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

Real Party in Interest, United Farm Workers of America, Petition for Review

Cal.June 22, 2015

(§$227243 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA GERAWAN FARMING,INC. Petitioner, SUPREME COURT v. LED AGRICULTURAL LABOR RELATIONS BOARD, JUN 2 2 2015 _ Defendant and Respondent, UNITED FARM WORKERSOF AMERICA, Frank A. McGuire Clerk Real Party in Interest. Deputy GERAWANFARMING,INC., Plaintiff and Appellant, Vv. AGRICULTURAL LABORRELATIONS BOARD, Defendant and Respondent, UNITED FARM WORKERSOF AMERICA, Real Party in Interest and Respondent. After decision by the Court of Appeal, Fifth Appellate District, Case Nos. F068526 and F068676 Reversing a decision of the ALRB (39 ALRB No.17) and affirming the judgment of the Superior Court for the County of Fresno (Case No. 13CECG01408, Hon. Donald Black presiding) PETITION FOR REVIEW SCOTT A. KRONLAND(SBN 171693) *MARIO MARTINEZ (SBN 200721) ALTSHULER BERZON LLP THOMASP. LYNCH (SBN159277) 177 Post Street, Suite 300 MARTINEZ AGUILASOCHO & San Francisco, CA 94108 LYNCH, APLC . Tel: 415/421-7151 P.O. Box 11208 Fax: 415/362-8064 Bakersfield, CA 93389 skronland@altshulerberzon.com Tel: 661/859-1174 Fax: 661/840-6154 mmartinez@farmworkerlaw.com Counsel for Real Party in Interest United Farm Workers of America No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA GERAWAN FARMING,INC. Petitioner, Vv. AGRICULTURAL LABOR RELATIONS BOARD, _ Defendant and Respondent, UNITED FARM WORKERS OF AMERICA, Real Party in Interest. GERAWANFARMING,INC., Plaintiff and Appellant, Vv. AGRICULTURAL LABOR RELATIONS BOARD, Defendant and Respondent, UNITED FARM WORKERS OF AMERICA, Real Party in Interest and Respondent. After decision by the Court of Appeal, Fifth Appellate District, Case Nos. F068526 and F068676 Reversing a decision of the ALRB (39 ALRB No. 17) and affirming the judgment of the Superior Court for the County of Fresno (Case No. 13CECG01408, Hon. Donald Black presiding) PETITION FOR REVIEW SCOTT A. KRONLAND(SBN171693) *MARIO MARTINEZ (SBN 200721) ALTSHULER BERZON LLP THOMASP. LYNCH (SBN159277 ) 177 Post Street, Suite 300 MARTINEZ AGUILASOCHO & San Francisco, CA 94108 LYNCH, APLC . Tel: 415/421-7151 P.O. Box 11208 Fax: 415/362-8064 Bakersfield, CA 93389 skronland@altshulerberzon.com Tel: 661/859-1174 Fax: 661/840-6154 mrnartinez@farmworkerlaw.com Counselfor Real Party in Interest United Farm Workers of America TABLE OF CONTENTS TABLE OF AUTHORITIES.......ccccceeee ceeceseeessseesecseeseeeesseeeseeenseeeseeeessrensenes 3 ISSUES PRESENTED..........ccccsccsseesee coneeeesseeseseseasteesseessecnseensnesesecaeseseeenes 8 INTRODUCTIONou... ecccccccccccsceseseeeeceeee ceceeseeaeesssesssenecseesseeeseeenseesaneenessensenags 9 BACKGROUND 1... .ccccccccescsseeseseeeceeese conetecsecsesesseseesecsassaseasesseesesseenasieegens 10 1. The Statute... ccc ccc cccesecceceeeee ceeseesesecscceessessssesseaeeessesseeesseesseereaney 10 2. The ALRB Proceeding .......... cece eee seseeeeeeeeereessecneeeesesenneesseeneeaeeans 13 3. The Court of Appeal Decision...........ccccceccseeeeeeeseeeeeeeeneesseeeeneess 15 REASONSFOR GRANTING REVIEW .....ecccccesceteesecseeeseeeneeees severe 17 I. Review is necessary to resolve a conflict about the constitutionality of the MMCstatute... eeesseeeeseesteeneneeneenes 17 II. Review is necessary to resolve a conflict about whether an employer may opposereferral to MMCby contending that the union “abandoned” the bargaining unit... 25 CONCLUSION...cecccccccccccccsccssesseseeeneeee ceeeeseseeceeeseeesseseeneeeaeaeeessaneeeneeeenseens 31 CERTIFICATE OF WORD COUNT.......:ccecccessseseseseesseeeseeeneeeneseaeseens 322 PROOF OF SERVICE.........::ccccesteseseeeeeees Lesseeseeereeseeeeneeseeteeeeaeeeteeaeens 333 TABLE OF AUTHORITIES Page(s) Federal Cases Auciello Iron Works v. NLRB, (1996) 517 U.S. 781 oi eceeessceeseeneseeeseeneneeeesnenneasasstseeeeeeeeesenereneneenenenenes 30 Engquist v. Oregon Dep’t ofAgr., (2008) 553 U.S. 59] oecsseccseseeeeeeceseseneeesneeseneneneneessiseseeeesisiseeseeesenes 19 Federal Power Comm'n v. Hope Natural Gas Co., (1944) 320 U.S. S91eeeceseeeeeceseneneeeeeeseeeenseeeesessenesseeseneeseseneneeeey20 Ft. Smith Light & Traction Co. v. Bd. ofImp. ofPaving Dist. No. 16, (1927) 274 U.S. 387 weecceccseeescseseseeseseeeeeeneneesceneeererseneseetsesesecesseaeaeeenenaes 19 Maine Cent. R. Co. v. Bhd. ofMaint. of Way Employes, (D. Me. 1987) 657-F. Supp. 971 .......seeeeseseeerere teres eeseseeenenseseeeeeeneenenes21 Maislin Industries, U.S., Inc. v. Primary Steel, Inc., (1990) 497 U.S. 116 occscesseseseneeceesesseeneneenereteseneresstesereresasseeneeeenenes20 McCleskey v. Kemp, . (1987) 481 U.S. 279 oecccccseesseteeeeeceeseeeeeneneenenersnessnerenseseeeneeseseeesernenes 19 Mistretta v. United States, (1989) 488 U.S. 361] oo.eeeeeee etter eeeneesevuueeeessaeeeesuaeeeesanteetaeeerees21 Prentis v. Atlantic Coast Line Co., (1908) 211 U.S. 210 oo ececceeseneeeeceeeeeeeeteenesestenseenerensneseneeasenstenensneneegs20 Village of Willowbrookv. Olech, (2000) 528 U.S. 562 .eeeesssceesseseeseeseeseneneeenessseenereienseneneseneeneacenentetaas 19 California Cases 20th Century Ins. Co. v. Garamendi, (1994) 8 Cal.4th 216... cscsccccseeseessneseeeeeeeenssesessssenseesserensnsnesneensetensacs20 Birkenfeld v. City ofBerkeley, (1976) 17 Cal.3d 129vecesree eiestesseereseeeeneacenseceneneenerseneanens 22, 23 Carson Mobilehome Park Owners’ Assn. v. City ofCarson, (1983) 35 Cal.3d 184... ccceseeeseeeeeeseceeeeeassesessseesserenenenensanenseneneaseas23 Davis v. Municipal Court, (1988) 46 Cal.3d 64... eccesesescecceeeteseseeeneesnsereeaserssseeeneneseseseenneneneesasens 18 F&P Growers Assoc. v. ALRB, (1985) 168 CalApp.3d 667 ......cccccceeseesceseteersesssersteeeeersnenesnesneeenentias29 Fire Fighters Unionv. City of Vallejo, (1974) 12 Cal.3d 608.0... ccececssseseseseecereteteeeeteessssesnsreneeseseeenscieensnersenseesaney24 Hess Collection Winery v. ALRB, (2006) 140 Cal.App.4th 1584.0...eeerst estereeeeeeesennenes passim J.R. Norton Co. v. ALRB, (1979) 26 Cal.30 Lo ceccceceeeseesesereeereeeeerereetsreeensneseseseneesenenssettee 11, 30 Kavanau v. Santa Monica Rent Control Bd., (1997) 16 Cal 4th 761 oecececeeeeeeeeeeeeeeersteneneeserensesssensensneseseeeasnees20 Kugler v. Yocum, (1968) 69 Cal.2d 371 ..cccececeseseee essere tetersssnersetneeseneneeseseeeeseeeeneeeenes21 Pac. Legal Found. v. Brown, (1981) 29 Cal.3d 168... ccceccceseeeeeseeteeeee tenses nsteersssssesesseneereeenes22 People v. Wright, (1982) 30 Cal.3d 705 ...ccceceseseseseneeeetereeereretstseerteeeesesaeessesteeeeaens 22, 23 Squires v. City ofEureka, . (2014) 231 Cal.App.4th 577 .....ccccccceeeseeresteeeesseneeenenessensecnssseneneans 19 Tri Fanucchi Farms v. ALRB, (2015) 236 Cal.App.4th. 1079, 187 Cal.Rptr. 3d 247oer26 Woodv. Public Utilities Commission, (1971) 4 Cal.3d 288 oo. cecceecsseneeeeeeeeeeseeeeseetessseeeeeerasssseseneensenerateeneetans20 Other State Cases City ofAmsterdam v. Helsby, (N.Y. 1975) 332 N.E.2d 290 weecceesceee esses resseseeseeeenenenensecsnseareeaneeenensnns23 City ofColumbus v. State Employment Relations Bd., (Ohio Com.Pl. 1985) 505 N.E.2d 651... seseecesseeeeeeeseeeteeeneeenteteteenns23 4 City ofDetroit v. Detroit Police Officers Ass'n, (Mich. 1980) 294 N.W.2d 68 .....cccceessseseeeteterereeseesreeteteseneesrsenene neces23 City ofRichfield v. Local No. 1215, Int’l Ass’n ofFire Fighters, (Minn. 1979) 276 N.W.2d 42 ....ccccccsesesseeeeeeneereeeeeneeeteeeeetereneneetenerenents23 City of Warwick v. Warwick Regular Firemen’s Ass’n, (R.L. 1969) 256 A.2d 206.0... ccccececeseseeseeeesseeeteneeeneeeneersenerateseneneeeresiey24 Division 540, Amalgamated Transit Union v. Mercer County ImprovementAuthority, (N.J. 1978) 386 A.2d 1290 o.oeeccccccecseseseeneeeneneteeeeneteneetereeeneneteerenenenines23 Fairview Hospital Ass’n v. Public Building Service and Hospital andInstitutional Employees Union Local No. 113, (Minn. 1954) 64 N.W.2d 16... cccececeeessseeeeeeeeeenereeeeessessseaeseenenesessnsene23 Harney v. Russo, (Pa. 1969) 255 A.2d 560.0... cece ceseseeeneseneceeseneeeeeererteeteeeereteteneretaeeerans24 Medford Firefighters Association v. City ofMedford, (Or. 1979) 595 P.2d 1268. .eeccecceccseesesenseeeseeesseneeetineneseererenenesereenerens23 Milwaukee County v. Milwaukee Dist. Council 48, (Wis.App. 1982) 325 N.W.2d 350 oo... ccscscsseseeseteteesereecteeeeeentenenenenenenss24 MountSt. Mary’s Hospital v. Catherwood, (N.Y. 1970) 260 N.E.2d 508 oo. ceceeccceeteseneeeeeetereneeteerre ne teneenteea 21, 24 Municipality ofAnchorage v. Anchorage Police Dept. Employees Ass'n, (Ala. 1992) 839 P.2d 1080 woe cececcceeeteeeeeseeeereeeeseetee te rseenenenenenesweeeee23 New Jersey Bell Tel. Co. v. Commc’ns Workers ofAm., (N.J. 1950) 75 A.2d 721eee cccceceseeseeeesesceneneeeneesnereneesetaeaeateneneererenenenes23 Superintending School Committee ofBangor v. Bangor Education Association, (Me. 1981) 433 A.2d 383 oo. cccccceseeeeeeeeeeeteeetereeseetereneneeseseesserenereneseess23 TownofArlington v. Board ofConciliation and Arbitration, (Mass. 1976) 352 N.E.2d 914...eeeneeeteeeeereestereeeeesseenenenensseneneens23 United Gas, Coke & Chemical Workers ofAmerica, Local 18 v. Wisconsin Employment Relations Board (Wisc. 1949) 38 N.W.2d 692 ...cceccececeeceereeeeetstsrenenseessstenesesseenensesseens24 5 Arnaudo Brothers, LP, (2015) 41 ALRB No. Bruce Church, (1991) 17 ALRB No. ALRB Decisions 1 ooo ccceccccccccecceuecteccsersteeeccerteceseuseesessecsseseseeeesenseees 18 Diceran25 D’Arrigo Bros. of California, (1977) 3 ALRB NO.37 .io.eescssscesseeeeeestereeteneeeersasererseesseneensseeeneneesenenes 17 D’Arrigo Bros. Co. ofCalifornia, (2007) 33 ALRB NO.Lo.eeeececseeseseeeeeeteeeeeteeseetseenssesesesesesneeseeeneneneenteas 17 Dole Fresh Fruit Company, (1996) 22 ALRB NO.4.0... ccccceeeseseseeeceneeeeeeeeenenenstseseeeesesseaseneenenes passim Gerawan Farming, (2013) 39 ALRB NO.5... ceeseceseseseeeseeeeneneeesneeeteesenereereeeneseneereenecees 13, 14 Gerawan Farming, (2013) 39 ALRB NO. 16.0... ccccessessseseneeeeeeeereeenereteenecsessssssteneeeresenenens 15 Gerawan Farming, . (2013) 39 ALRB NO. 17......:ccececeeeeeetereeesaecaaueueesceceeececueteseeeesstenaeenes 15 Gerawan Farming, (2013) 39 ALRB NO. 20.....ccccceseseeseseseseerseeeseeeseseerseseseeseapsnenseeeesenssenens 31 Gerawan Ranches, (1992) 18 ALRB NO. 5..eccscescecsceseeseee eee esnereseeeneesssesteeseseseneseeesssereneneas 14 Gerawan Ranches, (1992) 18 ALRB NO, 16... ceececseeseseeeeecreneeseenenseserenseesessenenseeeesereneetes 14 Nish Noroian Farms, / (1982) 8 ALRB NO.25 ....ccceseeseceeeeteeeeeesesseseeeerseneensdesseneeueeteneennens25 Pictsweet Mushroom Farms, (2003) 29 ALRB No.3...seceeeeeneneesneeneeeneeasennensenececonasen 9, 25, 31 San Joaquin Tomato Growers, (2011) 37 ALRB No. 5 scccccssuesssisersuesistesessessuesessasesssesssesesiesseeeseeeeen 9,25 Ventura County Fruit Growers, (1984) 10 ALRB NO.45...scecceseseseeeseeeeesteseseseeeseeeneneneeeneenenseetenteensenees25 6 Federal Statutes 15 U.S.C. § 7176 wocccccesccceseeeeeeeeeseesetsensecsesseeeneeeeeseeecsesseenecneneeneerssnstaseneeeeey20 17 U.S.C. § 801 Cf SCG. ceccceecetceeetseeseeeecsesscesseesessesseeneseeetaeseerienentreentenseeney20 29 U.S.C.§ 152(3)usinseeeeeataeeeeeaerenenees 10 AZ U.S.C. § TET2(a)(L)(C)on ceeeeeeeceeeeceesceecereeeseeseeseneeeceeenecnentnenenaenesenteanees20 AT U.S.C. § 252 ..cccccccsessseseeceseeeecenecserersansersesnessesseesesesseseseesenensenaenesnenseasees20 California Statutes Labor Code, . § LVAO Cf SOQ... eeeecceccteee ses essseeeeceneseneeeeenenesenesseeeeeneeecieenerteeeninenssnensenessenees 10 § 1156.3(d).ceccccccccccseccseeeeeecserseeeecsssesscsssaseesenenecseeneneseenereeneanereeneneeeneeetis30 § 1156.7(C) .ccccccscecseseceeseeeeseeteeseessseseseeseseseeneseseseeeeesaeeeeareenteeeearasssasnenei30 § L164 cccececeeteeeeeceeteceeteesersasenecesesseecsecieneeeeteneneeenins 11, 16, 17, 28 § 1164.3(a)... ccccccccececeseessesesesenetseeeeeeseseseseeeenecseseeneeerenseasaeeensneserseenetes 13 § 1164.3(D) woe eccccce cece ee eee tees ceeeceeeseseensesessneeseseeeesereenenesarerscesesiaaans 13 § L164.3(C).ceccecccecsecseecreeceeesseeseeseseseasesscsneneseneesesseesesareeenentienseseeassseesians 13 § 1164.36) ooeeeecccceeeeeceeeeeseeeseeesseseeeesesesssneseseneesssseeneseeeeserensensssaseneeasenes 13 § 1164.3(€) .eccecccececececresseseersesesssseseeseseseseeseseneneeseeseeneeeeereneseeserereseasiass 13 § 1164.5 ecccceccceeeeteeeeeeeesceeseserecseseeecsesesnensseneeseseneesiseeeeeenensasaesensaseneeeas 13 SL LO4D eeeccccececceeeeeeereeeeseescseeeseenessesenessenesaceeeaseessenersseneneesenengy 11, 27 § L164(a) .occeecceccccsesetereneesesesseseeseseeeeeassesesnerecsenesaseneerecnenenees 11, 12, 27, 31 § L164(D) woeeee eee eee eeeeeceseneeneeeeeeeees vecaeeeaueeaeeceeeenaceeeeeeraees 12, 24, 28 § L164(0d) woe eeeeceesteseeeeseeeceeeeeeescseeecesecsneneeesecneraesseeeneransenens 12, 24, 27, 28 § L1G4(€) ..eceeeeceeeseeecseserseseecseseeeeseseeeesesessasesaesecesseneretasseseeneacens12,19, 22 SLLOL ecccccccceseeseceeeeeesesesssseesesssssenenesseseseesseneasececeenerecersisimenseeesseesiees20 Other Authorities Assembly Floor Analysis of SB 1156 (Aug. 31, 2002)...eee10 Elkouri & Elkouri, How Arbitration Works (7th ed. 2012) ...cccc19 Governor’s Signing Message, Historical and Statutory Notes, Labor Code §1164, Annotated California Codes (West 2011)....... 11,17 Stats. 2002, ch. L145, §1 oo. ccceeeeecessceeceesssseseeeseceeeeaenesearereeserseeteteneeaeens 11,27 ISSUES PRESENTED California’s Agricultural Labor Relations Act (ALRA) provides that an employer and the labor union certified as representative of its employees must bargain in good faith regarding employment terms. The Legislature amended the ALRA in 2002, after several decades had passed during which farm workers repeatedly voted for union representation but were unable to obtain contracts. Under the 2002 amendments,if the parties have never had an initial collective bargaining agreement, either party may request that the Agricultural Labor Relations Board (ALRB) refer the parties to a mandatory mediation and conciliation (MMC)process. In response to such a request, the ALRB directs the parties to MMC,and the parties select a neutral mediator from a list provided by the California State Mediation and Conciliation Service. If mediation is unsuccessful, the mediator issues a report to the ALRB resolving the partics’ remaining disputes. The ALRB, after review of the mediator’s report, issues an ordersettling the disputed terms of the collective bargaining agreement. The issues presented by this caseare: 1. Whether the MMCstatute onits face violates the equal protection clause of the California and federal constitutions. 2. Whether the MMCstatute unconstitutionally delegates legislative authority. 3. Whether an employer may oppose.a certified union’s request for referral to the MMCprocess by contending that the union “abandoned” the bargaining unit. INTRODUCTION The California Legislature adopted the MMCstatute to reinvigorate collective bargaining under the ALRA and thereby improve the lives of farm workers andtheir families. The Fifth Appellate District ruled here that the MMCstatute “on its face violates equal protection principles” and “involves an unconstitutional delegation of legislative authority.” Op. at 51, 56.' By contrast, the Third Appellate District rejected these arguments and upheld the constitutionality of the MMCstatute in Hess Collection Winery v. ALRB (2006) 140 Cal.App.4th 1584, 1603-10, review denied. This Court’s review is necessary to resolve the conflict about the constitutionality of an important California statute. Apart from the square conflict with Hess, moreover, this Court’s review is necessary because the Fifth Appellate District’s analysis of the equal protection and delegation issues conflicts with decades of precedent from the U.S. Supreme Court and this Court. The Fifth Appellate District also ruled here that an employer may oppose a certified union’s request for MMCby contending that the union previously “abandoned” the bargaining unit. Op. at 40-41. That ruling conflicts with longstanding ALRB precedent that certified unions can be decertified only through employee elections and that employers cannot raise such abandonment arguments to challenge the status of certified unions. See, e.g., San Joaquin Tomato Growers, Inc. (2011) 37 ALRB No. 5, at 3-4; Pictsweet Mushroom Farms (2003) 29 ALRB No.3, at 10-11; Dole Fresh Fruit Company (1996) 22 ALRB No.4,at 7-18. The Fifth Appellate District’s ruling on this “abandonment” issue makes no sense as a matter of statutory interpretation, and it would undermine a large part of what the Legislature sought to accomplish in adopting the MMCstatute to revive dormant bargaining relationships. '“Op.” refers to the attached Court of Appeal opinion. 9 Under the Court of Appeal’s “abandonment”ruling, many bargaining units would have certified representatives for purposes of bargaining but no realistic hope of ever obtaininga collective bargaining agreement, whichis the situation the Legislature sought to rectify. This Court’s review is necessary to resolve the conflict between the Fifth Appellate District and the ALRB andtherebysettle this important issue of law as well. . BACKGROUND 1. The Statute Congress excluded farm workers from the protections of the National Labor Relations Act. See 29 U.S.C. §152(3). The California Legislature adopted the ALRA in 1975 to give farm workers the right to elect a representative for purposes of collective bargaining with their employer. See Labor Code §1140 et seg. The ALRB conductsandcertifies the results of farm worker representation clections. If the workers elect a representative, the certified representative and the employer have a mutual obligation to bargain in good faith regarding employment terms and.to reduce any resulting agreements to writing. The Legislature amended the ALRA in 2002 to include a mandatory mediation and conciliation (MMC) process to resolve contract disputes. The Legislature adopted the MMCprocess because the ALRA hadfailed to achieve its purpose of enabling farm workers to secure improved wages and working conditions through collective bargaining. Farm workers voted for union representation in hundreds of secret-ballot elections but many agricultural employers, through delays, obstinacy, and unfair labor practices, made negotiations a futile exercise.” As this Court recognized shortly after adoption of the ALRA, employer “dilatory tactics after a 2 See, e.g., Assembly Floor Analysis of SB 1156 (Aug. 31, 2002), at 7 (“Of the 428 companies where farm workers voted for the UFW in secret elections since 1975, only 185 have signed union contracts.”). 10 representation election” undermine the 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. The Legislature found that MMCwasnecessary 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. As Governor Davis explained in signing the MMClegislation: In nearly 60% of the cases in which a union wins an election, management never agrees to a contract. For example, in one case, the parties have been negotiating since 1975. ... The bottom line is that too many people who were supposed to 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). A certified union or employer may request referral to MMCif the parties never had an initial collective bargaining agreement (CBA). Labor Code §1164(a). If the unionis certified after the effective date of the MMC statute (January 1, 2003), either party may request referral to MMC beginning 90 days after service of an initial request to bargain. Id. §1164(a)(2). If the union wascertified prior to January 1, 2003, a party may request referral to MMConly if the employer had committed an unfair labor practice and only beginning 90 days after service of a “renewed demandto bargain.” /d. §1164(a)(1), §1164.11. Upon receipt 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 11 issues.” Id. §1164(b). The parties then select an experienced, neutral mediator to assist the parties in reaching agreement. Jd. If mediation is unsuccessful, the mediator must “file a report with the [ALRB] that resolves all of the [remaining] issues between the parties and establishes the final terms of a collective bargaining agreement.” Jd. §1164(d). The report must “include the basis for the mediator’s determination” and “be supported by the record.” Jd. The statute provides that: (e) In resolving the issues in dispute, the mediator may consider those factors commonly considered in similar proceedings, including: (1) Thestipulations ofthe parties. (2) The financial condition of the employer andits ability to meet the costs of the contract in those instances where the employer claims an inability to meet the union’s wage and | benefit demands. (3) The ‘corresponding wages, benefits, and terms and conditions of employment in other collective bargaining agreements covering similar agricultural operations with similar labor requirements. (4) The corresponding wages, benefits, and terms and conditions of employment prevailing in comparable firms or industries in geographical areas with similar economic conditions, taking into account the 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 consumer prices for goods and services according to the California Consumer Price Index, and the overall cost of living, in the area where the work is performed. Labor Code §1164(e). Either party may seek review of the mediator’s report before the _ALRB on the ground that (1) a provision of the collective bargaining agreement set forth in the mediator’s report is unrelated to wages, hours, or 12 other conditions of employment... (2) a provision of the collective bargaining agreement ... is based on clearly erroneousfindings of material fact, or (3) a provision of the collective bargaining agreement... is arbitrary or capricious in light of the mediator’s findings offact. Labor Code §1164.3(a). If any of these grounds are established, the ALRB may remandthoseportions of the report to the mediator for reconsideration. Id. §1164.3(c). | A party also may seek review 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 of the petitioning party were - substantially prejudiced by the misconduct of the mediator.” Labor Code §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 concludes that a challenge to the mediator’s report lacks merit, the ALRB issues a final order establishing the terms of the CBA. Labor Code §1164.3(b),(d). The ALRB’sfinal order is then subject to review in the Court of Appeal or Supreme Court. Jd. §1164.5. | 2. The ALRBProceeding On March 29, 2013, the United Farm Workers of America (UFW) requested that the ALRB refer UFW and Gerawan Farming,Inc. (Gerawan) to the MMCprocess. The ALRB found that UFW’s declaration established that the statutory prerequisites for MMC were met. Gerawan Farming (2013) 39 ALRB No. 5. The ALRB had certified UFW as representative of Gerawan’s employees after the bargaining unit employees voted to unionize in a secret-ballot election in May 1990. Gerawan had committed multiple unfair labor practices, before andafter that election, and the parties 13 had never reached an initial CBA.’ UFW had served Gerawan with a “renewed demand to bargain” on October 12, 2012. Although the parties then met for at least 10 bargaining sessions (Op. at 5), no CBA was reached. . Gerawan opposed the request for referral to MMC. Gerawan argued 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 had voted for union representation in 1990) and not contacting Gerawan again to negotiate until 2012. The ALRB summarily rejected this argument as foreclosed by ALRB precedent: The Employer urges the Board to hold that the UFW abdicated its 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....). Gerawan Farming, 39 ALRB No. 5, at 3-4. Accordingly, the ALRB directed the parties to MMC. The parties selected an experienced labor mediator/arbitrator, Matthew Goldberg, to resolve the contract dispute. Mediation proved unsuccessful in producing an agreement on all the contract terms. After > Among other things, Gerawan laid off more than 30 work crews in an attempt to manipulatethe election results; fired employeesin retaliation for pro-union activities; threatened employees that they would be fired if they became involved with UFW;threatened to close the business if the workers voted for union representation; interrogated workers abouttheir support for the union; and illegally made changes in employment terms after the election without bargaining with UFW. Gerawan Ranches (1992) 18 ALRB No. 5,at 2-3, 19-21 & attached ALJ decision at 113-18; Gerawan Ranches (1992) 18 ALRB No.16,at 2, 11. Gerawanalso dragged outcertification of the election results until 1992, two years after the workers had voted. See Gerawan Ranches, 18 ALRB No. 5, at 4-5. 14 further proceedings, the mediator issued a report settling the disputed terms of the CBA. Gerawan Farming, 39 ALRB No. 17, at 1. Gerawanrefused to accept 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 (2013) 39 ALRB No.16, at 3-8. The parties subsequently met among themselves and with the mediator and wereable to agree upon the six provisions remanded by the ALRB. The mediator issued a second report that incorporated the agreed-upon provisions. No party filed a request for review of the mediator’s second report, and the ALRB adoptedthe report and issuedits final order on November 19, 2013, fixing the terms of the CBA. Gerawan Farming, 39 ALRB No. 17 at 2-3. The CBA provides the farm workers at Gerawan with wage increases and other improvements in working conditions, as well as a grievance and arbitration procedure to protect them fromarbitrary treatment. Gerawan refused to accept the ALRB’s final order and sought review in the Fifth Appellate District. 3. The Court of Appeal Decision a. The Fifth Appellate District held that the MMCstatute is unconstitutional on its face. The Court of Appeal ruled, in conflict with the decision in Hess Collection Winery v. ALRB (2006) 140 Cal.App.4th 1584, that the MMC statute “violates equal protection principles.” Op. at 3. The Court of Appeal agreed with Justice Nicholson, the dissenter in Hess, that MMCis not consistent with equal protection because MMCorders apply to a single labor dispute and “the risk is simply too great that results will be based largely on the subjective leanings of each mediator or that arbitrary differences will otherwise be imposed on similar employers.” /d. at 50. The Court of Appealalso held, in conflict with Hess, that the MMC statute “invalidly delegates legislative authority in violation of the 15 California Constitution.” Op. at 51. The Court of Appeal 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. Id. at 53. The Court of Appeal further reasoned that the MMCstatute “lacks the necessary procedural safeguards or mechanisms to assure a fair and evenhanded implementation ofthe legislative mandate to impose a CBA.” Jd.at 54. b. The Fifth Appellate District also held that the ALRB “abusedits discretion” by summarily rejecting Gerawan’s “abandonment” argument. Op.at 41, The Court of Appeal based its decision on Labor Code §1164, which provides that a union mustbe “certified as the exclusive bargaining agent of [the]... agricultural employees” to request MMC.Op.at 25, 27. The Court of Appeal acknowledged that UFis “certified as the exclusive bargaining agent” in the sense that the ALRB certified UFW as the exclusive bargaining agent. The Court of Appeal also acknowledged that a union can be “decertified” only through an employee election and that an employer cannot raise abandonmentas a defenseto its duty to bargain with a certified union. Jd. at 10, 25. The Court of Appeal reasoned, however, that the MMC process “differs materially from bargaining and is largely a postbargaining process” so “the employer’s continuing duty to bargain is not an impediment to our recognition of the employer’s ability to raise, at [the MMC]stage, a defense that the union forfeited its representative status by abandonment.” Jd. at 33 (emphasis in original). The Court of Appeal then reasoned that allowing employersto raise an “abandonment” defense to the certified representative’s MMC request would “uphold[] the core legislative purposes” of the ALRA byprotecting employees’ rights to a “representative of their own choosing.” Op.at 35-36. The Court of Appeal stated that the ALRB’s contrary rule “would 16 | eviscerate important ALRA policy and, therefore, we do not follow it.” Id. at 35. c. No petition for rehearing wasfiled. REASONS FOR GRANTING REVIEW I. Review is necessary to resolve a conflict about the constitutionality of the MMCstatute A. The Fifth Appellate District held in this case that the MMC statute “on its face violates equal protection principles” and “involves an unconstitutional delegation of legislative authority.” Op. at 51, 56. The Third Appellate District rejected the same challenges to the statute in Hess. See Hess, 140 Cal. App. 4th at 1604 (“There is no equal protection violation.”); id. at 1607 (“There is no unlawful delegation of legislative power.”). Assuch, the Fifth Appellate District’s decision creates a square conflict about the constitutionality of a statute that is central to the future operation of the ALRA. | When Governor Davis signed the MMClegislation, he correctly referred to the reform of the ALRA as a “truly historic effort.” Governor’s Signing Message, Historical and Statutory Notes; Labor Code §1164, Annotated California Codes (West 2011). Under the MMCstatute, farm workers have been able to obtain collective bargaining agreements with employers after working for decades without a contract and without any realistic hope of ever obtaining a contract. See, e.g., D’Arrigo Bros. of California (1977) 3 ALRB No. 37 and D’Arrigo Bros. Co. of California (2007) 33 ALRB No.1 (parties referred to the MMCprocess more than 30 years after the 1975 election in which the workers voted for union representation). With the MMC process as the backdrop, formerly recalcitrant employers have voluntarily agreed to collective bargaining agreements, and the ALRA has been reinvigorated as a statute that can 17 improve the lives of farm workers.’The conflict about the constitutionality of the statute threatens that progress and creates uncertainty about whether the statute applies to employers operating in other appellate districts. Accordingly, this Court should grant review. B. Apart from the square conflict with Hess, the Fifth Appellate District’s analysis of the constitutional issues also conflicts with decades of precedents from the U.S. Supreme Court and this Court addressing equal protection challenges to purely economiclegislation, and it conflicts with decades of precedents from this Court addressing challenges to statutes that allegedly involved invalid delegations of legislative authority. Left unreviewed, the Fifth Appellate District’s decision would provide the basis for invalidating many other statutes adopted by the Legislature to further legitimate public purposes. 1. The Court of Appeal reasoned that “the MMCstatute on its face violates equal protection principles” because an ALRB order resolving disputes about the terms of a CBA applies only to a single labor dispute. Op. at 43-51. But it has long been settled that the equal protection clause does not preclude a legislature from adopting a system involving individualized treatment when there is a rational basis for such treatment. See, e.g., Davis v. Mun. Court (1988) 46 Cal.3d 64, 87-89 (rejecting equal protection challenge to statutes allowing for broad prosecutorial discretion). In the absence of a claim of discrimination involving a suspect class or fundamental right (neither of which is present here), a party seeking to establish an equal protection violation must prove not merely that the party ¢ UFW has been able to successfully negotiate voluntary CBAs with five employers after requesting referral to MMCornotifying the employer that UFWintended to request MMCif negotiations were unsuccessful. Atleast four current CBAs were settled by final ALRB orders through the MMC process. One of those final ALRB orders, Arnaudo Brothers, LP (2015) 41 ALRB No. 3, isstill subject to judicial review. 18 “has been intentionally treated differently from others” but also that “there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech (2000) 528 U.S. 562, 564; see also Ft. Smith Light & Traction Co. v. Bd. ofImp. ofPaving Dist. No. 16 (1927) 274 U.S. 387, 391-92 (“[njor need we cite authority for the proposition that the Fourteenth Amendment does not require the uniform application of legislation to objects that are different”); Squires v. City ofEureka (2014) 231 Cal. App. 4th 577, 594-95. A “risk” of arbitrary treatment (Op. at 50), is not the same thing as proof that a party actually wastreated arbitrarily. 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 particularcase). The use of a mediation and interest arbitration process is a rational means of resolving labor disputes when the parties cannot come to terms on their own. Manythousands of labor contract disputes have been resolved through interest arbitration after negotiations reached impasse. See generally Elkouri & Elkouri, How Arbitration Works (7th ed. 2012), at Ch. 22 (Arbitration of Interest Disputes). The list of factors set out by the Legislature to be used in resolving individual disputes here are rational factors commonly considered in resolving such disputes. See Labor Code §1164(e). That the outcome of the process will be different for different labor disputes reflects that the facts of every labor dispute are different, not that the process is arbitrary or irrational. That different arbitrators might reach different, reasonable conclusionsreflects that interest arbitration is a process that, like many others, requires the exercise of judgment, not that the process is arbitrary or irrational. Cf Engquist v. Oregon Dep't ofAgr. (2008) 553 U.S. 591, 603-04 (for purposes of equal protection, “[iJt is no proper challenge to what in its nature is a subj ective, individualized decision that it was subjective and individualized”). 19 Nor is there anything unusual 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 USS. 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.” There also are many statutes that mandate use of interest arbitration to settle public sector labor disputes on a one-by-one basis, using essentially the same factors at issue here. See Elkouri & Elkouri, supra, at 22-26 to 22-51 (state-by-state chart).° There is also > See, e.g., 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 277 (determination by Insurance Commissioner of the rates of individual insurers comes within agency’s delegated quasi-legislative authority); Wood vy. Public Utilities Commission (1971) 4 Cal.3d 288, 292-93 (upholding power of PUC to determine rates charged by individual utility company without public hearing); Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 768, 772-73 (rent control boards typically must consider individual 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 and set individual rates charged by motor common carriers); Federal Power Comm’n v. Hope Natural Gas Co. (1944) 320 U.S. 591, 602 (upholding order setting 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 power to review and set rates for individual natural gas contracts); 17 U.S.C. §801 et seg. (establishing Copyright Royalty Judges to 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). ®° The Court of Appeal asserted that statutes providing for interest arbitration to settle certain public sector labor disputes do not raise the same equal protection issue as the statute here because those statutes apply to a ‘single public employer. Op. at 49 n.36. But many public sector interest arbitration laws apply to multiple public employers. See Elkouri & Elkouri, supra, at 22-26 to 22-51 (state-by-state chart). Moreover, a single public 20 precedent for statutes that compel the use of interest arbitration to settle private sector labor disputes. See, e.g, Mount St. Mary’s Hospital v. Catherwood (N.Y. 1970) 260 N.E.2d 508 (upholding statute that required interest arbitration to settle labor disputes involving private, non-profit hospitals); Maine Cent. R. Co. v. Bhd. ofMaint. of Way Employes (D. Me. 1987) 657 F. Supp. 971, 976-77 (rejecting equal protection challenge to federal statute that required interest arbitration to resolve a railway labor dispute), aff'd (1st Cir. 1987) 835 F.2d 368. In short, the Court of Appeal’s analysis of the equal protection issue here is at odds with the entire body of caselaw in this area. 2. The Fifth Appellate District also reasoned that the MMC statute unconstitutionally delegates legislative authority. Op. at 51-56. But this Court long ago cautioned that “[dJoctrinaire legal concepts should not be invoked to impede the reasonable exercise of legislative power properly designed to frustrate abuse. Only in the eventof a total abdication ofthat 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 U.S. Supreme Court precedent about delegationsoflegislative authority). The Court of Appeal reasoned that the MMC - statute unconstitutionally delegates legislative authority by “leav[ing] the resolution of fundamental policy issues to others.” Op. at 56. But the California Legislature made the “fundamental policy decision” by providing that the ALRB should use a mandatory mediation and conciliation process to resolve labor disputes about the terms of an initial employer may have multiple bargaining units represented by different unions. 21 CBA. The Legislature decided which labor disputes the ALRB should refer to MMC, how that process will operate, and what factors should be considered to resolve disputes.’ The delegation of authority to the ALRB, by contrast, is narrowly focused. Theparties already are under a legal duty to bargain in goodfaith to reach a contract. The MMCprocess is used only to settle the disputed terms, and the mediation phase of that process may eliminate or at least narrow the disputes. The ALRB’sfinal order, if necessary, settles only the disputed terms of a single CBA. Cf. Pac. Legal Found. v. Brown (1981) 29 Cal.3d 168, 201 (rejecting as “totally untenable” the argument that “the working details of the wages, hours and working conditions of [certain . public] employees” involved “fundamental policy determinations”); People v. Wright (1982) 30 Cal.3d 705, 713 (upholding delegation of authority to Judicial Council to adopt rules establishing circumstances in aggravation and mitigation for criminal sentencing). The Court of Appeal also reasoned that the MMCstatute “fails to provide adequate direction” for the neutral mediator to use in issuing a report, and for the ALRB to use in reviewingthat report. Op. at 56. But the Legislature set out in statute a list of factors to be consideredin resolving the parties’ disputes. See Labor Code §1164(e). The MMCstatute provides the same type of guidance this Court held was sufficient to withstand a delegation challenge in Birkenfeld v. City ofBerkeley (1976) 17 Cal.3d 129. See id. at 168 (“By stating its purpose and providing a nonexclusive illustrative list of relevant factors to be considered, the charter amendment 7 The dissent in Hess did not conclude that the current MMCstatute unconstitutionally delegates legislative authority, but that an earlier version, which did not contain the statutory factors for resolving disputes, made an unconstitutional delegation. See Hess, 140 Cal.App.4th at 1613 (Nicholson, J., dissenting). 22 providesconstitutionally sufficient legislative guidance to the Board forits determination of petitions for adjustments ofmaximum rents.”). Interest arbitration is not a new phenomenonand has developedits own “common law.”It is easily gleaned from the statutory purpose andlist of statutory factors that the mediator’s task is, if necessary, to recommend the most reasonable resolution of the parties’ remaining disputes by considering the parties’ respective submissions in light of the statutory factors. In this context, in which reasonableness depends on many considerations and the goalis to encourage the parties to reach their own agreements, it would not be possible for the Legislature to dictate a formula to be applied mechanically to resolve each dispute. This Court’s precedents uniformly reject contentions that the Legislature must provide such a formula. See, e.g., People v. Wright, 30 Cal.3d at 713; Birkenfeld, 17 Cal. 3d at 168; Carson Mobilehome Park Owners’ Assn. v. City of Carson (1983) 35 Cal. 3d 184, 191. Moreover, many court decisions reject “unconstitutional delegation” challenges to interest arbitration statutes that are essentially the same as the statute at issue here.® Indeed, the charter provision requiring interest 8 See, eg., Municipality of Anchorage v. Anchorage Police Dept. Employees Ass’n (Ala. 1992) 839 P.2d 1080, 1088-89; Superintending School Committee ofBangor v. Bangor Education Association (Me. 1981) 433 A.2d 383, 387-88; Town of Arlington v. Board of Conciliation and Arbitration (Mass. 1976) 352 N.E.2d 914, 919; City of Detroit v. Detroit Police Officers Ass’n (Mich. 1980) 294 N.W.2d 68, 83-88; Fairview Hospital Ass’n v. Public Building Service and Hospital and Institutional Employees Union Local No. 113 (Minn. 1954) 64 N.W.2d 16, 30-31; City of Richfield v. Local No. 1215, Int’l Ass’n of Fire Fighters (Minn. 1979) 276 N.W.2d 42, 47; Division 540, Amalgamated Transit Union v. Mercer County Improvement Authority (N.J. 1978) 386 A.2d 1290, 1294-95; New Jersey Bell Tel. Co. v. Commc’ns Workers ofAm. (N.J. 1950) 75 A.2d 721, 729; City ofAmsterdam v. Helsby (N.Y. 1975) 332 N.E.2d 290, 293; City of Columbus v. State Employment Relations Bd. (Ohio Com. Pl. 1985) 505 N.E.2d 651, 659; Medford Firefighters Association v. City ofMedford (Or. 23 arbitration in Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, provided simply that ““[t]he arbitrators shall consider all factors relevant to the issues from the standpoint of both the employer and the employee, including the City’s financial condition.’” Jd. at 613 n.4 (quoting the charter). This Court stated that “there is no unlawful delegation of legislative power.” Jd. at 622 n.13. Under the Court of Appeal’s analysis, none of these laws would be constitutional. Finally, the Court of Appeal reasoned that the Legislature failed to provide “necessary procedural safeguards or mechanismsto assure a fair and evenhanded implementation of the legislative mandate.” Op.at 54. But the Legislature did provide “safeguards” and “mechanisms,” which go beyond those in manyotherinterest arbitration statutes, beginning with the process for the 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 ofthe mediator’s report by the ALRB;and review of the ALRB’s order by the courts. Cf Mount St. Mary’s Hospital v. Catherwood, 260 N.E.2d at 512-518 (upholding statute that required interest arbitration to settle labor disputes involving private, 1979) 595 P.2d 1268, 1271-72 & n.9; Harney v. Russo (Pa. 1969) 255 A.2d 560, 563; City of Warwick v. Warwick Regular Firemen’s Ass'n (R.1. 1969) 256 A.2d 206, 211-12; Milwaukee County v. Milwaukee Dist. Council 48 (Wis.App. 1982) 325 N.W.2d 350, 355-57; United Gas, Coke & Chemical Workers of America, Local 18 v. Wisconsin Employment Relations Board (Wisc. 1949) 38 N.W.2d 692, 694-96. 24 non-profit hospitals, where arbitration awards were reviewable only for abuse of discretion). In sum, the Court of Appeal’s analysis of the delegation issue is at odds with the entire body of precedent in this area. I. Review is necessary to resolve a conflict about whether an employer may opposereferral to MMCbycontending that the union “abandoned”the bargaining unit The Fifth Appellate District also held in this case that an employer may oppose a certified union’s request for referral to MMC by contending that the union previously “abandoned” the bargaining unit. Op. at 40-41. That holding conflicts with longstanding and consistent ALRB precedent holding that certified unions can be decertified only through employee elections and that the ALRB will not entertain — whether in the MMC context or otherwise — an employer’s claim that the certified union forfeited its status as the bargaining representative. See, e.g., San Joaquin Tomato Growers, 37 ALRB No.5, at 3-4; Pictsweet Mushroom Farms, 29 ALRB No.3, at 10-11; Dole Fresh Fruit Company, 22 ALRB No.4, at 7-18; see also 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. The Court’s review is necessary to resolve this conflict as well. . A. The Court of Appeal’s “abandonment” holding would undermine a significant part of what the Legislature sought to accomplish in adopting MMC to revive dormant bargaining relationships. The Legislature fully understood when it adopted the MMCstatute in 2002 that there were many ALRA bargaining units in which the farm workers voted for union representation many years earlier but had never been able to 25 obtain an initial contract. Part of the Legislature’s purpose in adopting the MMCstatute wasto help the farm workers in those bargaining units.” Moreover, on the same day the Court of Appeal issued its decision in this case, the same panelissued a decision in Tri Fanucchi Farms v. ALRB (2015) 236 Cal.App.4th. 1079, 187 Cal.Rptr.3d 247. 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 dormantfor more than 20 years.'° The Court of Appeal justified its distinction between whether a representative is the certified representative for purposes of the employer’s | duty to bargain and whether the representative is the certified representative for purposes of requesting referral to MMC byreasoning as follows: The “MMC process differs materially from bargaining and is largely a postbargaining process”and, therefore, “the employer’s continuing duty to bargain is not an impediment to our recognition of the employer’s ability to raise, at [the MMC]stage, a defense that the union forfeited its status by abandonment.” Op. at 33 (emphasis in original). The Court of Appeal’s reasoning that MMCis not part of bargaining is untenable because the ° UFW is aware of at least 50 bargaining units throughout California for which the MMCprocess could be invoked, some of them within the jurisdiction of the Fifth Appellate District and some of them in other appellate districts. © The Court of Appeal in Tri-Fanucchi reversed the ALRB’s award of make-whole relief to the bargaining unit employees for their employer’s illegal refusal to bargain with the certified union. The Court of Appeal reasoned that judicial review “was reasonably necessary andhelpful to all parties concerned, including both unions and agricultural employers, for the beneficial purpose of clarifying and/or confirming the law.” 187 Cal.Rptr.3d. at 261. 26 Legislatureexpressly adopted MMCto “ensure a more effective collective bargaining process.” Stats. 2002, ch. 1145, §1. The entire point of MMCis to provide the necessary encouragement for serious bargaining that produces collective bargaining agreements. If the MMCprocess ‘fails to produce a voluntary agreement, the ALRB settles the disputed terms andthe parties are free to bargain to change those terms. Under the Court of Appeal’s decision, the certified representative can renew bargaining with an employer that never agreed to an initial CBA, but without the “leverage” provided by the MMC ‘statute. As such, the bargaining unit workers would be unlikely to ever obtain a reasonable contract, because underso-called “traditional bargaining” manyagricultural employers never agree to contracts. That was the situation the Legislature sought to change, not perpetuate. B. The Court of Appcal’s distinction between whether a unionis the certified representative for purposes of bargaining and whether the union is the certified representative for purpose of requesting MMCalso does violenceto the plain language ofthe statute. The Legislature provided in the MMCstatute thatif the certification of the labor organization occurred “prior to January 1, 2003,” then the “labor organization certified as the exclusive bargaining agent” can request referral to MMCif very specific statutory criteria are met: The employer must have committed an unfair labor practice; the parties must not have “previously had a binding contract between them”; and a party must serve a “renewed demand to bargain” at least 90 days before the MMCreferral request. Labor Code §1164(a)(1); §1164.11. The Legislature did not further limit the applicability of the MMCstatute to labor organizations that received certification “prior to January 1, 2003” or provide for any method for an employer to “negate” the labor organization’s “certif[ication] as the exclusive bargaining agent.” 27 The Legislature also mandated that “[u]pon receipt of a declaration” showing that these 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 conduct evidentiary proceedings concerning “abandonment.” The Court of Appeal stated that allowing “abandonment” to be “raised defensively in response to a union’s demand to invoke .. the MMCprocess . . . . would not add to the MMCstatute’s express provisions, but would simply permit the employer to negate a statutory element of [Labor Code] section 1164 — that is, the union’s representative status, which is a qualification for MMCrelief.” Op. at 27 (emphasis in original). To thecontrary, as the Court of Appealitself recognized in Tri-Fanucchi, the certified union remains the bargaining representative for purposes ofthe ALRA, unless it is decertified in an employee election. As stated, moreover, the Legislature did not provide any process for raising abandonment “defensively” in response to an MMCrequest, but required that the referral be made “immediately.” Labor Code §1164(b). The Legislature also adopted the MMCstatute against the backdrop of clear and consistent ALRB precedent holding that, once the ALRB certifies a representative for a bargaining unit after an employee election, the representative can only be decertified through another employee election. Dole Fresh Fruit Company (1996) 22 ALRB No. 4, at 7-18. ALRB precedent made clear that, absent the certified union’s express disclaimer of interest or institutional defunctness, the ALRB would. not hold that the workers had lost their ALRA representative. /d. at 15. Nothing in the MMCstatute disturbsthat rule. 28 C. The Court of Appeal justified its decision as necessary to vindicate the overall “policy” of the ALRA by ensuring that employees have “representatives of their own choosing.” Op. at 35-36. The Court of Appeal reasoned that, if the representative has long been absent from the scene, then the majority of current bargaining unit workers maynot want union representation. But the Court of Appeal offered no empirical support for this presumption, and it is far more likely that the majority of current employees want union representation if collective bargaining will be an effective process for improving their employmentterms and conditions. Regardless, there must be some default rule about which presumption to adopt, particularly as agricultural work is a seasonal, high- turnover occupation. In order to minimize interference with employee rights, the default rule under the ALRA has long been that a union certified as representative of the bargaining unit after an employce clection can be decertified only through another employee election. See F&P Growers Assoc. v. ALRB (1985) 168 Cal. App. 3d 667, 678 (“The clear purpose of the Legislature is to preclude the employer from active participation in choosing or decertifying a union, and this certainly overrides any paternalistic interest of the employerthat the employees be represented by a union of the present employees’ own choice”); Dole Fresh Fruit Company, 22 ALRB No.4, at 7-18.'' It does not make any logical sense to apply one default rule to the employer’s duty to bargain and the opposite rule to the. employer’s duty to participate in MMC with the very same bargaining representative. Nor does it make logical sense to involve the employer, as '' The ALRB explained in Dole Fresh Fruit Company that an employerthat is genuinely interested in collective bargaining (which the ALRA makes a mutual obligation of the certified representative and the employer) can request that the union bargain and file an unfair labor practice charge against the union for failure to bargain. 22 ALRB No. 4, at 16-18. Employers invariably raise meritless “abandonment” arguments only when the certified union is demanding negotiations. 29 supposed “benevolent” guardian of its employees’ interests, in making any decisions about the employees’ desire for union representation. Cf, Auciello Iron Works v. NLRB (1996) 517 U.S. 781, 790 (the courts are “entitled to suspicion when faced with an employer’s benevolence as its workers’ champion against their certified union”). | The level of worker support for a union at any momentin time, moreover, will depend on whether the workers believe that collective bargaining can improve their terms and conditions of employment. JR. Norton Co. v. ALRB, 26 Cal.3d at 30 (recognizing that employers’ refusals to bargain undermine the level of support for the union). The logical presumption is that most bargaining unit workers would want to be covered by a reasonable CBA that improves their wages and benefits and provides protections against arbitrary treatment — as opposed to having union representation but no realistic hope of bettering their employment conditions. The Court of Appeal also was wrong that the MMC process moves too quickly for bargaining unit workers to vote in a decertification election if the majority no longer favors union representation. Op. at 37. The ALRB is required to schedule decertification elections within seven days after receiving a petition signed by a sufficient number of employees. Labor Code §1156.3(a); §1156.7(c). The ALRB’s final order in this MMC proceeding did not issue until more than a year after UFW served its “renewed demand to bargain.” Indeed, the ALRB did receive two decertification petitions for the Gerawan bargaining unit during that time period. The Visalia Regional Director dismissed thefirst petition becauseit was the productofillegal activity by Gerawan and forged signatures. The ALRB processed the second petition and conducted an election, but impoundedthe ballots pending a hearing onallegation filed by both UFW and the ALRB General Counsel, supported by multiple declarations, that 30 Gerawan illegally sponsored and supported the decertification effort. See Gerawan Farming, Inc. (2013) 39 ALRB No. 20. Under the Court of Appeal’s ruling, this type of employer misconduct would go on forever, and the workers would never have a CBA. In any event, the amount of time between a “renewed demand to bargain” and an MMCrequest wasset by the Legislature in the statute. See Labor Code §1164(a). Any amendments must be made by the Legislature rather than by judicial refusal to accept the statute as written. D. Finally, even if the language of the MMCstatute were ambiguous on the abandonmentissue (andit is not), the ALRB is the expert agency that the Legislature charged with setting agricultural laborrelations policy. The issue whether an employer can assert “abandonment” in response to an MMCrequest first came before the ALRB shortly after adoption of the MMCstatute, and the ALRB rulcd that there is no such defense to an MMCrequest. Pictsweet, 29 ALRB No.3, at 10 (“Dole Fresh Fruit specifically held that a period of dormancy in bargaining, even a prolonged period, did not establish union ‘abandonment’ of a certification.”). For the reasons stated, the ALRB’s rule is consistent with the statutory language and with prior precedent, so it should have been given deference by the Court of Appeal. CONCLUSION Thepetition for review should be granted. Dated: June 22, 2015 MARIO MARTINEZ THOMASP. LYNCH MARTINEZ AGUILASOCHO & LYNCH, APLC SCOTT A. KRONLAND ALTSHULER BERZON LLP By:_/s/ Scott A. Kronland Scott A. Kronland Counsel for Real Party in Interest United Farm Workers of America 31 CERTIFICATE OF WORD COUNT I herebycertify pursuant to Rule 8.504(d)(1) of the California Rules of Court that this Petition for Review is proportionally spaced, has a typeface of 13 points or more, and contains 7,353 words, excluding the cover, tables, signature block, andthis certificate, which is fewer than the numberofwords permitted by the Rules of Court. Counselrelies on the word count of the word processing program usedto preparethis brief. Dated: June 22,2015 by:_/s/ Scott A. Kronland Scott A. Kronland Counsel for Real Party in Interest United Farm Workers of America | 32 PROOF OF SERVICE Case: Gerawan Farming, Inc. v. ALRB, . Supreme Court Case No. Fifth App. Dist. Nos. F068526 and F068676 I am employed in the City and County of San Francisco, California. I am overthe 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 June 22, 2015, I served the following document(s): PETITION FOR REVIEW on the parties, through their attorneys of record, by placing true copies thereof in sealed envelopes addressed as shownbelow 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 business practices. I am readily familiar with the practice of Altshuler Berzon LLPfor 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. (B) By Submission via TrueFiling: I submitted a service copy of such document(s) via TrueFiling, thus sending an electronic copy and effecting service. Method of Addressee Party Service A David Abba Schwarz Gerawan Farming, Michael A. Behrens Inc. Trell & Manella LLP 1800 Avenue ofthe 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 104Fresno, CA 93704 33 Method of Addressee Party Service A Agricultural Labor Relations Board Agricultural Labor 1325 J Street, Suite 1900B Sacramento, CA 95814-2944 Relations Board Jose Antonio Barbosa Agricultural Labor Relations Board 1325 “J” Street, Suite 1900 Sacramento, CA 95814-2944 | Agricultural Labor Relations Board Benjamin Matthew Glickman Office of the Attorney General 1300 I Street, Suite 125 P. O. Box 944255 Sacramento, CA 94244 Agricultural Labor Relations Board The Hon. Donald Black Fresno County Superior Court 1100 Van Ness Avenue Fresno, CA 93724-0002 Trial Court California Court of AppealFor the Fifth Appellate District2424 Ventura StreetFresno, CA 93721 Court of Appeal I declare under penalty of perjury under the lawsofthe State of California that the foregoingis true and correct. Executed this June 22, 2015, at San Francisco, California. /s/Laurel Kapros Rohrer 34 Laurel Kapros Rohrer ATTACHMENT Filed 5/14/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT GERAWANFARMING,INC., Petitioner, V. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERSOF AMERICA, Real Party in Interest. GERAWAN FARMING,INC., Plaintiff and Appellant, V. AGRICULTURAL LABOR RELATIONS BOARD, Defendant and Respondent, UNITED FARM WORKERSOF AMERICA, Real Party in Interest and Respondent. F068526 (39 ALRB No.17) F068676 (Super. Ct. No. 13CECG01408) OPINION ORIGINAL PROCEEDING;petition for writ of review. APPEAL from a judgment of the Superior Court of Fresno County. Donald S. Black, Judge. Irell & Manella, David A. Schwarz; Georgeson, Belardinelli and Noyes, C. Russell Georgeson; Barsamian & Moody and Ronald H. Barsamian forPetitioner, Plaintiff and Appellant. NFIB Small Business Legal Center, Luke A. Wake; Benbrook Law Group, Bradley A. Benbrook, Stephen M. Duvernay; Walter & Wilhelm Law Group,Paul J. Bauer; McCormick, Barstow, Sheppard, Wayte & Carruth, Anthony Raimondo, California Farm Federation, Carl G. Borden; Ventura County Agricultural Association, Robert P. Roy; Center for Constitutional Jurisprudence, John C. Eastman, Anthony T. Caso; Western Growers Association and Jason E. Resnick for Amici Curiae on behalf of Petitioner, Plaintiff and Appellant. Kamala D. Harris, Attorney General, Douglas J. Woods, Assistant Attorney General, Mark R. Beckington and Benjamin M. Glickman, Deputy Attorneys General, for Defendant and Respondent. Mario Martinez, Edgar Aguilasocho; Altshuler Berzon, Scott A. Kronland and Jonathan Weissglass for Real Party in Interest and Respondent. -00000- Agricultural employer Gerawan Farming, Inc. (Gerawan) and United Farm Workers of America (UFW) havenever reached mutually acceptable terms to entera collective bargaining agreement (CBA) regarding Gerawan’s agricultural employees. UFW wascertified as the employees’ bargaining representative in 1992, but after engaging in initial discussions with Gerawan, disappeared from the scene for nearly two decades. In late 2012, UFW returned and both parties renewed negotiations. A few monthslater, at UFW’s request, the Agricultural Labor Relations Board (the Board) ordered theparties to a statutory “Mandatory Mediation and Conciliation” (MMC) process pursuant to Labor Code section 1164 et seq.1 Under the MMCprocess,if a 30-day mediation period does not succeed in producing a CBA by voluntary agreement, the mediator decides what the terms of the CBA should be and reportsthat determination to the Board. Once the mediator’s report becomesthe final order of the Board, the report 1 Unless otherwise indicated, all further statutory references are to the Labor Code. establishes the terms of an imposed CBA to whichthe parties are bound. (See §§ 1164, 1164.3.) Here, following the Board’s final order adopting the mediator’s report, Gerawan petitioned this court for review undersection 1164.5, challenging the validity of the order and the MMCprocessonbothstatutory and constitutional grounds.2, Among Gerawan’s claimsis the contention that UFW’s lengthy absence resulted in an abandonmentofits status as the employee’s bargaining representative. Weagree with Gerawan’sstatutory argumentthat it should have been given an opportunity to prove abandonmentto the Board once UFW requested the MMCprocess. More fundamentally, we agree with Gerawan’s constitutional arguments that the MMC statute violates equal protection principles and constitutes an improper delegation of legislative authority. Accordingly, the Board’s order, Gerawan Farming, Inc. (2013) 39 ALRB No.17,is set aside. FACTS AND PROCEDURAL HISTORY Gerawan Farming Gerawan is a family owned farming business that has been in operation since 1938. Gerawan grows, harvests and packsstonefruit and table grapes on about 12,000 acres of farmland located in Fresno and Madera Counties, employing several thousand direct-hire workers and farm labor contractor employees.3 As wasthe case in the proceedings below, Gerawan’s petition for review presents a description of its operations and business model, presumably because ofits concern that 2 Gerawan makes manyofthe same arguments in its related appeal, Gerawan Farming, Inc. v. ALRB, case No. F068676, which we have consolidated herewith for purposesofthis opinion. The appeal in case No. F068676 is from the superior court’s denial of a petition for writ of mandate by which Gerawansoughtto set aside the Board’s order directing the parties to the MMCprocess. Wediscuss case No. F068676 herein following our discussionofthe issues raised in the petition for review(i.e., case No. F068526). 3 In a brief filed with the Board, Gerawanestimated that in 2012 it employed approximately 5,100 direct-hire workers, plus an additional 6,300 farm laborcontractor employees. such practices would be impeded by the CBA established under the MMCprocess. We summarize that description here, not to agree or disagree, but simply to accurately portray Gerawan’s stated perspective. According to Gerawan,since the 1980’s it has placed a major emphasis on quality control and on keeping well-trained, productive employees. To ensure the quality ofits produce,it has developed uniqueinteractive methods to maintain quality control at each step of the harvesting and packing process, including an ability to respondto problemsin any individual worker’s performancein real time. Allegedly, throughoutthe process, individual workers are notified of any problems,are given additional training or instruction and, if necessary, receive corrective action. Additionally, Gerawan assertsthat to retain good workers it has consistently paid its direct-hire employees substantially more than the average industry wage, with many being compensated on sliding-scale system (within a targeted per hour range) based on quality and productivity. In Gerawan’s view, these operational features have been and still are central to its ongoing success, but would be hampered or prevented by the imposed CBA.4 UFW’s Certification in 1992 On July 8, 1992, following a runoffelection in 1990, UFW wascertified as the exclusive bargaining representative for Gerawan’s agricultural employees. On July 21, 1992, UFW sent letter to Gerawan requesting negotiations. On August 13, 1992, Gerawan accepted UFW’s request to begin bargaining and invited UFto submit any proposals it wished to make. UFW did not send a proposal to Gerawanuntil 4 The mediator’s report to the Board stated that Gerawan’s position (i.e., that UFW’s proposals would result in lower quality or productivity by interfering with Gerawan’s business model) was not adequately substantiated: “The Companypredicts, without any evidentiary support, that there will be a cost in terms of lower productivity, morale, retention, and competitiveness if many ofthe Union’s proposals are implemented, because this business model will be disrupted.” November22, 1994. In February 1995, the parties held one introductory negotiating session. After that, UFW did not contact Gerawan again until late 2012. UFW’s Reappearance in 2012 and the Renewal ofBargaining On October 12, 2012, UFW sent letter reasserting its status as the certified bargaining representative for Gerawan’s agricultural employees and demandedthat Gerawan engage in negotiations. Gerawan responded byletter dated November2, 2012, expressing its willingness to bargain in goodfaith, but also raising a number of questions and concerns based on UFW’slengthy absence from the scene. An explanation of UFW’s absence was requested, but UFW refused. Nonetheless, the parties proceeded with negotiations. Between January 17, 2013 and March 29, 2013, the parties held 10 or more bargaining sessions. MMCProcess Ordered by the Board On March 29, 2013, UFWfiled a declaration with the Board requesting that the Board issue an orderreferring the parties to the MMCprocess pursuantto section 1164 et seq. Gerawanfiled an answer objecting to UFW’s request on the groundsthat the requirements of sections 1164 and 1164.11 were notsatisfied and UFhad abandoned its status as the employees’ bargaining representative. On April 16, 2013, the Board rejected Gerawan’s arguments and ordered the parties to begin the MMCprocess. Gerawanfiled a petition for a writ of mandate in the superior court, asking the court to set aside the Board’s order sending the parties to the MMCprocess. The superior court deniedthe petition.® 5 According to Gerawan’s negotiator, the February 1995 session focused on introductions and on deficiencies in UFW’s proposal. The session ended with an understanding UFW would make a revised proposal and would contact Gerawan aboutfuture negations. Neitherof these things happened. 6 Gerawan appealed from the superior court’s denialofits petition for writ of mandate. As noted, we have consolidated that separate appeal herewith. A mediator was impaneled in May 2013 and conducted several mediation sessions with the parties. After the voluntary mediation phase of the MMC process was exhausted without any agreement being reached on the terms of a CBA,the mediator conducted on the record hearings in which he received testimony and evidence and maderulings on objections.’ Thereafter, the mediator alone crafted the subject CBA. On September 28, 2013, the mediator submitted his report (i.e., his determination of the CBA’s terms) to the Board. . The BoardAdopts the Mediator’s Report Gerawanfiled a petition with the Board objecting to the mediator’s report, both generally and asto its particular terms. The Board granted review and remandedthe matter back to the mediatorasto six issues. After further meetings were held with the parties, the mediator issued a second report to the Board dated November 6, 2013. On November 19, 2013, the Board adopted the mediator’s second report and it became the final order of the Board as set forth in Gerawan Farming, Inc., supra, 39 ALRB No.17, the legal effect of which wasto establish the mediator’s proposed CBA(as reported) as the final order of the Board. (See § 1164.3.) The Prior Decertification Election Two weeks beforehand, on November 5, 2013, with the Board’s authorization, Gerawan’s employeesheld an election to decide whether to decertify UFastheir bargaining representative. The ballots were impounded by the Board and have not yet been counted, pending the Board’s resolution of claims of misconductrelating to the election. Shortly after the employees’ votes were cast, Gerawan requested that the Board stay the MMCproceedingsuntil the outcomeofthe election was known. The Board 7 The mediator excluded Gerawan’s employees from attending the on the record portion of the MMCproceedings. The Board ruled that such exclusion was proper. Gerawanfiled a declaratory relief action in superior court, challenging the exclusion on constitutional grounds. That matter is not part of the present appeal. denied the stay request on November 14, 2013, without explanation.® Thus,it is undisputed that when the Board adopted the mediator’s report on November 19, 2013, and thereby approved the CBA as determined by the mediator,it did so despite the intervening decertification election, which may have ousted UFW. Gerawan’s Petitionfor Review On December 16, 2013, Gerawanfiled a petition for review (or morespecifically, a petition for a writ of review) to this court, seeking our review under section 1164.5 of the Board’s final order in Gerawan Farming, Inc., supra, 39 ALRB No.17. In its petition, Gerawan contendsthat the Board’s order wasinvalid on various statutory and constitutional grounds. Thestatutory grounds focus on Gerawan’s claimsthat the criteria for ordering the parties to the MMCprocess werenotsatisfied, including because UFW. allegedly abandonedits status as the employee’s bargaining representative. In its constitutional arguments, Gerawan asserts the MMCprocessviolates guarantees of equal protection and due process,and also constitutes an improper delegation oflegislative powers. Furthermore, Gerawan maintains that the right to freedom of contract prevents the State from imposing a CBA by administrative fiat. Uponour consideration of the petition, the parties’ briefing, and the Board’s certified record, we issued a writ of review and formally notified the parties of our review of Gerawan Farming, Inc., supra, 39 ALRB No. 17, pursuantto section 1164.5. 8 On November 13, 2013, senior UFW officials made improper ex parte communications to senior Board counsel on matters that were before the Board in regard to Gerawan and UFW, including the decertification vote and UFW’s desire to immediately enforce the mediator’s CBA. The ex parte communications were disclosed by the Board to all parties herein by letter dated November19, 2013. In light of the ex parte communications, Gerawan asked the Boardto vacate its final order. We have not been made aware of the Board’s response(if any) to that request. Gerawan doesnotraise the ex parte communications or the Board’s handling of same as issues herein. DISCUSSION In addressing the contentions raised in Gerawan’s petition for review (case No. F068526), our approach will be to discuss the statutory issues first and the constitutional questions second. Lastly, we will briefly address the separateappeal filed by Gerawan (case No. F068676), which has been consolidated herewith. THE STATUTORYISSUES Inasmuchas wewill conclude that the MMCstatute unconstitutionally deprives Gerawan of equal protection and unconstitutionally delegates legislative authority, we could confine our opinion to a discussion of those issues alone. However, the parties have extensively briefed otherissues relating to statutory interpretation and application of the MMCstatute. Weare notthe highest court of review and hence do not presumeto have the last word on this subject. We deem it appropriate to address the following statutory issues should they becomerelevant following a higher court ruling or a future attempt by the Legislature to enact another version of the MMCstatute. Additionally, we reach the statutory issues as an alternative basis for our ruling; that is, even if the MMC statute were constitutionally sound, we wouldstill conclude underthe statutory argumentsthat the Board abusedits discretion. For the sake ofefficiency, we place our discussion ofthe statutory issues first because doing so will provide a thorough overview of the MMCstatute (i.e., how it works and its purpose), which will give helpful backgroundto ourconsideration of the constitutional issues. I. Overview of the Statutory Framework The Labor Code provisions creating the MMCprocess (§§ 1164-1164.13; the MMCstatute) were added in 2002 as a new chapter (ch. 6.5) to the part of the code dealing with agricultural laborrelations (div. 2, pt. 3.5), commonly knownasthe Agricultural Labor Relations Act (§ 1140 et seq.; the ALRA). (See Stats. 2002, ch. 1145, § 2.) Therefore, to understand how the MMCstatutefits within its larger statutory framework, we begin with a brief description of the ALRA. A. The ALRA In 1975, the California Legislature enacted the ALRA “to provide for collective- - bargaining rights for agricultural employees” (§ 1140.2) by putting into place a system of lawsgenerally patterned after the National LaborRelations Act (29 U.S.C. § 151; the NLRA). (JR. Norton Co.v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 8 UR. Norton Co.); see § 1148 [in implementing the ALRA,the Board followsapplicable precedents of the NLRA].) The ALRA declaresit is the policy ofthe State of California “to encourage andprotect the right of agricultural employeesto full freedom of association,self-organization, and designation of representatives of their own choosing ... for the purpose of collective bargaining or other mutualaid or protection.” (§ 1140.2.)® As noted by our Supreme Court, “[a] central feature in the promotion of this policy is the [ALRA’s] procedure for agricultural employeesto elect representatives “for the purposeofcollective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment.’ (/d., § 1156 et seq.)” (J.R. Norton Co., supra, at p. 8.) Underthat election procedure, if a proper petition has beenfiled, the Board directs that an election be held by a secret ballot vote of employees to determine an issue of employee representation, such as whether a particular labor organization shall be the employees’ bargaining representative.! (§§ 1156, 1156.3.) Except in certain runoff elections, every ballot “shall provide the employee with the opportunity to vote against representation by a labor organization by providing an appropriate space designated ‘No Labor Organizations.’” (§ 1156.3, subd. (c).) After the election, the Board “shall certify” the result unless it determines based on a sustained election challenge “that there are 9 The same employeesalso have the right “to refrain from anyor all of such activities ....” (§ 1152.) 10 A similar procedure exists by which the agricultural employees mayvoteto decertify a labor organization, so that it is no longer their representative. (§ 1156.7.) sufficient grounds to refuse to do so.” (§1156.3, subd. (e)(2) [stating grounds for such refusal].) If a labor organization(i.e., a union)!is certified as the winner of such an election and thus becomes the employees’ bargaining representative, certain legal consequences follow. First, a statutory bar exists to holding another representation election for at least the initial one-year certification period. (§§ 1155.2, subd. (b), 1156.5, 1156.6.) Second, a duty to bargain is created, which is owed by the employer to the union andvice versa. (§§ 1152, 1153, subd. (e), 1154, subd. (c).) However, unlike the election bar, the duty to bargain does not expire with the initial one-year period. That is because a union’s status as the employees’ certified bargaining representative continues beyond the one-year period for purposes of extending the parties’ duty to bargain. (Montebello Rose Co.v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 24-26, 29 (Montebello Rose) [affirming ALRB’s conclusionthat a certified union continues to enjoy that status after the initial certification year expires, based in part on NLRB precedentthat there is a presumption of continuing majority status]; F&P Growers Assn. v. Agricultural Labor Relations Bd. (1985) 168 Cal.App.3d 667, 672 (F&P Growers) [noting “‘rebuttable presumption’” under ALRA that a union continues to have majority support after initial one-year period].)!2_ Consequently, it has been held that once a unionis certified as the bargaining representative of an employer’s agricultural employees, the employer’s duty to bargain with that union continues until the unionis replaced or decertified through a subsequentelection pursuantto sections 1156.3 or 1156.7. (Montebello Rose, supra, at pp. 23-24, 29 [approvingstatutory interpretation adopted by the Board in Kaplan’s Fruit u The terms “union” and “labor organization” are used synonymouslyherein. 12 Although section 1155.2, subdivision (b), refers to an initial one-year period of certification (and allows for a one-year extension thereof), that time limitation has been held to relate only to the election bar, not to the duty-to-bargain aspect ofcertification. (Montebello Rose, supra, 119 Cal.App.3d at pp. 24-30.) 10. & Produce Co., Inc. (1977) 3 ALRB No. 28 (Kaplan’s)|; Adamek & Dessert, Inc. v. Agricultural Labor Relations Bd. (1986) 178 Cal.App.3d 970, 983 (Adamek & Dessert, Inc.); Bruce Church, Inc. (1991) 17 ALRB No.1, p. 13 [stating principle adhered to by the Board that “a Union remainsthe certified representative until decertified”]; Pictsweet Mushroom Farms (2003) 29 ALRB No.3, p. 7 [same].)}3 In summary, the ALRA recognizes, protects and promotes agricultural employees’ right to collective bargaining (§ 1140.2), and in the furtherance ofthat right the ALRA requires the agricultural employer and the employees’ certified representative to bargain collectively in good faith (§§ 1153, subd. (e), 1154, subd. (c)). The ALRA defines the parties’ mutual obligation to bargain collectively in good faith as follows: “[T]o bargain collectively in good faith is the performance of the mutual obligation of the agricultural employerandthe representative of the agricultural employees to meet at reasonable times | and confer in goodfaith with respect to wages, hours, and other terms and conditions of _ employment, or the negotiation of an agreement, or any questions arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compeleither party to agree toa proposalor require the making of a concession.” (§ 1155.2, subd. (a).) When an employeror labor organization fails to bargain in good faith as required, or when other unfair labor practices (or ULP’s) as defined in the ALRA haveoccurred, recourse to the Board is provided and the Board is empowered to issue orders or take remedial action to effectuate the purposes of the ALRA. (§§ 1160—-1160.9;see, e.g., Harry Carian Sales v. Agricultural Labor Relations Bd. (1985) 39 Cal.3d 209, 229-230 [discussing Board’s remedial authority relating to ULP’s].) 13 A third consequenceofcertification is that no CBA maybe negotiated or entered into by the employer with any other (not currently certified) labor organization. (§ 1153, subd. (f).) The ALRA further declares that only a certified labor organization maybe a partyto a legally valid CBA. (§ 1159.) Ll. B. The MMCStatute In 2002, the Legislature madethe following legislative declaration and findings: “[A] need exists for a mediation procedure in order to ensure a moreeffective collective bargaining process between agricultural employers and agricultural employees, and thereby morefully attain the purposesof the [ALRA], ameliorate the working conditions and economic standing of agricultural employees, create stability in the agricultural labor force, and promote California’s economic well-being by ensuringstability in its most vital industry.” (Stats. 2002, ch. 1145, § 1.) To that end, the Legislature enacted the MMCstatute in 2002 (Stats. 2002, ch. 1145, § 2, as amended by Stats. 2002, ch. 1146, § 1), creating a bindinginterest arbitration procedure (what we havecalled the MMC process) that may be ordered by the Board as a meansto establish the terms ofan initial CBA wheretheparties failed to reach an agreement. (Hess Collection Winery v. Agricultural Labor Relations Bd. (2006) 140 Cal.App.4th 1584, 1591, 1597 (Hess).)!4 Proponentsofthe law asserted that such measures were necessary because, after unions werecertified to represent agricultural employees, many employers “refused to agree to the terms of [CBA’s].” (Hess, supra, at p. 1593.) - The heart of the MMCprocessis described in section 1164. Pursuant to subdivision (a) of that section, the employeror the certified labor organization may seek to initiate the MMCprocessbyfiling a declaration with the Board requesting suchrelief. The declaration must show that the statutory requirements for ordering the parties to the 14 As Hess noted, the MMCprocess(also called “interest arbitration”) does not involve “interpreting an existing agreementto resolve a dispute,” but “determining whatthe terms ofa new agreementshould be.” (Hess, supra, 140 Cal.App.4th at p. 1597.) Thus, despite the law’s use ofthe term “‘mediator,’” the process “amounts to compulsory interest arbitration.” And, although section 1164 refers to the endresult being a “‘collective bargaining agreement,”” there “is no agreement,” since the employer in that case (as here) did not agree to be boundbyits terms nor to submit the matter to interest arbitration. (Hess, supra, at p. 1597.) Rather, “[t]he termsofthe ‘agreement’ determined by the arbitrator were imposed upon Hessbyforce of law.” (Ibid.) 12. MMCprocess have been met, andit may only be filed after the relevant time period specified in the statute has expired. (§ 1164, subd. (a); see Cal. Code Regs., tit. 8, § 20400.) In this regard, the precise wording of section 1164, subdivision(a), is in part as follows: “An agricultural employeror a labor organization certified as the exclusive bargaining agent of a bargaining unit of agricultural employees mayfile with the board, at any time following (1) 90 days after a renewed demandto bargain byan agricultural employer orlabor organizationcertified prior to January 1, 2003, which meets the conditions specified in Section 1164.11, (2) 90 days after an initial request to bargain by an agricultural employer or labor organizationcertified after January 1, 2003, ... a declaration that the parties have failed to reach a [CBA] and a request that the board issue an order directing the parties to mandatory mediation and conciliation oftheir issues.” (Italics added.) Astheitalicized language abovestates, section 1164.11 sets forth additional conditions that must be satisfied (as prerequisites to the MMCprocess) if the certification occurredprior to January 1, 2003. Section 1164.11 states: “A demand made pursuant to paragraph (1) of subdivision (a) of Section 1164 may be madeonly in cases which meet all of the following criteria: (a) the parties have failed to reach agreement for at least one year after the date on which the labor organization madeits initial request to bargain, (b) the employer has committed an unfair labor practice, and (c) the parties have not previously had a binding contract between them.” When a declaration pursuant to subdivision (a) of section 1164 is filed with the Board and showsthatthe statutory requirements for ordering the MMCprocessare satisfied, the Board “shall immediately issue an order directing the parties to [MMC] of their issues,”!5 whereuponsteps are taken to select a mediator. (§ 1164, subd.(b).) 15 The Board also considers the answer(if any) filed by the other party to the collective bargaining relationship. Pursuant to California Code of Regulations,title 8, section 20401, 13. Uponhis or her appointment, the mediator promptly begins a 30-day mediation process seeking to resolve issues by voluntary agreement.!® (§ 1164, subd.(c).) If that mediation process is deemed exhausted(i.e., no CBAis reached), then, “[w]ithin 21 days, the mediatorshall file a report with the board that resolves all of the issues between the parties and establishesthefinal terms of a [CBA] ....” (§ 1164, subd. (d).) The mediator’s report to the Board must include “the basis for the mediator’s determination” and “shall be supported bythe record.” (Jbid.) In resolving disputed issues and deciding what the CBA’s termsshouldbe, the mediator “may consider those factors commonly considered in similar proceedings, including: (1) Thestipulationsofthe parties. [{] (2) The financial condition of the employerandits ability to meet the costs of the contract in those instances where the employerclaimsan inability to meet the union’s wage and benefit demands. [{] (3) The corresponding wages, benefits, and terms and conditions of employmentin other [CBA’s] covering similar agricultural operations with similar labor requirements. [{] (4) The corresponding wages, benefits, and terms and conditions of employment prevailing in comparable firmsor 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. [{] ) The average consumerprices for goods and services according to the California ConsumerPrice Index, and the overall cost of living, in the area where the work is performed.” (§ 1164, subd.(e).) Within seven daysofthefiling of the mediator’s report, either party maypetition the Board for review ofthe report. (§ 1164.3, subd. (a).) The groundsfor such review subdivision (a), the other party is permitted to file an answerto the declaration within three days of service ofthe declaration, identifying any statements in the declaration that are disputed. 16 The mediator may extend the 30-day mediation period for an additional 30 days on agreementofthe parties. (§ 1164, subd. (c).) 14. are that a provision of the CBAset forth in the mediator’s report is (1) unrelated to wages, hours, or other conditions of employment, (2) based on clearly erroneousfindings of materialfact, or (3) arbitrary or capricious in light of the mediator’s findings offact. (Ibid.) If a primafacie case for review is not shown,orif no petitionisfiled, the report becomesthe final order of the Board. (§ 1164.3, subd. (b).) If the Board determinesthat a primafacie case for review is shown,it may grant review of the report. (/bid.) If, upon review, the Board finds that one or more groundsfor review have been established,it will order the mediator to modify the problematic terms of the CBA. (/d., subd. (c).) In that case, the mediator meets with the parties again andfiles a second report with the Board. (Ibid.) Asbefore, the parties may petition the Board for review of the second report. (Id., subd. (d).) If no petitionis filed, the second report takes effect as the final order of the Board. (/bid.) If a petition is filed but a prima facie showing is not made, the Board “shall issue an order confirming the mediator’s report and orderit into immediate effect.” (Ibid.) If the Board accepts review and finds that the secondreport is defective,it will determine the remaining issuesitself and issue a final order. (Ibid.)"7 Section 1164.5 providesfor judicial review of the Board’s final order. That section states: “Within 30 days after the order of the board takes effect, a party may petition for a writ of review in the court of appealor the California Supreme Court.” (d., subd.(a).) Appellate review is limited to the grounds specified in section 1164.5, but those groundsinclude,inter alia, a consideration of whether the Board acted in excess of its powers, whetherit failed to proceed in the manner required by law, whether the Board’s order or decision “was an abuse of discretion,” and/or whether the Board’s order 17 Theparties also have rightto file a petition to set aside the mediator’s report on the ground that(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 of the petitioning party were substantially prejudiced by the misconduct of the mediator. If any of these grounds are foundto exist, the Board will vacate the report, order the selection of a new mediator, and the mediation process starts over. (§ 1164.3, subd. (e).) 15. or decision “violate[d] any right of the petitioner under” the federal or state constitutions. (Id., subd. (b)(1)(4).) If. Standard of Review and Rules of Statutory Construction Having introduced the MMCstatute, we next consider the nature of the statutory claims raised in Gerawan’spetition. In a nutshell, Gerawan argues the Board did not follow the law whenit orderedthe parties to the MMCprocess because several of the statutory requirements for such an order(set forth in sections 1164 and 1164.11) allegedly were not met. According to Gerawan, the Board adopted erroneous interpretations of the statutory provisionsat issue, causingit to incorrectly conclude that the statutory requirements were satisfied. Additionally, Gerawanasserts the Board improperly rejected its argument that UFW abandonedits status as the employees’ bargaining representative and, therefore, lacked standing to invoke the MMCprocess under section 1164. It is clear that Gerawan’s claims involve questions of law relating to statutory construction. The rules governing statutory construction are well settled. “We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determinelegislative intent, we turn first to the wordsof the statute, giving them their usual and ordinary meaning. [Citations.] Whenthe language ofa statute is clear, we need go no further.” (Nolanv. City of Anaheim (2004) 33 Cal.4th 335, 340 (Nolan).) In that case, “no court need, or should, go beyondthat pure expressionoflegislative intent. [Citation.]” (Green v. State of California (2007) 42 Cal.4th 254, 260.) “If the words themselves are not ambiguous, we presume the Legislature meant whatit said, and the statute’s plain meaning governs.” (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190.) However, when the language ofthe statute “is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied,the legislative history, public policy, 16. contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]” (Nolan, supra, 33 Cal.4th at p. 340.) Using these extrinsic aids, we “‘select the construction that comports most closely with the apparentintent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]” (People v. Sinohui (2002) 28 Cal.4th 205, 212.) Wherejudicial interpretation is required, courts give deference to an agency’s reasonable interpretation of the statutory enactmentthat the agency has been entrusted by law to enforce. (Montebello Rose, supra, 119 Cal.App.3d at p. 24.) Nevertheless,it is fundamentalin statutory construction that courts should ascertain the intent of the Legislature so as to effectuate the purpose of the law. (/.R. Norton Co., supra, 26 Cal.3d at p. 29.) Thus, while an administrative agencyis entitled to deference wheninterpreting policyin its field of expertise, it cannot alter or amendthe statute thatit is interpreting, or enlarge or impair its scope. ([bid.; Adamek & Dessert, Inc., supra, 178 Cal.App.3d at p. 978.) To the above, we add the following basic precepts regarding a court’s role in the interpretation of statutes. As expressed in Cadiz v. Agricultural Labor Relations Bd. (1979) 92 Cal.App.3d 365, at page 372: “The guiding principle of interpretation waslaid down bythe Legislature in Code of Civil Procedure section 1858: ‘In the construction of a statute or instrument,the office of the Judgeis simply to ascertain and declare whatis in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a constructionis, if possible, to be adopted as will give effectto all.” That prime rule of construction has been adopted and restated by the cases.” Furthermore,it is not a court’s function to second-guess the policy choices or wisdom ofparticular legislation: “‘Courts do notsit as super-legislatures to determine the wisdom,desirability or propriety of statutes enacted by the Legislature.’ [Citations.]” (/bid.) 17. III. Requirements of Section 1164.11 Gerawan contendsthat two of the conditionsfor relief stated in section 1164.11 were not shown by UFW and,therefore, the Board should not have ordered the parties to the MMCprocess. Underthat section, where the union’s certification occurred prior to January 1, 2003, no demandto the Board may be madefor referral to the MMCprocess unless the following criteria are met: “(a) the parties have failed to reach agreementfor at least one year after the date on which the labor organization madeits initial request to bargain, (b) the employer has committed an unfair labor practice, and (c) the parties have not previously had a binding contract between them.” (§ 1164.11; cf. § 1164, subd. (a)(1).) Specifically, Gerawan argues that the requirementsofcriteria (a) and (b) of section 1164.11 (hereafter sections 1164.11(a) and 1164.11(b)) werenot established based on Gerawan’s proposedinterpretations of those provisions. As explained below, wereject Gerawan’s arguments regarding the construction of the statutory language and concludethat the Board followed the clear and unequivocal termsof section 1164.11 whenit held that the requirements thereof were met. A. — The Parties Failed to Reach Agreementfor at Least One Year Section 1164.11(a) states a requirement for seeking the MMCprocessin cases involving pre-2003 certifications that “the parties havefailed to reach agreementfor at least one yearafter the date on which the labor organization madeits initial request to bargain.” (Italics added.) In the proceedings before the Board, Gerawan insisted this language cece 399meantthere had to be “‘a good faith and sustained effort’” at negotiation for at least a one-year period. It further argued that since UFW did not make such a showing,the Board wasconstrained to deny UFW’s request. The Board disagreed. It explained that section 1164.11(a) does not contain any language requiring proof of one year of sustained and active bargaining, but onlythat “‘the parties failed to reach an agreementforatleast one year”after the initial request to bargain, which the Board foundto be the case. 18. In its opening brief herein, Gerawan argues the Board erred because the provision should be construed to specifically require a showing that the parties “actively attempt[ed] to bargain forat last one year,” since “one cannot ‘fail’ to reach an agreement if one does not try.” We reject Gerawan’s proposedinterpretation. The plain language of section 1164.11(a) simply requires that (1) the parties have not reached agreement and (2) at least one year has passedsincethe initial request to bargain. The provision makes no mentionofthe particular circumstances surrounding the parties’ failure to agree. Contrary to Gerawan’s suggestion, nothing in section 1164.11(a) mandates an affirmative showing ofactive and/or sustained bargaining over a one-year period. “Whenthe languageofa statute is clear, we need go no further.” (Nolan, supra, 33 Cal.4th at p. 340.) Whetheror not it would have been wise to includea threshold requirementthat before a party may invoke the MMCprocess,the party must demonstrate there was one year of sustained bargaining, the Legislature did not do so in the particular provision under consideration here. One mayargue it should have, but we are constrained by the fact that it did not. That ends the matter, since it is not our function to insert what the Legislature has omitted, nor may we, “under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the termsused.’ [Citation.]” (People v. Leal (2004) 33 Cal.4th 999, 1008.) Although, as Gerawan points out, other provisions of the ALRA obligate the parties to bargain in goodfaith (e.g., §§ 1153, subd. (e), 1154, subd.(c), 1155.2, subd. (a)), those provisions do notalter the plain meaning of what must be shown under section 1164.11(a).!8 Evenif, based on the general bargaining obligation,the parties should have engaged (or attempted to engage) in active and/or sustained bargaining 18 Of course,if a labor union refuses to bargain in goodfaith, including a failure to respond to the employer within a reasonabletime or other dilatory or evasive action, the employer can raise the union’s failure in a ULP charge pursuant to section 1154, subdivision (c). (See Dole Fresh Fruit Co. (1996) 22 ALRB No.4,pp. 22-25.) “[T]he duty to bargain is not unilateral, neither are the Board’s processes.” (/d., p. 23, fn. omitted.) 19. during the one-year period specified in section 1164.11(a), the latter provision does not require that such conductbe affirmatively demonstrated as part ofthe necessary prima facie showing to request the MMCprocess.!9 In this case, it is not disputed that UFW’sinitial request to bargain was made in 1992. Additionally, UFW followed up its request by making a contract proposal to Gerawan in 1994, and one bargaining session occurred betweenthe parties in early 1995. Insofar as the parties havestill not reached agreement, the discrete statutory requirement set forth in section 1164.11(a) was clearly satisfied. Gerawan’s Further Arguments Do Not Persuade Us to Depart From the Plain Meaning of Section 1164.1 1(a) Having upheld the plain meaning of section 1164.11(a), we briefly explain why wehave not accepted Gerawan’s arguments that we should depart from the statute’s clear andlitcral terms. | In essence, Gerawanassertsthat if the statute were treated as simply a passage-of- time requirement, it would lead to absurd results and contravene the overall legislative purposes of the ALRA and MMCstatutes. To avoid that outcome, Gerawan arguesthat weshould construe the provision to include an active or sustained bargaining requirement, even if that is not its plain meaning. (See, e.g., California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 340 [stating rule that a court need not follow the plain meaning ofa statute when to do so would frustrate the manifest purposeofthe legislation as a wholeor lead to absurd results]; DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601 [stating rule that plain meaning may be disregarded only when that meaning is repugnantto the general purview ofthe act or for some other compelling 19 Consistent with our conclusion as to the plain meaning of this provision, we observethat each of the conditions set forth in sections 1164 and 1164.11 appear to be matters that are ordinarily capable of being readily and quickly ascertained (rather than debatable factual matters that might haveto be litigated), which comports with the Legislature’s apparent wish to create an expedited process, at least in the usualor typical case. 20. reason].) In this regard, it is pointed out that the ALRA (of which the MMCstatute is a part) has a purpose to promote good faith bargaining between the employer and the employees’ chosenrepresentative so they may potentially reach a mutually acceptable agreement, which purpose is supported by the duty to bargain collectively in goodfaith (see §§ 1140.2, 1155.2, subd. (a)). According to Gerawan,if the Board’s interpretation”? were correct, a union could make an initial request to bargain and then simply wait out the clock or engage in surface bargaining until enough time had passed to demandthe MMCprocess(i.e., precisely what Gerawan contends happened here). Allegedly, a union in that situation would have no incentive to make voluntary concessions or otherwise engage in seriousor genuine efforts to reach an agreement. In short, Gerawan maintainsthat the Board’s interpretation would lead to absurd results at odds with the legislative purposes by (1) undermining a union’s incentive to bargain in good faith and (2) potentially forcing employers to undergo the MMCprocess without a sustained period of good faith bargaining for an entire year. While Gerawan’s arguments identify significant concernsasto the potential impacts of section 1164.11(a), we believe they fall short of showing that we should effectively rewrite the statute by construingit to include a sustainedor active bargaining requirementthat the Legislature did not put there. (See Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1698 [absurdity exception to plain meaningrule “should be used mostsparingly by the judiciary and only in extreme cases else we violate the separation of powersprinciple of government”].) Amongother things, Gerawan’s analysis of the statutory purposes fails to adequately accountfor the fact that the ALRA was amended by the MMCstatute. The Legislature determined that the ALRA,inits original form, was not adequately fulfilling its purposes. (Stats. 2002, ch. 1145, § 1; 20 Thatis, a literalreading of the statute accordingto its plain meaning,as we have adopted herein. 21. Hess, supra, 140 Cal.App.4th at p. 1600.) New measures were deemed necessary because it was perceived that many employers were unwilling to enterinto an initial CBA. (Hess, supra, at p. 1593.) Therefore, the MMCstatute was enacted as an amendment to the ALRA to create a “one-time” compulsory process to bring about an initial CBA between parties who have never entered into such an agreement, where certain statutory conditions were met. (Hess, supra, at pp. 1600-1601 [noting the purpose“to change attitudes toward collective bargaining by compelling the parties to operate for at least one term” with an imposed CBA].) Amongthosestatutory conditions is the one now before us—the passage of the one-year time period described in section 1164.11(a). In that provision, the Legislature specified that expiration of the one- year time period without a CBA(i-e., “the parties have failed to reach agreementforat least one year after” the union’s initial request to bargain) was one of the threshold requirements for seeking a referral to the MMCprocess incases involving pre-2003 certifications. Evidently, the Legislature believed that if more than one year elapsed without a CBAbeing reached,that fact reasonably indicated the MMCprocess was appropriate, assuming that the other requirements were also met. Viewed in light of the entire statutory context, we are unable to concludethat the one-year provision of section 1164.11(a), when accordedits plain and literal meaning, would substantially frustrate the main purpose of the ALRA as amended by the MMCstatute, or otherwise lead to absurd results. In a further effort to support its position on this issue, Gerawan notesthat the Board’s own past decisionshad, on at least two occasions, expressed an understanding of the relevant statutory provisions that sounded remarkably similar to Gerawan’s position. (See Pictsweet Mushroom Farms, supra, 29 ALRB No.3, p. 12 [to be sent to MMC process, employer “must have been through a period of bargaining for a year without having reached a contract”); D’Arrigo Bros. Co. (2007) 33 ALRB No.1, p. 7 [MMC process may not be invoked unlessparties have attempted to negotiate on their own for 22. the statutory period].)?! However, it appears that such comments were made bythe Board in connection with tangential issues, and that once the Board directly considered the present issue of statutory construction, it followed the plain meaning(see, e.g., Gerawan Farming, Inc. (2013) 39 ALRB No.5,p. 3). In any event, we are bound to do so here.?2 Still, the Board’s earlier commentsabout the import of the relevant statutory provisions provide some evidence that Gerawan’s proposedconstruction is not mere wishful thinking on its part. There is cogency and commonsensein Gerawan’s argument that active bargaining should precede the MMCprocess,and it is not unreasonable to suggest that the former should be a prerequisite to commencingthe latter. But such argument is more properly presented to the Legislature, whose exclusive functionis to enactstatutes such as those at issue here. Moreover, if we were to adopt Gerawan’s interpretation, what additional specific language would we incorporate into the statute: sustained bargaining, active bargaining, actual bargaining, attempted bargaining? Would welikewise be expected to delineate how much or what quality of bargaining effort would constitute sustained, active, actual, or attempted bargaining? Andif there was no bargaining during the one-year period underanydefinition, would it matter why there was no bargaining, or whosefault, if any, it was for the parties’ failure to reach an agreement? These are someofthe prickly questions that would beraised if this court, or any court, felt inclined to impose additional substantive requirements beyond those a4 Also, the Governor’s written signing message indicatedthat the bill’s (the MMC statute’s) provisions would “‘Appl[y] to first contracts only,’” and as to pre-2003 certifications, “? The gist of the defenseis that by virtue of such longstanding absence, lack of contact, etc., the union has effectively abdicated its statutory role by gross abandonmentthereof. As we havestated throughout this opinion, we have reachedthis holding within the peculiar context of this case— namely, the employer’s ability to defend a union’s MMCrequest. Ouropinionis intended to be limited to that context. As our ruling makesclear, the Board applied the wrong legal standard whenit | held that abandonment could not be based upon factors such as those presentin this case. Further, because the Board summarily rejected the viability of Gerawan’s abandonment claim, it never adequately considered the import of Gerawan’s evidentiary showing on that issue. It follows that the Board abusedits discretion when it ordered commencement ofthe MMCprocess without properly considering Gerawan’s claim of union abandonment. Since the Board improperly sent the parties to commence the MMC process, the Board’s subsequentorder premised thereon in Gerawan Farming, Inc., supra, 39 ALRB No.17 (to approve the mediator’s report) is rendered invalid. Generally speaking, when the Board applies the wrong standard, wereturnthe case to the Board so that it can apply the proper standard. (J.R. Norton Co., supra, 26 Cal.3dat pp. 38-39.)33 “‘It is a guiding principle of administrative law ... that “an 32 Wenote the Board has suggested in its holdings that abandonment might conceivably be found in exceptional circumstances where a union was “‘totally absent from the scene’” (Dole Fresh Fruit Co., supra, 22 ALRB No.4, p. 18) or “effectively left the scene altogether” (Bruce Church,Inc., supra, 17 ALRB No.1, p. 13). The Board hasalso stated thatit has “an obligation to ... be alert to situations in whichthe certified labor organization rests on its bargainingrights, as such neglect serves to erode and underminetheright to be represented thatis granted to employees.” (Dole Fresh Fruit Co., supra, p. 24.) 33 Evenif it might be proper (hypothetically) to decide the issue of abandonmentas a matter of law on appeal, we would decline to do so in this case because (1) it does not appearthatall the relevant facts were presented byboth sides,(2) it is unclear whetherthe facts are undisputed, and (3) remand is preferable because the Boardis the tribunal vested with the discretion to make such determinations in the first instance in ALRA statutory proceedings. 41. administrative determination in which is embeddeda legal question open to judicial review doesnot impliedly foreclose the administrative agency,after its error has been corrected, from enforcing the legislative policy committed to its charge.” [Citations.]’” (U.R. Norton Co., supra, at p. 39.) If we followed this general rule here, we would remand the present matter to the Board for new proceedings to be conducted on the issue of abandonmentin accordance with the principles set forth herein, to allow the Board to determine, based onthetotality of the union’s conductand anyother relevant circumstances, the question of whether UFW abandonedits status as the employees’ bargaining representative. Here, however, remandis not available because, as discussed below, the MMCstatute is constitutionally invalid. As a result, the appropriate disposition concerning the Board’s statutory error and abuse ofdiscretion is to simply set aside and reverse the Board’s approval of the mediator’s report in Gerawan Farming, Inc., supra, 39 ALRB No.17. THE CONSTITUTIONALISSUES -Gerawan raises several constitutional challenges to the MMCstatute, including that the law is invalid under the protections afforded to the liberty of contract by substantive due process, fails to comply with equal protection principles, unlawfully delegates legislative powers, violates procedural due process, and constitutes a taking of private property without just compensation. As explained below, we conclude the MMC statute violates equal protection of the law and improperly delegates legislative authority. Since we hold the MMCstatute is constitutionally deficient on these two grounds, we find it unnecessary to addressthe several additional arguments made by Gerawanthatthe MMCstatute is unconstitutional. (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230 {courts refrain from rendering unnecessary constitutional law decisions].) 42. V. Equal Protection of the Laws Gerawan attacks the validity of the MMCstatute on the groundthat it violates the constitutional requirement of equal protection of the laws. The equal protection clause of the Fourteenth Amendmentto the United States Constitution provides: “No State shall ... deny to any person withinits jurisdiction the equal protection of the laws.” (U.S. Const., 14th Amend., § 1.) The California Constitution expressly provides the same guarantee. (Cal. Const., art. I, § 7, subd. (a).) In essence, equal protection of the law meansthat all persons whoaresimilarly situated with respect to alaw should betreated alike under the law. (Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439; Arcadia DevelopmentCo. v. City ofMorgan Hill (2011) 197 Cal.App.4th 1526, 1534.) “Of course, most laws differentiate in some fashion between classes of persons. The Equal Protection Clause does not forbid classifications. It simply keeps governmental decisionmakers from treating differently persons whoare in all relevant respects alike. [Citation.]” (Nordlinger v. Hahn (1992) 505 USS. 1, 10.) “The generalruleis that legislation is presumedto be valid and will be sustained if the classification drawnbythestatute is rationally related to a legitimatestate interest. [Citations.] When social or economiclegislationis at issue,the Equal Protection Clause allows the States wide latitude, [citations], and the Constitution presumesthat even improvident decisions will eventually be rectified by the democratic processes.” (Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S.at p. 440; accord, FCCv. Beach Communications, Inc. (1993) 508 U.S. 307, 313-314.) As Justice Robert Jackson explained many years ago: “[C]ities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiationfairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and weshould notforget today, that there is no more effective practical guaranty against arbitrary and unreasonablegovernment than to require that the principles of law 43. which officials would impose upon a minority must be imposed generally. Conversely, nothing opensthe doorto arbitrary action so effectively as to allow thoseofficials to pick and choose only a few to whom theywill apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measureto assure that laws will be just than to require that laws be equalin operation.” (Railway Express v. New York (1949) 336 U.S. 106, 112~113,italics added (conc. opn. Jackson,J.), cited with approval in Hays v. Wood (1979) 25 Cal.3d 772, 786— 787.) The samerational basis standard is applied for purposes of the equal protection provision of the California Constitution. (Kasler v. Lockyer (2000) 23 Cal.4th 472, 481— 482; County ofL.A. v. Southern Cal. Tel. Co., supra, 32 Cal.2d at pp. 389-390.) This deferential standard “‘invests legislation involving such differentiated treatment with a presumption of constitutionality and “requir[es] merely that distinctions drawn by a challenged statute bear somerational relationship toa conceivable legitimate state purpose.” [Citation.]’” (Wardenv. State Bar (1999) 21 Cal.4th 628, 641.) “Past decisions also establish that, under the rational relationshiptest, the state may recognize that different categories or classes of persons within a larger classification may pose varying degrees of risk of harm, and properly maylimit a regulation to those classes of persons as to whom the need for regulation is thought to be more crucial or imperative.” (id. at p. 644, citing Williamson v. Lee Optical Co. (1955) 348 U.S. 483, 489 [“Evils in the same field maybeofdifferent dimensions and proportions, requiring different remedies. Orso the legislature may think. [Citation.] Or the reform may take onestep at a time, addressingitself to the phase of the problem which seems mostacute to the legislative mind.”].) A keyprinciple that must be applied in the presentanalysisis that “[a]n administrative order, legislative in character, is subject to the sametests as to validity as an act of the Legislature. [Citations.]” (Knudsen Creamery Co. v. Brock (1951) 37 AA. Cal.2d 485, 494 (Knudsen Creamery Co.).) As the majority opinion in Hess correctly observed, the action of the Board in approving a final CBA submitted by the mediatoris essentially legislative in character: “There can be no doubt that the compulsory interest arbitration scheme provides for quasi-legislative action. Althoughthe statutes refer to the end result as a ‘collective bargaining agreement,’ there is no agreement. In this case Hess not only did not agree to be boundbythe terms of employment imposed by the mediator, it did not agree to submit to interest arbitration at all. The terms of the ‘agreement’ determined bythe arbitrator were imposed upon Hessby force of law. [{]] The statutory schemeis not quasi-judicial. An administrative action is quasi-judicial, or quasi- adjudicative, when it consists of applying existing rules to existing facts. [Citation.] The creation of new rules for future application, such as is done here, is quasi-legislative in character. [Citation.] This is so even though the action is, as here, taken in an individual case. [Citation.]” (Hess, supra, 140 Cal.App.4th at pp. 1597-1598.) Accordingly, when under the MMCstatute the Board approves or adopts a mediator’s report (such as the one in this case regarding Gerawan) and thereby establishes an enforceable CBAasto a particular employer and union,the resulting CBAis legislative or regulatory in character andis “subject to the sametests as to validity as an act of the Legislature” (Knudsen Creamery Co., supra, at p. 494), including the test of constitutionality under the equal protection clause. Here, in attacking the MMCstatute on equal protection grounds, Gerawan makes essentially the same argumentthat Justice Nicholson madein his dissenting opinion in Hess. In Justice Nicholson’s dissent, he gave the following explanation of why he | believed the MMCstatute violated equal protection principles: “T assume,for the sake of argument, that treatment of an agricultural employerthat does not reach agreement with the union on aninitial collective bargaining agreement can be different from the treatment of an agricultural employer that reaches an agreement with the union on aninitial collective bargaining agreement becauseofthe state’s interest 45. in promoting collective bargaining agreements. Here, however, the disparate treatmentis not just between employers with initial collective bargaining agreements and employers without such agreements. Application of ... section 1164 andthe related statutesresults in disparate treatment within the class of employers withoutan initial collective bargaining agreement because the agreementimposed on each employerin this class will be different. While the legitimate state interest that I assume for argument exists may justify disparate treatment betweenclasses, it cannot justify disparate treatment within the class. (Cleburne v. Cleburne Living Center, [Inc.,] supra, 473 U.S.at p. 439.) “TS]ection 1164 sets forth the classification at issue in this case: agricultural employers who, for whatever reason, do not agree to the terms of an initial [CBA]. Within this class, the law doesnottreat the individual employers similarly. Instead, each employerwill be subjected to a different legislative act, in the form of a [CBA]. Thus, similarly situated employersare treated dissimilarly. “Beyond the classification set by ... section 1164, there is no rational way to break the agricultural employers down into smaller groups. The statute makes no such attempt, except, of course, to break it down so that every agricultural employeris the one and only memberof the class. This means ofclassification, however, is the very antithesis ofequal protection. While the Legislature may have intended this as a wayto avoidthe political retribution it might incurif it enacted laws applicable equally acrosstheclass, that motivation is entirely insufficient to justify the disparate treatment. (See Hays v. Wood, supra, 25 Cal.3d at pp. 786-787.) “<<