GERAWAN FARMING v. AGRICULTURAL LABOR RELATIONS BOARD (UNITED FARM WORKERS OF AMERICA)Respondent’s Reply Brief on the MeritsCal.April 25, 2016 Su the Supreme Court of the State of Caltfornia GERAWAN FARMING,INC., Petitioner and Appellant, Case No. 8227243 v. AGRICULTURAL LABOR RELATIONS SUPREME COURT FILED Respondent, 5 2016 UNITED FARM WORKERSOF APR 2 AMERICA, Frank A. McSuire Clerk Real Party in Interest and Respondent. Deputy Fifth Appellate District, Case No. F068526 ALRB Case No. 2013-MMC-003 [39 ALRB No.17] Fifth Appellate District, Case No. F068676 Fresno County Superior Court, Case No. 13CECG01408 The Honorable Donald S. Black, Judge REPLY BRIEF OF RESPONDENT AGRICULTURAL LABOR RELATIONS BOARD KAMALAD. HARRIS Attorney General of California KATHLEEN A. KENEALY Chief Assistant Attorney General DOUGLAS J. WOODS Senior Assistant Attorney General CONSTANCEL. LELOUIS Supervising Deputy Attorney General BENJAMIN M. GLICKMAN Deputy Attorney General State Bar No. 247907 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 (916) 323-7355 Benjamin.Glickman@doj.ca.gov Attorneysfor Respondent Agricultural Labor Relations Board TABLE OF CONTENTS Page Trntroduction .......c.cccceceseceseeescesscecssecenevsceenceeesserecessceseneesseeesssesosascssesensacenseees 1 ALBUMEN... ccceeeceecescesceseescessesccecescesseseessessesssssessensesensecsseessessnssseeseseeneeatens 4 I. Gerawan improperly raises issues not before the Court........ 4 A. The vacated decertification election is not before the Court andis irrelevant to the issues OD FOVICW......cescesccsccescecsseescesenceseeeeseeecsnseaetatesneneesenees 4 B. Gerawan’s substantive due process argumentis not before the Court and should be rejected............... 5 Il. The MMCStatute does not violate equal protection on US FACE vo. cececsecssccesscessesscesceecstecsseesaeccseesateesseeseseesseresesetensennes 6 A. Interest arbitration is a widely accepted componentofcollective bargaining andis not limited to specific INGUStIIES...........eee eeeeteteeeeeeeeeees 7 B. The MMCStatute is rationally related to legitimate state Interests...cesses seteteeseeeeeeeees 8 1. MMCisrationally related to the State’s legitimate interest in facilitating the conclusion offirst contracts under the ALRA..o.eeecccescessceceeeceeceeceeseersneeaeeseteteeeeneeeeses 8 2. MMC’sindividualized processes are rationally related to the State’s legitimate interest in tailoring each CBAto the unique circumstancesoftheparties................. 9 a. Equal protection does not require that every eligible employer be subject tO MMCoeseeeeeseeeeeeeeees 10 b. The fact that MMC results in CBAstailored to each employer does not violate equal protection........ 11 C. The MMCStatute does not facially discriminate among similarly situated employers..............sceeee 14 TABLE OF CONTENTS (continued) Page Ill. The MMCStatute is not an unconstitutional delegation Of legislative POWET..........::.sscsessesseseeeeeeesereesssersessssereesaeses 15 A. The Legislature made the fundamental policy decisions supporting MMC........ cece eessesstsseeneeneees 15 B. The Legislature provided adequate guidance for the implementation ofits policy decisions..............17 C. The Legislature included adequate safeguardsto ensure the MMCStatuteis fairly applied................. 19 IV. The Board did not abuseits discretion in directing the parties tO MMC.0....eeeesesssecesesescssnerseeseeseeerseesasecesessessrens 21 A. MMCispart ofthe bargaining obligation under the ALRALeeeccsccessssseseeseeceeeeseeeseeseeeeeeseneaseaseeesaes 23 B. There is no reason to depart from the “certified until decertified” doctrine or the Board’s consistent rejection of the “abandonment” efense 0... ceeceesessceseeceeteseeeceecteceeereeeseeetseneseeseeenes 24 1. The ALRA’s decertification procedures are not “UUSOLY”..........eceeseneeeeseeeteteeeseeseeens 25 2. A certified union’s presumption of majority support may be rebutted only by an employee-initiated election...cee 25 3. Permitting the “abandonment” defense in MMCis contrary to the ALRA’score purposeof eliminating employer participation in the recognition of bargaining representatives .0.......ceeeeeeeeee 27 COMnClUSION............cccceessceessesseencecesscecssecesesesecseesaseaeeeeessseeseseaseeseasssessneseessees 28 il TABLE OF AUTHORITIES Page CASES Am. Acad. ofPediatrics v. Lungren (1997) 16 Cal4th 307oeeeecesessseeessessenesseseesseseneesesseneneseeeesesenesees 7 Arnaudo Brothers, LP (2014) 40 ALRB NO.3 oo... eeececssessessenssecsesenesssesseeseseeeeessneneneseesensaess 22 Arnaudo Brothers, LP (2015) 41 ALRB NO.6.0... ceccceeseseesessesesesesessesssseeessenssensesssesnesenes 24 Barsky v. Bd. ofRegents of University (1954) 347 U.S. 442oeeeesceessscseesssssseressssensessesesseseessenenesesseasnees 13 Birkenfeld v. City ofBerkeley (1976) 17 Cal.3d 129eeeeceetscrensseteessetseeeseenteneeseenees 6, 17, 18, 19 Borough ofLewistown v. Penn. Labor Relations Bd. (Pa. 1999) 735 A.2d 1240...eecescesesssessesesetseeeseateeeesseesseseenenseeees 24 Bruce Church, Inc. (1991) 17 ALRB NO. 1 onceeceesenssceeeeseseneeseeesesesecseseeasseseseeeseasenees 22 Cal. Grocers Assn. v. City ofLos Angeles (2011) 52 Cal.4th 177eeeeessessceseesensesenscasseneessnsensesssscsssseeseseeeeeenens 6 Carson Mobilehome Park Owners’ Assn. v. City ofCarson (1983) 35 Cal.3d 184occscsesseessssssesseesesesesseseseeeeeseeneess 15, 17, 18 City ofRichfield v. Local No. 1214, Internat. Assn. of Firefighters (Minn. 1979) 276 N.W.2d 42 oo cceescssssesessesceseseeeeesseeseneeseneeeneeeeeeeseeees 19 County ofSonoma v. Superior Court (2009) 173 Cal.App.4th 322 ooo. eccsscesseeeesesseseeeseeseeseesenseeseeeeneerees 17 Dole Fresh Fruit Co., Inc. (1996) 22 ALRB NO.4.0.0...eee ecesseessesseseensssceeeeeseeeeseseeneeseeeeneneseseeeenes 22 ill TABLE OF AUTHORITIES (continued) Page Engquist v. Or. Dept. ofAgriculture (2008) 553 U.S. 59] oeeesseesseretesescsesstseseeseeseseeeereeenses 10, 12, 13, 15 F&P Growers Assn. v. Agricultural Labor Relations Bd. (1985) 168 Cal.App.3d 667 .0.......ceccscssesssssessersesesetsrensenees 22, 26, 27, 28 Fire Fighters Union, Local 1186, Internat. Assn. ofFire Fighters v. City of Vallejo (1974) 12 Cal.3d 608oeeeecsssseesessssssesseenesseseeeseeessseseneseseeees 18, 24 Gerawan Farming,Inc. (2016) 42 ALRB NO.1 on.eccceeeeseeteeeeeeeeeeesensenneeesenenees 4,5, 27, 28 Gerhart v. Lake County, Mont. (9th Cir. 2011) 637 F.3d 1013ceceeseeeeneeneeeeeeseeeneeseneees 10, 11 ELK. Porter Co. v. N.L.R.B. (1970) 397 U.S. 99 eeeeessssseceesessecsssesessseeseseseenseeseesesssseessessseseneesees 8 Hale v. Morgan (1978) 22 Cal.3d 388 oo.eeeesscscesessssscscesserssseessessesseensesesenssseseessenseeees 6 Hess Collection Winery v. Cal. Agricultural Labor Relations Bd. (2006) 140 Cal.App.4th 1584ooceecseeseeeeteesteseneteeteeneseeees passim Highland Ranchv. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848 ooceceresssessenesseeseeesesseesesenesenesesseseeesenes 23 Kaplan’s Fruit & Produce Co. (1977) 3 ALRB NO.28 ....cccsescceseseseseseesessesssssesessseseeeseaseeneceetensseneeneeens 26 Kitsap County Deputy Sheriffs’ Guild v. Kitsap County (Wash. 2015) 253 P.3d 188 uo... eeeecsseseseeeeesseseeeseeseeseneestetessensnsesenentes 24 Las Lomas Land Co., LLC v. City ofLos Angeles (2009) 177 Cal.App.4th 837 oo.cscsssesseessesessessenesseesseneseeseseneeseeesees 12 Lincoln Federal Labor Union v. Northwestern Iron & Metal Co. (1949) 335 U.S. 525 oesecceesssseetsssesseesseeseneceeneessesessesesnsesesenseeesenenees 6 iv TABLE OF AUTHORITIES (continued) Page Montebello Rose Co.v. Agricultural Labor Relations Bd. (1981) 119 Cal-App.3d 1csceeeeeeseeeeseeeeteeseneesenseneneneseeneees.22, 26 Moore v. Cal. State Bd. ofAccountancy (1992) 2 Cal.4th 999occcecssssssssssssesscnessssessssseesesseaneessseesssseenee 23 N.L.R.B. v. Jones & Laughlin Steel Corp. (1937) 301 U.S. 1 eeeceessetsssesesessessetenecseseeessessetessessneeeneeenenes 7,8 O.E. Mayou & Sons (1985) 11 ALRB NO.25occeesccesessseeeeseesesseessenenensesenenenensenenseeees 22 Pac. Legal Found. v. Brown (1981) 29 Cal3d 168 oo. ceccsssssssesseeseseseseseneeesnesersesesensetereeenensseneees 16 Pictsweet Mushroom Farms (2003) 29 ALRB NO.3 uu... escscesssssseesseteneseeeeseenecseseneneesessasseeesseeerees 22 RUI One Corp.v. City ofBerkeley (9th Cir. 2004) 371 F.3d 1137 oo.ccessssseeeecseeeeseseneeeeeesereeseeeseeseeneees 11 San Joaquin Tomato Growers,Inc. (2011) 37 ALRB NO.5 weeeecceeecsesesesseseesesneesesesseseneesenessesnsneneeeeeeeseees 22 Schaezlein v. Cabaniss | (1902) 135 Cal. 466...eeccseeseseseseensesseeeeenseseseetensesereneseseaenes 10, 11 Spiritual Psychic Sci. Church v. City ofAzusa (1985) 39 Cal.3d 501 oo.eeeseseseseseseseseseeneeeeseeesenseeeeeeeseenstenenenenes 6,7 Squires v. City ofEureka (2014) 231 CalApp4th 577 oo... ccccccssssssseesessessseseensensnseseseeetessssenssenees 12 Stauffer Chemical Co. v. Air Resources Bd. (1982) 128 CalApp.3d 789 uu... ccesesessseseseneseesnsssesesseesensnensensseeees 20, 21 Superintending School Com. ofBangor v. Bangor Ed. Assn. (Me. 1981) 433 A.2d 383 oo... eeccsssssessseseeeeeeeseneseseteneseneteteseseeeesenseeneess 19 TABLE OF AUTHORITIES (continued) Page Tex-Cal Land Megmt., Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335 oeeeeceseeeseescsssessscssssesssssseesssssssseesseessennssesessreneees 21 Tobe v. City ofSanta Ana (1995) 9 Cal.4th 1069oeeescesssesesseessceeessseesensessenseeesenesesseeees 5, 6 Today’s Fresh Start, Inc. v. Los Angeles County Office ofEd. (2013) 57 Cal.4th 197oeeesesscsesesesccscsesscssssssessssssseeeneseeseesseaees 14, 20 Towery v. Brewer (9th Cir. 2012) 672 F.3d 650 oo. cccccsssscsssessseeceseteeseeseeesenessesessesaeees 13 Vergara v. State ofCalifornia,et al. (Apr. 14, 2016, B258589) —sCal.-App.4th [2016 WL 1503698] ......eeessesesesseesesseeesssesseeseessersseerenseaseeeeaesees 6, 14 Vill. of Willowbrook v. Olech (2000) 528 U.S. 562 oo.eeeseseesssssesescsssscesseesessseessseeseneseeesssesenesseneees 15 WolffPacking Co. v. Ct. ofIndus. Relations (1923) 262 U.S. 522 eee eceesseeeesseesssssseseecssssssesecsssenesseseesenessenenesseneees 5, 6 STATUTES United States Code, Title 29 § 15203) ...cescccscescsecceecesceseeceeececescenscrscseesessesesssssasseseesssessseaeeesesesesaseeeneeeeees 7 Government Code § 3505.4, subd. (d)(3)-(7) ..---eeceecessessstevsesseeessscssnsenscsseseseeseeessseesnenessenees 17 § 3548.2, Subd. (D) neeeesceeeseesescesessesesscsaseesscsessessesesseseceeeeeseseneneseseees 17 Labor Code § 1140.2eeeeeseteeeesecessetesteeeseeeseesenesvesesseeeneeeesaeetesesosneens passim § 1156.3, SUb. (D)oeeee eeeseseesceessesseeeeessseseeseseseesseessessserseseeeeeeeaees 25 § 1156.7, SUD. (C) oe.esccsecseeeesesteeseessessensensseesseessseessseressensenessneasees 25 § L164eee ceeccseesseececceeceeeseeceeeeassetscsessnsessusessessessesassessesssseseesasereasaes 1, 16 § 1164, Subd. (8) oo.eeecseseneeseesscsseseseeseeensesecesenscseeseesnessenseensens passim § 1164, subd. (b)oeeeeeeeeeeesesssseetsssssecssesesessesseesssesesaeseesesesesaeseneens 9 § 1164, subd. (C) on.eee ceeseeseesesesesesseessnssssessesessesesessssessenseeeseneneeaesenes 24 vi TABLE OF AUTHORITIES (continued) Page Labor Code(cont.) § 1164, Subd. (d)oeeeeececeseeeescecseeeceesersessssssseseeseessesaeeneeseeseanees 17, 18 § 1164, subd. (€) on.ceeceecteessscssessseussssesecsssesenssesesesenesneeneens 17, 18 § 1164.3ee eccccesecsecceetceseseecessecsecseesnesssesesssssesesecssseseesessesessesnesseeaseesees 16 § 1164.3, Subd. (a) eeeeee ceeseeeseeeeesesseseecsersusessessessesenerseesesanees 16, 19, 20 § 1164.3, Sub. (A) oeeeeeceeeteteeseeeeeeseesseeeserscnessesscsessesssseeseneeseeeeensees 20 § 1164.3, subd. (e) «0...pecsececusecececesceecaesceseecsnesssaeseseeeoeseeeeneees 19, 20 § 1164.5 oo ceeccccsecesceeceeceecscsceeeeesseseeeecsecsssscesssascsseeeetsasesensesesssaeees 19, 20 § L164eeeeeeeecseeeeereeeeseesseessseseessseesssesseeseseseeeeseesaneenerenens passim Statutes 1994, ch. 1010, § 18]eeeeeseeeeeceeceneeeeeeeseeseenesensesaneseeenenens 22 Statutes 2002, ch. 1145, § Doeeeeeseeeseeneeeseenseeseeeeneens 13, 16, 18, 23 Statutes 2004, ch. 788, § 13 vcccecessecssesceeceeestesereeeseeeeeesoneeseessneenseeses 22 Statutes 2011, ch. 697 .......cccccssssscssseessreccesceeseceseeeseeseesessesseseesessseeseeseeases 22 CONSTITUTIONAL PROVISIONS California Constitution Article XIV, § Livccecccccsscscsscsessescsseceseccnecsecscecessseecessescnesseceessaueeessesassenes 1 COURT RULES California Rule of Court Rulle 8.516(a)(1)......:cecccecessesseseseeeseeessesessssesscsecsssesesnessesenseseeeseesseseesseeees 5 REGULATIONS California Code of Regulations, Title 8 § 20407, subd. (8)(2).....:eeeecesseceeessessessessesesecscsesesseeseeseneesessesesneseeeess 20 OTHER AUTHORITIES Elkouri & Elkouri, How Arbitration Works (7th ed. 2012) Ch. 22, pp. 22-4 veeececssccsseesseccseesssseesseeseseesssesesssseesesseeeseseneesessenesessesensness 24 Vil INTRODUCTION In 2002, in response to decades of unsuccessful bargaining underthe Agricultural Labor Relations Act, the Legislature amended the Act to include mandatory mediation and conciliation (MMC),an interest arbitration process intendedto foster negotiation, resolve bargaining disputes, andfacilitate the conclusion ofessential, but historically elusive, first contracts between agricultural employers and their employees. (Lab. Code, § 1164 et seq. (MMC Statute).)'! MMCwasnot a newidea, as similar procedures havebeen used for decadesto resolve collective bargaining disputes in various industries. MMC’sconstitutionality was recognized in a well-reasoned decision by the Third Appellate District in | 2006. (Hess Collection Winery v. Cal. Agricultural Labor Relations Bd. (2006) 140 Cal.App.4th 1584.) The Court of Appeal in this case nonetheless held that the MMC Statute is facially unconstitutional as a violation of equal protection and an unlawful delegation of legislative power. This decisionis contrary to law and impermissibly overrides the Legislature’s rational determination, consistent with its constitutional authority to provide for the general welfare of agricultural employees, that MMC is necessary to protect employees’ rights and ensure effective collective bargaining under the ALRA. (Cal. Const. art. XIV, § 1.) As an “alternative basis for its ruling,” the Court of Appealalso held that the Agricultural Labor Relations Board (ALRB or Board) abusedits discretion in referring Petitioner Gerawan Farming,Inc. (Gerawan)and the United Farm Workers of America (UFW) to MMC without “properly considering” Gerawan’sassertion that the UFW had “abandoned” Gerawan’s employees and no longer had their support. This 1 Further statutory references are to the Labor Code unless otherwise indicated. decision is contrary to law, to decades of administrative practice and judicial precedent, and to the expresslegislative purpose ofthe legislation at issue. Gerawan’s answeringbrief, as explained below, only compounds the Court of Appeal’s fundamentalerrors. Asan initial matter, Gerawan devotesa substantial portion ofits brief to issues outside the scope of this Court’s review. For example, Gerawan’s repeated references to the vacated decertification election are misplaced. (See Combined Answering Brief of Petitioner (ABM) 3-4, 12-15, 17, 33- 34, 40-41.) The election is not before this Court (and wasnotbefore the Court ofAppeal), and indeedis the subject of ongoing legal proceedings. It thereforeis irrelevant to the issues currently on review. Similarly, Gerawan’s lengthy lead argument—that MMC’sinterestarbitration processes are categorically unconstitutionalas a violation of substantive due process—is improper and should be rejected. (ABM 20-31.) This Court denied review of this issue, which the Court of Appeal also declined to consider. In any event, this argument, which relies on a completely repudiated line of authority, fails on the merits for the same reasons as Gerawan’s equal protection claim: the Legislature had rational basis for enacting the MMCStatute. (See Hess, supra, 140 Cal.App.4th at p. 1601.) Asto the issues properly before the Court, Gerawan’s arguments fail—and the Court of Appeal should be reversed—for the reasonsset forth below and in the Board’s opening brief: e The MMCStatute is economic legislation that does not violate equalprotection because, as Gerawan now concedes,the lines drawn by the Legislature for the application ofMMCarerationally related to the State’s legitimate interest in facilitating collective bargaining under the ALRA. (ABM 47.) Likewise, MMC’s individualized processesare rationally related to the State’s legitimate interest in tailoring MMCandcollective bargaining agreements (CBAs)to the particular interests of the bargaining parties. Finally, Gerawan’s new theory that the MMCStatute is unconstitutional becauseit allegedly gives unions “unilateral power” to subject employers to MMC,is wrong. (ABM 3, 41-43, 49.) The Legislature—not any union—established the statutory prerequisites for MMC,and both unions and employers may demand MMC. (§§ 1164, subd. (a), 1164.11.) In either case, the requesting party’s role is limited to informing the Boardofthe request, and it is the Board—noteither party— that determines whetherthe statutory criteria are met and,if sO, directs the parties to MMC. e The MMCStatute is a permissible delegation oflegislative power, because the Legislature made the fundamentalpolicy decision that ~ MMCwasnecessary in specified circumstances to facilitate the conclusion offirst contracts, established detailed procedures for MMC’s operation, specified neutral criteria to guide the mediator’s decisions, and provided for the prompt review of the mediator’s report by the Board and appellate courts. e The Board did not abuseits discretion in referring the parties to MMCwithout taking evidence on Gerawan’s purported defense ofunion “abandonment.” To the contrary, the Board’s decision in this case, which is entitled to deference, is consistent with the ALRA’splain language and legislative purpose, which prohibits any employer involvementin the recognition of bargaining representatives, as well as decades of administrative and judicial precedent. In arguing otherwise, Gerawan repeatedly references the ALRA’s protection of employees’ freedom to choose bargaining representatives. But Gerawan,like the Court of Appeal, disregards the ALRA’s corresponding protection of employees’ right “to be free from the interference, restraint, or coercion of employers oflabor, or their agents” in such choice. (§ 1140.2; ABM 4, 28-31, 39-41.) Permitting Gerawanto challenge the UFW’sstatus as the certified bargaining representative of Gerawan’s employees—as the Court of Appeal’s decision would require—contravenesboth the principle of employee free choice and employer non-interference. To the extent there may be “policy reasons” to permit an employerto avoid its duties under the ALRA byasserting that a union has “abandoned”its employees,it is for the Legislature—not Gerawanor the Court of Appeal—to declare suchpolicy. ARGUMENT I. GERAWAN IMPROPERLYRAISES ISSUES NOT BEFORE THE COURT a Gerawan devotes a substantial portion of its brief to two issues not before the Court: (1) the November 2013 decertification election of Gerawan’s employees, which was set aside due to Gerawan’s unlawful interference; and (2) Gerawan’s argument that MMCiscategorically unconstitutional as a violation of substantive due process, which the Court of Appeal did not address and this Court declined to review. A. The Vacated Decertification Election Is Not Before the Court andIs Irrelevant to the Issues on Review Gerawan’s repeated references to the now-vacated decertification election are improperandirrelevant. (ABM 3-4, 12-15, 17, 33-34, 40-41.) Theelection is not before this Court (and wasnot before the Court of Appeal), but rather is the subject of the ALRB’sdecision in Gerawan Farming, Inc. (2016) 42 ALRB No.1 ( [last accessed April 25, 2016}) and of ongoing legal proceedings. Specifically, in September 2015, following a lengthy administrative hearing, Administrative Law Judge Soble held that Gerawan’s “unlawful support and assistance”ofthe decertification effort “tainted the entire decertification process,” and “set[] aside the decertification election and dismiss[ed] the decertification petition.” (See ALRB’s Request for Judicial Notice (RJN), Ex. F, pp. 186-187.) On April 15, 2016, the Board affirmed Judge Soble’s conclusion that Gerawan’s unlawful conduct tainted the entire decertification process, adoptedhis conclusion that numerous unfair labor practices had been committed by Gerawan, and accepted his recommended remedy to dismiss the decertification petition and set aside the election. (See Gerawan Farming, Inc., supra, 42 ALRB No. 1.) Moreover,the election is irrelevant to the issues that are before this Court on review. Theelection was held nearly seven monthsafter the Board’s decision to refer the parties to MMC,andit therefore has no bearing on whether the Board abused its discretion in makingthat referral. Likewise, the election and post-election proceedings have no bearing on the Court’s review of Gerawan’sfacial constitutional challengesto the MMC Statute, which “considers only the text of the measureitself.” (Tobe v. City ofSanta Ana (1995) 9 Cal.4th 1069, 1084.) B. Gerawan’s Substantive Due Process ArgumentIs Not Before the Court and Should Be Rejected Gerawan’s lengthy lead argument—that the MMCStatute is categorically unconstitutional as a violation of substantive due process—is not properly before this Court and should not be considered. (ABM 20-31.) The Court of Appeal declined to consider the claim. (Slip Op. 42.) This Court likewise declined Gerawan’s request to extend review to this issue, and it is not fairly included within the constitutional questions presented. (Aug. 19, 2015 Order Granting Review [“[t]he issues to be briefed and _ arguedare limited to the issues raised in the petitions for review”].) In compliance with California Rule of Court 8.516(a)(1), the Board will limit its brief to the issues presented unless the Court orders otherwise. Atthis juncture, the Board notes only that the line of cases on which Gerawan relies, beginning with WolffPacking Co. v. Ct. ofIndus. Relations (1923) 262 U.S. 522, have been squarely repudiated. (See, e.g., Birkenfeld v. City ofBerkeley (1976) 17 Cal.3d 129, 155; Lincoln Federal Labor Union v. Northwestern Iron & Metal Co. (1949) 335 U.S. 525, 536-537; see also Hess, supra, 140 Cal.App.4th at p. 1601 [discussing “complete” repudiation of Wolffand holding “in view ofthe Legislature’s broad authority over employment, andthe limited role of the courts in reviewing legislative policy decisions, [the MMC]statutory scheme meets the constitutional test for substantive due process”].) Il. THE MMCSTATUTE DOES NOT VIOLATE EQUAL PROTECTION ON ITS FACE The Court of Appeal erred in holding the MMCStatute “onits face violates equal protection principles.” (Slip Op. 51; see ALRB OBM 15-25.) To prevail on its facial challenge, Gerawan “must demonstrate that the [MMCStatute’s] provisions inevitably pose a presenttotal and fatal conflict with applicable constitutional prohibitions.” (See, e.g., Tobev. City ofSanta Ana, supra, 9 Cal.4th at p. 1084.) Moreover, where “purely economicinterests are at stake, the Legislature may imposeany distinction between classes which bears some ‘rational relationship’ to a conceivably legitimate state purpose.” (Hale v. Morgan (1978) 22 Cal.3d 388, 395; see also Cal. Grocers Assn. v. City ofLos Angeles (2011) 52 Cal.4th 177, 209 [same]; Vergara v. State ofCalifornia, et al. (Apr. 14, 2016, B258589) Cal.App.4th_ [2016 WL 1503698, *13] [same].) Applying the highly deferential standards governing facial constitutional challenges to economic legislation,” the MMCStatute easily withstands equalprotection scrutiny. * Gerawan’s attempt to minimize the deference due the Legislature underrational basis review because constitutional rights allegedly “are threatened” by the MMCStatute should be rejected. (ABM 46.) Each case Gerawancites involved direct limitations on fundamental constitutional rights, not routine economic regulation. (See Spiritual Psychic Sci. Church v. City ofAzusa (1985) 39 Cal.3d 501, 514 [city’s determination that fortunetelling is “inherently deceptive” and therefore not “speech” violated (continued.:.) A. Interest Arbitration Is a Widely Accepted Component of Collective Bargaining and Is Not Limited to Specific Industries As explained in the Board’s opening brief, interest arbitration is a widely acceptedtool for facilitating the resolution of collective bargaining disputes in a variety of labor settings. (See ALRB OBM 18-20.) As Gerawan acknowledges,interest arbitration has been used for decades to resolve bargaining disputes for federal, state, and local employees, as well as in various private industries, including hospitals, utilities, and transit. (See ABM 23-24; ALRB OBM19.) The fact that interest arbitration has most commonly been used in “public or quasi-public employment” does not mean thatit is constitutionally restricted to such areas, as Gerawan contends. (See ABM 23.) Tothe contrary, interest arbitration is less commonin the private sector not because ofa constitutionallimitation, but rather a statutory one: the National Labor Relations Act of 1935 (NLRA), which preempts state labor law in coveredindustries, currently does not provide for interest arbitration of bargaining disputes. Of course, the NLRA does not apply to agricultural workers,and it therefore does not preempt the ALRA. (See 29 U.S.C. § 152(3).) More fundamentally, Congress’s decision not to include interest arbitration in the NLRA does not mean the Constitution precludes it. (See N.L.R.B. v. Jones & Laughlin Steel Corp. (1937) 301 U.S. 1, 44-45; ABM 22.) Although Gerawan asserts that the U.S. Supreme Court upheld the NLRA against a due process challenge because it “does not compel (...continued) First Amendment]; Am. Acad. ofPediatrics v. Lungren (1997) 16 Cal.4th | 307, 348 [parental consent requirement for minors seeking abortions violated exercise of “fundamental constitutional privacy rights”].) agreements between employers and employees,” the Court’s constitutional ruling in Jones & Laughlin was not contingentonthis policy choice. (ABM 22, quoting Jones & Laughlin, supra, 301 U.S. at p. 45.) Indeed, because the NLRA does not compel arbitration to resolve bargaining disagreements, the Supreme Court had no opportunity to consider whether doing so would be constitutional. (/bid.) Moreover, in a more recent decision, the U.S. Supreme Court expressly contemplated that Congress could amend the NLRA to “allow governmental review of proposals for collective-bargaining agreements and compulsory submission to one side’s demands.” (H.K. Porter Co. v. N.L.R.B. (1970) 397 U.S. 99, 109.) That “{t]he present Act does not envision such a process” does not meanthat the Constitution forbids it. (Zbid., emphasis added.) Givenits history of successful use in other laborsettings, the Legislature here could rationally conclude that interest arbitration was the appropriate mechanism for resolving protracted bargaining disputes under the ALRA B. The MMCStatute Is Rationally Related to Legitimate State Interests Gerawanasserts two equalprotection theories: (1) that the MMC Statute discriminates between employers that are subject to MMCandthose that are not, and (2) that the statute discriminates within the class of employers subject to MMC becausenot every eligible employer will be ordered to MMC and MMCresults in a CBAapplicable to a single employer. Neither asserted classification violates equal protection because both are rationally related to legitimate state interests. . 1. MMCIs Rationally Related to the State’s Legitimate Interest in Facilitating the Conclusion of First Contracts Under the ALRA Gerawan’s first equal protection theory—that the MMCStatute unlawfully discriminates between employers subject to MMCand those that are not——fails, because, as Gerawan now concedes,the lines drawn by the MMCStatute are rationally related to the State’s interest in facilitating effective collective bargaining through the conclusion offirst contracts. (See ABM 47 [class of employers subject to MMC “distinctly may bear a rational relationship to the statutory purpose ofpromoting collective bargaining”’].) Shifting focus, Gerawan now argues—forthefirst time—that the MMCStatute nonetheless violates equal protection because it allegedly “empower[s] a self-interested union to compel the regulation of individual employersof its choosing.” (ABM 42.) Gerawan’salternative theory fails because it misrepresents the union’srole in initiating MMC,and in so doing, ignores the Legislature’s obvious rational basis for MMC’sdesign. The MMCStatute does not give a union “unilateral powerto decide which employer” will be subject to MMC. (ABM 42.) Rather, MMC may be requested by either a certified union or an agricultural employer. (§§ 1164, subd. (a).) Andit is the Board—noteither party—that determines whetherthe statutory prerequisites are met and directs the parties to MMC. (§§ 1164, subd. (b), 1164.11.) A union’s powerunder the MMCStatute (like an employer’s) is limited to informing the Board that MMCis desired andthat it believes the statutory criteria are met. It is perfectly rational for the Legislature to determinethat the bargaining parties are best positioned to alert the Board of such circumstances. 2. MMC’sIndividualized Processes Are Rationally Related to the State’s Legitimate Interest in Tailoring Each CBAto the Unique Circumstances of the Parties Gerawan’s second equal protection theory—that the MMCStatute discriminates within the class of employers subject to MMC—fails because the MMCStatute’s individualized processesare rationally related to the State’s legitimate interest in tailoring each CBAto the unique interests of the bargaining parties. a. EqualProtection Does Not Require That Every Eligible Employer Be Subject to MMC Gerawan’s objection that every eligible employer may notbe subject to MMChasno constitutional relevance. (See ABM 42-45.) Equal protection doesnot require that a law be applied againstall potentially subjectto it, but only that it is applied in a non-discriminatory fashion. (See Engquist v. Or. Dept. ofAgriculture (2008) 553 U.S. 591, 603-604.) The U.S. Supreme Court’s equal protection analysis in Engquist elucidates this distinction. As the Court explained, a speed limit law doesnotviolate equalprotection becauseonly a fraction of violators are cited. (Ibid.) “[A]llowing an equal protection claim on the groundthat a ticket was given to one person and notothers, even if for no discernibleor articulable reason, would be incompatible with the discretion inherentin the challenged action.” (Jbid.) Similarly, the Legislature here determined that notall agricultural employers (or unions) need be subject to MMC. Rather, MMCmaybedirected only for those bargaining relationships meeting the statutory criteria, and even then, only upon the request ofa bargaining party. There is nothing irrational aboutthis design. Gerawan’s reliance on Gerhart v. Lake County, Mont. (9th Cir. 2011) 637 F.3d 1013, is misplaced. Gerhart involved an as-applied challenge to a specific decision (the County’s denial of a construction permit), not a facial challenge to an entire regulatory scheme.’ (Seeid. at p. 1021.) Moreover, 3 Gerawan’sreliance on Schaezlein v. Cabanissis similarly misplaced. (ABM 44-45.) Schaezlein involved unlawful delegation and speciallegislation claims, not a facial equal protection challenge. (Schaezlein v. Cabaniss (1902) 135 Cal. 466.) Moreover, the discretion at issue in that case—determining whetherfactory air quality could be (continued...) 10 the court in Gerhart held only that there was a genuine questionas to the County’s rationalbasisin light of the “considerable evidencethat [Gerhart] wastreated differently than other similarly situated property owners throughout the permit application process.” (Jd. at pp. 1022-1023.) By contrast, Gerawan cannotestablish that any similarly situated employers weretreated differently in MMC. Quite the contrary, the mediator determined—and Gerawan doesnot dispute—thatthere are no similarly situated employers to “provide guidance” on CBA terms. (See ABM 19, citing Certified Record (CR) 362-363.) Gerawan’s attemptto distinguish RUI One Corp. v. City ofBerkeley (9th Cir. 2004) 371 F.3d 1137, likewise fails. (ABM 49.) In RUJ, the court rejected a “class of one” equal protection challenge to a City’s imposition of a minimum wageoncertain businesses “but not upon other similar businesses elsewherein the City,” because the City established neutral criteria—geographic location, employersize, and lease status—for the ordinance’s application. (/d. at pp. 1154-1156.) Similarly, the Legislature here established neutral criteria for when MMC may be invoked. (§§ 1164, subd.(a), 1164.11.) b. The Fact that MMC Results in CBAs Tailored to Each Employer Does NotViolate EqualProtection Gerawan’s alternative argument that MMC violates equal protection becauseit results in a CBA applicable to a single employeralso fails, (...continued) improved “to a great extent” with “some mechanical contrivance” and prescribing the specific “contrivance” to be used—is nothinglike the straightforward prerequisites for invoking MMC.(id. at pp. 467-470; see Slip Op. 20 fn. 19 [“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”].) 11 because such individualized agreementsare rationally related to the State’s legitimate interest in promoting labor stability by tailoring the terms of each CBAto the individual circumstances of the bargaining parties. (See ABM46-50.) As the U.S. Supreme Court has explained, for equal protection purposes, “[i]t is no proper challenge to whatin its nature is a subjective, individualized decision that it was subjective and individualized.” (Engquist, supra, 553 U.S. at p. 604.) MMCplainly involves such “subjective and individualized” discretionary decisions and, notably, Gerawan does not dispute that collective bargaining is an inherently individualized process. (See ALRB OBM 21-22.) Instead, Gerawan attacks a straw man—mischaracterizing the Board’s argumentas seeking to insulate every mediator’s report from any equal protection challenge. (ABM 2, 43, 46.) To the contrary, the Board’s opening brief expressly contemplated the possibility of an as-applied challenge to a particular mediator’s report if, in a given circumstance,the result was not simply individualized, but discriminatory. (ALRB OBM 25.) But such a claim is not before the Court, and the mere possibility that an - employer could be treated unfairly in some hypothetical circumstance does not render an entire statutory schemeinvalid. Recognizing that Engquist precludesits facial claim, Gerawan’s only answeris the bald assertion that Engquistis “not applicableto private employers.” (ABM 49.) But Engquist’s equal protection analysis is not so limited. (Las Lomas Land Co., LLC v. City ofLos Angeles (2009) 177 Cal.App.4th 837, 859 [“[a]lthough the holding in Engquist was limitedto the public employment context, we believe thatits reasoning applies more broadly”].)* Indeed, as discussed above, the Court’s primary example * See also Squires v. City ofEureka (2014) 231 Cal.App.4th 577, 595 [applying Engquist to reject equal protection challenge to municipal (continued...) 12 supporting its rationale—speed limits—has nothing to do with public employment. Gerawan’s related argument that MMCviolates equal protection because the individualized terms in each CBA allegedly are notrationally related to the MMCStatute’s “only stated purpose. . . to promotestability in bargaining relationships and foster collective bargaining”also fails. (ABM 46.) The actual policies supporting MMC are muchbroader. In enacting the MMCStatute, the Legislature also expressly sought to “ensure a moreeffective collective bargaining process . . . and thereby morefully attain the purposes of the [ALRA]”andto “ameliorate the working conditions and economic standing of agricultural employees.” (Stats. 2002, ch. 1145, § 1.) Gerawan does not explain how law thatresults in a first CBAsetting the economic terms of employment, either through negotiation or Board order, is not rationally related to these goals.° Finally, there is no constitutional basis to distinguish decisions upholding laws permitting similar discretionary decisions in otherlegal settings, including rate-making,rent control, land use, and criminal prosecution. (See ABM 47-49.) In each case,the legislative body set a policy and established criteria for its application. So too here with the Legislature’s enactment of the MMCStatute. (...continued) code enforcement]; Towery v. Brewer (9th Cir. 2012) 672 F.3d 650, 660 [applying Engquist to reject equal protection challenge to Arizona’s lethal injection statutes]. . > Notably, Gerawan’s only support for its assertion that MMC’s individualized CBAsviolate equal protection is a dissenting opinion. (See ABM 47, quoting Barsky v. Bd. ofRegents of University (1954) 347 U.S. 442, 470 [Frankfurter, J., dissenting].) 13 C. The MMCStatute Does Not Facially Discriminate AmongSimilarly Situated Employers Gerawan’s facial equal protection challenge fails for the additional reason that Gerawan hasnot shownthat the MMCStatute systematically causes similarly situated employers to receive materially different treatment in all or the “vast majority” of cases, as is required. (Today’s Fresh Start, Inc. v. Los Angeles County Office ofEd. (2013) 57 Cal.4th 197, 218; see ALRB OBM 22-25.) First, given the “peculiar problems with the collective bargaining process betweenagricultural employers and agricultural employees,” agricultural employersare not similarly situated to employers in other industries. (See, e.g., Hess, supra, 140 Cal.App.4th at pp. 1603-1604.) Gerawandoesnotdisputethis. Second, the MMCStatute, by its terms, appliesto all agricultural employers andcertified unions. The Legislature did not single-out Gerawanorany otheragricultural employer to be subject to MMC,but - rather defined objective circumstances in which MMC maybeinitiated. (§§ 1164, subd. (a), 1164.11.) Gerawan concedes therationality of this design. (See ABM 47.) Similarly, because the mediator’s report is based on the application ofneutral statutory criteria to a specific dispute, the differences in individual CBAsare designed to reflect the unique circumstancesofthe bargaining parties, not to treat similarly situated employers differently. (Hess, supra, 140 Cal.App.4th at p. 1604.) Third, Gerawan has notestablished any identifiable class for equal ' protection purposes. “Although a group neednot bespecifically identified in a statute to claim an equal protection violation [citations], group members must have somepertinent commoncharacteristic other than the fact that they are assertedly harmedbya statute [citations].” (Vergara, supra, __Cal.App.4th__ [2016 WL 1503698, *13].) Here, Gerawan 14 identifies no such commoncharacteristic but rather asserts that the mere fact that MMCresults in a CBA applicable to a single employer violates equal protection. But this is not the law. Equal protection requires only that the Legislature have a rational basis for such individualized treatment. (See, e.g., Vill. of Willowbrook v. Olech (2000) 528 U.S. 562, 564; Engquist, supra, 553 U.S. at p. 604.) As described above, the inherently individualized nature of collective bargaining providesthat rational basis. Il. THE MMC STATUTE Is NOT AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER The Court ofAppeal erred in holding that “the MMCstatute involves an unconstitutional delegation oflegislative authority.” (Slip Op. 56.) The Legislature here made the fundamentalpolicy decision that MMC was necessary to address the unique challengesof collective bargaining in the agricultural industry. (See ALRB OBM 26-27.) The Legislature likewise provided clear direction for MMC’s implementation, specifying the criteria to be considered by the mediator in applying the Legislature’s policy and establishing straightforward procedures for prompt administrative and judicial review to ensureits fair application. (ALRB OBM 27-34.) Nothing moreis constitutionally required. A. The Legislature Made the FundamentalPolicy Decisions Supporting MMC Gerawan’s unlawful delegation claim fails at the threshold, because the Legislature in enacting the MMCStatute did not delegate any “fundamental policy decisions.” (See, e.g., Carson Mobilehome Park Owners’ Assn. v. City ofCarson (1983) 35 Cal.3d 184, 190.) To the contrary, the Legislature expressly made the fundamentalpolicy decisions that the conclusion offirst contracts was essential to the ALRA’s purpose, and that MMC should therefore be availableto resolve protracted bargaining disputes. (See Hess, supra, 140 Cal.App.4th at p. 1605; RJN, 15 Ex. C, p. 7; RJN, Ex. D, pp. 7-8.) The Legislature likewise made the related policy decisions determining the circumstances in which MMC should be available, the goals to be accomplished, the processes to be followed, the scope of the mediator’s discretion, and thecriteria to be considered in resolving the parties’ disputes. (See §§ 1164, 1164.3, 1164.11; Stats. 2002, ch. 1145, § 1.) Contrary to Gerawan’s assertion, the Board does not contendthat“the imposition of a CBA on private employer is ‘not a ‘fundamental’ issue of public policy.” (ABM 51.) Quite the dpposite—the decision to establish an interest arbitration procedure for the conclusionof first contracts in specified circumstances is a public policy decision, which the Legislature made in enacting the MMCStatute. But the specific terms of such contracts do not involve fundamental policy decisions, and properly are left for determination by the mediator. (See (Pac. Legal Found. v. Brown (1981) 29 Cal.3d 168, 201.) Gerawan’s argument that the MMCStatute is an unlawful delegation becauseit leaves the resolution of specific contract terms to the mediator, and that such terms are “‘fundamental’ policies”to the contractingparties, misses the point. (ABM 51.) The relevant question is not whether the mediator’s decision regarding a specific contract term affects the contracting parties, but rather whetherit implicates fundamental policy decisions ofthe State. As this Court has explained, the determination of “the working details of the wages, hours and working conditions” ina CBA plainly does not. (Pac. Legal Found. v. Brown, supra, 29 Cal.3d atp. 201; see also § 1164.3, subd. (a) [mediator’s report mustbe limited “to wages, hours, or other conditions of employment’”].) Gerawan’srelated concern that interest arbitration may “push the arbitrator into the realm of social planning and fiscal policy” is a consideration uniqueto public sector laborrelations. (ABM 52, quoting 16 County ofSonoma v. Superior Court (2009) 173 Cal.App.4th 322, 342.) As the court in County ofSonomaexplained, “(t]he obvious reason forthis is that costs arising from the terms ofa binding [public sector] interest arbitration award must be paid out of government funds,” which in turn mayrequire fundamentalpolicy decisions to raise taxes or make budget cuts. (County ofSonoma, supra, 173 Cal.App.4th at p. 342.) The mediator’s determination of individual contract terms during MMC implicates no such public policy decisions. B. The Legislature Provided Adequate Guidance for the Implementation of Its Policy Decisions The Legislature also provided clear guidance for the implementation of its policy decisions: If the parties to MMCare unableto reach an agreement through mediation, the mediator has discretion to “resolv[e] all of the [disputed] issues between the parties” concerning “the final terms of a collective bargaining agreement.” (§ 1164, subd. (d).) Further, the mediator’s discretion is guided by “those factors commonly considered in similar proceedings,” including the parties’ stipulations, the employer’s financial condition, corresponding CBAs, employmentconditionsin similar industries and regions, and the California ConsumerPrice Index and overall cost of living where the work is performed. (/d., subd. (e); cf. Gov. Code, §§ 3505.4, subd. (d)(3)-(7) [similar factors to be consideredin resolving bargaining disputes under Meyers-Milias-Brown Act], 3548.2, subd. (b) [same as to Educational Employment Relations Act].) This Court has repeatedly rejected “delegation” challenges to statutes that similarly provide a list of factors to be considered in implementing a stated policy. (See, e.g., Birkenfeld, supra, 17 Cal.3d at p. 168; Carson, supra, 35 Cal.3d at pp. 190-191.) For example,in Birkenfeld, this Court rejected a delegation challenge to a rent control ordinance based on the same fundamental argument advanced by Gerawan and adopted by the 17 Court ofAppeal in this case—namely,that the mere “listing of factors does not adequately inform either the Board or a court reviewing the Board’s actions just how the presence of the factors underparticular circumstances is to be translated into [financial terms].” (Birkenfeld, supra, 17 Cal.3dat p. 168.) Gerawan—like the Court ofAppeal—attempts to distinguish Birkenfeld on the groundthat the challenged rent ordinance’s “stated purpose .. . furnished an implied standard by which the board could apply those factors”(ABM 54)—namely, to implement“a just and reasonable rental amount based on several factors.” (Slip Op. 53.) But neither explains whya similarly constitutional standard—.e., to establish a just and reasonable CBA based onthe consideration of specified criteria— cannot be implied from the MMCStatute’s stated purpose andstatutory guidance. Instead, Gerawan simplyasserts that the MMCStatute provides “no guiding standards” because the Legislature failed to establish “the specific formula or objective pursuant to which the delegee would operate.” (ABM 55.) Butthis assertion is contrary to both the law andthe facts. First, this Court has repeatedly rejected the notion that an agency must be boundto any particular formula in the implementation oflegislative policy. (Birkenfeld, supra, 17 Cal.3d at p. 165; Carson, supra, 35 Cal.3dat p. 191.) Second, the Legislature here did establish policies and standards to guide the mediator. (See §§ 1164, subds.(d)-(e); Stats. 2002, ch. 1145, § 1.) That Gerawan disagrees with the Legislature’s choices does not render them unconstitutional. Lastly, any demand for a more rigid formula to guide the mediator disregards the inherent complexities of labor negotiations. (ALRB OBM 30-3]; see, e.g., Fire Fighters Union, Local 1186, Internat. Assn. ofFire Fighters v. City of Vallejo (1974) 12 Cal.3d 18 608, 622,fn. 13 [rejecting delegation challenge to city’s interest arbitration law]°; see generally Birkenfeld, supra, 17 Cal.3d at p. 168 [statutory “vardstick must be as definite as the exigencies of the particular problem permit’’].) C. The Legislature Included Adequate Safeguards to Ensure the MMCStatute Is Fairly Applied Finally, to ensure MMC’sfair application, the Legislature included a two-tiered process providing for the prompt review of the mediator’s report by the Board and appellate courts. (§§ 1164.3, subds.(a), (e), 1164.5; Hess, supra, 140 Cal.App.4th at pp. 1609-1610.) Gerawan does notcontestthat these straightforward procedures are nothinglike the “inexcusably cumbersome”procedures held insufficient in Birkenfeld. (Cf. Birkenfeld, supra, 17 Cal.3d at pp. 169-173; see Slip Op. 54 [citing Birkenfeld].) Rather, Gerawan attempts to minimize the MMCStatute’s safeguards by declaring that the Board’s review is “illusory,” and the appellate courts’ review “meaningless.” (ABM 57.) Gerawan’s unsupported assertions should be rejected as contrary to law andthefacts ofthis case. The MMCStatute requires the Boardto reject the entirety of the mediator’s report if it determines the mediator was corrupt, the report was “procured by corruption, fraud, or other undue means,”or that a party’s rights “were substantially prejudiced by the misconduct of the mediator.” (§ 1164.3, subd. (e).) The Board also must reject any provision of the mediator’s report that is: (1) “unrelated to wages, hours, or other conditions of employment”; (2) “based on clearly erroneous findings of ° See also City ofRichfield v. Local No. 1214, Internat. Assn. of Firefighters (Minn. 1979) 276 N.W.2d 42, 46-47 [rejecting delegation challengeto interést arbitration law and explaining that rigid standards are not possible in collective bargaining]; Superintending School Com. of Bangor v. Bangor Ed. Assn. (Me. 1981) 433 A.2d 383, 387 [same]. 19 material fact”; or (3) “arbitrary and capriciousin light of the . . . findings of fact.” (Id., subd. (a).) Applying these criteria to Gerawan’s objections in this case, the Board remandedsix contested CBA termsto the mediatorfor revision. (CR 721-731.) Such result is hardly “illusory.” Following the Board’s review, a dissatisfied party may seek review in the appellate courts. (§ 1164.5.) This review is notlimited to the “highly deferential ‘arbitrary and capricious’ standard,” as Gerawanstates (ABM 57), but rather encompasses whether the Board actedin excessofits powersorjurisdiction or did not proceed as required by law, and whether the Board’s decision was procured by fraud,is an abuse ofdiscretion, or violates any constitutional right. (§ 1164.3, subds. (a), (e).) Again, this case confirms that the MMCStatute’s judicial review provisionsare not “meaningless.” That the Board’s regulations permit a mediator “to go off the record at any timeto clarify or resolve issues informally” doesnotalterthis conclusion. (Cal. Code Regs., tit. 8, § 20407, subd. (a)(2); see ABM 58.) At the threshold, the fact that “off-the-record” communicationsare permitted in MMCisinsufficient to establish that such communications will occur in the “vast majority” of cases, as is required for a facial constitutional challenge. (Today’s Fresh Start, supra, 57 Cal.4th at p. 218.) Moreover, the mediator is expressly prohibited from relying on any off-the-record communications and must cite evidence in the record to support his or her findings. (§ 1164.3, subd. (d); Cal. Code Regs., tit. 8, § 20407, subd. (a)(2).) MMCis a quasi-legislative process,’ and courts generally will not disturb a quasi-legislative decisionif it is supported by the evidencein the record, not arbitrary or capricious, and consistent with ” See, e.g., Slip Op. 45; Hess, supra, 140 Cal.App.4th at p. 1601; ABM3, 41-42, 44, 49. 20 law. (See, e.g., Stauffer Chemical Co. v. Air Resources Bd. (1982) 128 Cal.App.3d 789, 794.) The presence or potential for “off-the-record” communications thus has no bearing on the adequacyofjudicial review of such decisions.® IV. THE BOARD DD NOT ABUSEITS DISCRETION IN DIRECTING THE PARTIES TO MMC The Court of Appealerred in holding that the Board abusedits discretion in referring the parties to MMC. MMC mayberequested by any “Jabor organization certified as the exclusive bargaining agent of a bargaining unit of agricultural employees.” (§ 1164, subd.(a).) Here, there is no dispute that UFW wascertified as the exclusive bargaining agent of Gerawan’s employeesin 1992, and, to date, has not been decertified, or replaced, by an election. (CR 2, 23.) The Court of Appeal’s conclusion that the Board nonetheless abusedits discretion by referring the parties to MMCwithout “properly considering” Gerawan’s argument that the UFW hadforfeited its certification by allegedly “abandoning” Gerawan’s workers is contrary to the plain language and history of the ALRA,to the legislative policies underlying MMC,and to decades of administrative and judicial precedent. (Slip Op. 40-41; see ALRB OBM 35-42.) In enacting the ALRA,the Legislature expressly prohibited employer participation in the selection, recognition, and removalofbargaining 8 Gerawan’s reliance on Tex-Cal Land Mgmt., Inc. v. Agricultural LaborRelations Bd. (1979) 24 Cal.3d 335, is misplaced. Tex-Cal involved the Court of Appeal’s judicial review of the Board’s quasi-adjudicative decisions in unfair labor practice proceedings, andit is therefore irrelevant to the judicial review required for the Board’s quasi-legislative decisions in MMC.(Seeid. at pp. 345-346.) In any event, Tex-Calheld only that “the Legislature may accordfinality to the findings of a statewide agency that are supported by substantial evidence on the record considered as a whole”; the Court said nothing about what must be included in that record. (/d. at p. 346.) 21 representatives. (See, e.g., § 1140.2 [ALRA intendedto protect the right of agricultural employees “to be free from the interference, restraint, or coercion of employersoflabor, or their agents, in the designation of such representatives”]; F&P Growers Assn. v. Agricultural Labor Relations Bd. (1985) 168 Cal.App.3d 667, 673-677.) Accordingly, the ALRA requires an employer “to continue bargaining” with a certified labor union “until such time as the unionis officially decertified” via an election. (Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 23- 24.) Consistent with this long-standing “certified until decertified” rule, the Board has repeatedly rejected the argumentthat a union’s alleged “abandonment”—1.e., an extended period ofunion inactivity—may terminate its certification or otherwise excuse an employer from fulfilling its duties under the Act. (See, e.g., O.E. Mayou & Sons (1985) 11 ALRB No. 25; Bruce Church, Inc. (1991) 17 ALRB No.1; Dole Fresh Fruit Co., Inc. (1996) 22 ALRB No.4; Arnaudo Brothers, LP (2014) 40 ALRB No.3, p. 14.) When the MMCStatute was enacted, the Board’s “certified until decertified” rule and rejection of the “abandonment” defense were well- established, and the Legislature gave no indicationthatit intended to depart from these accepted rules. (See §§ 1164, subd. (a), 1164.11.) Accordingly, since 2003, the Board has consistently held that a union’s inactivity does notforfeit its status as a “certified” representative for purposes of requesting MMC. (See,e.g., Pictsweet Mushroom Farms (2003) 29 ALRB No. 3; San Joaquin Tomato Growers,Inc. (2011) 37 ALRB No.5.) . Notably, the Legislature has amended the ALRA numeroustimes, but has taken no action to override the Board’s consistent rejection of the “abandonment” defenseor the “certified until decertified” doctrine on whichit is based. (See, e.g., Stats. 1994, ch. 1010, § 181; Stats. 2004, ch. 788, § 13; Stats. 2011, ch. 697.) Accordingly, the Board’s long-standing 22 administrative interpretation is entitled to deference,’ and the Board did not abuseits discretion in this case. The Court of Appeal’s contrary conclusion—and Gerawan’s argument-—-rests on two incorrect premises: first, that MMCisnotpart of an employer’s bargaining obligation under the ALRA,and second,that there are “policy reasons” to consider an employer’s “abandonment” defense before MMCto protect their employees’ freedom to choose a bargaining representative. As explained below, the first conclusionis contrary to law, while the second misapprehends how the ALRA is intended to operate and improperly seeks to supplant the Legislature’s exclusive powerto set policy. A. MMCIs Part of the Bargaining Obligation Underthe ALRA . The Court of Appeal erred in concluding that the ALRA’s“certified until decertified” rule did not apply to MMC because—in thecourt’s view—MMCisentirely “a postbargaining process.” (Slip Op. 32-34, 41.) The ALRA doesnot draw a distinction between MMC andbargaining. To the contrary, the MMCStatute was enacted specifically to remedy a broken bargaining system under the ALRA, and MMC’sstated purposeis to “ensure a more effective collective bargaining process”(Stats. 2002, ch. 1145, § 1) and facilitate the conclusion ofa first collective bargaining agreement (§§ 1164, subd. (a), 1164.11). In this regard, MMC’s design is consistent with the use ofinterest arbitration in other labor settings, where ” See, e.g., Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848, 859 [“construction of a statute by the officials charged with its administration must be given great weight,” quotations omitted]; Moore v. Cal. State Bd. ofAccountancy (1992) 2 Cal.4th 999, 1017 [administrative interpretation of statute presumed consistent with legislative intent if Legislature does not amendstatute to defeat agency’s interpretation]. 23 it has traditionally been viewedas a part of the collective bargaining process. (City of Vallejo, supra, 12 Cal.3d at p. 614 [“collective bargaining and issues arbitration are together a dynamic process,” quotations omitted]; Arnaudo Brothers, LP (2015) 41 ALRB No.6, p. 2 fn. 2 [“interest arbitration is well-accepted as an adjunct for bargaining”; collecting authorities].)'° | Gerawan nonetheless asserts—without any authority—that MMC“‘is not ‘bargaining’at all,” because it may result in a mediator resolving the parties’ disputes over specific contract terms. (ABM 32.) But Gerawan’s argument—like the Court of Appeal’s decision—ignores the concern the Legislature sought to address in enacting the MMCStatute (stalled bargaining), as well as thecritical fact that the parties to MMCfirst attempt to reach a voluntary agreement through mediation. (§ 1164, subd. (c).) To divorce MMCfrom the ALRA’s bargainingprocessesis to ignore the very purpose ofMMC(andinterest arbitration generally): the resolution of bargaining disputes. B. There Is No Reason to Depart from the “Certified Until Decertified” Doctrine or the Board’s Consistent Rejection of the “Abandonment” Defense Gerawan’s assertion that there are “policy reasons to address (and not ignore) abandonment”in the MMCcontexthighlights the fundamental flaw in its argument and the Court of Appeal’s decision. (See ABM 32.) To the extent there may be “policy reasons” that support the Court of Appeal’s novel interpretation of the ALRA,it is for the Legislature—not Gerawan or '© See also, e.g., Kitsap County Deputy Sheriffs’ Guild v. Kitsap County (Wash. 2015) 253 P.3d 188, 193; Borough ofLewistown v. Penn. LaborRelations Bd. (Pa. 1999) 735 A.2d 1240, 1244; Elkouri & Elkouri, How Arbitration Works (7th ed. 2012), Ch. 22, p. 22-4 [“[a]rbitration of interest disputes may be viewed moreas an instrumentofcollective bargaining”’]. 24 the Court of Appeal—to makesuch policy choices. Absentlegislative action, there is no legal basis to depart from the long-standing “certified until decertified” doctrine or the Board’s consistent rejection ofthe “abandonment” defense. 1. The ALRA’s Decertification Procedures Are Not “TWlusory” Gerawan and the Court of Appeal’s concern that “a decertification option would often be too late to stop the MMCprocess”is misplaced. (Slip Op. 37; ABM 39-41.) Gerawan has submitted no evidence to support its assertion that the decertification election processis too difficult or burdensome for employees to navigate. To the contrary, since the ALRA’s enactment, employees have successfully petitioned for elections at dozens of farms. Additionally, the ALRA requires decertification elections to be held within seven days of a valid petition (or within 48 hours where employeesare on strike). (§§ 1156.3, subd. (b), 1156.7, subd. (c).) Such expedited processes can hardly be considered “illusory.” (See ABM 39.) More fundamentally, if Gerawan has concerns about the required waiting period between a “renewed demandto bargain” and an MMC request (see § 1164, subd. (a)), or the efficacy of the ALRA’s decertification election procedures generally, such concernsare properly directed to the Legislature. 2. A Certified Union’s Presumption of Majority Support May Be Rebutted Only by an Employee- Initiated Election The so-called “rebuttable presumption” rule does not support the Court of Appeal’s conclusion that “abandonment mayberaised defensively in response to a union’s demandto invoke the substantial legal measures of the MMCprocess.” (Slip. Op., p. 27; see ABM 34-38.) 25 In Montebello Rose, the court recognized that the ALRA grants certified unions an irrebuttable presumption of majority support of the bargaining unit during the initial certification year, during which time no rival elections are permitted. (Montebello Rose, supra, 119 Cal.App.3dat pp. 23-24.) After the initial certification year, employees may obtain a new election, but an employerhas a “duty to continue bargaining” with the originally certified union “until such time as the unionisofficially decertified” via such an election. (Jbid.) In other words,after the initial certification year, a union’s presumption of majority support—andthe employer’s corresponding duty to bargain—maybe rebutted by a new election. But under the ALRA, employers play norole in this election process. (§ 1140.2.) Permitting Gerawanto avoid its obligations under the ALRA byunilaterally asserting that its employees no longer support the UFW would permit Gerawan“to do indirectly . . . what the Legislature has clearly shownit does not intend the employer to do directly.” (F&P Growers, supra, 168 Cal.App.3dat p. 677.) There is no legaljustification for such an outcome.!! '! The Court ofAppeal’s conclusionsthat the “certified until decertified” rule has never been extended outside the bargaining context and that “any process by which parties are compelled to agree to imposed terms—whichis the crux of the MMC process—doesnotfit into the parameters of bargaining under the ALRA”are misplaced. (Slip. Op. 33- 34; ABM 35-36.) That the ALRA originally did not “compel [employers] to agree to a proposalor require them to make a concession”is irrelevantto whether MMCispart ofbargaining. (See Slip Op. 33, quoting Kaplan’s Fruit & Produce Co. (1977) 3 ALRB No.28, p. 7.) As discussed above, when the Legislature amended the ALRA to include MMC,it also expanded the ALRA’sbargaining obligation to include that process. 26 3. Permitting the “Abandonment” Defense in MMC Is Contrary to the ALRA’s Core Purpose of Eliminating Employer Participation in the Recognition of Bargaining Representatives Gerawan’s contention that permitting the “abandonment” defense in MMC“vindicates the Act’s core purpose of protecting the workers’ right to freely choose their bargaining representatives” is contrary to law. (ABM 39.) At the threshold, Gerawan ignores the second “core purpose” of the Act: to ensure employeesare “free from the interference, restraint, or coercion of employers . . .in the designation of such representatives.” (§ 1140.2.) “The clear purposeofthe Legislature [in enacting the ALRA] is to preclude the employer from active participation in choosing or decertifying a union,andthis certainly overrides any paternalistic interest of the employerthat the employees be represented by a union ofthe present employees’ choice.” (F&P Growers, supra, 168 Cal.App.3d at p. 677.) Accordingly, Gerawan’sassertion that “given the difficult if notillusory nature of decertification as the only means for workers to stop the MMC process, the employer’s ability to raise the abandonmentdefenseis . . . the only wayto protect the workers’ right to choose”is directly contrary to the ALRA’s design. (ABM 39; see ALRB OBM 40-44;see generally (Gerawan Farming, Inc., supra, 42 ALRB No.1, pp. 73-81 (conc. opn.of Gould, Ch.) [discussing 81-year history under federal andstate labor law of limiting employer involvement in employee choice of bargaining representatives].) Likewise, the Court ofAppeal’s conclusion that permitting an employer to avoid MMCbased on a union’s alleged “abandonment” does not contravene the ALRA’s limitations on employer involvementin union recognition, because it “would simply permit the employer to negate a statutory element” required for MMC—.e., “the union’s representative status”—doesnot withstand scrutiny. (Slip. Op., p. 27; ABM 36-37.) 27 Whether an employer denies a union’s representative status to negate a prerequisite for MMCorto avoidits other bargaining obligations is of no legal significance—the ALRA prohibits employers from even “peripheral participation”in the selection, recognition, or removal of a union. (F&P Growers, supra, 168 Cal.App.3d at p. 677; see § 1140.2.) Finally, Gerawan’s claim that “there is no reason to presume Gerawan’s employeesare ‘satisfied’ with the UFW”has no bearing on the question of whether the Board abused its discretion in referring the parties to MMC. (ABM 40;see Slip Op. 41.) Not only is Gérawan’s opinion ofits employees’ satisfaction with the UFW irrelevant under the ALRA,butthe decertification election occurred months after the Board’s MMCreferral and therefore could have no bearing on whether the Board abusedits discretion. (See, e.g., F&P Growers, supra, 168 Cal.App.3d at pp. 676- 677.) Moreover, the decertification petition was ultimately dismissed and the election set aside due to Gerawan’s unlawful conduct, which tainted the entire decertification process. (See RJN, Ex. A, pp. 186-187; Gerawan Farming, Inc., supra, 42 ALRB No. 1.) These issuesare not before the Court, and it therefore would be improper for this Court to draw any conclusions from such proceedingsat this time. The Board did not abuseits discretion in referring the parties to MMC. CONCLUSION The judgmentof the Court of Appeal should bereversed. 28 Dated: April 22, 2016 S$A2015103947 12226803 .doc Respectfully submitted, KAMALA D. HARRIS Attorney General of California KATHLEEN A. KENEALY Chief Assistant Attorney General DOUGLAS J. WOODS Senior Assistant Attorney General CONSTANCE L. LELOUIS Supervising Deputy Attorney General Le /L- for BENJAMIN M. GLICKMAN Deputy Attorney General Attorneysfor Respondent Agricultural Labor Relations Board 29 CERTIFICATE OF COMPLIANCE I certify that the attached Reply Brief uses a 13-point Times New Roman font and contains 8,141 words. Dated: April 22, 2016 KAMALAD. HARRIS Attorney General of California ba BENJAMIN M. GLICKMAN Deputy Attorney General Attorneysfor Respondent Agricultural Labor Relations Board 30 DECLARATION OF SERVICE BY E-MAIL andOVERNIGHT COURIER Case Name: Gerawan Farming, Inc. v. Agricultural Labor Relations Board No.: $227243 I declare: Iam employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member’sdirection this service is made. I am 18 years of age or older and not a party to this matter; my business addressis: 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondencefor overnight mail with the _ GOLDEN STATE OVERNIGHT. Inaccordance with that practice, correspondenceplaced in ” the internal mail collection system at the Office of the Attorney Generalis deposited with the overnight courier that same dayin the ordinary courseofbusiness. On April 22, 2016,I served the attached REPLY BRIEF OF RESPONDENT AGRICULTURAL LABOR RELATIONS BOARD bytransmitting a true copy via electronic mail. In addition, I placed a true copy thereof enclosed in a sealed envelope,in the internal mail system of the Office of the Attorney General, for overnightdelivery, addressedasfollows: SEE ATTACHEDSERVICELIST. I declare under penalty ofperjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on April 22, 2016, at Sacramento, California. Eileen A. Ennis BoilerBund Declarant — Stgnature $A2015103947 12232187.doc SERVICE LIST David A. Schwarz Irell & Manella, LLP 1800 Avenueofthe Stars. Suite 900 Los Angeles, California 90067-4276 Tel: (310) 277-1010 Fax: (310) 203-7199 Email: DSchwarz@irell.com Attorneys for Petitioner andAppellant, Gerawan Farming,Inc. Ronald H. Barsamian Barsamian & Moody 1141 West Shaw,Suite 104 Fresno, CA 93711 Tel: (559) 248-2360 Fax: (559) 248-2370 Email: ronbarsamian@aol.com Attorneys for Petitioner andAppellant, Gerawan Farming, Inc. Scott A. Kronland Jonathan Weissglass Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108. Tel: (415) 421-7151 Fax: (415) 362-8064 Email: skronland@altshulerberzon.com Attorneys for Real Party in Interest, UFWA Superior Court Clerk Fresno County Superior Court B.F. Sisk Courthouse 1130 O Street Fresno, CA 93721-2220 (39 ALRB NO.17 and 13CECG01408 C. Russell Georgeson Georgeson, Belardinelli and Noyes 7060 N.Fresno Street. Suite 250 Fresno, California 93720 Tel: (559) 447-8800 Fax: (559) 447-0747 Email: crgdanelaw@sbcglobal.net Attorneys for Petitioner andAppellant, Gerawan Farming, Inc. Mario Martinez ThomasPatrick Lynch Martinez Aguilasocho & Lynch Administration Building 29700 Woodford-Tehachapi Rd. Keene, CA 93389-1208 Tel: (661) 859-1174 Fax: (661) 840-6154 Email: mmartinez@farmworkerlaw.com Attorneys for Real Party in Interest, UFWA Michael P. Mallery General Counsel Gerawan Farming,Inc. 7108 N Fresno St., Ste 450 Fresno, CA 93720 Tel: (559) 272-2310 Fax: (559) 500-1079 Email: m.mallery@gerawan.com Attorneysfor Petitioner and Appellant Gerawan Farming,Inc. Honorable Donald S. Black c/o Clerk’s Office Fresno County Superior Court B.F. Sisk Courthouse 1130 O Street Fresno, CA 93721-2220 (39 ALRB NO. 17 and 13CECG01408) Clerk of the Court Court of Appeal Fifth Appellate District 2424 Ventura Street Fresno, CA 93721 (F068526 and F068676) [Served electronically through TruFiling]
