GERAWAN FARMING v. AGRICULTURAL LABOR RELATIONS BOARD (UNITED FARM WORKERS OF AMERICA)Respondent’s Reply to Answer to Petition for ReviewCal.July 23, 2015 COPY Au the Supreme Court of the State of California GERAWANFARMING,INC., Petitioner and Appellant, Case No. 227243 v. SUPREME COURT AGRICULTURAL LABOR RELATIONSL FILED Respondent, JUL 23 2015 UNITED FARM WORKERSOF AMERICA, Frank A. McGuire 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 IN SUPPORTOF PETITION FOR REVIEW KAMALA D. HARRIS BENJAMIN M. GLICKMAN Attorney General of California Deputy Attorney General KATHLEEN A. KENEALY State Bar No. 247907 Chief Assistant Attorney General 1300 I Street, Suite 125 GREGORY D. BROWN P.O. Box 944255 Deputy Solicitor General Sacramento, CA 94244-2550 DOUGLAS J. WOODS Telephone: (916) 323-7355 Senior Assistant Attorney General Fax: (916) 324-8835 CONSTANCEL. LELOUIS Email: Supervising Deputy Attorney General Benjamin.Glickman@doj.ca.gov Attorneys for Respondent Agricultural Labor Relations Board TABLE OF CONTENTS Page INtrOductiOn ...cceeeecccsecscccessccssccseseeeereeeeesseeesereeeessenesteeriarentegenrereseueteneeeey 1 ALQUMENEoecceeeeccecreecreeeeeeesienseeeeeerseneeeeeetssaeeseeessssensneresnenrenenenstetesieeess 1 1, Gerawan doesnotdispute the bases for review of the issues presented in the Petition, «0.0...ester t sees ttetsens 1 II. The Court of Appeal’s constitutional andstatutory holdings were in error and warrant reVieW........sees2 A. The Court of Appeal’s flawed equal protection analysis warrants reVICW.....cccccceetteete etree tteeeees 3 B. The Court of Appeal’s flawed delegation analysis Warrants TCVICW.......cccececeseeeeterenete ree eseeseees 5 C. The Court of Appeal’s flawed “abandonment” analysis warrants reVICW.......cccceeeseeetteterteterretseseees 6 II. This Court should not deny or defer review of the issues presented in the Petition pending the outcome of the decertification election. 0... ceeceeceseetseeeeeeeeteeeneeertneeerses 7 IV. This Court should not grant review as to whetherthe Board erred byissuing its final order while an election WAS PENN... eeeececseseecseneeteneneeeteeerreeeneeseresseeeeeeneecens 8 V. — This Court should not grant review as to whether the Board misinterpreted section 1164.11]...eeeeee reer ieee 10 VI. This Court should not grant review of Gerawan’s additional constitutional argUMeMts. 0.0...eecteter ees 10 A. Gerawan’s substantive due process claim does NOt WArTANt TEVICW.... cece cess ere cneseeneaeeeetneeneeereeey 11 B, Gerawan’s unconstitutional takings claim does NOt WALTANE TEVICW.......c cece eeecentesereeeeneeeeeennreeesneaes 13 COnCIUSION ....cceceeccceeececcsccesscecsecseeeeeeeteeeeecteseesensasensesneesseectserennrennseseaneensage 14 TABLE OF AUTHORITIES Page CASES 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216 .occcsccscseeceneneneesieerseeesesesssneneseressenrirecnensensicens 13 Birkenfeld v. City ofBerkeley (1976) 17 Cal.3d 129 vocestetieesees er eeseeeeeserrtieneeenpassim Cal. Grocers Assn. v. City ofLos Angeles (2011) 52 Cal.4th 177 o.cccccceeeeercteeeeeeeneeeeeeseseenesssnenseernenerseneseicececeans 4 Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805 occetsreseeseseeerseneeenreeterenseresieeys 13, 14 Charles WolffPacking Co. v. Court ofIndustrial Relations (1923) 262 U.S. 522... eccccscssscnecestereseeneteneseeseesessenensentisneensreeseesency 11,12 Colemanv. Dept. ofPersonnel Admin. (1991) 52 Cal.3d 1102 v..eecccecseceeeec reece ieeesnseeienseeerenseneeteisescerestien 11 F&P Growers Assn.v. Agricultural Labor Relations Bd. (1985) 168 Cal.App.3d 667 ..ccccceeectesesesseeieenessenenenerrentesteseecatsenenis 6 FCCv. Beach Communications, Inc. (1993) 508 U.S. 307 ..csesssessecesecteeee nets esseesesssenensenseneesenneseisstenceesatseriatias 3 H.K.Porter Co. v. N.L.R.B. (1970) 397 U.S. 99 vecesreceeneetsteeersenteseesenteaneesenentesenenseseisenenessig 13 Hardware Dealers Mutual Fire Ins. Co. v. Glidden Co. (1931) 284 U.S. USL eceecccsseesseeseeeeerseeenssersisseesessnensenerenncereasentaseesenagn 12 Hess Collection Winery v. Cal. Agricultural Labor Relations Bd. (2006) 140 Cal.App.4th 1584.0...neersrss essenpassim Kasler v. Lockyer (2000) 23 Cal.4th 472 vescceccsesesessererereserseseesessensicenrene serene eeisti 3 Lincoln Federal Labor Union v. Northwestern Iron & Metal Co. (1949) 335 U.S. 525occnetener este eeesieenesneneenereneene teens seeceteneeestan 11,12 ii TABLE OF AUTHORITIES (continued) Page Montebello Rose Co. v. Agricultural Labor Relations Ba. (1981) 119 CalApp.3d 1 iccccccccccreerenerrensienseseeeeeneseerseitreeenes 6 MountSt. Mary’s Hospital ofNiagara Falls v. Catherwood (N.Y. 1970) 260 N.E.2d 508.0...cecerete esesesseeensnesseseneneetastariens 11 N.L.R.B. v. Jones & Laughlin (1937) 301 U.S. Liceeccsesceseececesesneneereeenereensseaesssensesssseeesreeteseeenenneneeney 13 Nebbia v. New York (1934) 291 U.S. 502.cesses tense eeeneeeeeseeereeeneensectenenersenseitens 12, 13 New Motor Vehicle Bd. ofCalifornia v. Orrin W. Fox Co. (1978) 439 U.S. 96... eccccescesceneteeeneeeeeneeereereesssssnesereenrereeee tenet reaneineg 12 Warden v. State Bar (1999) 21 Cal4th 628 oo.eccccccceeec eres ites seeeee serene nter reser 3,4 STATUTES United States Code, Title 29 § 1523) ceececcscceseceeresesseesserseeseseesesnereseeesesseneseeasssseensensaseatereeeseeneiseentinn 13 Labor Code § 1156.3, SUBG. (f).cceececceeseseete cere eentstenssrenesseeetenetese etter iteisenstncege 9 § LU S8.oceccecceceeeseeesessessesssseanessenesnsensneeceessesssessseseseansesearisaneetssasericesneseiss 9 § L164 eccccceeeeeseseeeessssnessnnnnecssssuaseesaneceessenssunesccsssnesssenesssenunseeeannnnnsnnynnes 5 § 1164, subd. (€)(3) oo. eececcceccceneeseeteeeneneeereeseeneeeseneneeeetenerenesneneasenteneeneaeay 9 § 1164, SUDA. (€)(2) .eeeecscscesseseereeeteeeneeeretsseeseesesseteetensneere rene teseareasceeren 14 § L164. 3 oececececeecseeseseseesessessneseseeeseneneeesressataserseensaseneeseasisanerensssnsnceseceneasenss 5 § 1164.3, SUDA. (A)... scenes teeeeteteterersseenseensneeseteneranesatersenensessaseetys 14 § 1164.3, SUDA. (A) ceceeects eenenenereeesteeeressssssreeeeesnenenseenenesseseeceesisgy 9 § 1164S. ceeceecccceceereesnesesessseenseenensseseenenseeverseassseesssssererseseeesaneensateneareiss 5,14 § LLO4LD eectseeeesecsneseseeneeseeeeeesenevssssassnerensnsenedeesinenienerentassaeass 5,10 § 1164.11, SUDA. (A)...eectsteee eset eeressesateereenenseneneneeseressteetentesiegen 10 § 1164.11, SUDA. (D) occtener eeeereteseeseeeneeeeneneneneesssetseecenseneien 10 ili TABLE OF AUTHORITIES (continued) Page COURT RULES California Rules of Court Rule 8.500(D) ...ccccccccccceteeeee en eeetessesreseeecenenenesienseienenersersecsenaseeresaseeeneas 8 Rule 8.500(C)(L) .cccccceectcteresseseeescneseesesneneneeneneseseneenssecsarseeseceneneeenees 9 Rule 8.512(d)(2)...ccccccsseesssessesenscsseesesecersceneseeeeneresssssnessesseanasseneneeseeseeas 8 OTHER AUTHORITIES Historical and Statutory Notes, 44A West’s Ann. Labor Code (2011) foll. § 1164, p. 401cccresesestessereeensceeeiseseeesineatiees 3 Statutes 2002, ch. 1145, § Liceeeereesecen eee eenrnenteereneeeraeens 3,4, 5,6 iV INTRODUCTION Gerawan Farming,Inc. does not dispute that the three issues presented in the Agricultural Labor Relations Board’s Petition for Review—viz., (1) whether the Agricultural Labor Relations Act’s mandatory mediation and conciliation (MMC)provisionsviolate equal protection, (2) whether MMC is an unlawful delegation, and (3) whether the Board erred by declining to consider the union’s alleged abandonment of Gerawan’s workersprior to directing MMC—require review to secure uniformity of decision andsettle important questions of law, and review should therefore be granted. Notwithstanding the uncontested bases for review, Gerawan asks this Court to deny or defer reviewpending the completion of separate proceedingsrelated to a decertification election of Gerawan’s workers. But such denial or delay would only compoundthe uncertainty caused by the Court of Appeal’s erroneous decision. Alternatively, Gerawan asks this Court to either narrow its review to statutory questions—including onenot raised in the Court of Appeal—or expandits review to include additional constitutional claims the Court of Appeal declined to address (and which present no split of authority or other basis for review). Either way,there is no reasonto delay, limit, or complicate this Court’s review in such manner. Forthese reasons, this Court should grant review of the three issues raised in the Petition and deny review of Gerawan’s additional claims. ARGUMENT I. GERAWANDOES NOT DISPUTE THE BASES FOR REVI EW OF THE ISSUES PRESENTED IN THE PETITION. Gerawan doesnot dispute that review ofthe three issues presented in the Petition is warranted to secure uniformity of decision andsettle important questions of law, and review ofthese issues should be granted. First, Gerawan concedes—asit must—thatthe Court of Appeal’s equal protection and unlawful delegation holdings directly conflict with Hess Collection Winery v. Cal. Agricultural Labor Relations Bd. (2006) 140 Cal.App.4th 1584 (Hess). Nonetheless, Gerawan contends that the “peculiar facts of this case” distinguish it from Hess and counselagainst “disturb[ing] the Court of Appeal’s” decision. (Answer, p. 1.) But even if this were true,it is merely an argumentfor affirming the Court of Appeal, not for denying review. Gerawan does not—and cannot—contendthat this Court’s review is unnecessary to resolvethe currentsplit of authority regarding the constitutionality of a critical component of the ALRA, and promptreview is therefore necessary to secure uniformity of decision. Second, Gerawan does notdispute the importance ofthe legal questions presented in the Petition. The Court of Appeal’s flawed constitutional analysis not only invalidates an essential componentofthe ALRA,butalsois likely to have wide-ranging repercussionsin other areas of law. (See Petition for Review, pp. 16-24.) Likewise, the Court of Appeal’s flawedstatutory analysis regarding the union’s alleged “abandonment” of Gerawan’s workers indisputably presents an important question of law, as Gerawan recognizes. (See Answer,p. 14 [ALRB’s position “eviscerates”the “finely drawn legislative balance” between promotingstability in laborrelations and employee choice andis “contrary to public policy”].) Accordingly, review should be granted on these important questions of law. Il. THE COURT OF APPEAL’S CONSTITUTIONAL AND STATUTORY HOLDINGS WEREIN ERROR AND WARRANTREVIEW. Unable to refute the bases for review of the issues presented by the Board, Gerawan turnsto the merits, rehashing its various legal arguments and summarizing the Court of Appeal’s flawed analysis. (Answer,pp. 7- 11.) But even assuming that the Court of Appeal’s analysis were correct— and for the reasonsset forth below and in the Petition, it is not—review is still necessary to secure uniformity of decision and settle important questions of law. A. The Court of Appeal’s Flawed Equal Protection Analysis Warrants Review. Gerawan’s equal protection argumentfails for the same reason asthe Court of Appeal’s: it does not apply the required rational basis review. “TTIn areas of social and economicpolicy,a statutory classification that neither proceeds along suspectlines norinfringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state offacts that couldprovide a rational basis for the classification.”” (Warden v. State Bar (1999) 21 Cal.4th 628, 644, quoting FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 313, italics added by Warden.) Here, given the undisputed importance of California’s agricultural industry and the unique collective bargaining challenges observed since the ALRA’s enactment, such rational bases abound and wereclearly articulated by the Legislature and Governor Gray Davis. (See Stats. 2002, ch. 1145, § 1; Historical and Statutory Notes, 44A West’s Ann. Lab. Code (2011) foll. § 1164, p. 401.) Gerawan has no answer, exceptto ignore rational basis review entirely. First, Gerawan attempts to brush aside the Board’s arguments because they “rest largely on the imperative of deference.” (Answer,p. 9.) But deferenceis precisely what rational basis review requires, and the Court of Appeal’s failure to apply this critical elementin its analysis is precisely why its holdingis in error. (See, e.g., Kasler v. Lockyer (2000) 23 Cal.4th 472, 482 [noting “deference [courts] must accord the Legislature underthe rational basis standard”].) | Next, Gerawanasserts that “norational choices were made asto any standards to be applied” in MMC. (Answer,p. 8.) But as explained in the Petition, the legislative history and statutory languagetell a different story, 3 confirming that MMCwasthe product of a consideredlegislative policy decision to provide a targeted solution to a particular legislative concern. (See Stats. 2002, ch. 1145, § 1.) Moreover, the record in this case confirms that the mediator considered the statutory factors established by the Legislature, and his report is amply supported by the voluminousrecord developed by the parties.’ (CR 361-365.) Gerawan’s disagreement with these policy choices or their application in this case does not amount to an equal protection violation. Finally, Gerawan’s misapprehensionofrational basis review is confirmedby its reference to the Court of Appeal’s speculation that the Legislature enacted MMCto avoid“political retribution that might be visited upon[it]” with broader regulation. (Answer, pp. 10-11.) As explained, economiclegislation must be upheld if there is any reasonably conceivable basis for the classification. (Warden v. State Bar, supra, 2\ Cal.4th at p. 644.) Because courts “never require alegislature to articulate its reasons for enactinga statute,it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.” (Cal. Grocers Assn. v. City ofLos Angeles (2011) 52 Cal.4th 177, 209, quotations omitted.) Here, there are multiple rational bases for MMC,and speculation regarding the Legislature’s supposed “true” motivationis irrelevant. Absentcorrection, the Court of Appeal’s flawed equal protection ' Gerawan’s claim that the mediator “arbitrarily” imposed a wage increase despite Gerawan payingthe highest average wages amongits competitorsis incorrect. (Answer,p. 9.) Gerawan—like the Court of Appeal—ignores the mediator’s explanation that this modest wage increase was included in the CBAin lieu ofrequiring various employee benefits common among Gerawan’s competitors. (CR 415-416.) It is hardly “arbitrary” or irrational for the mediator (and Board) to undertake a more comprehensive comparison of employee compensation. analysis not only creates a split of authority regarding the constitutionality of MMC,but also calls into question all legislation that may result in an individualized outcome, and would arguably invalidate any remediallaw, in which a decision-makerhas discretion to choose from a range of reasonablealternatives. Review is therefore warranted to secure uniformity of decision andsettle these important questions of law. B. The Court of Appeal’s Flawed Delegation Analysis Warrants Review. Gerawan’s Answer simply repeats the Court of Appeal’s delegation analysis, which, as explained in the Petition, is fundamentally flawed and directly conflicts with Hess. (Answer,pp. 11-13.) Contrary to the Court of Appeal’s constricted view, the Legislature here made the fundamental policy decision that MMC wasnecessary to address the unique challenges of collective bargainingin the agricultural industry, declared the policy goals to be accomplished by MMC,specified when MMCis available and the processesto be followed, enumeratedthecriteria to be considered by the mediator in resolving disputes, and provided for prompt administrative and judicial review. (See, e.g., Lab. Code, §§ 1164, 1164.3, 1164.5, 1164.11:7 Stats. 2002, ch. 1145, § 1.) Nothing moreis constitutionally required. (See, e.g., Birkenfeld v. City ofBerkeley (1976) 17 Cal.3d 129, 167 (Birkenfeld).) If left uncorrected, the Court of Appeal’s erroneous decision not only creates a conflict regarding the constitutionality of MMC,but also casts doubt on similar interest arbitration processes utilized by localentities throughoutthe state, as well as the Legislature’s ability to delegate legislative power in any complex legal area. Review is therefore warranted to secure uniformity of decision andsettle these important questionsof law. ? All further statutory references are to the Labor Code. O S H A N N E N M e s & C. The Court of Appeal’s Flawed “Abandonment” Analysis Warrants Review. Gerawan doesnot contest the basis for review of the Court of Appeal’s alternative holding that the Board abusedits discretion in directing MMCwithout considering Gerawan’s “abandonment” argument, but instead simply summarizes the Court of Appeal’s flawed analysis. (Answer, pp. 13-15.) Accordingly, Gerawan’s “abandonment” argument suffers from the samefatal defect as the Court of Appeal’s decision: it begins with the incorrect premise that MMCis unrelated to the ALRA’s mutual duty to bargain. As explained in the Petition—andasthe statutory language and legislative history confirm—MMCwascreated “to ensure a more effective collective bargaining process,” andthere is no legal basis to sever MMC from the ALRA’s general bargaining obligation. (Stats. 2002, ch. 1145, § 1.) Because “abandonment”is not a defense to an employer’s bargaining obligation under the ALRA,the Boarddid notabuseits discretion in concludingit is not a defense to MMC. (SeeSlip Op., pp. 28-32, discussing Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, and F&P Growers Assn. v. Agricultural Labor Relations Bd. (1985) 168 Cal.App.3d 667.) The Court of Appeal’s contrary conclusion creates an entirely new conception of union certification premised on a false dichotomy between bargaining and MMC.Ifleft uncorrected, it will inject uncertainty into a previously settled area of law—the nature and meaning of union certification and the duty to bargain under the ALRA. Such uncertainty in California’s vital agricultural industry is untenable, and review is therefore warranted to settle this important question of law. Il. THIS COURT SHOULD NoT DENY OR DEFER REVIEW OF THE ISSUES PRESENTED IN THE PETITION PENDING THE OUTCOME OF THE DECERTIFICATION ELECTION. Unable to refute the bases for review of the three issues presented in the Petition, Gerawan asks this Court to deny or defer such review for an undetermined period to permit resolution of various proceedingsrelated to a decertification election of Gerawan’s workers. Thereis no basis for such denial or delay. If this Court denies review,the split of authority created by the Court of Appeal’s decision will persist, and the Board will be unable to administer the ALRA as the Legislature intended. Reviewis therefore necessary to secure uniformity of decision. Moreover, even assumingthat the election ultimately results in the union’s decertification, further proceedingswill be required to ascertain the legal effect of the decertification on the Board’s Order and the Court of Appeal’s decisi on— decertification would not automatically void the Board’s Orderor th e Court of Appeal’s flawed decision, as Gerawan suggests. (Answer, p. 15.) There is no legalor prudential reasonto allow such uncertainty to persist indefinitely by denying review. Noris there any reasonto delay review pending resolution of the — election proceedings, which Gerawan acknowledges may take years. (S ee Answer, pp. 2, 15.) Such extended delay would only encourage a recalcitrant MMCparticipantto illegally interfere with election proce sses as a means to avoid imposition of a contract, while simultaneously discouraging the other MMCparty from challenging such actions throug h the administrative process for fear of delay. Such incentives would be contrary to the core purposesof the ALRA—stability in labor relations and employee free choice—aswell as the legislative purpose of MMC—to facilitate the prompt conclusionofstalled first contracts. Finally, neither the possibility that subsequent events may render certain issues moot, northe possibility that this Court could affirm the Court of Appeal solely on statutory grounds counsel against granting review orfor limiting such review to statutory issues. (See Answer,p. 15.) The Court of Appeal’s primary holding that MMC is unconstitutional created a split of authority, which requires correction now.(See Slip Op., p. 9.) Moreover,should this Court reverse the Court of Appeal’s statutory analysis, the constitutional questions mustberesolved to determine Gerawan’s rightto relief, secure uniformity of decision, and settle important questions of law. Accordingly, Gerawan’s speculative concerns are not a basis for denying, delaying, or narrowing review,but rather may properly be addressedin the course of the Court’s review if and when they cometo fruition.’ IV. THIS COURT SHOULD NOT GRANT REVIEW AS TO WHETHER THE BOARD ERREDBY ISSUING ITS FINAL ORDER WHILE AN ELECTION WASPENDING. Gerawan next asks this Court to grant review “as to whether the Board erred by imposing the MMCcontractafter authorizing the decertification election”—an issue that was neither raised in Gerawan’s Petition for Writ of Review, nor addressedin the decision below. (Answer, p. 16.) Gerawan doesnotarticulate any basis for review, and there is none. (See Cal. Rules of Court, rule 8.500(b).) First, there is no authority—much less a split of authority—on this question. Second, given the “peculiar 3 1f the Court is inclined to defer further action in this case while the election proceedings remains pending, the Board urges the Court to “grant and hold” review,rather than deny it altogether. (See Cal. Rules of Court, rule 8.512(d)(2).) Granting review will permit the Board to administer MMCin othersettings pursuant to Hess in the interim. Denying review, conversely, would perpetuate the split of authority regarding MMC’s constitutionality, with no possibility of resolution. facts” and “unique” procedural posture of this case (Answer, p. 1.), Gerawan cannotarticulate why this undecided issue raises an important question of law requiring this Court’s review in thefirst instance. Review would beparticularly inappropriate here because Gerawan did not affirmatively raise this issue in its Petition for Writ of Review. (S ee Petition for Writ of Review, {§ 31-34 & pp. 25-28, Dec. 19, 2013.) “As a policy matter, on petition for review the Supreme Court normally will not consider an issuethatthe petitioner failed to timely raise in the Court of Appeal,” andthere is no reason to depart from this sound policy here. (Cal. Rules of Court, rule 8.500(c)(1).) Moreover, while true that the Court of Appeal sua sponte asked the | parties to submitletter briefs addressing this question (and twoot hers), there is no dispute that the Court of Appeal did not decide the issu e. Thisis unsurprising given that Gerawan’s petition did notraise it and the Board’s actions were plainly consistent with the ALRA. Where,as here, neither party to MMCchallenges the mediator’s second report, sectio n 1164.3, subdivision (d), providesthat the report “shall take immediate effect as a final order of the Board.” This is precisely what occurred here, and the ALRA provides no exceptionto this unambiguous requirementfo r pending elections, unfair labor practice (“ULP”) proceedings, or any othe r matters. Indeed, recent amendments to the ALRA confirm that a pending election or ULPproceeding does not impact MMC.* There is no basis for review ofthis undecided issue. 4 For example, section 1158 now providesthat the pending review of a final orderarising from an election-related ULP “shall not be grounds for a stay” of MMC,andit therefore follows that the electionitself or election- related proceedings do not operate to stay MMC.(See also §§ 1 158; see also §1164, subd. (a)(3) [permitting MMCrequest by union cer tified pursuantto section 1156.3, subdivision (f), due to egregious emp loyer misconduct with election process].) V. THIS COURT SHOULD NOT GRANT REVIEW AS TO WHETHER THE BOARD MISINTERPRETEDSECTION1164.11. Gerawan also asks this Court to review the Board’s application of section 1164.11’s MMCprerequisites, but again doesnotarticulate any basis for such review. (Answer, pp. 17-18.) There is no split of authority on this issue. Nor doesit raise an important question of law requiring this Court’s intervention. As explained by the Court of Appeal,its determination that the Board did noterr was based on a routine application of the section 1164.11’s plain language, and Gerawan’s proposed . interpretation would have required the court to “effectively rewrite the statute.” (Slip Op., p. 21; see id., pp. 19-22.) This unremarkable conclusion does not warrant review. The Court of Appealcorrectly held that the plain language of section 1164.11, subdivision (a), “simply requiresthat (1) the parties have not reached agreement and(2) at least one year has passedsince the initial request to bargain.” (Slip Op., p. 19.) There is no dispute that both criteria are met here—-UFW madeits initial request to bargain in 1992, andthe parties are still without a contract. Gerawan may believe the Legislature “should have” included additional requirements, but courts “are constrained by the fact that it did not.” (/bid.) Likewise, there is no dispute that Gerawan has committed multiple ULPs, and the Court of Appealcorrectly held that section 1164.11, subdivision (b)’s plain language requires nothing more and “contains no hint of the additional requirements orlimitations urged by Gerawan.” (/d., pp. 24-25.) VI. THIS COURT SHOULD NOT GRANT REVIEW OF GERAWAN’S ADDITIONAL CONSTITUTIONAL ARGUMENTS. Finally, Gerawanasks this Court to review two additional constitutional arguments, which the Court of Appeal expressly declined to 10 consider (Slip Op., p. 42), but again fails to articulate any basis for review. Review ofthese issues should be denied. A. Gerawan’s Substantive Due Process Claim Does Not Warrant Review. Gerawanseeksreview ofits claim that MMCallegedly violates substantive due process, but doesnotarticulate any basis for such review. (Answer, pp. 24-26.) Economic legislation—such as the MMCstatute—is valid if the Legislature had a rational basis for enacting it. (See, e.g., Colemanv. Dept. ofPersonnel Admin. (1991) 52 Cal.3d 1102, 1124.) Becausethere is plainly a rational basis for MMC,it satisfies due process.” There is no split of authority on this issue. To the contrary, Hess expressly rejected the same argumentyears ago, holding: “[I]n view of the Legislature’s broad authority over employment, and the limited role of the courts in reviewinglegislative policy decisions, [the MMC]statutory scheme meetsthe constitutional test for substantive due process.” (Hess, supra, 140 Cal.App.4th at p. 1601.) Gerawan does not dispute this, but instead seeks to cast aside eighty years of due process jurisprudence and resurrect the Wolffline of cases, which the United States Supreme Court has described as “deliberately discarded,” and which this Court previously held were “completely repudiated.” (Lincoln Federal Labor Union v. Northwestern Iron & Metal Co. (1949) 335 U.S. 525, 536-537, Birkenfeld, supra, 17 Cal.3d at p. 155; see Answer,pp. 24-26.) In Wolff, the United States Supreme Court ruled that the federal constitution prohibited governmental regulation of wages and working > Gerawan’s suggestion (Answer, p. 2) that MMC hasno private sector counterpart in other states is both irrelevant and untrue. (See, €.g., Mount St. Mary’s Hospital ofNiagara Falls v. Catherwood (N.Y. 1970) 260 N.E.2d 508, 511 [rejecting due process challenge to mandatory interest arbitration of CBAsat private hospitals].) 11 conditions except in “exceptional circumstances.” (Charles WolffPacking Co. v. Court ofIndustrial Relations (1923) 262 U.S. 522, 534-36.) But this “exceptional circumstances” standard was short-lived. Since at least 1931, the U.S. Supreme Court has repeatedly upheld economic legislation alleged to impinge on the freedom ofcontract, including numerous labor statutes, whereit is supported by a rational basis. (See, e.g., Hardware Dealers Mutual Fire Ins. Co. v. Glidden Co. (1931) 284 U.S. 151, 157-158; Nebbia v. New York (1934) 291 U.S. 502, 528; New Motor Vehicle Bad. of California v. Orrin W. Fox Co. (1978) 439 U.S. 96, 106-107.) Wolffin particular is no longer good law. Asthe U.S. Supreme Court explained sixty-five years ago: “That the due process clause does not ban legislative powerto fix prices, wages and hours as was assumed in the Wolffcases, was settled .. . . [and] is no longer doubted.” (Lincoln Federal Labor Union v. Northwestern Iron & Metal Co. (1949) 335 US. 525, 536.)° As observedin Hess, this Court has similarly identified the Wolffcases—by name—aspart of a line of due process authority that has been “‘completely repudiated” by modern courts. (Hess, supra, 140 Cal.App.4th at p. 1599, quoting Birkenfeld, supra, 17 Cal.3d at p. 155.) As this Court explained, modern substantive due process analysis provides: “{T]n the absence ofother constitutional restriction, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy 6 In Lincoln Federal, the Supreme Court upheldstate “right to work” laws prohibiting “union security clauses” in contracts, notwithstanding their direct interference with private collective bargaining. (335 U.S. at pp. 533- 534.) In so holding, the Court described the Wolffera’s “due process philosophy”as “deliberately discarded,” and explainedthat “the due process clause is no longerto be so broadly construed that the Congress and state legislatures are put in a strait jacket when they attempt to suppress business and industrial conditions which they regard as offensive to the public welfare.” (/d. at pp. 536-537.) 12 will be struck downonlyifit is “so restrictive as to facially preclude any possibility of a just and reasonable return.” (Calfarm Ins. Co.v. Deukmejian (1989) 48 Cal.3d 805, 816, quotations omitted.) There is nothing about MMCthat precludes nonconfiscatory termsin a CBA. To the contrary, the mediator is expressly required to consider “(t]he financial condition of the employerandits ability to meetthe costs of the contract.” (§ 1164, subd. (e)(2).) Nonetheless, Gerawan asserts— without explanation—that MMCdoesnot provide an “adequate remedy for relief’ should a CBA’s terms “turn confiscatory.” (Answer, pp. 27-28.) To the contrary, the MMCstatute provides two levels of review to ensure a mediator’s report complies with the statute. (§§ 1164.3, subd. (a) [administrative review], 1164.5 [judicial review].) These straightforward administrative and judicial procedures provide a prompt and adequate remedyfor relief from confiscatory terms. (Cf. Birkenfeld, supra, 17 Cal.3d at pp. 169-173 [rejecting “inexcusably cumbersome” proceduresfor relief from rent increase].) Thereis no basis for review of Gerawan’s unconstitutional takings claim, which the Court of Appealleft undecided.® CONCLUSION For these reasons, the Board respectfully requests that this Court grant review only asto the three issues presented in the Petition. ® If the Court is inclined to grant review of any additional issues, the Board notesthat there is nothingto distinguish the two issues raised in Gerawan’s Answer from Gerawan’s various other claimsleft unresolved by the Court of Appeal. 14 Dated: July 23, 2015 Respectfully submitted, KAMALA D. HARRIS Attorney General of California Begpenet cic bmiar~— BENJAMIN M. GLICKMAN XP Deputy Attorney General Attorneysfor Respondent Agricultural Labor Relations Board SA2015103947 11935841 .doc 15 CERTIFICATE OF COMPLIANCE I certify that the attached Reply Brief in Support ofPetition for Review uses a 13-point Times New Romanfont andcontains 4,193 words. In making this certification, I relied on the word count function in the Microsoft Word 2010 word processing application. Dated: July 23, 2015 KAMALAD. HARRIS Attorney General! of California BENIA M. GLICKMAN ( Br?) Deputy Attorney General Attorneys for Respondent Agricultural Labor Relations Board DECLARATION OF SERVICE BY OVERNIGHT COURIER Case Name: Gerawan Farming, Inc. v. Agricultural Labor Relations Board No.: $227243 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberof the California State Bar, at which member’s direction this service is made. I am 18 years of a ge or older and nota party to this matter; my business addressis: 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004. On July 23, 2015, I served the attached REPLY BRIEF IN SUPPORT OF PETIT ION FOR REVIEWbyplacinga true copy thereof enclosed in a sealed envelope with the Golde n State Overnight (GSO)addressedas follows: SEE ATTACHEDSERVICELIST I declare underpenalty of perjury underthe lawsof the State of California the for egoing is true and correct and that this declaration was executed on July 23, 2015, at Sa n Francisco, California. A. Bermudez Ul. Bema Declarant Signature SERVICE LIST David A. Schwarz Irell & Manella, LLP 1800 Avenue ofthe Stars. Suite 900 Los Angeles, California 90067-4276 Tel: (310) 277-1010 Fax: (310) 203-7199 Email: DSchwarz@irell.com Attorneys for Petitioner and Appellant, 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 Attorneysfor Petitioner and Appellant, 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 Attorneysfor Real Party in Interest, UFWA 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) 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 Attorneysfor Petitioner and Appellant, Gerawan Farming, Inc. Mario Martinez Martinez Aguilasocho & Lynch Administration Building 29700 Woodford-Tehachapi Rd. Keene, CA 93531 Tel: (661) 859-1174 Fax: (661) 840-6154 ’ Email: mmartinez(@farmworkerlaw.com Attorneysfor 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) Clerk of the Court Court of Appeal Fifth Appellate District 2424 Ventura Street Fresno, CA 93721 (F068526 and F068676)
