecenere 37 Elkouri & Elkouri, How Arbitration Works (7th ed. 2012), Chapter 22 oo. ceceeccsceaceesseseesesessseesseeessesscsecsecseseeessesessecsesssssssessenseaees 31, 35 11 J.Joseph Lowenberg, “Compulsory Arbitration in the United States,”in Compulsory Arbitration: An International Comparison (J.Joseph Lowenberg,et al., eds., D.C. Health 1976)...cee31, 32, 33, 34 Loewnberg, J. Joseph, Interest Arbitration: Past, Present, and Future, at Chapter 5 (1997) ooo ccccccccccccccccecsseccsecesecessesesbesesssssessssessevesessssecasenes 36 12 ISSUES PRESENTED l. Whether the Agricultural Labor Relations Act (‘ALRA”) mandatory mediation and conciliation (“MMC”) process for employers and certified unions that have never reacheda first collective bargaining agreementviolates on its face the equal protection clauses ofthe federal and California constitutions. 2. Whether the MMCstatute unconstitutionally delegates legislative authority. 3. Whether the ALRA permits an employer to opposea certified union’s request for referral to the MMCprocess bycontendingthat the union “abandoned”the bargaining unit. See Order of August 19, 2015 (“The issues to be briefed and argued are limited to the issues raised in the petitions for review.”’). INTRODUCTION Twenty-five years after the California Legislature enacted the Agricultural Labor Relations Act (“ALRA”) in 1975, it was clear that the statute had failed to achieve the Legislature’s goal ofproviding millions of farm workersthe right to collectively bargain with their employers, soas to improve farm workers’lives and the lives of their families. Many farm workers voted for union representation but, as of 2002, fewer than half of the agricultural employers whose employees hadelected a union since 1975 had ever agreed to a collective bargaining agreement, and fewer farm workers had union contracts than prior to enactment of the ALRA.In 2002, _ a frustrated Legislature amended the ALRA to provide a mandatory 13 mediation and conciliation (“MMC”) processfor certified unions and employers that had failed to reach first contracts. The Legislature concluded these amendments were necessary to ensure a more effective collective bargaining process . . . and thereby more fully attain the purposes of the [ALRA], ameliorate the working conditions and economic standing of agricultural employees, create stability in the agricultural labor force, and promote California’s well-being by ensuring stability in its most vital industry. Stats. 2002, ch. 1145, §1. After several years oflitigation, the Third Appellate District rejected employerconstitutional challenges to the MMCstatute in Hess Collection Winery v. ALRB (2006) 140 Cal. App. 4th 1584, 1603-10, review denied. Nonetheless, many agricultural employersstill do not accept MMCjust as they never accepted that they had a legal duty to bargain in good faith with certified unionsprior to adoption of the MMCstatute. In this case, Gerawan Farming,Inc. (“Gerawan’”) received a renewed demandfor bargaining from the United Farm Workers of America (“UFW”), and thenresisted, | challenged, and delayed the MMCprocessat every step while at the same time illegally campaigning to have UFW removedasthe bargaining unit’s representative. The Agricultural Labor Relations Board (““ALRB”) ultimately issued a final order in 2013 finally establishing a reasonable, initial collective bargaining agreementfor a bargaining unit that voted for union representation in 1990. That agreement, however, has never goneinto effect. At Gerawan’s urging, the Fifth Appellate District stayed enforcement of the ALRB’s final order. The Fifth District then struck down the MMCstatute as a facial violation of equal protection and an unlawful delegation of legislative authority and also held that the ALRB should not have referred the parties to MMCwithout permitting Gerawan to challenge UFW’s statusas the 14 certified bargaining representative. The Fifth District erred in deciding each of these issues. The Fifth District’s equal protection analysis harkens back to outdated Lochner-era jurisprudence about economic regulation. It is now settled law that economic regulation may treat businesses differently as long as the regulation is rationality related to a legitimate government purpose. The MMCstatute provides for the ALRB to resolve labor contract disputes, if necessary, through a process that involves consideration of the details of each dispute and a commonlist of rational statutory factors for resolving such disputes. The individualized process servesthe legitimate governmentpurposes of encouraging parties to resolve their own disputes, and of bringing labor disputes to a reasonable conclusion,tailored to each dispute, when that is not possible. As such, the statute is not a facial violation of equal protection. The Court of Appeal’s ruling that the MMC processposes too great a risk of “arbitrary” decision-making ignores both the statutory safeguards against arbitrary administrative action andsettled equal protection jurisprudence that a hypothetical risk of arbitrary or discriminatory administration does not makea statute unconstitutional on its face. The Fifth District’s analysis of the delegation issue is equally out of step with modern jurisprudence. This Court has upheld statutes that provide the same type of guidance for implementation. This Court has rejected the contention that the Legislature must set out detailed standards that pre- determine the outcome of administrative processes in circumstances in which such a formula would be inappropriate. The MMCstatute satisfies constitutional requirements for providing guidance to administrators and for procedural safeguards against arbitrary administration.It also bears emphasisthat there is a long history of statutes requiring interest arbitration as a means of resolving labor disputes. The Fifth District’s analysis ignored 15 that history and the manycourt decisions that uphold similar interest arbitration statutes against similar delegation challenges. The Fifth District also erred as a matter of statutory interpretation by holding that an employer may challenge the status of a certified union representative by claiming, in responseto the union’s request for referral to ' MMC,that the union “abandoned”the bargaining unit. The Fifth District acknowledged that, under the ALRA,a union elected by workers through a secret ballot election and certified by the ALRB remainsthecertified representative for purposes of bargaining unless workers decertify the union. The Legislature felt so strongly about precluding agricultural employer involvementin representational issues that the ALRA differs from the National Labor Relations Act (“NLRA”) on whichit was modeled: employers sometimes mayraise challenges to a union’s representative status under the NLRA,but never under the ALRA. Compare Labor Code § 1156.3 with 29 U.S.C. § 159(c)(1)(B); see alsoF&P Growers v. ALRB (1985) 168 Cal. App. 3d 667, 672-78. The Court of Appeal recognized that, under the language ofthe ALRA and long-standing ALRB and Court of Appeal precedent, an employer may not challenge a union’s majority status as a defense to the duty to bargain. There is no basis in the language or history of the MMC statute for distinguishing, as the Court of Appeal did, between whether a unionis the certified representative for purposes of collective bargaining and whether the same unionis the certified representative for purposes of invoking the MMCprocessto resolve bargaining disputes. The Court of Appeal’s interpretation of the MMCstatute would invite employers to challenge the representative status of previously-certified unions and underminea large part of what the Legislature sought to accomplish in adopting the MMCstatute to revive dormant bargaining relationships and produce collective bargaining agreements that benefit farm workers. 16 STATEMENTOF THE CASE 1. The ALRA and MMC Amendments Congress excluded farm workers from the protections of the NLRA. See 29 U.S.C. §152(3). In 1975, the California Legislature adopted, and Governor Jerry Brownsigned, the ALRA, Labor Code §1140et seq., to ameliorate the poor working conditions of farm workers and harm to the public interest caused by labor conflict in the most important segment of the California economy. This landmarkstatute gave farm workers in California for the first time the right to elect a representative for purposes of collective bargaining with their employer and protected that right from employer interference. The preamble to the ALRA states that: “In enacting this legislation the people of the State of California seek to ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations.” Stats. 1975, Third Ex. Sess., ch. 1, §1, p. 4013; see also Harry Carian Sales v. ALRB (1985) 39 Cal. 3d 209, 223. The Act also declaresthatit is the policy of the State of California to encourage and protect the right of agricultural employeesto full freedom of association,self- organization, and designation of representatives of their own choosing, to negotiate the terms and conditions of their employment, and to be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purposeofcollective bargaining or other mutual aid or protection. Lab. Code §1140.2. The ALRB is responsible for overseeing and certifying the results of union representation elections. If farm workers elect a bargaining representative, the certified representative and the employer have a mutual legal obligation to bargain in good faith regarding employment terms and to 17 reduce any resulting agreements to writing. Labor Code §§1153(e), 1155.2(a). . Immediately following passage of the ALRA, the ALRB was inundated both with election petitions and with employers’ refusal to accept the new law. While farm workers voted for union representation in hundredsof secret-ballot elections, many agricultural employers, through legal delays, obstinacy, and unfair labor practices, made contract negotiationsa futile exercise. As this Court recognized shortly after adoption of the ALRA, employer “dilatory tactics after a representation election” underminethe statutory right to collective bargaining and “substantially impair the strength and support of a union.” J.R. Norton Co. v. ALRB (1979) 26 Cal. 3d 1, 30. In case after case, growers were found to haveintentionally delayed the collective bargaining process through surface bargaining, to have intentionally avoided good-faith resolutions of contract disputes, and to have disregarded collective bargaining agreements once made. See, e.g., Mario Saikhon, Inc. and United Farm Workers ofAm. (1987) 13 ALRB No. 8; Paul W. Bertuccio and United Farm Workers ofAm. (1984) 10 ALRB No.16; Tex-Cal Land Mgmt., Inc. and United Farm Workers ofAm. (1985) 11 ALRB No.28. Even when unionshadthe resourcesto successfully challenge the employer’s refusal to bargain and otheranti- union tactics, legal proceedings often took years to resolve, during which time employees had no contract. For example, this Court in Riveom Corp. v. ALRB (1983) 34 Cal. 3d 743, affirmed the ALRB’s decision finding a grower’s anti-union tactics and refusal to bargain unlawful, but more than five years passed betweencertification in 1978 and this Court’s decision in 1983 — during whichall the employees who voted for the union werefired and replaced, and were never able to bargain or enforce a contract. Jd. at 763; see also Lindeleafv. ALRB (1986) 41 Cal. 3d 861, 881 (recognizing 18 that “Lindeleaf workers have endured a prolonged delay — morethan five years — becauseofthe protracted proceedings”filed by employer); Harry Carian Sales, 39 Cal. 3d at 219 (upholding 1980 bargaining order based on more than 30 unfair labor practices committed by employer); Highland Ranch v. ALRB (1981) 29 Cal. 3d 848, 851-52 (upholding ALRB’s decision that grower refused to bargain with certified union in violation of the ALRA,four years after certification was granted in 1977). In the 1980s, this Court twice addressed the same growers’ challenge to the ALRB’s make-whole order following a finding that the employer unlawfully refused to bargain, a refusal that continued for years after the union had been elected in 1976, despite this Court’s conclusion that the employer’s refusal to recognize the union’s certification was in bad faith. George Arakelian Farms, Inc. v. ALRB (1985) 40 Cal. 3d 654, 667; George Arakelian Farms, Inc. v. ALRB (1989) 49 Cal. 3d 1279, 1287. Asthe years passed, the statute’s failure to fulfill its intended purpose of providing a meaningful right to collectively bargain only grew worse. By 2000, 25 years after the passage of the ALRA,ofthe 428 bargaining units that had voted for UFW astheir certified representative — often after protracted anti-union campaigns and egregious employer unfair labor practices — only 185 employers (about 43 percent) had ever entered into contracts. See August 31, 2002 Assembly Floor Analysis of SB 1156. To resolve these long-standing contract disputes and to avoid such disputes going forward, and ultimately to improvethe lives of California farm workers, the Legislature amended the ALRA in 2002 to include the MMCprocess. The Legislature recognized that the existing ALRA had failed to achieve its purpose of enabling farm workers to secure improved wages and working conditions through collective bargaining. Supra at 17 (quoting Stats. 2002, ch. 1145, §1); see also August 20, 2002 Senate Floor Analysis of SB 1156 (“This bill is necessitated by the continued refusal of 19 agricultural employers to cometo the bargaining table once an election has occurred. Without this measure, proponents contend, represented employees will continue to languish without the negotiated contracts they have elected to secure.”). As Governor Davis explained in signing the MMClegislation: In nearly 60% of the cases in which a union wins an election, managementnever agrees to a contract. For - example, in one case, the parties have been negotiating since 1975. The appeals process, coupled with a complicated formula for determining damages, often takes so long that the farmworkers can no longer be located by the time the award is made. The bottom line is that too many people who were supposedto benefit from the protections of the ALRA are left without a contract, without a remedy and without hope. Governor’s Signing Message, Historical and Statutory Notes, Labor Code §1164, Annotated California Codes (West 2011). The statutory amendments permit the certified union or the employer to request referral to MMCunderspecified circumstances. Labor Code §1164(a). For bargaining units in which unions were “certified prior to January |, 2003,” either the union or the employer may request referral to MMCbeginning 90 days after service of ‘“‘a renewed demandto bargain.” Id. §1164(a)(1), §1164.11. For these previously-certified unions, and their corresponding employers, the Legislature then further limited requests to MMCto those where: (a) the parties had failed to reach agreementforat least one year after the date on which the union madeits initial request to bargain; (b) the employer committed at least one unfair labor practice; and (c) the parties had never previously agreed to a contract. §§1164.11. Going forward from January 1, 2003, for any unioncertified after that date, the 20 S L I M g i n e c c c statute permits either party to request referral to MMC beginning 90 days after service of an initial request to bargain. Jd. §1164(a)(2).! Uponreceipt of a declaration establishing that the statutory prerequisites are met, the ALRB must “immediately issue an order directing the parties to mandatory mediation and conciliation of their issues,” and request a list of nine mediators from the California State Mediation and Conciliation Service. /d. §1164(b). Theparties then jointly select an experienced, neutral mediatorto assist the parties in reaching agreement, and proceedfirst to mediation for a thirty-day period (which may be extended upon mutual agreementof the parties). Jd. §1164(b), (c). The process includes the opportunity for the parties to make an evidentiary record supporting their respective positions. /d. §1164(d); §1164.3(a). If mediation does not resolve all outstanding issues in dispute, the mediator must certify that the mediation process has been exhausted and then file a report with the ALRB with recommendationsforresolving the - remaining issues and establishing thefinal terms of the CBA.Id. §1164(d). The report must “include the basis for the mediator’s determination” and ‘In 2012, the Legislature amended the MMCprocessto reduce the number of days followingcertification before a union or employer can invoke the MMCprocessfrom 180 to 90 under Labor Code §1164(a)(2), and added two more circumstances under whichthe parties may request MMC,both of which focus on employerinterference with the representation process: (3) 60 days after the board hascertified the labor organization pursuant to subdivision (f) of Section 1156.3, or (4) 60 daysafter the board has dismissed a decertification petition upon a finding that the employer has unlawfully initiated, supported, sponsored,or assisted in thefiling of a decertification petition. Id. §1164(a)(3), (4). Labor Code §1156.3(f), also added to the ALRA in 2012, permits certification of a union where the level of employer interference is so great as to permanently taint the election process. 21 “be supported by the record.” /d. In 2004, the Legislature amendedthe MMCstatute to direct that: (ce) In resolving the issues in dispute, the mediator may consider those factors commonly considered in similar proceedings, including: Id. §1164(e). (1) The stipulations of the parties. (2) The financial condition of the employerandits ability to meet the costs of the contract in those instances wherethe employer claimsan inability to meet the union’s wage and benefit demands. (3) The corresponding wages, benefits, and terms and conditions of employmentin other collective bargaining agreements covering similar agricultural operations with similar labor requirements. (4) The corresponding wages, benefits, and terms and conditions of employmentprevailing in comparablefirmsor- industries in geographical areas with similar economic conditions, taking into accountthe size of the employer, the skills, experience, and training required of the employees, and the difficulty and nature of the work performed. (5) The average consumerprices for goods and services according to the California ConsumerPrice Index, and the overall cost of living, in the area where the workis performed. Either party may then seek review of the mediator’s report before the ALRB onthe groundthat: (1) a provision of the collective bargaining agreementsetforth in the mediator’s report is unrelated to wages, hours, or other conditions of employment... (2) a provision ofthe collective bargaining agreement. . . is based on clearly erroneousfindings of material fact, or 22 (3) a provision ofthe collective bargaining agreement. . . is arbitrary or capricious in light of the mediator’s findingsoffact. Id. §1164.3(a). If any of these grounds are established, the ALRB must remandthe report to the mediator for revision and to permit an additional 30-day period of mediation. /d. §1164.3(c). If the parties again do not resolve the remaining disputes, the mediator then submits a second report to the ALRB. Id. The parties may then again invokethe process for seeking review ofthat report. Jd. §1164.3(d). A party also may seek review from the ALRB if “(1) the mediator’s report was procured by corruption, fraud, or other undue means,(2) there was corruption in the mediator, or (3) the rights ofthe petitioning party were substantially prejudiced by the misconduct of the mediator.” Jd. §1164.3(e). If any of these groundsare established, the ALRB must vacate the report and appoint a new mediator. Jd. If no party seeks review, or the ALRB concludesthat a challenge to the mediator’s report lacks merit, the ALRB issues a final order establishing the terms of the CBA and “‘order[s] it into immediate effect.” Labor Code §1164.3(b),(d). The ALRB’s final order is then subject to review in the Court of Appeal or Supreme Court. /d. §1164.5. The Legislature also provided for enforcement of the ALRB’s final order by the Superior Courts and that, if there is an appeal, “[n]o final order of the board shall be stayed during any appeal underthis section, unless the court finds that (1) the appellant will be irreparably harmed by the implementation of the board’s order, and (2) the appellant has demonstrated a likelihood of success on appeal.” Jd. §1164.3(f). Finally, to avoid a drain on the agency’s resources (and implicitly recognizing the long back-log of previously certified unions), the Legislature limited the number ofMMCpetitions by one party that could 23 be filed in the initial years after adoption of the MMCstatute. Labor Code §1164.12. 2. Gerawan Farming,Inc. and the ALRB Proceeding UFis the ALRB-certified bargaining representative of the agricultural workers at Gerawan Farming, Inc. Gerawanis a Fresno County-based growerandthe largest tree fruit producer in California. Gerawan employees elected UFW in secret ballot representation election in 1990, long before the amendments creating the MMCprocess. Gerawan Rancheset al. (1992) 18 ALRB No. 5. Gerawan challenged the election results, and the ALRB finally certified UFW asthe unit’s representative in 1992. Id. The ALRB also determined that Gerawan committed multiple unfair labor practices before, during, and after the election, including intentionally hiring and laying off workers to impact the election results and refusing to bargain over changes madein the post-election, pre- certification period (changes that involved closing six labor camps used for workerhousing following the vote to certify the UFW). Gerawan Ranches (1992) 18 ALRB No. 5; Gerawan Ranches (1992) 18 ALRB No. 16; see also Gerawan Farming (2013) 39 ALRB No.5. Despite the workers’ vote in 1990 and UFW’s attempts at bargaining, Gerawan hasneveragreed to a collective bargaining agreement. At the time of the 2002 amendments to the ALRA, Gerawan was one of the 243 companies where farm workers had previously voted for UFW butthe companyhad never agreed to a contract. See August 31, 2002 Assembly Floor Analysis of SB 1156. After Hess upheld the MMCstatute against constitutional challenges in 2006 (see 140 Cal. App. 3d at 1603-10), UFW began renewing demandsfor bargaining with agricultural employers that had never agreed to contracts. As in this case, such demandscantrigger an employer campaignto oust the union, accompanied by multiple employer 24 unfair labor practices and protracted and expensive legal proceedings intended to exhaust the union’s resources. UFserved Gerawan with a “renewed demandto bargain” pursuant to Labor Code §1164(a) on October 12, 2012. Although UFW then met with Gerawanfor at least 10 bargaining sessions, no CBA wasreached. Meanwhile, Gerawan immediately began a scorched-earth, multi-million- dollar, anti-union campaign that includedillegal sponsorship of a decertification election, myriad unfair labor practices, and a public relations effort to discredit UFW and the ALRB.? On March 29, 2013, with voluntary negotiations having failed, UFrequested that the ALRB refer UFW and Gerawan to the MMC process. On April 16, 2013, the ALRB foundthat the statutory prerequisites for MMC were met. Gerawan Farming (2013) 39 ALRB No.5. Specifically, the ALRB found that UFW: wascertified by the ALRB asthe representative of Gerawan’s employeesprior to January 1, 2003; the parties had not reached a contract for more than one year followingthe initial demand for bargaining; UFW had made a renewed demandfor bargaining; Gerawan had committed multiple unfair labor practices, before and after the > Aninitial decertification petition was dismissed because the ALRB Regional Director concluded that the signatures were forged. See UFW’s Motion for Judicial Notice, filed herewith, Exh. A. The ALRB processed a second decertification petition and conducted a decertification election on November 5, 2013, but the ALRB orderedthe ballots impoundedasa result of allegations of unfair interference by Gerawan. After the longest evidentiary hearing in ALRB history, an ALRB administrative law judge found that Gerawan violated the ALRA by providing unlawful assistance to the decertification effort, among other unfair labor practices, and ordered dismissal of the decertification Petition. See Sept. 17, 2015 ALRB Administrative Law Judge decision in Case No. 2013-RD-003-VIS (attached as Exh. B to UFW’s Motion for Judicial Notice, filed herewith). Gerawanhas challenged the ALJ decision before the ALRB. Meanwhile, other unfair labor practice charges against Gerawan remain pending. 25 certification election; the parties had not previously agreed to a CBA;and Gerawanhadthe statutory minimum numberof employees.Jd. Gerawan opposed UFW’s request for referral to MMC. Gerawan challenged the statutory basis for the referral by arguing, among manyother things, that UFW had “forfeited”its status as the bargaining representative by (according to Gerawan) unreasonably giving up on negotiations with Gerawan in 1995(five full years after the workers voted for union representation in 1990 during which negotiations proved futile). The ALRB summarily rejected this argument as foreclosed by ALRB precedent: The Employer urges the Boardto hold that the UFW abdicatedits responsibilities, thereby forfeiting its status as bargaining representative. The Board has previously considered and rejected this type of “abandonment” argument. (Dole Fresh Fruit Company (1996) 22 ALRB No.4; Pictsweet Mushroom Farms(2003) 29 ALRB No.3; San Joaquin Tomato Growers (2011) 37 ALRB No. 5 weeds Gerawan Farming, 39 ALRB No.5, at 3-4. Accordingly, the ALRB directed the parties to MMC. Gerawanthen filed a petition for a writ of mandate in the Fresno County Superior Court, asking the Superior Court to set aside the Board’s order sending the parties to the MMCprocess. The Superior Court denied the writ petition. Gerawan appealed that denial to the Fifth District (which eventually consolidated that appeal with Gerawan’slater petition for review of theALRB’s final order). Following the denial of Gerawan’spetition by the Fresno Superior Court, the parties jointly selected an experienced labor mediator/arbitrator from the list provided by the ALRB, Matthew Goldberg,to resolve the contract dispute. Mediation proved unsuccessful in producing an agreement on all terms. After further proceedings, the mediator issued a report settling 26 the remaining disputed terms of the CBA,and incorporating the terms upon which the parties did agree. Gerawan Farming, 39 ALRB No.17, at 1. Gerawanobjected to the mediator’s report and sought review from the ALRB, which remanded the matter to the mediator for further proceedings regarding six provisions. Gerawan Farming, 39 ALRB No.16, at 3-8. The parties subsequently met among themselves and with the mediator, and were able to agree upon all six provisions remandedby the ALRB.The mediator issued a secondreport that incorporated the agreed- upon provisions. No party filed a request for review of the mediator’s secondreport. On November19, 2013, the ALRB issuedits final order adopting the mediator’s second report and fixing the terms of the CBA. Gerawan Farming, 39 ALRB No.17 at 2-3. The CBA provides the farm workersat Gerawan with wageincreases and other improvements in working conditions, as well as a grievance andarbitration procedure to protect them from arbitrary treatment. Certified Record 357-609 (September 28, 2013 mediator report); id. at 745-47 (Nov. 6, 2013 meditator report). 3. Status of the ALRB’s Final Order The ALRB’s November 19, 2013 final order states, consistent with Labor Code §1164.3(d), that the order “shall take immediate effect as a final order of the Board.” 39 ALRB No. 17 at 2. Under Labor Code §1164.3(f), such orders are immediately enforceable by the superior courts: Within 60 days after the order of the board takeseffect, either party or the board mayfile an action to enforce the order of the board, in ‘the superior court for the County of Sacramento orin the county whereeither party’s principal place of businessis located. No final order of the board shall be stayed during any appeal underthis section, unless the court finds that (1) the appellant will be irreparably harmed by the implementation of the board’s order, and (2) the appellant has demonstrated a likelihood of success on appeal. 27 On November 21, 2013, UFfiled an action in the Sacramento Superior Court to enforce the ALRB’s order. The Superior Court denied the request, without making the findings required by §1164.3(f), on the ground that Gerawan intended to seek review of the ALRB’s final order in the Fifth District. After Gerawan sought such review in the Fifth District, the Sacramento Superior Court stayed UFW’s enforcement action pending the outcomeofthe Fifth District proceeding. UFW appealed the Sacramento Superior Court’s stay order to the Third Appellate District. The Third District stayed that appeal (Case No. C075444) pending resolution of the Fifth District proceeding, without making the findings required by §1164.3(f. The Fifth District, after initially denying Gerawan’s request for a stay of the ALRB’s final order, issued an order on October 23, 2014, staying “any proceedings to enforce the Decision and Order in 39 ALRB No. 17,” without making the findings required by §1164.3(f). As a result, the ALRB’s final order has never been enforced. 4. The Fifth District’s Decision On May14, 2015, the Fifth District issued a decision resolving Gerawan’s petition for review of the ALRB’s final order and Gerawan’s appeal from the Fresno County Superior Court’s denial ofits writ petition to stop the ALRB from referring the parties to MMC. Gerawan Farmingv. ALRB (2015) 236 Cal. App. 4th 1024. The Court of Appeal ruled that the MMCstatute, on its face, “violates equal protection principles.” /d. at 1036. The Fifth District agreed with Justice Nicholson, the dissenter in Hess, that MMCis not consistent with equal protection because MMCorders applyto a single labor dispute and because “the risk is simply too great that results will be based largely on the subjective leanings of each mediatoror that arbitrary differences will otherwise be imposed on similar employers.” Jd. at 1071-72. The Fifth 28 District’s equal protection analysis does not turn on any facts regarding the ALRB’s resolution of the Gerawan contract dispute. The Fifth District also held, again relying on the dissent in Hess, that the MMCstatute “invalidly delegates legislative authority in violation of the California Constitution.” /d. at 1072-76. The Fifth District reasoned that, while the Legislature provideda list of factors for mediators to consider in resolving disputes about contract terms, the Legislature failed to provide a “standard”for how those factors should be applied. Jd. at 1073- 74. The Fifth District further reasoned that the MMCstatute “lacks the necessary procedural safeguards or mechanismsto assure a fair and evenhanded implementation ofthe legislative mandate to impose a CBA.” Id. at 1075-76. The Fifth District also held that the ALRB “abusedits discretion” by summarily rejecting Gerawan’s “abandonment”argument. Jd. at 1065. The Court of Appeal basedits ruling on Labor Code §1164, which provides that a union must be “certified as the exclusive bargaining agent of [the] .. . agricultural employees” to request MMC./d. at 1053-55. The Court of Appeal acknowledged that UFW is “certified as the exclusive bargaining agent” because the ALRB had previously certified UFW as the exclusive bargaining agent. The Court of Appeal also acknowledgedthat, under the ALRA, a union can be “decertified” only through an employee election and an employer cannot raise abandonmentas a defenseto its duty to bargain with a certified union. Jd. at 1042, 1059. Nonetheless, the Court of Appeal reasoned that the MMCprocess“differs materially from bargaining andis largely a postbargaining process”so “the employer’s continuing duty to bargain is not an impedimentto our recognition of the employer’s ability to raise, at [the MMC]stage, a defense that the union forfeitedits representative status by abandonment.” Jd. at 1059 (emphasis in original). 29 The Court of Appeal then reasoned that allowing employers to raise an “abandonment”defense to the certified representative’s MMCrequest would “uphold[] the core legislative purposes” of the ALRA byprotecting employees’ rights to a “representative of their own choosing.” /d. at 1060. The Court of Appeal reasoned that the ALRB’s interpretation of the MMC statute “would eviscerate important ALRA policy and, therefore, we do not follow it.” Jd. The Court of Appeal did not reach Gerawan’s other challengesto the constitutionality of the MMCstatute or to the terms of the ALRB’s final order. /d. at 1065-66. The Court of Appeal also concluded that Gerawan’s appeal from the Fresno Superior Court’s denial of Gerawan’s writ petition was moot. /d. at 1076-77. After the Court of Appeal decision, Gerawan filed a motion in the Court of Appeal seeking a $2.6 million attorneys’ fee award from UFW and the ALRB pursuant to Code of Civil Procedure §1021.5. Gerawan’s fees motion asserts that Gerawan had spent more moneyonlitigation than it would cost Gerawan to grant its workers the wage increases and improved benefits provided by the contract imposed by the ALRB’s final order. The Court of Appeal has stayed disposition of the fees motion. _ ARGUMENT I. Interest Arbitration Has Long Been Used to Resolve Labor Disputes in the Public and Private Sectors The Fifth District’s decision treats interest arbitration asif it were a new and strange phenomenon,ignoring the long history of interest arbitration as a rational meansofresolving labor contract disputes. Althoughlaborrelations policy in the United States since the enactment of the NLRA in 1935 generally has been groundedin the basic idea of collective bargaining as a process in which disputes must be resolved through economicpressure, there also are many examples of Congress and 30 state legislatures providing for mandatory and bindinginterest arbitration to resolve and preventlabor disputes that could adversely impactthe public interest. Moreover, for more than a century, many private sector unions and employers have voluntarily agreed to submit disputes about the terms of new labor contracts to resolution through binding interest arbitration, and many thousandsof labor contract disputes have been resolved through such interestarbitrations. See generally Elkouri & Elkouri, How Arbitration Works (7th ed. 2012), at Ch. 22 (Arbitration of Interest Disputes). Compulsory arbitration of labor disputes first arose at the federal level during World WarI, through creation of the National War Labor Board, and continued again in World WarII with the re-constitution of that Board, which handled tens of thousands of disputes impacting significant segments of the United States economy.’ That War Labor Board had authority to resolve labor disputes, including disputes about the terms of | future agreements,that the parties were unable to resolve through private negotiations. See Executive Order 9017 (“Establishment of the National War Labor Board”) (January 12, 1942), available at 7 Fed. Reg. 237 (“After it takes jurisdiction, the Board shall finally determine the dispute, and for this purpose may use mediation, voluntary arbitration, or arbitration 3 Youngstown Sheet & Tube Co. v. Sawyer (1952) 343 U.S. 579, 697 (discussing National War Labor Boards in WWI and WWID;Allen v. Grand Cent. Aircraft Co. (1954) 347 U.S. 535, 544 (“Nearly 100,000 proceedings were thus held” before the War Labor Board); U.S. Exec. Order 9017 (Establishment of the National War Labor Board); 7 Fed.Reg. 237 (1942); War Labor Disputes Act of 1943, 57 Stat. 163 (1943). For further discussion of the National War Labor Board during World Wars I and II, see J.Joseph Lowenberg, “Compulsory Arbitration in the United States” at 142-43, in Compulsory Arbitration: An International Comparison (J.Joseph Lowenberg,et al., eds., D.C. Health 1976). 31 underrules established by the Board.”). Such dispute resolution continued with the WageStabilization Board during the Korean War.* In addition to these Boards with general powersto resolve labor disputes across industries during wartime, Congress hasat times required the use of interest arbitration in peacetimeto resolve particular private sector labor disputes. In 1963, for example, Congress provided for compulsory arbitration of a long-standing dispute betweencertain railroads and their employees over the appropriate staffing levels for trains. See Pub. L. 88-108, 77 Stat. 132 (1963).° Under current federal law, interest arbitration is used to resolve labor disputes involving postal workers. See 39 U.S.C. §1207. Perhapsasa result of the success of the War Labor Board, state legislatures began passing their own compulsory interest arbitration statutes. Eleven states enacted laws soon after World WarII to both limit strikes in certain industries (such asutilities, transportation, and communications) and provide for the compulsory arbitration of labor disputes.° Wisconsin’s Jaw, for example, was structured as follows: “ Allen v. Grand Cent. Aircraft Co., 347 U.S. at 547 (describing the creation and authority of the WageStabilization Board). > See also Brotherhood ofLocomotive Firemen and Enginemen vy. Certain Carriers Represented by Eastern Conference Committees (D.C. Cir. 1964) 331 F.2d 1020 (upholding Public Law 88-108 against constitutional and delegation challenges); Brotherhood ofLocomotive Engineers v. Chicago, Rock Island and Pacific Railroad Co. (1966) 382 U.S. 423, 432 (describing the railroad staffing dispute and history of Public Law 88-108 and holding that it did not preemptstate law). See also Pub. L. 91-226, 84 Stat. 118 (1970) (“To provide for the settlement of the labor dispute between certain carriers by railroad andcertain of their employees.”). 6° J.Joseph Lowenberg, “Compulsory Arbitration in the United States”at 144-45, in Compulsory Arbitration: An International Comparison (J.Joseph Lowenberg, etal., eds., D.C. Health 1976). Early compulsory 32 In the event of a failure of conciliation, the Boardis directed to select arbitrators who shall ‘hear and determine’ the dispute. /d., s 111.55. The act establishes standards to govern the decision of the arbitrators, id., ss 111.57—111.58, and providesthat the order of the arbitrators shall be final and binding uponthe parties, id., s 111.59, subject to judicial review, id., s 111.60. In summary,the act substitutes arbitration upon order of the Board for collective bargaining whenever an impasseis reached in the bargaining process. And, to insure conformity with the statutory scheme, Wisconsin denies to utility employeesthe rightto strike. Amalgamated Ass'n ofSt. Elec. Ry. & Motor Coach Employees ofAm., Div. 998 vy. Wisconsin Empl. Relations Bd. (1951) 340 U.S. 383, 388. These 1947 statutes were used widely from 1947 and 1951 to resolve disputes about hundreds of contracts.’ Then, in 1951, the U.S. Supreme Court held that, with respect to employers and employees covered by the NLRA,these interest arbitration statutes in the private sector were preempted by federal law. Amalgamated Ass’n, 340 U.S.at 399. In deciding the case on preemption grounds, the Court did not suggest that these lawsviolated the Constitution. Jd. arbitration laws that impacted the private sector included: Florida (Fla. Stat. §453.01 (repealed 1983); Indiana (Ind. Code Ann. § 22-6-2-1); Kansas (KansasStat. §44-608, 609); Missouri (Mo. Ann.Stat. §§ 295.010, 295.080); Nebraska (Neb.Rev.St. §48-802, 810); New Jersey (N.J.S.A. 34:13B-23); Pennsylvania (43 Penn.Stat. §721, repealed 1978); Wisconsin (Wis. Stat. §111.52). While the earliest state law requiring compulsory resolution of private labor disputes, which was passed by Kansasin 1920, wasstruck down by the Lochner-era Supreme Court in WolffPacking Co. v. Court ofIndustrial Relations, (1923) 262 U.S. 522, and WolffPacking Co. v. Court ofIndustrial Relations (1925) 267 U.S. 552, as a violation of substantive due process,that entire line of cases was subsequently repudiated. See Hess, 140 Cal. App.4th at 1599. 7 J.Joseph Lowenberg, “Compulsory Arbitration in the United States”at 145-48. 33 After 1951, to the extent that state laws applied to employees exempt from the NLRA (public sector andprivate sector excluded industries), they remained in force, and states were free to enact new lawsproviding for compulsory arbitration for employees not covered by the NLRA.For example, Nebraska’s law applied to public utility workers outside the scope of the NLRA,and that law continued to be enforced after 1951. See Neb.Rev.St. §48-802, 810. Maryland enacted newlegislation in 1956 to mandateinterest arbitration for certain transit workers. Maryland Code, Trans., §7-602 (formerly Art. 64B, §37(b)). Minnesota, New York, and Massachusetts enacted similar laws to provide mandatory interest arbitration to settle disputes at non-profit hospitals, before the NLRA was amended in 1974 to cover those hospital employees. See Minn.Stat. -§179.35; Fairview Hosp. Ass'n v. Pub. Bldg. Serv. & Hosp. (1954) 241 Minn. 523, 539 (upholding constitutionality of Minn. Stat. §179.35 against equal protection and delegation challenges); N.Y. Lab. Law §716; Mount St. Mary’s Hosp. ofNiagara Falls v. Catherwood (1970) 26 N.Y.2d 493, 511 (upholding New York Labor Law §716 against delegation challenge): Mass. Gen. Law Ch. 150A §9A. Hundreds of non-profit hospital labor disputes were resolved successfully through these mandatory interest arbitration procedures.® Public employees are excluded from the NLRA,andstates are therefore free to regulate their laborrelations. States began to adopt public sector collective bargaining laws in the 1960s and 70s, and many such laws prohibit strikes by certain public employees and require mandatory interest arbitration of their contract disputes.’ Initially, interest arbitration was * J.Joseph Lowenberg, “Compulsory Arbitration in the United States” at "148-49, * See, e.g., Caso v. Coffey (N.Y. 1976) 359 N.E.2d 683, 687 (upholding mandatory interest arbitration for police andfirefighters); City of 34 required only for employeesin public safety roles such as firefighters and police, but the trend has been to expand mandatoryinterest arbitration to other types of public employees as well. See Elkouri & Elkouri, supra, at 22-26 to 22-51 (state-by-state chart). While specific requirements vary, these state statutes generally share the structure of the ALRA amendmentsat issue here: first directing parties to mediation to attempt to voluntarily resolve disputes, then allowing a neutral arbitrator(s) to resolve any remaining disputes. Jd.; e.g., Mass. Gen. Law Ch. 150E, §9. Manystate statutes contain criteria for resolving labor contract disputes that are similar to the criteria provided in the ALRA.See Elkouri & Elkouri, supra, at 22-26 to 22-51; see also Mich. Comp. Law §423.239. Other statutes provide less specific guidance and rely on the Washington v. Police Dept. ofCity of Washington (Pa. 1969) 259 A.2d 437, 441 (upholding mandatory interest arbitration for public employees); accord Fraternal Order ofPolice, Lodge No. 5 ex rel. Costello v. City of Philadelphia (Pa. Cmwlth. 1999) 725 A.2d 206, 209-10; Municipality of Anchorage v. Anchorage Police Dept. Employees Ass’n, (Alaska 1992) 839 P.2d 1080; City ofColumbus v. State Employment Relations Bd. (Ohio Com.PI]. 1985) 505 N.E.2d 651; Milwaukee County v. Milwaukee Dist. Council 48-American Federation ofState, County and Municipal Employees AFL-CIO, (Wis.App. 1982) 325 N.W.2d 350, 356; Superintending School Committee ofBangor v. Bangor Education Association (Me. 1981) 433 A.2d 383; City ofDetroit v. Detroit Police Officers Ass'n (Mich. 1980) 294 N.W.2d 68, 74; City ofRichfield v. Local No. 1215, Int’l Ass’n ofFire Fighters (Minn. 1979) 276 N.W.2d 42, 47; Medford Firefighters Association v. City ofMedford (Or. 1979) 595 P.2d 1268, 1270 n.1; Division 540, Amalgamated Transit Union, AFL-CIO v. Mercer County Improvement Authority (N.J. 1978) 386 A.2d 1290,1294; Town ofArlington v. Board ofConciliation and Arbitration (Mass. 1976) 352 N.E.2d 914, 918 n.3; City ofAmsterdam v. Helsby (N.Y. 1975) 332 N.E.2d 290; Dearborn Firefighters Union Local No. 412 v. City of Dearborn (Mich. App. 1972) 201 N.W.2d 650; City of Warwick v. Warwick Regular Firemen’s Ass’n (R.1. 1969) 256 A.2d 206; New Jersey Bell Telephone Co. v. Communications Workers ofAmerican, New Jersey Traffic Division No. 55 (N.J. 1950) 75 A.2d 721, 733. 35 “common law”ofinterest arbitration. See e.g., Superintending Sch. Comm. ofCity ofBangor, 433 A.2d at 387 (“[T]he ever-widening use ofarbitration in labor disputes, particularly in the public sector, has resulted in the evolution of criteria which have becomeinherentin today’s arbitration process.”) (citation, internal quotation marks omitted). This interest arbitration legislation reflects an understanding that substantial economic leverage is often necessary to achieve labor- management agreement, and for workers that leverage comes in the form of the strike threat. Where workers lack that leverage because of a prohibition on strikes, legislators have provided for interest arbitration as an alternative mechanism for encouraging agreement and deterring protracted disputes that harm workers andthe public interest. See Loewnberg, J. Joseph, Interest Arbitration: Past, Present, and Future, at Ch. 5 (“Labor Arbitration UnderFire’) (1997). While farm workers in California havethe rightto strike, the nature of the agricultural industry can make the use of that form of economic leverage ineffective or unrealistic. As the Third District recognized in Hess: In most collective bargaining situations the primary power an employee bargaining agent hasis the powerto strike. The powerto take collective action through a strike serves to equalize the bargaining position of the parties. However,with respect to agricultural employmentthe Legislature could reasonably conclude that the powertostrike is illusory. The unskilled character of the work, the relatively low wages paid, and the seasonal rather than year-round nature of the work combine to makecollective action by employees untenable. The Legislature could reasonably conclude that despite the ALRA,agricultural workers lack ‘actualliberty of contract.’ 140 Cal. App. 4th at 1600. Thus, it makes eminent sensethat the California Legislature would turn to interest arbitration as a meansofsettling labor disputes for agricultural workers after the threat of strikes proved 36 insufficient to produce first contracts during the period from 1975 to the adoption of the MMCstatute in 2002. HI. The MMCStatute Does Not Violate Equal Protection on its Face The Fifth District ruled that the MMCstatute “‘on its face violates equal protection principles” for two reasons.First, the Court of Appeal reasoned that the MMCprocessresults in a final ALRB orderthat applies to only a single employer and bargaining unit, which could result in different terms and conditions of employment among “similarly-situated” agricultural employers. 236 Cal. App. 4th at 1068. Second, the Court of Appeal reasoned that the MMCprocess creates too great a risk of arbitrary treatment of employers. /d. at 1071. Neither basis for invalidating the statute is tenable. Social and economiclegislation that does not employ “suspect” classifications, such as race or gender, or impinge on fundamentalrights, suchas theright to vote, “must be upheld against equal protection attack whenthelegislative meansare rationally related to a legitimate governmental purpose.” Hodel v. Indiana (1981) 452 U.S. 314, 331-332. No suspectclassification or fundamental rightis at issue here. In adopting the MMCstatute, the Legislature rationally concluded that the ALRA hadnotsufficiently achieved its goal of improving the lives of farm workers and their families. California is the nation’s largest agricultural state, and a 1998 report found that California’sfarm workers have the lowest family incomesandthe highest poverty rate of any occupation surveyed by the Bureau of Census, and that the occupationis characterized by heavy physical labor performed in often unsanitary and unsafe working conditions. See California Research Bureau, California State Library, Farmworkers in California at 1, 4 (July 1998).!° The '0 The report is located at www.library.ca.gov/crb/98/07/98007a.pdf. 37 Legislature also rationally concluded that using interest arbitration, a process that has been used to resolve many thousandsof labor disputes in other contexts (see pp. 30-36 supra), could avoid and resolve labor disputes that prevented the ALRA from achievingits original goals. The federal and California constitutions’ equal protection clauses are not a barrier to a system that permits an administrative agencyto resolve labor disputes one-by-one based on consideration of the details of each dispute anda setof rational factors. The Legislature may adopt a system that requires individualized treatment whenthereis a rational basis for such treatment. See, e.g., Davis v. Mun. Court (1988) 46 Cal. 3d 64, 87-89 (rejecting equal protection challengeto statutes allowing for broad prosecutorial discretion); People v. Wilkinson (2004) 33 Cal. 4th 821, 838- 39 (same). Therule is not different when decisionsare legislative. For example, zoning and re-zoning decisionsare legislative, whether they apply to an entire city or a single parcel. Arnel Dev. Co. v. City ofCosta Mesa (1980) 28 Cal. 3d 511, 516-18. The use of an individualized process to resolve labor disputes encourages the parties to reach their own agreements and, if necessary, resolves disputed CBA termsin a mannertailored to the particular bargaining unit. There is nothing unusual or constitutionally suspect about the issuance of “quasi-legislative” orders that set the terms of individual contracts. All rate-setting is quasi-legislative, see Prentis v. Atlantic Coast Line Co. (1908) 211 U.S. 210, 226, and there is a long history of legislation that delegates to an administrative agency the responsibility to set fair and reasonable terms for individual private contracts.'! For purposes of an equal '' See, e.g., 20th Century Ins. Co. v. Garamendi (1994) 8 Cal. 4th 216, 277 (determination by Insurance Commissionerofthe rates of individual insurers comes within agency’s delegated quasi-legislative authority); Wood v. Public Utilities Commission (1971) 4 Cal. 3d 288, 292-93 38 protection challenge, it is not enough to show that such governmentaction applies to a “class of one.” The challenger must show “that she has been intentionally treated differently from others similarly situated and that there is no rationalbasis for the difference in treatment.” Village of Willowbrook v. Olech (2000) 528 U.S. 562, 564. The Fifth District gave a hypothetical example of three grower- employers (described in the abstract) that fail to reach collective bargaining agreementsandare then subject to final ALRB ordersthat have different terms regarding wages. 236 Cal. App. 4th at 1071 n.37. But no two employers or bargaining units or labor disputes or evidentiary records are precisely the same, so differences in the terms of these hypotheticalfinal ALRB orders would notestablish an equal protection violation. Cf Warden v. State Bar (1999) 21 Cal. 4th 628, 644 (“Where there are ‘plausible reasons’for [the classification] ‘our inquiry is at an end.’”) (citations omitted); Ft. Smith Light & Traction Co. v. Bd. ofImp. ofPaving Dist. No. 16 (1927) 274 U.S. 387, 391-92 (“[nJor need wecite authority for the (upholding power of PUCto determine rates charged by individualutility company without public hearing); Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 768, 772-73 (rent control boards typically must considerindividual petitions for rent control laws to meet constitutional standards); Labor Code §1191 (granting Industrial Welfare Commission authority to set minimum wagerates on an individual basis for physically and mentally disabled employees); Maislin Industries, U.S., Inc. v. Primary Steel, Inc. (1990) 497 U.S. 116, 120-22 (discussing former authority of Interstate Commerce Commission to review andset individual rates charged by motor commoncarriers); Federal Power Comm’n v. Hope Natural Gas Co. (1944) 320 U.S. 591, 602 (upholding ordersetting prices for natural gas delivered by one company); 15 U.S.C. §717c and 42 U.S.C. §7172(a)(1)(C) (granting Federal Energy Regulatory Commission the powerto review andset rates for individual natural gas contracts); 17 U.S.C. §801 et seg. (establishing Copyright Royalty Judgesto resolve individual disputes and set royalty rates for specific copyrighted materials); 47 U.S.C. §252 (delegating to public service commission the powerto set prices in individual telecommunications contracts). 39 proposition that the Fourteenth Amendment doesnot require the uniform application of legislation to objects that are different”); Squires v. City of Eureka (2014) 231 Cal. App. 4th 577, 594-95. The Court of Appeal also reasoned that the MMCprocesscreates a risk of arbitrary treatment. But the statute contains multiple safeguards against such treatment, including selection of a neutral mediator, the requirement of a reasoned decision based on an evidentiary record, and review by both the ALRB andthe courts. In any event, pointing to a hypothetical risk of arbitrary treatment, which exists with most processes, is not sufficient to establish an equal protection violation. Cf McCleskey v. Kemp (1987) 481 U.S. 279, 282-83 (even “a risk that racial considerations enter into capital sentencing determinations”is not enough to show an equal protection violation in a particular case); Snowden v. Hughes (1944) 321 U.S. 1. Even in Yick Wo v. Hopkins (1886) 118 U.S. 356, the Supreme Court did not invalidate as afacial violation of the Equal Protection Clause an ordinancethat gave public officials “a naked and arbitrary power to give or withhold consent” for the operation of laundries “without reason and without responsibility,” based not on “discretion in the legal sense ofthat term” but on “their mere will” with “neither guidance norrestraint.” Jd. at 366-67. Rather, the evidence showedthat the ordinance actually was applied “with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between personsin similar circumstances.” Jd. at 373-74; see also Murgia v. Mun. Court (1975) 15 Cal. 3d 286, 295 (“The Yick Wo court . . . declin[ed] to strike down the standardless permit ordinance onits face [but] granted the requested writ of habeas corpus [because] the board had impermissibly discriminated against Chinese, and . . . such administrative discrimination directly violated the mandate of the equal protection clause.”). 40 Here, moreover, the MMCstatute does not remotely provide the ALRB with a “naked andarbitrary power”to resolve labor disputes subject to “neither guidancenorrestraint.” Yick Wo, 118 U.S. at 366. Rather, if mediation proves unsuccessful, the neutral mediator mustissue a report to the ALRB recommendingresolution ofthe parties’ remaining disputes in a reasoned decision based on an evidentiary record and the consideration of rational statutory factors. See pp. 21-23 supra. That different mediators might hypothetically reach different, reasonable conclusionsin issuing such a report reflects that interest arbitration is a process that, like many others, requires the exercise ofjudgment, notthat the processis arbitrary or irrational. Cf Engquist v. Oregon Dep't ofAgr. (2008) 553 U.S. 591, 603- 04 (for purposes of equal protection, “[i]t is no proper challenge to what in its nature is a subjective, individualized decision that it was subjective and individualized”). It bears emphasis that the Court of Appeal did not conclude here that the contract terms set forth in the ALRB’s final order actually were an irrational or arbitrary resolution of the contract dispute between Gerawan and UFW.Rather, the Court of Appeal concluded only thatirrational or arbitrary treatment is a possible under the MMCstatute, just as it is possible with criminal sentencing, prosecutorial discretion, zoning, insurance rate setting, rent control, and countless other governmentdecisions by judges, executive branch officials, and administrative agencies. The MMCstatute providesa rational system for resolving labor disputes, in which final ALRB orders would reflect the consideration of rational factors, so the MMCstatute does not violate equal protection principles on its face. II. The California Legislature Did Not Unconstitutionally Delegate Legislative Authority By Creating the MMC Process The Fifth District also reasoned that the MMCstatute unconstitutionally delegates legislative authority. 236 Cal. App.4th at 4] 1072-76. But this Court long ago cautioned that “[d]octrinaire legal concepts should not be invoked to impede the reasonable exercise of legislative power properly designedto frustrate abuse. Only in the event of a total abdication of that power, through failure either to render basic policy decisions or to assure that they are implemented as made,[should the courts] intrude on legislative enactment becauseit is an ‘unlawful delegation’... ” Kugler v. Yocum (1968) 69 Cal. 2d 371, 384; see also Mistretta v. United States (1989) 488 U.S. 361, 371-79 (summarizing federal precedent about delegations of legislative authority, which holds that a statute unconstitutionally delegates legislative authority onlyifit lacks any “intelligible principle” for administrators to follow). Government has only grown more complexin the years since Kugler, necessitating more reliance on administrative processes, and this Court has reiterated the limited role of the courts in reviewing statutes under the non-delegation doctrine. Kasler v. Lockyer (2000) 23 Cal. 4th 472, 493; Carson Mobilehome Park Owners’ Assn. v. City ofCarson (1983) 35 Cal. 3d 184, 191; People v. Wright (1982) 30 Cal. 3d 705, 713; Birkenfeld v. City of Berkeley (1976) 17 Cal. 3d 129, 168. The Court of Appeal reasoned that the MMCstatute unconstitutionally delegates legislative authority by “leav[ing] the resolution of fundamental policy issues to others.” 236 Cal. App. 4th at 1076. But the California Legislature madethe relevant “fundamental policy decision” by providing that the ALRB should use a mandatory mediation and conciliation process to resolve outstanding labor disputes about the terms of an initial CBA. The Legislature decided which labor disputes the ALRB should refer to MMC,howthat processwill operate, the types of issues to be mediated, what factors should be considered to resolve disputes, and how the agency should review mediator’s reports. As the Third District explained in Hess: 42 Here, the “fundamental policy decisions” [quoting Wright, 30 Cal.3d at 705], are contained in the Legislature’s express declaration that “a need exists for a mediation procedure in order to ensure a more effective collective bargaining process between agricultural employers and agricultural employees, and thereby morefully attain the purposes of the [ALRA], ameliorate the working conditions and economic standing of agricultural employees, create stability in the agricultural work force, and promote California’s economic well- being by ensuring stability in its most vital industry.” (Stats.2002, ch. 1145, § 1.) 140 Cal. App. 4th at 1605. The delegation of authority to the ALRB is narrowly focused. The ALRB doesnot have authority to resolve disputes on any possible topic regardless of its relationship to working conditions. Rather, the ALRA imposes a duty on the employer andcertified union to bargain about certain mandatory subjects of bargaining. See Labor Code §1155.2 (duty to “confer in good faith with respect to wages, hours, and other terms and conditions of employment”); Cardinal Distrib. Co. v. ALRB (1984) 159 Cal. App. 3d 758, 775 (adopting NLRA precedentto hold that grower’s decision to stop growing beets was not mandatory subject of bargaining under ALRA). The MMCstatute limits the scope of the dispute resolution process to disputes about those mandatory subjects by requiring the ALRB to review andset aside provisions of the mediator’s report if they are “unrelated to wages, hours, or other conditions of employment within the meaning of Section 1155.2” Labor Code §1164.3. Moreover, the parties’ duty to bargain in good faith, and the mediation phase of the MMCprocess, should eliminate or at least narrow most disputes about mandatory bargaining subjects. The ALRB’sfinal order, if necessary, settles only the disputed terms of a single CBA,not a “fundamental” issue of public policy of the type that can be resolved only by the Legislature itself. Cf Pac. Legal Found. v. Brown (1981) 29 Cal. 3d 43 168, 201 (rejecting as “totally untenable” the argumentthat “the working details of the wages, hours and working conditions of [certain public] employees” involved “fundamental policy determinations”that can only be resolved by the Legislature); Wright, 30 Cal. 3d at 713 (upholding delegation of authority to Judicial Council to adopt rules establishing circumstancesin aggravation and mitigation for criminal sentencing). The Fifth District also reasoned that the MMCstatute “fails to provide adequate direction” for the neutral mediatorto use in issuing a report, and for the ALRB to use in reviewing that report. 236 Cal. App. 4" at 1076. But the Legislature set out in the statute itself a list of factors to be considered in resolving the parties’ disputes. See Labor Code §1164(e). The MMCstatute provides exactly the same type of guidance this Court held wassufficient to withstand a delegation challenge in Birkenfeld: “By stating its purpose and providing a nonexclusive illustrative list of relevant factors to be considered, the charter amendmentprovides constitutionally _ sufficient legislative guidance to the Board for its determination ofpetitions for adjustments of maximumrents.” 17 Cal. 3d at 168. The Fifth District viewed the MMCprocessas flawed because,in the Court of Appeal’s view,“there is no goal to aim for.” 236 Cal. App. 4th at 1073. But the “goal”is clear from the declared statutory purpose of resolving labor disputes to encourage a more effective bargaining process. Birkenfeld, 17 Cal. 3d at 168 (“Standardssufficient for administrative application of a statute can be implied by the statutory purpose.”); see also In re Petersen (1958) 51 Cal. 2d 177, 185. The “goal to aim for” is the most reasonable resolution of the remaining unresolved contract disputes in light of the evidentiary record, the parties’ arguments, and the list of statutory factors. In this context, in which reasonableness depends on many considerations and the goal is to encourage the parties to reach their own agreements, it would not be possible for the Legislature to dictate a formula 44 to be applied mechanically to resolve each dispute. The Legislature need not provide such a formula. See, e.g., Wright, 30 Cal. 3d at 713; Birkenfeld, 17 Cal. 3d at 168; Carson Mobilehome, 35 Cal. 3d at 191. This Court already rejected the argument that a city charter mandating interest arbitration by a private arbitrator involved an ° unconstitutional delegation oflegislative authority in Fire Fighters Union, Local 1186 v. City of Vallejo (1974) 12 Cal. 3d 608. By wayof standards, the charter provided only that in deciding the contract dispute “[t]he arbitrators shall considerall factors relevant to the issues from the standpoint of both the employer and the employee, includingthe City’s financial condition.” /d. at 613 n.3. Limited judicial review was then “available to determine whetherthe arbitrators have exceededtheir powers.” Id. at 615 n.6. This Court rejected the unlawful-delegation challenge, concluding: Arbitration of public employment disputes has been held constitutional by state supreme courts in State v. City ofLaramie, 437 P.2d 295 (Wyo. 1968) and City of Warwick v. Warwick Regular Firemen’s Ass’n, 256 A.2d 206 (R.I. 1969). To the extent that the arbitrators do not proceed beyondthe provisionsof the Vallejo charter there is no unlawful delegation of legislative power. Id. at 622 n.13. Labor Code §1164 provides more detailed standards for the mediator to follow and more searching review (by both the ALRB andthe courts) than did the Vallejo city charter. The great weight of authority from other states, moreover,is that a statute providing for compulsory interest arbitration of labor disputes does not violate the delegation doctrine by setting outa list of factors for the arbitrator to consider — or even by providing no explicit standardsat all and relying on the “common law”ofinterest arbitration. See, e.g., City of Richfield, 276 N.W.2d at 47 (“It would bedifficult if not impracticable to formulate rigid standards to guide the arbitrators in dealing with the 45 complex and potentially volatile issues that might arise during labor negotiations. To do so might well destroy the flexibility necessary for the arbitrators to effect the legislative purpose of enacting the law.’’); Superintending School Committee ofBangor, 433 A.2d at 387 (“Formulation of rigid standards for the guidance ofarbitrators in dealing with complex and often volatile issues would be impractical, and might destroy the flexibility necessary for the arbitrators to carry out the legislative policy of promoting the improvementofthe relationship between public employers and their employees.”); Harney v. Russo (Pa. 1969) 255 A.2d 560, 563 (“To require a more explicit statement of legislative policy in a statute calling for labor arbitration would be sheer folly. The great advantage ofarbitrationis, after all, the ability of the arbitrators to deal with each case on its own merits in orderto arrive at a compromise whichis fair to both parties.”).!2 Where the Legislature has made the “fundamental” policy decision and has provided guidance to administrators on how to implement that policy, the remaining concern of the “unlawful delegation” doctrine is with whether the statute provides constrains against arbitrary action. See Birkenfeld, 17 Cal. 3d at 168 (“The needis usually not for standards but for safeguards. . . .”) (quotations omitted); People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal. App. 4th 619, 633 (“a delegation of authority must be accompanied by safeguards which insure that the 2 See also Municipality ofAnchorage, P.2d 1080; City ofColumbus,505 N.E.2d 651; Milwaukee County, 325 N.W.2dat 356; City ofDetroit, 294 N.W.2d at 74; Medford Firefighters Ass’n, 595 P.2d at 1270 n.1; Mercer County Improvement Authority, 386 A.2d at 1294; Town ofArlington, 352 N.E.2d at 918 n.3; City ofAmsterdam, 332 N.E.2d 290; City ofDearborn, 201 N.W.2d 650; City of Warwick, 256 A.2d 206; Fairview Hospital Ass’n, 64 N.W.2d 16; New Jersey Bell Telephone, 75 A.2d at 733; United Gas, Coke & Chemical Workers ofAmerica, Local 18 v. Wisconsin Employment Relations Board (Wis. 1949) 38 N.W.2d 692. 46 delegatee does notact arbitrarily”); see also Superintending School Committee ofBangor, 433 A.2d at 387 (“Especially where it would not be feasible for the Legislature to supply precise standards, the presence of adequate procedural safeguards may be properly considered in resolving the constitutionality of the delegation of power”); Town ofArlington, 352 N.E.2d at 920 (“Weare less concerned with the labels placed on the arbitrators as public orprivate, as politically accountable or independent, than weare with ‘the totality of the protection against arbitrariness’ providedin the statutory scheme.”); accord Municipality ofAnchorage, 839 P.2d at 1084; City ofRichfield, 276 N.W.2d at 47; Milwaukee County, 325 N.W.2d at 358; City of Warwick, 256 A.2d at 210-1 1: Medford Firefighters Association, 595 P.2d 1268. The Court of Appeal stated that the Legislature failed here to provide “necessary procedural safeguards or mechanismsto assure a fair and evenhanded implementationofthe legislative mandate” (236 Cal. App. 4th at 1075), and that the ALRB’s review of the mediator’s report is just a “rubber-stamp approval.” /d. To the contrary, the Legislature did provide constitutionally sufficient “safeguards” and “mechanisms,” which go beyond those in manyotherinterest arbitration statutes, beginning with the processforthe parties to select a neutral mediator. The ALRB must obtain a list of nine experienced labor mediators from the State Mediation and Conciliation Service and,if the parties cannot agree upon the mediator, the parties alternately strike from this list. Labor.Code §1164(b). The Legislature further provided for the participation of both parties in the MMCprocess; creation of a record; preparation of a written mediator’s report that relies upon the record; review of the mediator’s report by the ALRB;and review of the ALRB’s order by the courts. Cf MountSt. Mary’s Hospital, 26 N.Y.2d at 511 (upholding statute that required interest 47 arbitration to settle labor disputes involving private, non-profit hospitals, wherearbitration awards were reviewable only for abuse of discretion). Under the MMCstatute, the ALRB’s role is not to “rubber-stamp” mediator’s reports, but to review the parties’ objections, if any, to those . reports and to reject any recommendationsthat are outside the scope of mandatory bargaining subjects, unsupported by the factual record, or “arbitrary and capricious.” Labor Code §1164.3. In this case, after reviewing the initial report and Gerawan’s objections, the ALRB returned six issues to the mediator for further mediation with the parties, which then resulted in a successful second mediation and complete agreement — hardly a “rubber stamp.” In sum,the Fifth District’s analysis of the delegation issue is at odds with the entire body of modern precedent in this area. The Court of Appeal’s approach invites returning the courts to their former, Lochner-era role of second-guessing the wisdom ofthe Legislature’s policy decisions about economic regulation, by implying sufficient standards from the purposesandstructure of somestatutes while striking down other disfavored regulation as containing “no goal to aim for.” Accordingly,this Court should continue to reject that approach to the non-delegation doctrine. IV. The ALRA Does Not Permit an Employer to Avoid the MMC Process By Challenging a Certified Union’s Representative Status Through An “Abandonment” Objection The Fifth District interpreted the MMCstatute to create a distinction between whethera unionis the certified bargaining representative for purposes of the employer’s duty to bargain and whetherthe unionis the certified bargaining representative for purposes of requesting referral to the MMCprocessifthat same bargaining proves unsuccessful. The Court of Appeal acknowledgedthat, under longstanding ALRA precedent, once a 48 union has beencertified after an election, the union remainsthe certified representative unless workers decertify the union through anotherelection (unless the unionitself disclaims the unitoris defunct). 236 Cal. App. 4th at 1059. The Court of Appeal ruled, however, that an employer may oppose referral to the MMCprocess by claiming that the union certified as the bargaining representative for a unit has since “forfeited that status through abandonment.” /d. at 1054. Thereis no basis for the Court of Appeal’s distinction in the languageor history of the MMCstatute. Even if the language and history of the MMCstatute provided any room such a distinction, moreover, the ALRB’s decision about labor policy would be entitled to deference.!? Labor Code §1164(a)(1) permits a request for referral to the MMC processto be filed by “a labor organization certified as the exclusive bargaining agent of a bargaining unit ofagricultural employees”at any time following: “90 days after a renewed demandto bargain by an agricultural employeror a labor organization certified prior to January 1, 2003.” The Legislature did not qualify this provision with any requirementthat the union have actively pursued bargaining on a consistent basis over the years prior to serving the “renewed demandto bargain.” The requirementof a “renewed demandto bargain”also makesclear that the bargaining relationship may previously have become dormant. '3 On the same day the Court of Appeal issued its decision in this case, the same panelissuedits decision in Tri-Fanucchi Farms v. ALRB (2015) 236 Cal. App. 4th. 1079. In Tri-Fanucchi, the Court of Appeal upheld the ALRB’s decision that the employer committed an unfair labor practice by refusing to bargain at the request of a certified union, notwithstanding the employer’s contention that the union had previously “abandoned”the bargaining unit by allowing negotiations to remain dormant. This Court granted review in Tri-Fanucchito consider the issue whether an employer may claim that it has no duty to bargain with a certified union because of the union’s alleged prior “abandonment”ofthe unit. 49 Moreover, while the MMCstatute provides very specific procedures for processing MMCdeclarations, the statute provides no procedure for consideration of challenges to the status of a certified representative that would require evidentiary proceedings, such as an “abandonment” defense. The Legislature mandated that “[u}pon receipt of a declaration” demonstrating that the specific and easily verified statutory criteria are met, the ALRB “shall immediately issue an order directing the parties [to MMC}.” Labor Code §1164(b) (emphasis supplied). The Legislature would not have required an “immediate[]” referral upon receipt of a declaration if the Legislature had intended the ALRB to conductthe evidentiary proceedings concerning “abandonment” envisioned by the Fifth District. The Legislature also adopted the MMCstatute against the backdrop of very clear and consistent precedent interpreting the ALRA to meanthat, once the ALRB certifies a representative for a bargaining unit after an employee election, the representative can only be decertified through another employeeelection. Dole Fresh Fruit Company (1996) 22 ALRB No.4, at 15 n.7; see also, e.g., San Joaquin Tomato Growers (2011) 37 ALRB No.5, at 3-4; Pictsweet Mushroom Farms (2003) 29 ALRB No.3, at 10-11; Bruce Church (1991) 17 ALRB No.1, at 9-10; Ventura County Fruit Growers (1984) 10 ALRB No.45, at 3-7; Nish Noroian Farms (1982) 8 ALRB No. 25, at 15-16. Before the MMCstatute was adopted, the ALRB and courts had consistently rejected employers’ attempts to claim that the union should not be considered the bargaining representative because the union allegedly had “abandoned”the unit. See F & P Growers Ass’n v. ALRB (1985) 168 Cal. App. 3d 667, 672-78. The issue of“decertifying” unionsis one of the specific areas in whichthe California Legislature chose in the original ALRA to deviate from the analogousprovisions of the NLRA by precluding any employer involvementin challenging the representative status of previously certified 50 labor organizations. Compare Labor Code § 1156.3 (permitting only workersto file decertification petitions) with 29 U.S.C. § 159(c)(1)(B) (employers may file petitions challenging representative status); see F & P Growers, 168 Cal. App. 3d at 672-78.'4 The differencein the statutory language is one of the reasons the courts and the ALRB had concludedthat employers cannotraise any defenses to the representative status of a certified ALRA union: [TJo permit an agricultural employer to be able to rely on its good faith belief in order to avoid bargaining with an employee chosen agricultural union indirectly would give the employerinfluence over those matters in which the Legislature clearly appears to have removed employer influence. This court will not permit the agricultural employerto do indirectly, by relying on the NLRA loss of majority support defense, what the Legislature has clearly shown it does not intend the employerto dodirectly. ' While the ALRA wasin manyrespects modeled on the structure and requirements of the NLRA,the California Legislature, and then later the | ALRB through implementing rules and regulations, have modified certain requirementsto reflect the particular nature of the agricultural workforce and the challenges of organizing and protecting the right to bargain in that context. For example, the ALRA gives unionsthe right to enter a grower’s property to access workers, unlike the NLRA whichis silent with respect to access. See 8 C.C.R. §20900 and ALRB v.. Superior Court (1976) 16 Cal. 3d 392 (where this Court upheld the ALRA’s access rule). The ALRA permits the use of signatures on election petitions of workers hired by farm labor contractors not just direct employees of the grower, which also differs from the NLRA.See Lab. Code § 1140.4(c) (deeming the employer engaging any labor contractor employee as "the employerfor all purposes"); 8 C.C.R. §20310(a)(2). The ALRA permits the selection of representative only by secret-ballot election conducted by the ALRB and regulates when during the growing season those elections can occur, unlike the NLRA which permits other forms ofvoluntary recognition like card-check, at any time. Finally, as most relevant to the issue before this Court, the ALRA also expressly differs from the NLRA by making it moredifficult to decertify a union, by codifying the contract bar to a decertification petition, and permitting only unions or employees, not an employer,to file a decertification petition. Labor Code §1156.7. 51 Id. at 676-77. Nothing in the MMCstatute remotely suggests any intent by the Legislature to invite employer involvementinto an area in which employer involvement previously had been foreclosed. The Fifth District reasoned that the legal background against which the Legislature adopted the MMCstatute wasnotso clear in precluding employer challengesto a certified union’s status. The Fifth District pointed out that Montebello Rose Co. v. ALRB, (1981) 119 Cal. App. 3d 1, had referred to a “rebuttable presumption”of majority status that exists beyond the initial year following certification, implying that there are circumstances in which the presumption can be “rebutted.” 236 Cal. App. 4th at 1055. But Montebello Roseactually recognized that the NLRA has been read to include a “rebuttable presumption” of continued representative status after the first year, and then contrasted the language of the ALRA, recognizing that: 1) no provision of the ALRA expressly imposesa time limit with respect to an employer’s duty to bargain with a certified union, and 2) the one year time limit in the ALRA pertains only to the “contract bar” for employee decertification petitions, not the duty to bargain. Montebello Rose, 119 Cal. App. 3d at 24-25 (“While the code section implying the duty to bargain contains no express time limit (§ 1153, subd. (e)), the section creating the election bar does contain a one-year time limit (§ 1156.6). The Board therefore concludedthat “certification” lapses after one year for the purpose ofthe election bar, but not for the purposeofthe bargaining duty.”). Nothing in Montebello Rose suggests that there are circumstances in which an employer may “rebut”the status ofa certified union. Moreover, in F & P Growers, the Court of Appeal agreed with the ALRB that an employer cannot challenge a certified union’s representative status. 168 Cal. App. 3d at 672-78. F & P Growers explained that what the Fifth District referred to as the “rebuttable presumption rule” under the 52 NLRA is inapplicable in light of the language and purpose of the ALRA. Id. at 676 (“Weagree that these differences in the NLRA and the ALRA, with respect to employerparticipation in the certification and decertification petitions, show a purpose onthe part of the Legislature to prohibit the employer from being an active participant in determining which union it shall bargain with in cases arising under the ALRA.”).!> As such, the Legislature, in adopting the MMCstatute, would not have understood the ALRA to allow employers to “rebut”a certified union’s status as the legal representative of the unit under any circumstances. Instead, the "rebuttal" may come only from workers, and only through a valid, secret ballot election. The legislative history of the MMCstatute is also inconsistent with the distinction drawn by the Fifth District. As discussed above, the Legislature was well aware in crafting the MMCstatute of the hundreds of previous unioncertifications — going back twenty-five years to 1975 -- for which nofirst contract had ever been reached. Supra, at 19. The Legislature understoodthat recalcitrant employers had often made bargaining inthese units a futile process. Nothing in the history of the MMCstatute remotely suggests that the Legislature intended to exclude, sub silento, those '5 As the Court of Appeal in F & P Growers explained: Wherethere is such a rapid turnoverof agricultural employees and many ofthese temporary employeesare also alien workers, who do not speak the English language, the workers maybeespecially unable to bargain with the employer, without the assistance of a union, and thereis all the more reason for the Legislature to decide to remove the employer from anyperipheral participation in deciding whether to bargain with a particular union.... Applying the NLRA defense would fail to respond to the particular needs of the California agricultural scene. Td. at 677. 53 represented employees for whom bargaining had been rendered futile for years by employerresistance; rather, those were the employees who the Legislature was attempting to help. Nonetheless, Fifth District reasoned as follows: The “MMCprocess differs materially frombargaining and is largely a postbargaining process” and, therefore, “the employer’s continuing duty to bargain is not an impedimentto our recognition of the employer’s ability to raise, at [the MMC]stage, a defense that the union forfeited its representative status by abandonment.” 236 Cal. App. 4th at 1059 (emphasisin original). That reasoning is not based on an accurate understanding of the role of the MMC process. The Legislature adopted MMCnotas a "postbargaining" substitute for bargaining but to “ensure a moreeffective collective bargaining process.” Stats. 2002, ch. 1145, §1. The initial step in invoking MMC, where a union had beencertified prior to the effective date of the MMC statute, is a “renewed demand for bargaining.”” Labor Code §1 164(a)(1). If that renewed bargaining proves unsuccessful in producing a contract, and the parties are referred to MMC,the next step is continued bargaining, ° facilitated by the jointly-selected mediator (which the Court of Appeal attempted to dismiss away as just “a brief 30-day period of bargaining at the outset,” 236 Cal. App. 4th at 1058). Labor Code §1164(c). If that mediation phase proves unsuccessful, the parties are free to reach their own agreement before the mediator issues a formal report, or before the ALRB adopts that report, and, if a final ALRB orderis necessary, the parties are still free to agree to change those terms. The point of MMCis to encourage serious bargaining. Underthe Fifth District’s ruling, a certified representative could renew dormant bargaining with an employerthat never agreed to aninitial CBA(because the employer has a duty to bargain in goodfaith), but would lack the additional “leverage” provided by the MMCstatute to make that 54 bargaining effective. As such, the bargaining unit workers would be unlikely to ever obtain a reasonable contract, because under so-called “traditional bargaining” many agricultural employers never agree to contracts. That wasthe situation the Legislature sought to change, not perpetuate. The Fifth District also justified its ruling as necessary to further the overall “policy” of the ALRA to enable farm workers to have collective bargaining representatives “of their own choosing.” 236 Cal. App.4th at 1060. Accepting Gerawan’s version of events, the Fifth District expressed concern that a labor representative that had stoppedactively attempting to engage in bargaining with a hostile employer might no longerbe the desired representative of a majority of the current employees: “it may be the case that theemployees do not wantto be represented by that union or any other union, which Gerawanasserts wasthesituation here. Against that backdropis the prospect, in the MMC process, a CBA will be imposed whether the employees wantit or not.” Jd. at 1061.'° The Fifth District also expressed concern that the timeframeset by the Legislature for the MMCprocessmightnot be sufficient to allow workers to mount a “decertification” campaign andthat the MMCstatute would encourage “destabilizing, beat-the-clock” bargaining by unionsthat sought the “reward”ofbeing sent to the MMCprocess./d. at 1062. The Fifth District’s concerns, however, cannot justify overriding the policy decision made bythe Legislature in 2002, especially where the result of such a decision will be to incentivize agricultural employers to engagein illegal '6 Despite disclaiming any reliance on the then-pending decertification election proceedings at Gerawan,the Fifth District repeatedly refers to them. 236 Cal. App. 4th at 1039, 1062. An ALJ recently determinedthat the decertification campaign wasillegally supported by Gerawanitself, in a blatant interference with its employees’ protected rights. See Exhibit B to UFW’s Motion for Judicial Notice. 55 decertification campaigns -- as Gerawan has donehere -- to stall renewed collective bargaining efforts. The Legislature concluded that farm workers in a bargaining unit that had elected union representation in a secret-ballot election, even an election that occurred long ago, would be betteroffif their certified bargaining representative could obtain a reasonable contract on their behalf than if bargaining remaineda futile and hopeless exercise. The Legislature also concluded that decertification is a speedy enough process whenthereis truly a grassroots decertification campaign by employees, rather than one illegally instigated and supported by the employer.'’ The Legislature also concluded that requiring the ALRB to “immediately” refer parties to MMC upon request, rather than providing for potentially lengthy and protracted evidentiary proceedings to consider an employer defense like “abandonment,” would best serve the bargaining process. ~ The aim of any exercise in statutory interpretation is to determine and implementthe intent of the Legislature that adopted the statute at issue. In this case, the language and history of the MMCstatute show that the Legislature’s intent in 2002 was to make the MMCprocessavailable in units in which bargaining had become dormant, so long asthe certified union or employer first makes a “renewed demandto bargain.” The Fifth District erred by replacing the Legislature’s policy determinations with its own, and thereby providing agricultural employers with a vehicle to thwart MMCcollective bargaining: unlawful decertification campaigns. '7The ALRA provides for the ALRB to schedule a decertification election within 7 daysafter receipt of a decertification petition accompanied by sufficient signatures. LaborCode §1156.3(b). The ALRB’s final order here wasnot issued until more than a year after UFW’s renewed demandto bargain. MMCtimelines are not inconsistent with employee choice. 56 Evenif there were roomin the statutory language for the distinction drawn bythe Fifth District, moreover, the ALRB’s contrary interpretation of the statute should have been given deference. ALRB v. Superior Court (Gallo Vineyards) (1996) 48 Cal. App. 4th 1489, 1506 (“The ALRB is the agency entrusted with the enforcement of the Act andits interpretation should be given great respect by the courts and followedif not clearly erroneous.”’); Highland Ranch v. ALRB (1981) 29 Cal. 3d 848, 858-62 (courts must give “great weight” to the ALRB’s interpretation of the Act); San Diego Nursery v. ALRB (1979) 100 Cal. App. 3d 128, 140 (same).The Fifth District grounded its decision solely in labor policy concerns, and the Legislature charged the ALRB,not the courts, with administering the ALRA,including by weighing competing policy concerns when the statutory language is unclear. For the reasonsstated, there are sound policy reasonsto allow certified unions to revive dormant bargainingrelationships and request MMCifthe bargaining is unsuccessful, rather than to leave the workers in these units with union representation but no hope of ever obtaining a reasonable contract. CONCLUSION For the foregoing reasons, real] party in interest UFW respectfully requests this Court reverse the Fifth District’s decision and order the Fifth District to lift the stay of the ALRB’sfinal order.!® '8 Tf Gerawan contendsthatits other, unresolved challenges to the ALRA’s final orderjustify a stay, Gerawan has the burden of seeking andjustifying such a stay under the standard set forth by the Legislature. See Labor Code §1164.3(f). 57 Dated: November 17, 2015 58 MARIO MARTINEZ THOMASP. LYNCH MARTINEZ AGUILASOCHO & LYNCH, APLC SCOTT A. KRONLAND DANIELLE E. LEONARD ALTSHULER BERZON LLP By: /s/ Scott A. Kronland Scott A. Kronland Counsel for Real Party in Interest United Farm Workers of America CERTIFICATE OF WORD COUNT I hereby certify pursuant to Rule 8.520(c)(1) of the California Rules _ of Court that the foregoing brief is proportionally spaced, has a typeface of 13 points or more, and contains 13,954 words, excluding the cover,tables, signature block, and this certificate, which is fewer than the number of words permitted by the Rules of Court. Counselrelies on the word count of the word processing program used to preparethis brief. Dated: November 17, 2015 By: /s/ Scott A. Kronland Scott A. Kronland Counsel for Real Party in Interest United Farm Workers of America 59 PROOF OF SERVICE Case: Gerawan Farming, Inc. v. ALRB, Supreme Court Case No. 8227243 Fifth App. Dist. Nos. F068526 and F068676 I, Laurel Kapros Rohrer, am employedin the City and County of San Francisco, California. I] am over the age of eighteen years and not a party to the within action; my business address is 177 Post Street, Suite 300, San Francisco, California 94108. On November 17, 2015, I served the following document(s): Real Party In Interest United Farm Workers Of America’s Opening Brief On The Merits on the parties, through their attorneys of record, by placing true copies thereof in sealed envelopes addressed as shown below for service as designated below: (A) By First Class Mail: I placed the envelope, sealed and with first- class postage fully prepaid, for collection and mailing following our ordinary businesspractices. I am readily familiar with the practice of Altshuler Berzon LLP for the collection and processing of correspondence for mailing with the United States Postal Service. On the same day that correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Mail Postal Service in San Francisco, California, for collection and mailing to the office of the addressee on the date shownherein. Method Addressee Party of Service A David Abba Schwarz Gerawan Farming, Michael A. Behrens Inc. Trell & Manella LLP 1800 Avenue of the Stars, #900 Los Angeles, CA 90067-4276 A C. Russell Georgeson Gerawan Farming, Georgeson, Belardineli & Noyes Inc. 7060 N. Fresno Street, Suite 250 Fresno, CA 93720 A Ronald H. Barsamian Gerawan Farming, Barsamian Saqui and Moody Inc. 1141 W. Shaw Ave, Suite 104 Fresno, CA 93704 60 A Agricultural Labor Relations Board Agricultural Labor 1325 J Street, Suite 1900B Relations Board Sacramento, CA 95814-2944 A Jose Antonio Barbosa Agricultural Labor Agricultural Labor Relations Board Relations Board 1325 “J” Street, Suite 1900 Sacramento, CA 95814-2944 A Benjamin Matthew Glickman Agricultural Labor Office of the Attorney General Relations Board 1300 I Street, Suite 125 P. O. Box 944255 Sacramento, CA 94244 A The Hon. Donald Black Trial Court Fresno County Superior Court 1100 Van Ness Avenue Fresno, CA 93724-0002 A California Court of Appeal Court ofAppeal For the Fifth Appellate District 2424 Ventura Street Fresno, CA 93721 I declare under penalty ofperjury under the laws of the State of California that the foregoing is true and correct. Executed this November 17, 2015, at San Francisco, California. mdwow\> Yrn.. Laurel Kapros Rohrer 61