Petition for Writ of Certiorari — Gerawan Farming, Inc., Petitioner v. Agricultural Labor Relations Board

APPENDIX

TABLE OF APPENDICES

Appendix A

Opinion, Supreme Court of California,

Gerawan Farming, Inc. v. ALRB, et al.,

No. S227243 (Nov. 27, 2017) ....................... App-1

Appendix B

Opinion, Court of Appeal of the

State of California, Fifth Appellate

District, Gerawan Farming, Inc. v.

ALRB, et al., Nos. F068526, F068676

(May 14, 2015) .......................................... App-55

Appendix C

Decision and Order, State of California

Agricultural Labor Relations Board, No.

2013-MMC-0003 (Nov. 19, 2013) ............ App-131

Appendix D

Constitutional and Statutory Provisions

Involved.................................................... App-134

U.S. Const. amend. XIV, §1 ............... App-134

Cal. Lab. Code §1164 ......................... App-134

Cal. Lab. Code §1164.3 ...................... App-137

Cal. Lab. Code §1164.5 ...................... App-139

Cal. Lab. Code §1164.7 ...................... App-140

Cal. Lab. Code §1164.9 ...................... App-140

Cal. Lab. Code §1164.11..................... App-141

Cal. Lab. Code §1164.12..................... App-141

Cal. Lab. Code §1164.13..................... App-141

App-1

Appendix A

IN THE SUPREME COURT OF CALIFORNIA

________________

No. S227243

________________________

Ct.App. 5 F068526/F068676

_______________________

GERAWAN FARMING, Inc.,

v.

Petitioner,

AGRICULTURAL LABOR RELATIONS BOARD,

Respondent;

UNITED FARM WORKERS OF AMERICA,

Real Party in Interest.

________________

Filed November 27, 2017

________________________

In 1975, the Legislature enacted the Agricultural

Labor Relations Act (ALRA) “to encourage and protect

the right of agricultural employees to full freedom of

association, self-organization, and designation of

representatives of their own choosing, to negotiate the

terms and conditions of their employment, and to be

free from the interference, restraint, or coercion of

employers of labor.” (Lab. Code, § 1140.2; all statutory

references are to this code unless otherwise specified.)

The ALRA established an elaborate framework

governing the right of agricultural workers to organize

themselves into unions to engage in collective

bargaining with their employers. (Agricultural Labor

Relations Bd. v. Superior Court (1976) 16 Cal.3d 392,

App-2

398 (ALRB I); see § 1140 et seq.) It also created the

Agricultural Labor Relations Board (ALRB or the

Board) and granted it “specific powers and

responsibilities of administration, particularly in

conducting and certifying elections and in

investigating and preventing unfair labor practices.”

(ALRB I, at p. 399.)

Twenty-five years later, the Legislature

determined that additional legislation was necessary

to fulfill the goals of the ALRA because it had proven

ineffective at facilitating the negotiation and

completion of collective bargaining agreements. The

Legislature therefore enacted the ALRA’s “mandatory

mediation and conciliation” (MMC) provisions to

“ensure a more effective collective bargaining process

between agricultural employers and agricultural

employees.” (Stats. 2002, ch. 1145, § 1, p. 7401.) In

certain cases in which an employer and a labor union

have failed to reach a first contract, either party may

invoke MMC, which involves a mediation process

before a neutral mediator. (§ 1164 et seq. (the MMC

statute).) If the parties do not reach an agreement on

all terms through mediation, the mediator resolves

the disputed terms and submits a proposed contract to

the Board, which can then impose that contract on the

parties.

In this case, the United Farm Workers of

America (UFW) filed an MMC request with the Board

after failing to reach a collective bargaining

agreement with petitioner Gerawan Farming, Inc.

(Gerawan).

When mediation similarly failed to

produce an agreement, the mediator submitted a

report fixing the contractual terms, which the Board

App-3

adopted in its final order. Gerawan petitioned for

review of the Board’s order, contending, among other

things, that the MMC statutory scheme was

unconstitutional. The Court of Appeal agreed, holding

that “the MMC statute on its face violates equal

protection principles” and that it “improperly

delegated legislative authority.” In so holding, the

Court of Appeal adopted the reasoning of the dissent

in Hess Collection Winery v. Agricultural Labor

Relations Bd. (2006) 140 Cal.App.4th 1584, 1611 (dis.

opn. of Nicholson, J.) (Hess), in which the court upheld

the MMC statute against a similar constitutional

challenge (see id. at pp. 1603-1610 (maj. opn.)). We

granted review to resolve this conflict, and we

conclude that the MMC statute neither violates equal

protection nor unconstitutionally delegates legislative

power.

We also granted review to resolve an important

statutory question. In arguing that the final order

should be set aside, Gerawan also claimed that the

UFW, the labor union certified as the bargaining

representative under the ALRA, had abandoned its

employees after a lengthy absence and therefore

forfeited its status as representative. Applying the

settled rule that a union remains certified until

decertified by the employees in a subsequent election,

the Board concluded that the ALRA precludes

employers from raising an abandonment defense to an

MMC request. The Court of Appeal acknowledged the

validity of the general rule but held that an employer

may raise an abandonment defense against a union’s

demand to invoke MMC because MMC is “a

postbargaining process” materially different from

ordinary collective bargaining.

App-4

We hold that the distinction drawn by the Court

of Appeal is untenable and that employers may not

refuse to bargain with unions—whether during the

ordinary bargaining process or during MMC—on the

basis that the union has abandoned its representative

status.

As the Board and lower courts have

consistently observed, the Legislature intended to

reserve the power to decertify labor organization

representatives to employees and labor organizations

alone. Allowing employers to raise an abandonment

defense would frustrate that intent and undermine

the ALRA’s comprehensive scheme of labor

protections for agricultural employees.

I.

The Legislature enacted the ALRA in 1975 to

“ensure peace in the agricultural fields by

guaranteeing justice for all agricultural workers and

stability in labor relations.” (Stats. 1975, 3d Ex. Sess.,

ch.1, § 1, p. 4013.) “To achieve this goal, the act

declares the right of agricultural employees to

organize themselves into unions and to engage in

collective bargaining, free from intimidation by either

employers or union representatives.” (ALRB I, supra,

16 Cal.3d at p. 398; see § 1140.2.) In enacting the

ALRA, the Legislature intended to fill a gap in the

labor protections afforded by the federal National

Labor Relations Act (NLRA), which exempts “any

individual employed as an agricultural laborer.” (29

U.S.C. § 152(3); see Lab. Code, § 1140.4 [defining

“agricultural employee” as “those employees excluded

from the coverage of the National Labor Relations Act,

as

amended,

as

agricultural

employees”].)

Accordingly, the ALRA identifies a number of unfair

App-5

labor practices and other unlawful acts (§§ 1153, 1154,

1154.5, 1155.4, 1155.5), and empowers the Board to

investigate, prevent, and remedy such practices

(§ 1160).

The Board’s other primary duty is to oversee and

certify the results of bargaining representative

elections.

Under the ALRA, “[r]epresentatives

designated or selected by a secret ballot for the

purposes of collective bargaining by the majority of the

agricultural employees in the bargaining unit shall be

the exclusive representatives of all the agricultural

employees in such unit for the purpose of collective

bargaining with respect to rates of pay, wages, hours

of employment, or other conditions of employment.”

(§ 1156; see § 1156.3 [setting forth the election

process].) The ALRA also provides a process by which

employees may petition to decertify a labor

organization as their representative. (§ 1156.7.) Once

a bargaining representative is certified, the ALRA

requires the employer and the representative to

“bargain collectively in good faith” in order to reach an

agreement “with respect to wages, hours, and other

terms and conditions of employment.” (§ 1155.2, subd.

(a).) The obligation to bargain in good faith “does not

compel either party to agree to a proposal.” (Ibid.)

In the decades that followed, it became clear that

the ALRA had not resulted in the widespread adoption

of collective bargaining agreements between

agricultural employers and employees. “Between

1975 and 2001 ... , of the state’s approximately 25,000

farm employers, there existed fewer than 250 signed

union agreements and there were another 250 farms

where workers voted for union representation but had

App-6

not yet obtained a contract.” (Broderdorf, Overcoming

the First Contract Hurdle: Finding a Role for

Mandatory Interest Arbitration in the Private Sector

(2008) 23 Lab. Law. 323, 338.) A substantial factor

was “the continued refusal of agricultural employers

to come to the bargaining table once an election has

occurred,” which caused employees to “wait[] for years

while negotiations for union contracts drag on without

hope of progress.” (Sen. Rules Com., Off. of Sen. Floor

Analyses, 3d reading analysis of Sen. Bill No. 1156

(2001-2002 Reg. Sess.) as amended Aug. 30, 2002, p. 7

(hereafter Sen. Bill 1156 Analysis).) As we have

recognized, “when an employer engages in dilatory

tactics after a representation election his action may

substantially impair the strength and support of a

union and consequently the employees’ interest in

selecting an agent to represent them in collective

bargaining…. ‘Employee interest in a union can wane

quickly as working conditions remain apparently

unaffected by the union or collective bargaining.’

[Citations.]” (J. R. Norton Co. v. Agricultural Labor

Relations Bd. (1979) 26 Cal.3d 1, 30 (J. R. Norton).)

The Legislature found that in 2002, agricultural

employers had not agreed to a contract in about 60

percent of the cases where a labor union had been

certified. (See Sen. Bill 1156 Analysis, supra, at p. 7

[finding that among the 428 companies with

agricultural workers who had voted for UFW

representation, only 185 of those companies had

reached a collective bargaining agreement with their

employees]; see also Governor’s signing message to

Leg. on Assem. Bill No. 2596 and Sen. Bill No. 1156

(Sept. 30, 2002), Sen. Recess J. (2001-2002 Reg. Sess.)

p. 6227.)

App-7

These concerns prompted the Legislature in 2002

to add the MMC provisions to the ALRA. (§ 1164 et

seq., added by Stats. 2002, ch. 1145, § 2, pp. 74017404.) The Legislature determined there was “a

need . . . for a mediation procedure in order to ensure

a more effective collective bargaining process between

agricultural employers and agricultural employees,

and thereby more fully attain the purposes of the

[ALRA], ameliorate the working conditions and

economic standing of agricultural employees, create

stability in the agricultural labor force, and promote

California’s economic well-being by ensuring stability

in its most vital industry.” (Stats. 2002, ch. 1145, § 1,

p. 7401.)

The MMC statute sets forth a process, known as

compulsory interest arbitration, “in which the terms

and conditions of employment are established by a

final and binding decision of an arbitrator.” (Fisk &

Pulver, First Contract Arbitration and the Employee

Free Choice Act (2009) 70 La. L.Rev. 47, 50 (Fisk &

Pulver).)

Unlike “grievance arbitration,” which

focuses on “construing the terms of an existing

agreement and applying them to a particular set of

facts,” interest arbitration “focuses on what the terms

of a new agreement should be.” (Local 58, Intern.

Broth. of Elec. Workers, AFL-CIO v. Southeastern

Michigan Chapter, Nat. Elec. Contractors Assn., Inc.

(6th Cir. 1995) 43 F.3d 1026, 1030.) The MMC process

results in “quasi-legislative action” by which “[t]he

terms of the ‘agreement’ determined by the arbitrator

[are] imposed upon [the employer] by force of law.”

(Hess, supra, 140 Cal.App.4th at p. 1597.)

App-8

Either an agricultural employer or a union

representative may invoke the MMC process by filing

with the Board “a declaration that the parties have

failed to reach a collective bargaining agreement and

a request that the board issue an order directing the

parties to mandatory mediation and conciliation of

their issues.” (§ 1164, subd. (a).) Labor organizations

certified before January 1, 2003, like the UFW here,

must establish the following conditions before filing

the declaration: “(a) the parties have failed to reach

agreement for at least one year after the date on which

the labor organization made its initial request to

bargain, (b) the employer has committed an unfair

labor practice, and (c) the parties have not previously

had a binding contract between them.” (§ 1164.11.)

Upon receipt of the declaration, “the board shall

immediately issue an order directing the parties to”

mediation before a neutral, agreed-upon mediator.

(§ 1164, subd. (b).) Mediation then proceeds for 30

days, which can be extended by the mediator for an

additional 30 days. (§ 1164, subd. (c).)

Within 21 days after the mediation period expires,

“the mediator shall file a report with the board that

resolves all of the issues between the parties and

establishes the final terms of a collective bargaining

agreement, including all issues subject to mediation

and all issues resolved by the parties prior to the

certification of the exhaustion of the mediation

process. With respect to any issues in dispute between

the parties, the report shall include the basis for the

mediator’s

determination.

The

mediator’s

determination shall be supported by the record.”

(§ 1164, subd. (d).) In crafting a determination, the

mediator “may consider those factors commonly

App-9

considered in similar proceedings, including: [¶] (1)

The stipulations of the parties. [¶] (2) The financial

condition of the employer and its ability to meet the

costs of the contract in those instances where the

employer claims an inability to meet the union’s wage

and benefit demands. [¶] (3) The corresponding

wages, benefits, and terms and conditions of

employment in other collective bargaining agreements

covering similar agricultural operations with similar

labor requirements. [¶] (4) The corresponding wages,

benefits, and terms and conditions of employment

prevailing in comparable firms or industries in

geographical areas with similar economic conditions,

taking into account the size of the employer, the skills,

experience, and training required of the employees,

and the difficulty and nature of the work performed.

[¶] (5) The average consumer prices for goods and

services according to the California Consumer Price

Index, and the overall cost of living, in the area where

the work is performed.” (§ 1164, subd. (e).)

The MMC statute establishes a two-tiered system

of review. Within seven days, either party may

petition the Board to review the mediator’s report on

the ground that one or more provisions are (1)

“unrelated to wages, hours, or other conditions of

employment ...,” (2) “based on clearly erroneous

findings of material fact,” or (3) “arbitrary or

capricious in light of the mediator’s findings of fact.”

(§ 1164.3, subd. (a).) If no petition is filed, or if the

Board finds that the petition has not made a prima

facie case for review on the grounds set forth in

subdivision (a), then the mediator’s report becomes

the final order of the Board. (Id., subd. (b).) If the

Board finds grounds to grant review, it shall issue a

App-10

decision concerning the petition and, upon finding a

provision in the mediator’s report to be unlawful on

the grounds set forth in subdivision (a), shall require

the mediator to modify the terms of the collective

bargaining agreement, to meet with the parties for

further mediation, and to submit a second report. (Id.,

subd. (c).) Either party may petition the Board for

review of the second report. (Id., subd. (d).) Again, if

no petition is filed, or if a petition is filed but does not

state a prima facie case of a violation under

subdivision (a), the report takes effect as an order of

the Board. (Ibid.) If a petition is subject to review

under subdivision (a), the Board shall determine the

issues and issue a final order. (Ibid.) Either party also

may petition the Board to set aside the report if

“(1) the mediator’s report was procured by corruption,

fraud, or other undue means, (2) there was corruption

in the mediator, or (3) the rights of the petitioning

party were substantially prejudiced by the misconduct

of the mediator.” (Id., subd. (e).)

Once the Board has issued a final order, a party

may petition for writ of review in the Courts of Appeal

or in this court. (§§ 1164.5, 1164.9.) Judicial review

is limited to “determin[ing], on the basis of the entire

record, whether any of the following occurred:

[¶] (1) The board acted without, or in excess of, its

powers of jurisdiction. [¶] (2) The board has not

proceeded in the manner required by law. [¶] (3) The

order or decision of the board was procured by fraud

or was an abuse of discretion. [¶] (4) The order or

decision of the board violates any right of the

petitioner under the Constitution of the United States

or the California Constitution.” (§ 1164.5).

App-11

Soon after the Legislature enacted the MMC

statute, agricultural employers challenged its

constitutionality. In Hess, the Court of Appeal

rejected claims that the MMC statutory scheme

violated principles of due process and equal protection,

interfered with the right of contract, invalidly

delegated legislative authority, and was vague and

overbroad. (Hess, supra, 140 Cal.App.4th at p. 1591.)

Justice Nicholson dissented, contending that the law

“delegated legislative power unconstitutionally and

violated equal protection guarantees of the state and

federal Constitutions.” (Id. at p. 1611 (dis. opn. of

Nicholson, J.); see id. at pp. 1612-1617.)

According to the UFW, the union “began renewing

demands for bargaining with agricultural employers

that had never agreed to contracts” after Hess upheld

the MMC statute’s constitutionality. This case arises

from one of those renewed demands.

II.

Gerawan is a farming business that owns about

12,000 acres in Fresno and Madera Counties. It

employs thousands of direct-hire workers to grow,

harvest, and pack stone fruit and table grapes. In a

1990 secret election, Gerawan’s employees voted to be

represented by the UFW. After rejecting Gerawan’s

challenges to the election, the Board certified the UFW

as the exclusive bargaining representative on July 8,

1992. (See Gerawan Ranches (1992) 18 ALRB No. 5.)

The Board also affirmed an administrative law judge’s

finding that Gerawan had committed unfair labor

practices during the election period. (Ibid.)

Several days later, Cesar Chavez, the UFW’s

founder, sent a letter to Gerawan requesting

App-12

negotiations, which Gerawan “formally accept[ed].”

The UFW made a renewed request to bargain in

November 1994, after which the parties held at least

one negotiation session. The parties did not reach an

agreement. After the negotiation session, according to

a former Gerawan executive, the UFW “represented

that it would revise its proposal ... and that it would

contact Gerawan about future negotiations,” but the

“UFW never contacted Gerawan again concerning

[those] negotiations.”

For reasons not apparent in the record, neither

the UFW nor Gerawan attempted to communicate or

restart negotiations until October 12, 2012, when the

UFW served Gerawan with a renewed demand to

bargain. Gerawan asked the UFW to explain its

absence between early 1995 and October 2012; the

UFW refused.

The parties then proceeded to

negotiations, holding more than 10 bargaining

sessions in early 2013. Having failed to reach a

voluntary agreement, the UFW filed a declaration on

March 29, 2013 with the Board requesting MMC.

Gerawan opposed the request, claiming that the

statutory prerequisites had not been met and that the

UFW had abandoned its status as the bargaining

representative. Several weeks later, the Board denied

Gerawan’s opposition and referred the parties to

MMC. (Gerawan Farming, Inc. (2013) 39 ALRB No.

5.) The Board specifically rejected Gerawan’s claim

that the “UFW abdicated its responsibilities” and

“forfeit[ed] its status as bargaining representative,”

noting that the Board had “considered and rejected

this type of ‘abandonment’ argument” in the past. (Id.

at pp. 3-4, citing Dole Fresh Fruit Company (1996) 22

ALRB No. 4; Pictsweet Mushroom Farms (2003) 29

App-13

ALRB No. 3; San Joaquin Tomato Growers, Inc. (2011)

37 ALRB No. 5.) Because the Board declined to

consider Gerawan’s abandonment argument, it took

no evidence and made no findings concerning the

UFW’s alleged absence.

The parties thereafter agreed on an experienced

mediator, Matthew Goldberg, and conducted several

mediation sessions in the summer of 2013. The

voluntary mediation failed to produce an agreement.

As required by section 1164, subdivision (a), Goldberg

then conducted a number of on-the-record hearings

and submitted a report resolving the disputed terms

to the Board on September 28, 2013. Gerawan

objected to Goldberg’s report “both generally and as to

its particular terms.” In light of these objections, the

Board remanded six provisions to the mediator for

further proceedings. (Gerawan Farming, Inc. (2013)

39 ALRB No. 16.) The parties reached agreement on

the remanded provisions, and Goldberg issued a

second report incorporating the agreed-upon

provisions. Neither party objected to the second

report, and it took effect as the Board’s final order on

November 19, 2013. (Gerawan Farming, Inc. (2013)

39 ALRB No. 17; see § 1164.3.)

Gerawan filed a petition for review of the Board’s

final order to the Court of Appeal under section

1164.5, claiming that the order was invalid because

the MMC statute is unconstitutional.

Gerawan

argued that the statute violated equal protection and

due process, invalidly delegated legislative power, and

constituted an unconstitutional taking of private

property. Gerawan also reiterated that the Board’s

order should be set aside because the UFW abandoned

App-14

its status as the employees’ certified bargaining

representative after a “nearly two-decade absence.”

The Court of Appeal granted Gerawan’s request to

stay the Board’s final order pending the appeal.

The Court of Appeal held that the MMC statute

was facially unconstitutional because it “violates

equal protection of the law and improperly delegates

legislative authority.” As to equal protection, the

court adopted the reasoning of the Hess dissent:

Within the class of employers covered by the MMC

process, “ ‘each employer will be subjected to a

different legislative act, in the form of a [collective

bargaining agreement]. Thus, similarly situated

employers are treated dissimilarly.’ ” In the court’s

view, the MMC statute’s “discrimination ... is

intentional because the mediator has no power to

extend the enactment to other agricultural

employers. . . . [and] the discrimination is arbitrary

because there are no standards” ensuring that

mediators will reach similar decisions when

considering similarly situated employers. The court

acknowledged that section 1164 provides factors to

guide the mediator’s decisionmaking, but held that the

factors failed to “cure the fundamental equal

protection violation” because “[i]nevitably, each

imposed [collective bargaining agreement] will still be

its own set of rules applicable to one employer, but not

to others.”

The court further concluded that the MMC

statute unconstitutionally delegates legislative

authority because it empowers the mediator “to

establish employment terms that will be imposed by

the force of law ... without any definite policy

App-15

direction, goal or standard.” Because the section

1164.3, subdivision (e) “factors alone are not enough,”

the law “fails to supply the necessary guidance to

either the mediator or the Board.” Further, the court

held, “the delegation of powers under the MMC

statute also lacks the necessary procedural safeguards

or mechanisms to assure a fair and evenhanded

implementation of the legislative mandate to impose a

[collective bargaining agreement].” The court did not

resolve Gerawan’s other constitutional claims.

Despite

holding

the

MMC

statute

“constitutionally invalid,” the Court of Appeal also

decided “the statutory issues as an alternative basis

for [its] ruling.”

The court concluded that

“abandonment may be raised defensively in response

to a union’s demand to invoke the substantial legal

measures of the MMC process,” notwithstanding the

Board’s longstanding position that “abandonment

does not exist unless a union is either unwilling or

unable to continue to represent the subject

employees.” The court recognized that under its

precedent holding that “a rebuttable presumption

exists that a certified union continues to enjoy

majority support by the employees,” an employer may

not refuse to bargain under the ALRA by contending

that the union has forfeited its representative status.

But because “the MMC process differs materially from

bargaining and is largely a postbargaining process,”

the court continued, “the employer’s continuing duty

to bargain is not an impediment” to an “employer’s

ability to defend a union’s MMC request.” The court

thus held that the Board abused its discretion by

ordering MMC without considering Gerawan’s claim

of union abandonment.

App-16

III.

We now consider Gerawan’s claims that the MMC

statute (1) violates substantive due process by

imposing interest arbitration without the employer’s

consent, (2) violates equal protection under the

Fourteenth Amendment to the United States

Constitution and article I, section 7 of the California

Constitution, and (3) unconstitutionally delegates

legislative power.

Although we typically decide

statutory claims before deciding constitutional claims,

we discuss Gerawan’s constitutional claims first

because the Court of Appeal held the statute facially

unconstitutional in addition to resolving Gerawan’s

statutory claim. Were we to hold that abandonment

is a defense under the MMC statute, our holding

would have no import in light of the Court of Appeal’s

decision without a determination that the statute is

constitutional.

And were we to hold that

abandonment is not a defense under the MMC statute,

we would likewise need to address Gerawan’s

constitutional claims.

At the outset, it is important to note that the

Court of Appeal held the statute facially

unconstitutional. Gerawan has likewise characterized

its challenge as a facial attack on the MMC statute

and has not articulated an as-applied challenge based

on the specific terms of the contract imposed by the

Board’s final order. “The standard for a facial

constitutional challenge to a statute is exacting.”

(Today’s Fresh Start, Inc. v. Los Angeles County Office

of Education (2013) 57 Cal.4th 197, 218.) Under “the

strictest requirement for establishing facial

unconstitutionality,”

the

challenger

must

App-17

demonstrate that “the statute ‘inevitably pose[s] a

present total and fatal conflict with applicable

constitutional prohibitions.’ ” (Guardianship of Ann

S. (2009) 45 Cal.4th 1110, 1126, quoting Pacific Legal

Foundation v. Brown (1981) 29 Cal.3d 168, 181

(Brown).) We have sometimes applied a more lenient

standard,

asking

whether

the

statute

is

unconstitutional “in the generality or great majority of

cases.” (San Remo Hotel v. City and County of San

Francisco (2002) 27 Cal.4th 643, 673 (San Remo).) In

claiming that the MMC statute is unconstitutional in

all cases, Gerawan attempts to meet the strictest

requirement. But we need not decide which test

applies because, as explained below, the statute is not

facially invalid under either test.

A.

Gerawan’s lead argument in its briefing is that

compulsory interest arbitration in the private sector is

categorically impermissible because it forces

employers into arbitration without their consent. This

is essentially a claim that the MMC statute violates

substantive due process. Although Gerawan raised

various due process challenges below, the Court of

Appeal declined to address them and instead found

the statute unconstitutional on equal protection and

nondelegation grounds. Nevertheless, since the ALRB

and the UFW respond to Gerawan’s substantive due

process argument in detail here, we address the claim.

Gerawan acknowledges that interest arbitration

has “emerged as a fairly common feature of public

sector labor relations at the federal, state, and local

levels.” (Weiler, Striking A New Balance: Freedom of

Contract and the Prospects for Union Representation

App-18

(1984) 98 Harv. L.Rev. 351, 372; see Fisk & Pulver,

supra, at pp. 50-51.) But Gerawan contends that no

state has ever imposed compulsory interest

arbitration on private employers because doing so

would be unconstitutional.

Gerawan places

significant emphasis on a trilogy of cases from the

1920s that held unconstitutional a Kansas statute

authorizing a three-judge industrial court to arbitrate

employment disputes and impose wages and other

terms of employment. (See Wolff Co. v. Industrial

Court (1923) 262 U.S. 522 (Wolff); Dorchy v. Kansas

(1924) 264 U.S. 286; Wolff Packing Co. v. Indus. Court

(1925) 267 U.S. 552.)

In Wolff, the high court concluded that the statute

violated “the liberty of contract” under the Fourteenth

Amendment. (Wolff, supra, 262 U.S. at p. 544.) The

court relied on precedent that had located “the right of

the employer on the one hand, and of the employee on

the other, to contract about his affairs” in substantive

due process. (Id. at p. 534, citing Adkins v. Children’s

Hospital (1923) 261 U.S. 525 (Adkins).) As we have

explained, “this restrictive view of the police power

was completely repudiated” by the high court a decade

later. (Birkenfeld v. City of Berkeley (1976) 17 Cal.3d

129, 155 (Birkenfeld); see West Coast Hotel Co. v.

Parrish (1937) 300 U.S. 379, 400 [overruling Adkins];

Pope, Contract, Race, and Freedom of Labor in the

Constitutional Law of “Involuntary Servitude” (2010)

119 Yale L.J. 1474, 1543 [Wolff’s “anchorage in

Fourteenth Amendment economic due process, never

secure, has altogether washed away”].)

Thus,

Gerawan’s claim that private-sector interest

arbitration offends substantive due process is

App-19

unpersuasive. (See Hess, supra, 140 Cal.App.4th at

pp. 1598-1601.)

Gerawan also relies on Labor Board v. Jones &

Laughlin (1937) 301 U.S. 1 (Jones) and Porter Co. v.

NLRB (1970) 397 U.S. 99 (Porter), where the high

court interpreted the NLRA to prohibit compulsory

arbitration.

But the high court resolved these

decisions on statutory grounds and said nothing about

compulsory arbitration’s constitutionality. (See Jones,

at p. 45; Porter, at pp. 104-109.)

The rareness of interest arbitration in the private

sector likely stems from the high court’s

determination that the NLRA, which preempts most

state labor regulation, does not authorize compulsory

arbitration. Contrary to what Gerawan contends,

there is no indication in the high court’s case law that

compulsory arbitration in areas not covered by the

NLRA, such as agricultural labor relations, would be

unconstitutional. Seeing no authority to support

Gerawan’s substantive due process claim, we decline

to find compulsory interest arbitration categorically

unconstitutional here.

B.

The Court of Appeal held that the MMC statute

“on its face violates equal protection principles” under

both the federal and state Constitutions. We conclude

that the MMC is not facially invalid on equal

protection grounds because the Legislature had a

rational basis for enacting the MMC statute to

facilitate collective bargaining agreements between

agricultural employers and employees.

“ ‘[I]n areas of social and economic policy,’ ” this

court interpreting California’s equal protection clause,

App-20

like the United States Supreme Court interpreting the

federal equal protection clause, has said that “ ‘a

statutory classification that neither proceeds along

suspect lines nor infringes fundamental constitutional

rights must be upheld against equal protection

challenge if there is any reasonably conceivable state

of facts that could provide a rational basis for the

classification.’ ” (Warden v. State Bar (1999) 21

Cal.4th 628, 644 (Warden), quoting FCC v. Beach

Communications, Inc. (1993) 508 U.S. 307, 313 (Beach

Communications), italics omitted.) Although some

cases raising federal and state equal protection

challenges may require a bifurcated analysis (see, e.g.,

In re Marriage Cases (2008) 43 Cal.4th 757, 843-844),

Gerawan argues, and we agree, that the federal and

state standards operate the same way here.

“[U]nder the rational relationship test, the state

may recognize that different categories or classes of

persons within a larger classification may pose

varying degrees of risk of harm, and properly may

limit a regulation to those classes of persons as to

whom the need for regulation is thought to be more

crucial or imperative.” (Warden, supra, 21 Cal.4th at

p. 644.)

Making such regulatory distinctions “

‘inevitably requires that some persons who have an

almost equally strong claim to favored treatment be

placed on different sides of the line, and the fact [that]

the line might have been drawn differently at some

points is a matter for legislative, rather than judicial,

consideration.’ ” (Beach Communications, supra, 508

U.S. at pp. 315-316.) Where “[a]n administrative

order [is] legislative in character,” as is the case with

a Board order under the MMC statute, it “is subject to

the same tests as to validity as an act of the

App-21

Legislature.” (Knudsen Creamery Co. v. Brock (1951)

37 Cal.2d 485, 494; see 2 Cal.Jur.3d (2017)

Administrative Law § 360.) Accordingly, we apply the

same rational basis test to a final order by the Board

imposing the mediator’s report as we would apply to a

legislative act imposing the same.

Gerawan does not contend that the Legislature

lacked a rational basis for applying the MMC statute

only to agricultural employers who fail to reach a first

collective bargaining agreement. Gerawan concedes,

and we agree, that “differentiat[ing] between those

employers with an existing [collective bargaining

agreement] and those without ... may bear a rational

relationship to the statutory purpose of promoting

collective bargaining.”

“First contracts create

particularly complicated bargaining situations

because the parties have less information about each

other’s bargaining behavior than in more established

relationships.... Unions face the added difficulties of

navigating the immature relationship between

leadership and the rank and file membership and

pacifying more hostile employers who are more likely

to ‘bust the union’ because they are not used to having

to negotiate the terms and conditions of

employment…. The difficulties involved in first

contract negotiations have effects beyond the first

contract because they set the tone for the ongoing

union-management relationship.” (Fisk & Pulver,

supra, at p. 54.)

These concerns were the impetus for the MMC

statute’s enactment. The Legislature was aware that

the ALRA had failed to promote collective bargaining

agreements, finding that almost 60 percent of union

App-22

representation elections did not result in a first

contract. (See Sen. Bill 1156 Analysis, supra, at p. 7.)

In light of the “peculiar problems with the collective

bargaining process between agricultural employers

and agricultural employees” (Hess, supra, 140

Cal.App.4th at p. 1604), the Legislature reasonably

could have concluded that a mediation process

followed by binding arbitration in the event of a

bargaining impasse would “correct” the ALRA’s

failure and facilitate the adoption of first contracts

(Sen. Bill 1156 Analysis, supra, at p. 7). The

Legislature also reasonably could have believed that

facilitating first contracts furthers the goal of

“ensuring stability” in the agricultural industry.

(Stats. 2002, ch. 1145, § 1, p. 7401; see Weiler, supra,

at p. 409 [“[F]irst-contract arbitration attempts to do

more than simply settle a past dispute: it also seeks to

install the union firmly within the plant and

to . . . allow[] employees to experience life under a

collective agreement, a contract one hopes is attractive

enough to warrant renewal.”].)

We reject Gerawan’s argument that the MMC

process is unconstitutionally arbitrary because it

allows a “self-interested union to compel the

regulation of individual employers of its choosing.”

The statute permits either the union representative or

the employer to file a declaration with the Board

requesting MMC. (§ 1164, subd. (a).) Even if unions

are more likely to demand MMC than employers, the

Legislature empowered the Board, not the parties, to

assess whether the statutory prerequisites are met

before it orders MMC. The parties must have never

had a contract, they must have “failed to reach

agreement for at least one year” after the initial

App-23

request to bargain, and the employer must have

committed an unfair labor practice. (§ 1164.11; see §

1164, subd. (a).) That determination is then subject to

judicial review. (§ 1164.5.) In light of these criteria

and the Board’s role in determining whether they are

met, the fact that the MMC process is initiated by a

party does not make it arbitrary or irrational.

Gerawan’s primary equal protection argument is

not that the MMC statutory scheme treats classes of

employers differently, but that it discriminates

against each individual agricultural employer within

the covered class of employers. The Court of Appeal

accepted this argument, concluding that “[t]he

necessary outworking of the MMC statute is that each

individual employer (within the class of agricultural

employers who have not entered a first contract) will

have a distinct, unequal, individualized set of rules

imposed on it…. This is … ‘the very antithesis of equal

protection.’ ” The Court of Appeal and Gerawan

invoke the principle that “an equal protection claim

can in some circumstances be sustained even if the

plaintiff has not alleged class-based discrimination,

but instead claims that she has been irrationally

singled out as a so-called ‘class of one.’ ” (Engquist v.

Oregon Dept. of Agriculture (2008) 553 U.S. 591, 601

(Engquist).)

The high court first articulated the “class of one”

theory of equal protection in Village of Willowbrook v.

Olech (2000) 528 U.S. 562 (Olech). There, Grace Olech

claimed that the village violated equal protection by

conditioning her connection to the municipal water

supply on the Olechs granting the village a 33-foot

easement, while only requiring a 15-foot easement

App-24

from other property owners seeking access to the same

water supply. (Id. at p. 563.) Olech alleged that the

easement demand was “ ‘irrational and wholly

arbitrary,’ ” and was “motivated by ill will resulting”

from previous litigation. (Ibid.) The high court

recognized that “successful equal protection claims

[can be] brought by a ‘class of one,’ where the plaintiff

alleges that she has been intentionally treated

differently from others similarly situated and that

there is no rational basis for the difference in

treatment.” (Id. at p. 564.)

But laws regulating a small number of

individuals, or even a class of one, are not necessarily

suspect. As the high court has explained, “[t]he

premise that there is something wrong with

particularized legislative action is of course

questionable. While legislatures usually act through

laws of general applicability, that is by no means their

only legitimate mode of action…. Even laws that

impose a duty or liability upon a single individual or

firm are not on that account invalid.” (Plaut v.

Spendthrift Farm, Inc. (1995) 514 U.S. 211, 239, fn. 9.)

Rather, such regulations violate equal protection only

“if arbitrary or inadequately justified.”

(Bank

Markazi v. Peterson (2016) 578 U.S. __, __, fn. 27 [136

S.Ct. 1310, 1327, fn. 27], citing Olech, supra, 528 U.S.

at p. 564.)

In Engquist, the high court held that the “ ‘classof-one’ theory of equal protection has no place in the

public employment context.” (Engquist, supra, 553

U.S. at p. 594.) Although it relied in part on the

distinction between the government “as employer as

opposed to sovereign,” the court also stressed the “core

App-25

concern of the Equal Protection Clause as a shield

against arbitrary classifications.” (Id. at p. 598.)

Unlike the easement decision in Olech, the court

explained, “[t]here are some forms of state

action . . . which by their nature involve discretionary

decisionmaking based on a vast array of subjective,

individualized assessments. In such cases the rule

that people should be ‘treated alike, under like

circumstances and conditions’ is not violated when one

person is treated differently from others, because

treating like individuals differently is an accepted

consequence of the discretion granted. In such

situations, allowing a challenge based on the arbitrary

singling out of a particular person would undermine

the very discretion that such state officials are

entrusted to exercise.” (Id. at p. 603.)

Although Engquist’s holding was limited to the

public employment context, our Courts of Appeal have

concluded that “its reasoning applies more broadly.”

(Las Lomas Land Co., LLC v. City of Los Angeles

(2009) 177 Cal.App.4th 837, 859 (Las Lomas); see

Squires v. City of Eureka (2014) 231 Cal.App.4th 577,

595 [“individualized discretionary decisions will not

support a class of one claim”].) The Ninth Circuit has

also read Engquist to foreclose class of one claims

against any “forms of state action that ‘by their nature

involve discretionary decisionmaking based on a vast

array of subjective, individualized assessments.’ ”

(Towery v. Brewer (9th Cir. 2012) 672 F.3d 650, 660.)

Other courts have held that although “Engquist does

not bar all class-of-one claims involving discretionary

state action,” its reasoning may still be “properly

applied outside of the employment context.”

(Analytical Diagnostic Labs, Inc. v. Kusel (2d Cir.

App-26

2010) 626 F.3d 135, 142; see Hanes v. Zurick (7th Cir.

2009) 578 F.3d 491, 495.)

Applying Engquist’s reasoning, the ALRB argues

that the MMC process is “an inherently individualized

process” and thus cannot be subject to a class of one

challenge. We decline to address whether a class of

one claim may be brought under the equal protection

clause because even assuming that such a claim may

be brought here, we conclude that the MMC statute

does not facially violate equal protection.

To succeed on a class of one claim, a plaintiff must

establish that “(1) the plaintiff was treated differently

from other similarly situated persons, (2) the

difference in treatment was intentional, and (3) there

was no rational basis for the difference in treatment.”

(Las Lomas, supra, 177 Cal.App.4th at p. 858, citing

Olech, supra, 528 U.S. at p. 564.) There is no question

that differences in treatment among agricultural

employers under the MMC statute is “intentional”

(Las Lomas, at p. 858), since the point of the scheme

is to make agreements tailored to the parties’

individualized circumstances and relationships. But

Gerawan has failed to satisfy either of the other two

requirements.

We find unpersuasive Gerawan’s claim that the

MMC statute is unconstitutionally arbitrary because

of the “lack of any nexus between the statutory

purpose and the distinctions drawn by any individual

mediator.” The purpose of the MMC statute is to

promote collective bargaining and ensure stability in

the agricultural labor force. (Stats. 2002, ch. 1145, §

1, p. 7401.) The statute accomplishes its purposes by

empowering mediators to make individualized

App-27

determinations regarding the terms of particular

collective

bargaining

agreements.

These

individualized determinations are rationally related

to the Legislature’s legitimate interest in ensuring

that collective bargaining agreements are tailored to

the unique circumstances of each employer. As the

Board explains, “[c]ontract terms appropriate for a 25employee family farm may make little sense at a

5,000-employee

agricultural

corporation,

and

reasonable wages and benefits will necessarily vary

across company size, crop, and geographic region.”

The discretion afforded to the mediator under the

MMC statute is channeled by section 1164’s statutory

factors. As noted, the statute instructs the mediator

to “consider those factors commonly considered in

similar proceedings, including:

[¶] (1) The

stipulations of the parties. [¶] (2) The financial

condition of the employer and its ability to meet the

costs of the contract in those instances where the

employer claims an inability to meet the union’s wage

and benefit demands. [¶] (3) The corresponding

wages, benefits, and terms and conditions of

employment in other collective bargaining agreements

covering similar agricultural operations with similar

labor requirements. [¶] (4) The corresponding wages,

benefits, and terms and conditions of employment

prevailing in comparable firms or industries in

geographical areas with similar economic conditions,

taking into account the size of the employer, the skills,

experience, and training required of the employees,

and the difficulty and nature of the work performed.

[¶] (5) The average consumer prices for goods and

services according to the California Consumer Price

App-28

Index, and the overall cost of living, in the area where

the work is performed.” (§ 1164, subd. (e).)

These statutory factors serve to further the

MMC’s purposes while minimizing arbitrary or

irrational differences between the collective

bargaining agreements imposed by the MMC process

on similarly situated agricultural employers. (See

Hess, supra, 140 Cal.App.4th at p. 1604 [“These

requirements reasonably ensure that contracts of

different employers will be similar.”].) We relied on

similar reasoning in rejecting an equal protection

claim in People v. Wilkinson (2004) 33 Cal.4th 821.

There, we held that the exercise of a prosecutor’s

charging discretion did not violate equal protection

principles in part because “numerous factors properly

may enter into a prosecutor’s decision to charge under

one statute and not another, such as a defendant’s

background and the severity of the crime.” (Id. at

p. 838; see RUI One Corp. v. City of Berkeley (9th Cir.

2004) 371 F.3d 1137, 1154 [rejecting equal protection

challenge to City’s expansion of coverage of living

wage ordinance to “only a handful of employers” based

on geographic, employer-size, and revenue criteria].)

We note that section 1164, subdivision (e)

provides that the mediator “may consider” these

statutory factors. In Hess, the court concluded that in

this context the statute’s reference to “ ‘may’ means

‘must’ ” because “ ‘ “[w]ords permissive in form ... are

considered as mandatory” ’ ” when duties of public

entities like the Board are at issue. (Hess, supra, 140

Cal.App.4th at p. 1607.) Neither Gerawan nor the

Court of Appeal assigns any significance to the

statute’s use of the word “may,” and the Court of

App-29

Appeal simply assumed that a mediator “shall

consider this list of factors.” (Italics added.) We need

not decide how to interpret “may” as used in section

1164, subdivision (e), because Gerawan’s argument is

that even if the mediator does consider the statutory

factors, the factors themselves do not sufficiently

constrain the mediator’s discretion. As explained, we

reject that argument.

Gerawan further argues that “[b]ecause the

statute does not pass any judgments as to the sort of

terms that would foster collective bargaining and

stability, a mediator could consider one employer’s

wages with relation to ‘comparable firms’ and choose

to impose a wage increase, a wage decrease, or no

change at all.” The Court of Appeal took the same

view, posing a hypothetical in which mediators impose

collective bargaining agreements on three similar

employers with “different terms ... result[ing] in

different wages and a different impact on the profit

margin for each employer.”

Arbitrary treatment is of course possible under

the MMC statute, just as it is possible with respect to

a host of governmental functions that involve

discretionary decisionmaking. But in order to succeed

on a facial challenge, it is not enough to show that

some hypothetical applications of the MMC statute

might result in arbitrary or discriminatory treatment.

Instead, Gerawan must show that the statute

“inevitably pose[s] a present total and fatal conflict”

with equal protection principles (Brown, supra, 29

Cal.3d at p. 181) or, at the least, that the statute

violates equal protection “in the generality or great

App-30

majority of cases.” (San Remo, supra, 27 Cal.4th at

p. 673.)

Gerawan has raised no as-applied challenge in

this case, so we need not resolve whether an as-applied

class of one challenge is cognizable in this context.

Gerawan does not claim to have evidence that it was

treated differently by the mediator or the Board from

similarly situated agricultural employers that have

undergone the MMC process, or that a similarly

situated agricultural employer even exists. Indeed,

Gerawan does not mention any specific terms of the

mediator’s report in its equal protection argument.

And Gerawan concedes that the mediator was unable

to find any agricultural employer that was sufficiently

similar in terms of farm operations upon which to

model the proposed collective bargaining agreement.

Gerawan instead chose to focus solely on the asserted

facial unconstitutionality of the MMC statute. Simply

hypothesizing, as the Court of Appeal did, that

differential treatment among similarly situated

agricultural employers is possible is not enough to

declare the MMC statute facially unconstitutional. In

sum, the statute does not facially violate equal

protection principles.

C.

The Court of Appeal also held that the MMC

statute improperly delegates legislative authority in

violation of the California Constitution. We disagree.

“[A]lthough it is charged with the formulation of

policy,” the Legislature “properly may delegate some

quasi-legislative or rulemaking authority.” (Carmel

Valley Fire Protection Dist. v. State of California

(2001) 25 Cal.4th 287, 299.) “For the most part,

App-31

delegation of quasi-legislative authority ... is not

considered an unconstitutional abdication of

legislative power.” (Ibid.) “The doctrine prohibiting

delegations of legislative power does not invalidate

reasonable grants of power to an administrative

agency, when suitable safeguards are established to

guide the power’s use and to protect against misuse.”

(People v. Wright (1982) 30 Cal.3d 705, 712-713

(Wright).)

Accordingly, “[a]n unconstitutional

delegation of authority occurs only when a legislative

body (1) leaves the resolution of fundamental policy

issues to others or (2) fails to provide adequate

direction for the implementation of that policy.”

(Carson Mobilehome Park Owners’ Assn. v. City of

Carson (1983) 35 Cal.3d 184, 190 (Carson); Kasler v.

Lockyer (2000) 23 Cal.4th 472, 491-492; see Kugler v.

Yocum (1968) 69 Cal.2d 371, 384 (Kugler) [“Only in

the event of a total abdication of that power, through

failure either to render basic policy decisions or to

assure that they are implemented as made, will this

court intrude on legislative enactment because it is an

‘unlawful delegation.’ ”].)

The MMC process does not suffer from either

defect. First, the Legislature did not leave the

resolution of fundamental policy issues to others. In

ALRB I, we held that an ALRB regulation providing

farm labor organizers a qualified right of access to

agricultural employers’ premises did not constitute an

unconstitutional delegation of legislative power.

(ALRB I, supra, 16 Cal.3d at p. 419.) We concluded

that “the ‘fundamental policy determination’ was

made by the Legislature when that body decided, after

much study and discussion, to grant to agricultural

workers throughout California the rights of self-

App-32

organization and collective bargaining so long denied

to them under federal law.” (Ibid.) Because the access

regulation “merely implement[ed]” the statutory

program, “it [did] not amount to a ‘fundamental policy

determination.’ ” (Ibid.)

The same is true here. The Legislature made the

fundamental policy determination that the MMC

process was necessary “in order to ensure a more

effective collective bargaining process between

agricultural employers and agricultural employees,

and thereby more fully attain the purposes of the

[ALRA].” (Stats. 2002, ch. 1145, § 1, p. 7401.) It did

so in response to evidence showing that the ALRA had

failed in its goal of promoting the adoption of collective

bargaining agreements by agricultural employers.

The Legislature then made a variety of subsidiary

policy decisions concerning the necessary procedures,

the factors channeling the mediator’s discretion, the

preconditions for invoking the MMC process, and the

extent of review by the Board and the courts. (§§ 1164,

1164.3, 1164.5, 1164.11.) The Legislature tasked the

mediator with resolving the precise terms concerning

“wages, hours, or other conditions of employment” in

a single collective bargaining agreement. (§ 1164.3,

subd. (a)(1).) But even with regard to those terms, the

mediator’s role is limited to resolving only disputed

terms. (§ 1164, subd. (d).)

Thus, the nondelegation argument here is even

weaker than the one we rejected in ALRB I, which

concerned a statewide access regulation. As Gerawan

concedes, the policy decisions made by the mediator

relate only to the parties’ “economic relations” and

rights. In authorizing the mediator and the Board to

App-33

decide the precise contours of an individual collective

bargaining agreement, the MMC statute does not

confer “unrestricted authority to make fundamental

policy determinations” that must be left to the

Legislature. (Clean Air Constituency v. California

State Air Resources Bd. (1974) 11 Cal.3d 801, 816.) In

Brown, we dismissed an unlawful delegation

challenge to statutes that allowed a memorandum of

understanding between the Governor and an

employee representative to supersede certain

Government Code sections governing public

employment. (See Brown, supra, 29 Cal.3d at p. 201.)

We observed that the statutes “do not involve

fundamental policy determinations, but rather relate

to the working details of the wages, hours and working

conditions of the employees covered by the act.” (Ibid.)

The Legislature “may declare a policy, fix a primary

standard, and authorize” mediators “to determine the

application of the policy or standard to the facts of

particular cases” without violating the nondelegation

doctrine. (Birkenfeld, supra, 17 Cal.3d at p. 167.)

Second, the MMC statute does not “fail[] to

provide adequate direction for [its] implementation.”

(Carson, supra, 35 Cal.3d at p. 190.) The Legislature

indicated that the mediator, in resolving disputed

issues, “may consider those factors commonly

considered in similar proceedings,” including the

parties’ stipulations; the employer’s financial

condition; corresponding terms in comparable

collective bargaining agreements, firms, or industries;

the average consumer prices for goods and services;

and the overall cost of living. (§ 1164, subd. (e).) The

Court of Appeal concluded that these statutory factors

do not cure the delegation problem because they do

App-34

“not provide the mediator with any policy objective to

be carried out or standard to be attained once those

factors have been considered.” But we have previously

rejected the argument that such a “listing of factors

does not adequately inform [the administrative

authority] just how the presence of the factors under

particular circumstances is to be translated.”

(Birkenfeld, supra, 17 Cal.3d at p. 168.)

In Birkenfeld, we considered a constitutional

challenge to a Berkeley charter amendment

establishing residential rent control. The plaintiffs

argued that the charter amendment’s provisions for

adjusting maximum rents “faile[d] to provide

sufficient standards for the guidance of the rent

control board ... and thereby constitute[d] an unlawful

delegation of legislative power.” (Birkenfeld, supra, 17

Cal.3d at p. 167.) In dismissing this challenge, we

emphasized that the amendment directed the rent

control board to consider a nonexclusive list of factors

when reviewing petitions for rent adjustments. (Id. at

pp. 167-168.) And we noted that the board was “given

other significant guidance by the charter

amendment’s statement of purpose” because

“[s]tandards sufficient for administrative application

of a statute can be implied by the statutory purpose.”

(Id. at p. 168.) “By stating its purpose and providing

a nonexclusive illustrative list of relevant factors to be

considered,” we concluded, “the charter amendment

provides

constitutionally

sufficient

legislative

guidance to the Board.” (Ibid.)

Gerawan

contends

that

Birkenfeld

is

distinguishable because the rent control scheme there

provided a “discernible statutory objective” to guide

App-35

the board’s consideration of the statutory factors. But

in Birkenfeld, the charter amendment’s stated

purpose was simply “counteracting the ill effects of

‘rapidly rising and exorbitant rents exploiting [the

housing] shortage.’ [Citation.]” (Birkenfeld, supra, 17

Cal.3d at p. 168.) From that stated purpose, we

implied “a standard of fixing maximum rent levels at

a point that permits the landlord to charge a just and

reasonable rent.” (Ibid.) Likewise, the MMC statute

expressly states its purpose—“to ensure a more

effective collective bargaining process between

agricultural employers and agricultural employees”

(Stats. 2002, ch. 1145, § 1, p. 7401)—from which we

can imply a standard of reaching just and reasonable

collective bargaining agreements based on relevant

considerations such as the nonexclusive list of factors

set forth in section 1164, subdivision (e). This implied

standard provides sufficient legislative direction to

the mediator.

Gerawan’s argument that the Legislature should

determine “the specific formula or objective pursuant

to which the delegee would operate” fares no better.

In the rent control context, we have said the fact that

an “ordinance does not articulate a formula for

determining just what constitutes a just and

reasonable return does not make it unconstitutional.”

(Carson, supra, 35 Cal.3d at p. 191; see Kavanau v.

Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761,

768; Fisher v. City of Berkeley (1984) 37 Cal.3d 644,

680.) Similarly, the high court has held in the

ratemaking context that “[t]he Constitution does not

bind rate-making bodies to the service of any single

formula or combination of formulas.” (Federal Power

Commission v. Natural Gas Pipeline Co. (1942) 315

App-36

U.S. 575, 586.) The Legislature here was not required

to provide a specific formula for mediators to follow in

resolving disputed terms of individual collective

bargaining agreements. It is sufficient that the MMC

statute sets forth a nonexclusive list of factors for the

mediator to consider when developing a fair and

reasonable agreement based on the parties’

individualized circumstances. The Legislature has

given the mediator constitutionally “adequate

direction.” (Carson, at p. 190.)

This conclusion is consistent with substantial

precedent rejecting similar nondelegation challenges

to compulsory interest arbitration in the public

employment context. In Fire Fighters Union v. City of

Vallejo (1974) 12 Cal.3d 608, we rejected a

nondelegation challenge to a Vallejo city charter

provision that permitted an arbitral board to resolve

disputed terms of employment after considering “ ‘all

factors relevant to the issues from the standpoint of

both the employer and the employee, including the

City’s financial condition.’ ” (Id. at p. 622.) We held

that so long as “the arbitrators do not proceed beyond

the provisions of the Vallejo charter, there is no

unlawful delegation of legislative power.” (Ibid., fn.

13.)

“Other jurisdictions have sanctioned their

compulsory interest arbitration schemes even though

presented with less precise or even non-explicit

standards for decision” than the type of factors set out

in the MMC statute. (City of Detroit v. Detroit Police

Officers Ass’n (1980) 408 Mich. 410, 464-465; see, e.g.,

Fraternal Order of Police Lodge No. 165 v. City of

Choctaw (Okla. 1996) 933 P.2d 261, 267-268

App-37

(Choctaw); Superintending School Committee of City

of Bangor v. Bangor Ed. Ass’n (Me. 1981) 433 A.2d

383, 387 (City of Bangor); City of Richfield v. Local No.

1215, Intern. Ass’n of Fire Fighters (Minn. 1979) 276

N.W.2d 42, 47; Division 540, Amalgamated Transit

Union, AFL-CIO v. Mercer County Improvement

Authority (1978) 76 N.J. 245, 252-254; Harney v. Russo

(1969) 435 Pa. 183, 189.)

Other compulsory

arbitration statutes provide “a well-settled list of

factors” that closely resembles that set forth in section

1164, subdivision (e). (Fisk & Pulver, supra, at p. 66

[citing statutes].) “Formulation of rigid standards for

the guidance of arbitrators in dealing with complex

and often volatile issues would be impractical, and

might destroy the flexibility necessary for the

arbitrators to carry out the legislative policy of

promoting the improvement of the relationship

between public employers and their employees.” (City

of Bangor, at p. 387.)

Gerawan does not dispute these authorities but

contends that “[t]he delegation issues present here are

not as problematic where the employer is a public

entity.” It is not clear why that is so. With regard to

certain constitutional rights such as free speech and

workplace privacy, the state may have “significantly

greater leeway in its dealings with citizen employees

than it does when it brings its sovereign power to bear

on citizens at large.” (Engquist, supra, 553 U.S. at p.

599; see Garcetti v. Ceballos (2006) 547 U.S. 410;

National Aeronautics and Space Admin. v. Nelson

(2011) 562 U.S. 134; Connick v. Myers (1983) 461 U.S.

138.) But whether a statute impermissibly delegates

legislative power does not turn on that distinction.

Whether the law at issue regulates public employees,

App-38

private employees, or nonemployment matters, the

test is the same: Has the Legislature “provide[d] an

adequate yardstick for the guidance of the

administrative body empowered to execute the law”?

(Clean Air Constituency v. California State Air

Resources Bd., supra, 11 Cal.3d at p. 817.) As

explained above, the MMC statute provides such

guidance.

In addition to sufficiently clear standards, a

statute delegating legislative power must be

accompanied by “ ‘safeguards adequate to prevent its

abuse.’ ” (Kugler, supra, 69 Cal.2d at p. 376; see

Birkenfeld, supra, 17 Cal.3d at p. 169.) The Board and

the UFW contend that the MMC statute’s two-tiered

system—administrative review by the Board, followed

by judicial review by the Courts of Appeal—

constitutes an adequate safeguard against “improper

[collective bargaining agreement] terms or mediator

misconduct.” While conceding that judicial review can

serve as a safeguard, Gerawan claims that the review

contemplated by the MMC statute is “deferential in

name, but illusory in fact.” The Court of Appeal

likewise determined that the Board review process

requires “virtually a rubberstamp approval to the

mediator’s reported [collective bargaining agreement]

as long as the terms thereof have at least a small

kernel of plausible support.”

We agree with the Board and the UFW that the

statute provides numerous procedural safeguards

throughout the MMC process to protect the parties

from arbitrary or unfair action. The parties at the

very beginning must agree on a neutral mediator; if

not, the mediator will be selected from the Board’s list

App-39

of nine mediators. (§ 1164, subd. (b).) A mediator who

demonstrates “bias, prejudice, or interest in the

outcome of the proceeding” shall be disqualified. (Cal.

Code Regs., tit. 8, § 20404, subd. (a).) Either party

may petition the Board to review the mediator’s final

report, and the Board must order the mediator to

modify any provisions that are “unrelated to wages,

hours, or other conditions of employment,” “based on

clearly erroneous findings of material fact,” or

“arbitrary or capricious in light of the mediator’s

findings of fact.” (§ 1164.3, subd. (a); see id., subd. (c).)

Further, either party can petition for the Board to set

aside the mediator’s report and appoint a new

mediator where it is established that the report was

“procured by corruption, fraud, or other undue

means,” or where the party’s rights were

“substantially prejudiced by the misconduct of the

mediator.” (Id., subd. (e).) If dissatisfied with the

Board’s decision, either party may then petition for

judicial review. (§ 1164.5.) The court has the power

to reverse the Board’s order if it determines “on the

basis of the entire record” that the Board acted in

excess of its jurisdiction or not in the manner required

by law, that the Board’s order was “procured by fraud

or was an abuse of discretion,” or that the Board’s

order violated the petitioner’s constitutional rights.

(Id., subd. (b).)

These safeguards are constitutionally adequate to

protect parties and prevent misconduct, favoritism, or

abuse of power by the mediator. Indeed, other courts

have upheld the constitutionality of compulsory

interest arbitration schemes even where the statutes

“expressly

provided”

that

the

arbitrator’s

determination “was final and unappealable.” (Mt. St.

App-40

Mary’s Hospital v. Catherwood (1970) 26 N.Y.2d 493,

514 (conc. opn. of Fuld, C.J.), citing City of Washington

v. Police Dept. of City of Washington (1969) 436 Pa.

168; Fairview Hospital Ass’n v. Public Bldg. Service

and Hospital and Institutional Emp. Union Local No.

113 A.F.L. (1954) 241 Minn. 523.) Moreover, this case

itself shows that the review process is not a mere

“rubberstamp.” Here the parties jointly selected a

mediator, and the mediator conducted several on-therecord hearings before submitting a final report to the

Board fixing the terms of the parties’ collective

bargaining agreement. After Gerawan objected to the

terms of the final report, the Board remanded six

disputed provisions to the mediator for further

consideration.

The parties then resolved those

contested terms with the mediator’s assistance.

Gerawan might not agree with the outcome of the

MMC process, but that does not mean it was denied

“suitable safeguards” to protect it from any abuses of

that process. (Wright, supra, 30 Cal.3d at p. 712.)

Gerawan argues that the MMC statute’s judicial

review is additionally ineffective because a court

would be unable “to assess whether ex parte or ‘offthe-record’ communications ‘decisively influenced’ the

mediator’s decisions.” But as the Board explains,

ALRB regulations require the mediator to cite

evidence in the record to support his or her final report

and prohibit the mediator from basing any findings or

conclusions on “off the record” communications. (Cal.

Code Regs., tit. 8, § 20407, subd. (a)(2).) Further, the

regulations allow a party to file with the Board

“declarations that describe pertinent events that took

place off the record” in case of any alleged misconduct

or improper factfinding. (Id., § 20408, subd. (a).)

App-41

Gerawan did not do so here. The ALRB regulations

provide additional safeguards against unfairness or

favoritism.

In sum, the Legislature resolved the fundamental

policy issues and provided sufficient guidance and

procedural safeguards in the MMC statute. The MMC

statute does not unconstitutionally delegate

legislative authority.

IV.

We next consider whether agricultural employers

may defend against a union’s MMC request by

showing that the union abandoned its status as

bargaining representative.

As noted, “[a]n

agricultural employer or a labor organization certified

as the exclusive bargaining agent of a bargaining unit

of agricultural employees” may file a declaration with

the Board requesting MMC. (§ 1164, subd. (a), italics

added.) There is no dispute that Gerawan’s employees

elected the UFW as their certified representative in

1992 and that no subsequent valid election or

decertification has taken place.

But Gerawan

contends, and the Court of Appeal agreed, that it is

entitled to argue that the UFW forfeited its

certification—and thus its ability to invoke the MMC

process—because it had been absent from 1995 to

2012. Because the MMC statute relies entirely on the

preexisting ALRA certification procedures, we first

recount that statutory backdrop before addressing

whether such a defense is available.

Section 1156 provides that “[r]epresentatives

designated or selected by a secret ballot for the

purposes of collective bargaining by the majority of the

agricultural employees in the bargaining unit shall be

App-42

the exclusive representatives of all the agricultural

employees in such unit for the purpose of collective

bargaining.” (§ 1156.) Agricultural employers may

not “refuse to bargain collectively in good faith with

labor organizations certified” pursuant to section

1156. (§ 1153, subd. (e).) Further, under the ALRA,

“unlike the NLRA, an exclusive bargaining

representative may be designated only on the basis of

a secret representation election, and not by the

presentation of union authorization cards or any other

less reliable method sanctioned under federal law.”

(Highland Ranch v. Agricultural Labor Relations Bd.

(1981) 29 Cal.3d 848, 859.) To that end, the ALRA

makes it unlawful for an employer to “recognize,

bargain with, or sign a collective-bargaining

agreement with any labor organization not certified”

through the procedure for a secret election. (§ 1153,

subd. (f).)

Soon after the ALRA’s enactment, the Board

considered whether an employer has a continuing

duty to bargain with a union certified as the exclusive

bargaining representative where an agreement has

not been reached by the end of the initial year of

certification. (Kaplan’s Fruit & Produce Co. Inc.

(1977) 3 ALRB No. 28 (Kaplan’s Fruit).)

The

employers in that case had pointed to section 1155.2,

which provides that if the Board finds that the

employer had failed to bargain in good faith with the

certified union, then the Board may “extend the

certification for up to one additional year, effective

immediately upon the expiration of the previous 12month period following initial certification.” (§ 1155.2,

subd. (b).) “[I]f ‘certification’ lapses after one year,”

the employers argued, their “duty to bargain [under

App-43

section 1153, subd. (e)] must also lapse.” (Kaplan’s

Fruit, at p. 2.) The Board rejected that argument,

relying on NLRB precedent holding that “ ‘a certified

union, upon expiration of the first year following its

certification, enjoys a rebuttable presumption that its

majority representative status continues.’ ” (Ibid.,

quoting Terrill Machine Co. (1969) 173 NLRB 1480.)

Certification under the ALRA, the Board explained,

creates a “duty to bargain” that has no time limit, as

well as an “election bar,” set out in section 1156.6.

(Kaplan’s Fruit, at pp. 2-3.) Section 1155.2’s extension

procedure concerns only the election bar, which seeks

“to bind employees to their choice of bargaining agent

for a period of time sufficient to allow the bargaining

relationship to mature and bear fruit”; it does not

concern the employer’s duty to bargain. (Kaplan’s

Fruit, at p. 4.)

The Board also based its decision on the policies

underlying the ALRA. Accepting the argument that

an employer’s bargaining obligation lapsed one year

after certification would “in effect require annual

elections at every organized ranch in the State.”

(Kaplan’s Fruit, supra, 3 ALRB No. 28 at p. 2.) This

would “strike at the Act’s central purpose of bringing

‘certainty and a sense of fairplay’ ” to agricultural

relations by “inhibit[ing] good faith bargaining” and

“promot[ing] strikes by placing the union under great

time pressure to obtain an agreement before its

certification lapses.” (Id. at pp. 5-6.) The Board

concluded that the Legislature could not have

intended “to make the process of collective bargaining

into a kind of sporting event in which the parties play

against each other and against a clock at the same

time.” (Id. at pp. 6-7.) In Montebello Rose Co. v.

App-44

Agricultural Labor Relations Bd. (1981) 119

Cal.App.3d 1 (Montebello), the court upheld the

Board’s interpretation that “the employer’s duty to

bargain ... continues until such time as the union is

officially decertified as the employee bargaining

representative pursuant to the provisions of sections

1156.3 or 1156.7.”

(Id. at pp. 23-24.)

This

interpretation “appear[ed] to be true to the underlying

purpose of the [ALRA] as a whole — to promote

stability in the agricultural fields through collective

bargaining.” (Id. at p. 29.)

The Court of Appeal in F & P Growers Assn. v.

Agricultural Labor Relations Bd. (1985) 168

Cal.App.3d 667 (F & P Growers) considered a related

question: whether an employer may refuse to bargain

with a union representative when it reasonably

believes that the union has lost the support of a

majority of its employees. (Id. at pp. 670-671.)

Agreeing with the Board, the court held that an

employer could not raise a “good faith doubt of

majority support” defense under the ALRA, even

though NLRB precedent provided such a defense

under the NLRA. (Id. at p. 678; see Nish Noroian

Farms (1982) 8 ALRB No. 25.) In so holding, the court

pointed to several critical differences between the

ALRA and NLRA. First, although the NLRA permits

employers to “voluntarily recognize and bargain with

a labor union that has demonstrated its majority

status by means other than an election” (F & P

Growers, supra, at p. 674, citing NLRB v. Gissel

Packing Co. (1969) 395 U.S. 575), the ALRA

specifically prohibits an employer from bargaining

with a nonelected union (§ 1153, subd. (f)). Second,

whereas the NLRA permits employers to petition to

App-45

conduct an election for a representative, the ALRA

allows only employees or labor unions to petition for

an election. (Compare 29 U.S.C. § 159(c)(1)(B) with

Lab. Code, § 1156.3.) Third, under the ALRA, only

employees or labor organizations can move to decertify

a union representative. (F & P Growers, at pp. 675676, citing § 1156.7.)

These differences, the court explained, “show[ed]

a purpose on the part of the Legislature to prohibit the

employer from being an active participant in

determining which union it shall bargain with in cases

arising under the ALRA.” (F & P Growers, supra, 168

Cal.App.3d at p. 676.) Permitting an employer to “rely

on its good faith belief in order to avoid bargaining

with an employee chosen agricultural union” would

allow the employer to “do indirectly ... what the

Legislature has clearly shown it does not intend the

employer to do directly.” (Id. at pp. 676-677.) The

court observed that unique features of “the California

agricultural scene”—such as “rapid turnover” of

agricultural workers, many of whom are temporary

noncitizens who do not speak English—gave “all the

more reason for the Legislature to decide to remove

the employer from any peripheral participation in

deciding whether to bargain with a particular union.”

(Id. at p. 677.) The “legislative policy” of the ALRA,

the court concluded, is that “the unions [should] be

chosen solely by the employees and not the

employers.” (Id. at p. 678.)

In accordance with this precedent, the Board has

consistently determined that an employer may not

refuse to bargain with a union on the ground that it

has “abandoned” its status as representative. (See

App-46

Dole Fresh Fruit Company, supra, 22 ALRB No. 4;

Bruce Church, Inc. (1991) 17 ALRB No. 1; Lu-Ette

Farms, Inc. (1982) 8 ALRB No. 91.) Under these

decisions, a union, once certified, remains the

employees’ exclusive bargaining representative until

it is decertified or until the union is unwilling or

unable to represent the bargaining unit. Following

the MMC statute’s enactment in 2003, the Board has

continued to apply this “certified until decertified” rule

in deciding that employers may not raise union

abandonment as a defense to requests for MMC. (See

Gerawan Farming, supra, 39 ALRB No. 5 at pp. 3-4;

San Joaquin Tomato Growers, Inc., supra, 37 ALRB

No. 5 at pp. 3-4; Pictsweet Mushroom Farms, supra, 29

ALRB No. 3 at pp. 10-11.)

The Court of Appeal did not dispute the validity

of the precedent above or the “well-settled rule” that

“an employer must continue to bargain in good faith

with the originally certified union.” But it held that

employers may raise an abandonment defense against

a union’s request for MMC because “the MMC process

differs materially from bargaining and is largely a

postbargaining process.”

In evaluating this argument, we note that

although “we take ultimate responsibility for the

interpretation of a statute, we accord significant

weight and respect to the longstanding construction of

a law by the agency charged with its enforcement.” (In

re Dannenberg (2005) 34 Cal.4th 1061, 1082.) Here,

the Board, as the agency charged with the ALRA’s

administration, “is entitled to deference when

interpreting policy in its field of expertise.” (J. R.

Norton, supra, 26 Cal.3d at p. 29.) We must give

App-47

significant weight to its determination that under the

ALRA, employers may not invoke abandonment as a

defense to the MMC process. (See Bodinson Mfg. Co.

v. California E. Com. (1941) 17 Cal.2d 321, 325 [“[T]he

administrative interpretation of a statute will be

accorded great respect by the courts and will be

followed if not clearly erroneous.”].)

Moreover, “when the Legislature amends a

statute, we presume it was fully aware of the prior

judicial construction.” (White v. Ultramar, Inc. (1999)

21 Cal.4th 563, 572.) Likewise, “ ‘[t]he Legislature is

presumed to be aware of a long-standing

administrative practice…. If the Legislature, as here,

makes no substantial modifications to the [statute],

there is a strong indication that the administrative

practice [is] consistent with the legislative intent.’ ”

(Thornton v. Carlson (1992) 4 Cal.App.4th 1249, 1257

(Thornton); see In re Dannenberg, supra, 34 Cal.4th at

p. 1082; Yamaha Corp. of America v. State Bd. of

Equalization (1998) 19 Cal.4th 1, 21 (conc. opn. of

Mosk, J.).) At the time of the MMC statute’s

enactment, the Legislature was aware that both the

Board and the courts had consistently affirmed the

ALRA’s “certified until decertified” rule. In adding the

MMC provisions to the ALRA statutory scheme, the

Legislature included no provisions concerning

certification or abandonment; it merely provided that

the labor union must be “certified as the exclusive

bargaining agent,” thus incorporating the existing

ALRA certification procedures. (§ 1164, subd. (a).)

The Legislature offered no indication that it intended

the MMC statute to depart from more than two

decades of precedent and provide employers with a

novel abandonment defense.

App-48

As noted, the Board rejected the abandonment

defense in MMC proceedings after the MMC statute’s

enactment in 2002. (San Joaquin Tomato Growers,

Inc., supra, 37 ALRB No. 5 at pp. 3-4; Pictsweet

Mushroom Farms, supra, 29 ALRB No. 3 at pp. 10-11.)

Yet in subsequent amendments to the MMC statute,

the Legislature took no action to modify or overrule

the Board’s interpretation. (See Stats. 2003, ch. 870,

§ 1; Stats. 2011, ch. 697, § 4.) This provides additional

evidence that the Board’s construction of the MMC

statute is consistent with the Legislature’s intent.

(See Thornton, supra, 4 Cal.App.4th at p. 1257.)

The Court of Appeal’s contention that the MMC

process falls “outside the ordinary bargaining context”

lacks support in the MMC statute. Rather, the text

and structure of the statute indicate that the MMC

process is a continuation of the ordinary bargaining

process. The Legislature enacted the MMC statute in

order to “ensure a more effective collective bargaining

process between agricultural employers and

agricultural employees” (Stats. 2002, ch. 1145, § 1, p.

7401, italics added), and the MMC process begins only

after a union representative or an employer makes “a

renewed demand to bargain” (§ 1164, subd. (a), italics

added). Moreover, the MMC statute requires that the

parties, with the assistance of the mediator, conduct

considerable negotiation before the interest

arbitration phase. (§ 1164, subd. (c).) In many cases,

the parties may reach a voluntary agreement on all or

most of the disputed terms before the mediator writes

a final report or before the ALRB issues its final order.

Further, compulsory interest arbitration is not

wholly distinct from “normal” bargaining because it

App-49

imposes contract terms on the parties.

The

availability of interest arbitration, as an ultimate

recourse, is itself a bargaining tool that the

Legislature believed would facilitate resolution of

disputes and consummation of first agreements.

(Stats. 2002, ch. 1145, § 1, p. 7401; Sen. Bill 1156

Analysis, supra, at p. 7.) Other courts have similarly

described interest arbitration “not as a substitute for

collective bargaining, but as an instrument of the

collective bargaining process.” (City of Bellevue v.

International Assn. of Fire Fighters, Local 1604

(Wash. 1992) 831 P.2d 738, 742; see Borough of

Lewistown v. Pennsylvania Labor Relations Bd. (Pa.

1999) 735 A.2d 1240, 1244 [“[T]he collective

bargaining process under Act 111 includes binding

interest arbitration where impasse is reached in

negotiations.”]; Choctaw, supra, 933 P.2d at p. 267

[“This bargaining process now includes the right to

binding mandatory interest arbitration ….”].)

Seizing on a single sentence in the Board’s 1977

decision in Kaplan’s Fruit, the Court of Appeal

suggested that the “Board’s own precedent reflects

[that] any process by which the parties are compelled

to agree to imposed terms ... does not fit into the

parameters of bargaining under the ALRA.” But

Kaplan’s Fruit does not stand for that broad principle.

In the course of holding that employers have a

continuing duty to bargain with a union

representative, the Board merely described the

contemporary state of the law, which at that time did

not provide for interest arbitration: “Nothing we

declare in this opinion alters the statutory protection

given to employers. Their duty to bargain, no matter

how long its duration, does not compel them to agree

App-50

to a proposal.” (Kaplan’s Fruit, supra, 3 ALRB No. 28

at p. 7.) When the Legislature later enacted the MMC

statute, it expanded the “duty to bargain” to include

the MMC process.

Finally, even if the MMC process “differs

materially from bargaining,” as the Court of Appeal

found, neither Gerawan nor the Court of Appeal has

identified any statutory language, legislative history,

or other evidence suggesting that the Legislature

intended “bargaining” to be treated differently from

so-called “postbargaining.” Whether abandonment

should be recognized as a defense in the latter context

but not the former is a question for the Legislature,

not the courts.

Our conclusion is consistent with the purposes of

the ALRA and the MMC statute. The ALRA created a

state policy “to encourage and protect the right of

agricultural employees to full freedom of association,

self-organization, and designation of representatives

of their own choosing, ... and to be free from the

interference, restraint, or coercion of employers of

labor, or their agents, in the designation of such

representatives.” (§ 1140.2.) “[T]he Legislature’s

purpose in enacting the ALRA was to limit the

employer’s influence in determining whether or not it

shall bargain with a particular union ... [and] remove

the employer from any peripheral participation.”

(F & P Growers, supra, 168 Cal.App.3d at pp. 676677.) Allowing an employer like Gerawan to avoid

MMC by purporting to assert the interests of its

employees in claiming that the union representative

had abandoned its employees would permit the

employer to “do indirectly ... what the Legislature has

App-51

clearly shown it does not intend the employer to do

directly.” (Id. at p. 677.)

Indeed, the very purpose of the MMC statute was

to revive long-dormant relationships between

agricultural employers and labor unions in order to

facilitate the adoption of first collective bargaining

agreements.

The Legislature was troubled by

employers’ “continued refusal[s] ... to come to the

bargaining table once an election has occurred,” which

caused employees “to languish without the negotiated

contracts they have elected to secure.” (Sen. Bill 1156

Analysis, supra, at p. 7.) Thus, the MMC statute was

enacted with an understanding that the MMC process

would be available to unions that had long ago reached

an impasse with employers and were unable to resume

negotiations—in other words, unions that are likely to

have less of a presence at the employer precisely

because no collective bargaining agreement yet exists.

In the face of the strong legislative policy against

employer participation in the union selection process,

Gerawan argues that “the employer’s ability to raise

the abandonment defense [against the MMC statute]

is ... the only way to protect the workers’ right to

choose.” The Court of Appeal similarly concluded that

“employees’ right to a representative of their own

choosing would be seriously jeopardized in the

situation of abandonment by a union where ... the

absentee union suddenly reappeared on the scene to

demand the MMC process.”

But the ALRA contains a comprehensive set of

protections for employees who no longer wish to be

represented by the certified labor union.

The

employees or a rival labor union may petition for a

App-52

new election to decertify or replace the existing union

representative. (§§ 1156.3, 1156.7.) “So long as the

employees can petition for a new election if they wish

to remove the union, the employer has no real cause

for concern about whether it is bargaining with the

true representative of its employees.” (Montebello,

supra, 119 Cal.App.3d at p. 28.) Indeed, Gerawan’s

employees did file a petition to decertify the UFW.

Although the Board later set aside that decertification

effort because it found that Gerawan “unlawfully

inserted itself into the campaign” (Gerawan Farming,

Inc. (2016) 42 ALRB No. 1, p. 8), the fact that the

employees mounted such an effort demonstrates that

employees have recourse beyond an employer’s ability

to raise an abandonment defense.

The Court of Appeal opined that the “rapid

timeframe” of the MMC process would mean that

decertification “would often be too late.” But the

ALRA requires that the Board set an election within

seven days from receiving a decertification petition. (§

1156.3, subd. (b).) By contrast, a union representative

generally may not request MMC until 90 days after its

renewed demand to bargain, and even after that, the

statute requires at least 30 days of mediation. (§ 1165,

subds. (a), (c).) Employees thus have a considerable

amount of time in which to deliberate and organize for

purposes of decertification. In this case, for example,

the UFW filed its renewed demand to bargain on

October 12, 2012, and the mediator did not issue his

final report until almost one year later, on September

28, 2013. Moreover, an initial collective bargaining

agreement does not last forever. The contract imposed

by the Board’s final order here, for example, has a

three-year term. If the employees are dissatisfied

App-53

with either the collective bargaining agreement or

their union’s representation, then they can petition to

decertify the union in the third year of that term. (§

1156.7, subd. (c).)

An additional protection against unexplained

union absences is that “a union disclaimer of interest

or union defunctness” terminates the union’s

certification as bargaining representative.

(San

Joaquin Tomato Growers, Inc., supra, 37 ALRB No. 5

at p. 3; Pictsweet Mushroom Farms, supra, 29 ALRB

No. 3 at p. 6.) Thus, under the Board’s precedent,

employees are entitled to select a new union

representative when its existing representative has

suffered an “institutional death” and is therefore

unable to represent the employees.

(Picstweet

Mushroom Farms, supra, 29 ALRB No. 3 at p. 6.)

Finally, under the ALRA, an agricultural

employer can file an unfair labor practice charge

against a certified union representative who “refuse[s]

to bargain collectively in good faith.” (§ 1154, subd.

(c).) In addition, the Board has held that the “[f]ailure

of a union to respond within a reasonable time will

constitute a waiver of the right to bargain over a

proposed change in terms and conditions of

employment.” (Dole Fresh Fruit Company, supra, 22

ALRB No. 4 at p. 18.) An employer thus has multiple

options to defend against “what may appear to be a

derelict or defunct incumbent union.” (Id. at p. 16.)

What an employer cannot do under the ALRA is

unilaterally declare that it will refuse to engage with

the union because it believes the union has abandoned

its employees. This is true whether in response to an

initial demand to bargain, a renewed demand to

App-54

bargain, or a request to refer the parties to MMC. In

all cases, the ALRA reserves the power to select the

union representative to the employees and labor

organizations alone.

In sum, we hold that an employer may not defend

against a union’s MMC request by challenging the

union’s certification as bargaining representative on

the basis of abandonment. The Board did not abuse

its discretion when it declined to consider Gerawan’s

abandonment argument.

CONCLUSION

We reverse the judgment of the Court of Appeal

and remand for further proceedings consistent with

our opinion.

WE CONCUR:

LIU, J.

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

CUÉLLAR, J.

KRUGER, J.

KLINE, J *

* Presiding Justice of the Court of Appeal, First Appellate

District, Division Two, assigned by the Chief Justice pursuant to

article VI, section 6 of the California Constitution

App-55

Appendix B

IN THE COURT OF APPEAL OF THE STATE

OF CALIFORNIA

FIFTH APPELLATE DISTRICT

________________________

No. F068526

________________________

39 ALRB No. 17

________________________

GERAWAN FARMING, Inc.,

Petitioner,

v.

AGRICULTURAL LABOR RELATIONS BOARD,

Respondent;

UNITED FARM WORKERS OF AMERICA,

Real Party in Interest.

_______________________

No. F068676

________________________

Super. Ct. No. 13CECG01408

________________________

GERAWAN FARMING, Inc.,

Plaintiff and Appellant,

v.

AGRICULTURAL LABOR RELATIONS BOARD,

Defendant and Respondent;

UNITED FARM WORKERS OF AMERICA,

Real Party in Interest

and Respondent.

________________________

Filed May 14, 2015

_______________________

App-56

OPINION

Agricultural employer Gerawan Farming, Inc.

(Gerawan) and United Farm Workers of America

(UFW) have never reached mutually acceptable terms

to enter a collective bargaining agreement (CBA)

regarding Gerawan’s agricultural employees. UFW

was certified as the employees’ bargaining

representative in 1992, but after engaging in initial

discussions with Gerawan, disappeared from the

scene for nearly two decades. In late 2012, UFW

returned and both parties renewed negotiations. A

few months later, at UFW’s request, the Agricultural

Labor Relations Board (the Board) ordered the parties

to a statutory “Mandatory Mediation and

Conciliation” (MMC) process pursuant to Labor Code

section 1164 et seq. 1 Under the MMC process, if a

30-day mediation period does not succeed in producing

a CBA by voluntary agreement, the mediator decides

what the terms of the CBA should be and reports that

determination to the Board. Once the mediator’s

report becomes the final order of the Board, the report

establishes the terms of an imposed CBA to which the

parties are bound. (See §§ 1164, 1164.3.) Here,

following the Board’s final order adopting the

mediator’s report, Gerawan petitioned this court for

review under section 1164.5, challenging the validity

of the order and the MMC process on both statutory

and constitutional grounds. 2

Among Gerawan’s

1 Unless otherwise indicated, all further statutory references

are to the Labor Code.

2 Gerawan makes many of the same arguments in its related

appeal, Gerawan Farming, Inc. v. ALRB, case No. F068676,

which we have consolidated herewith for purposes of this opinion.

App-57

claims is the contention that UFW’s lengthy absence

resulted in an abandonment of its status as the

employee’s bargaining representative.

We agree with Gerawan’s statutory argument

that it should have been given an opportunity to prove

abandonment to the Board once UFW requested the

MMC process. More fundamentally, we agree with

Gerawan’s constitutional arguments that the MMC

statute violates equal protection principles and

constitutes an improper delegation of legislative

authority. Accordingly, the Board’s order, Gerawan

Farming, Inc. (2013) 39 ALRB No. 17, is set aside.

FACTS AND PROCEDURAL HISTORY

Gerawan Farming

Gerawan is a family owned farming business that

has been in operation since 1938. Gerawan grows,

harvests and packs stone fruit and table grapes on

about 12,000 acres of farmland located in Fresno and

Madera Counties, employing several thousand directhire workers and farm labor contractor employees. 3

As was the case in the proceedings below,

Gerawan’s petition for review presents a description of

its operations and business model, presumably

The appeal in case No. F068676 is from the superior court’s

denial of a petition for writ of mandate by which Gerawan sought

to set aside the Board’s order directing the parties to the MMC

process. We discuss case No. F068676 herein following our

discussion of the issues raised in the petition for review (i.e., case

No. F068526).

3

In a brief filed with the Board, Gerawan estimated that

in 2012 it employed approximately 5,100 direct-hire workers,

plus an additional 6,300 farm labor contractor employees.

App-58

because of its concern that such practices would be

impeded by the CBA established under the MMC

process. We summarize that description here, not to

agree or disagree, but simply to accurately portray

Gerawan’s stated perspective. According to Gerawan,

since the 1980’s it has placed a major emphasis on

quality control and on keeping well-trained,

productive employees. To ensure the quality of its

produce, it has developed unique interactive methods

to maintain quality control at each step of the

harvesting and packing process, including an ability

to respond to problems in any individual worker’s

performance in real time. Allegedly, throughout the

process, individual workers are notified of any

problems, are given additional training or instruction

and, if necessary, receive corrective action.

Additionally, Gerawan asserts that to retain good

workers it has consistently paid its direct-hire

employees substantially more than the average

industry wage, with many being compensated on a

sliding-scale system (within a targeted per hour

range) based on quality and productivity.

In

Gerawan’s view, these operational features have been

and still are central to its ongoing success, but would

be hampered or prevented by the imposed CBA. 4

The mediator’s report to the Board stated that Gerawan’s

position (i.e., that UFW’s proposals would result in lower quality

or productivity by interfering with Gerawan’s business model)

was not adequately substantiated: “The Company predicts,

without any evidentiary support, that there will be a cost in

terms of lower productivity, morale, retention, and

competitiveness if many of the Union’s proposals are

implemented, because this business model will be disrupted.”

4

App-59

UFW’s Certification in 1992

On July 8, 1992, following a runoff election in

1990, UFW was certified as the exclusive bargaining

representative for Gerawan’s agricultural employees.

On July 21, 1992, UFW sent a letter to Gerawan

requesting negotiations.

On August 13, 1992,

Gerawan accepted UFW’s request to begin bargaining

and invited UFW to submit any proposals it wished to

make. UFW did not send a proposal to Gerawan until

November 22, 1994. In February 1995, the parties

held one introductory negotiating session. 5 After that,

UFW did not contact Gerawan again until late 2012.

UFW’s Reappearance in 2012 and the Renewal of

Bargaining

On October 12, 2012, UFW sent a letter

reasserting its status as the certified bargaining

representative for Gerawan’s agricultural employees

and demanded that Gerawan engage in negotiations.

Gerawan responded by letter dated November 2, 2012,

expressing its willingness to bargain in good faith, but

also raising a number of questions and concerns based

on UFW’s lengthy absence from the scene. An

explanation of UFW’s absence was requested, but

UFW refused. Nonetheless, the parties proceeded

with negotiations. Between January 17, 2013 and

March 29, 2013, the parties held 10 or more

bargaining sessions.

5 According to Gerawan’s negotiator, the February 1995 session

focused on introductions and on deficiencies in UFW’s proposal.

The session ended with an understanding UFW would make a

revised proposal and would contact Gerawan about future

negations. Neither of these things happened.

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MMC Process Ordered by the Board

On March 29, 2013, UFW filed a declaration with

the Board requesting that the Board issue an order

referring the parties to the MMC process pursuant to

section 1164 et seq. Gerawan filed an answer

objecting to UFW’s request on the grounds that the

requirements of sections 1164 and 1164.11 were not

satisfied and UFW had abandoned its status as the

employees’ bargaining representative. On April 16,

2013, the Board rejected Gerawan’s arguments and

ordered the parties to begin the MMC process.

Gerawan filed a petition for a writ of mandate in

the superior court, asking the court to set aside the

Board’s order sending the parties to the MMC process.

The superior court denied the petition. 6

A mediator was impaneled in May 2013 and

conducted several mediation sessions with the parties.

After the voluntary mediation phase of the MMC

process was exhausted without any agreement being

reached on the terms of a CBA, the mediator

conducted on the record hearings in which he received

testimony and evidence and made rulings on

objections. 7 Thereafter, the mediator alone crafted the

subject CBA. On September 28, 2013, the mediator

Gerawan appealed from the superior court’s denial of its

petition for writ of mandate. As noted, we have consolidated that

separate appeal herewith.

6

7 The mediator excluded Gerawan’s employees from attending

the on the record portion of the MMC proceedings. The Board

ruled that such exclusion was proper.

Gerawan filed a

declaratory relief action in superior court, challenging the

exclusion on constitutional grounds. That matter is not part of

the present appeal.

App-61

submitted his report (i.e., his determination of the

CBA’s terms) to the Board.

The Board Adopts the Mediator’s Report

Gerawan filed a petition with the Board objecting

to the mediator’s report, both generally and as to its

particular terms. The Board granted review and

remanded the matter back to the mediator as to six

issues. After further meetings were held with the

parties, the mediator issued a second report to the

Board dated November 6, 2013. On November 19,

2013, the Board adopted the mediator’s second report

and it became the final order of the Board as set forth

in Gerawan Farming, Inc., supra, 39 ALRB No. 17, the

legal effect of which was to establish the mediator’s

proposed CBA (as reported) as the final order of the

Board. (See § 1164.3.)

The Prior Decertification Election

Two weeks beforehand, on November 5, 2013,

with the Board’s authorization, Gerawan’s employees

held an election to decide whether to decertify UFW as

their bargaining representative. The ballots were

impounded by the Board and have not yet been

counted, pending the Board’s resolution of claims of

misconduct relating to the election. Shortly after the

employees’ votes were cast, Gerawan requested that

the Board stay the MMC proceedings until the

outcome of the election was known. The Board denied

the stay request on November 14, 2013, without

explanation. 8 Thus, it is undisputed that when the

8 On November 13, 2013, senior UFW officials made improper

ex parte communications to senior Board counsel on matters that

were before the Board in regard to Gerawan and UFW, including

App-62

Board adopted the mediator’s report on November 19,

2013, and thereby approved the CBA as determined by

the mediator, it did so despite the intervening

decertification election, which may have ousted UFW.

Gerawan’s Petition for Review

On December 16, 2013, Gerawan filed a petition

for review (or more specifically, a petition for a writ of

review) to this court, seeking our review under section

1164.5 of the Board’s final order in Gerawan Farming,

Inc., supra, 39 ALRB No. 17. In its petition, Gerawan

contends that the Board’s order was invalid on various

statutory and constitutional grounds. The statutory

grounds focus on Gerawan’s claims that the criteria

for ordering the parties to the MMC process were not

satisfied, including because UFW allegedly abandoned

its status as the employee’s bargaining representative.

In its constitutional arguments, Gerawan asserts the

MMC process violates guarantees of equal protection

and due process, and also constitutes an improper

delegation of legislative powers.

Furthermore,

Gerawan maintains that the right to freedom of

contract prevents the State from imposing a CBA by

administrative fiat.

Upon our consideration of the petition, the

parties’ briefing, and the Board’s certified record, we

the decertification vote and UFW’s desire to immediately enforce

the mediator’s CBA.

The ex parte communications were

disclosed by the Board to all parties herein by letter dated

November 19, 2013. In light of the ex parte communications,

Gerawan asked the Board to vacate its final order. We have not

been made aware of the Board’s response (if any) to that request.

Gerawan does not raise the ex parte communications or the

Board’s handling of same as issues herein.

App-63

issued a writ of review and formally notified the

parties of our review of Gerawan Farming, Inc., supra,

39 ALRB No. 17, pursuant to section 1164.5.

DISCUSSION

In addressing the contentions raised in Gerawan’s

petition for review (case No. F068526), our approach

will be to discuss the statutory issues first and the

constitutional questions second. Lastly, we will

briefly address the separate appeal filed by Gerawan

(case No. F068676), which has been consolidated

herewith.

THE STATUTORY ISSUES

Inasmuch as we will conclude that the MMC

statute unconstitutionally deprives Gerawan of equal

protection and unconstitutionally delegates legislative

authority, we could confine our opinion to a discussion

of those issues alone. However, the parties have

extensively briefed other issues relating to statutory

interpretation and application of the MMC statute.

We are not the highest court of review and hence do

not presume to have the last word on this subject. We

deem it appropriate to address the following statutory

issues should they become relevant following a higher

court ruling or a future attempt by the Legislature to

enact another version of the MMC statute.

Additionally, we reach the statutory issues as an

alternative basis for our ruling; that is, even if the

MMC statute were constitutionally sound, we would

still conclude under the statutory arguments that the

Board abused its discretion. For the sake of efficiency,

we place our discussion of the statutory issues first

because doing so will provide a thorough overview of

the MMC statute (i.e., how it works and its purpose),

App-64

which will give helpful background

consideration of the constitutional issues.

I.

to

our

Overview of the Statutory Framework

The Labor Code provisions creating the MMC

process (§§ 1164-1164.13; the MMC statute) were

added in 2002 as a new chapter (ch. 6.5) to the part of

the code dealing with agricultural labor relations (div.

2, pt. 3.5), commonly known as the Agricultural Labor

Relations Act (§ 1140 et seq.; the ALRA). (See Stats.

2002, ch. 1145, § 2.) Therefore, to understand how the

MMC statute fits within its larger statutory

framework, we begin with a brief description of the

ALRA.

A. The ALRA

In 1975, the California Legislature enacted the

ALRA “to provide for collective-bargaining rights for

agricultural employees” (§ 1140.2) by putting into

place a system of laws generally patterned after the

National Labor Relations Act (29 U.S.C. § 151; the

NLRA). (J.R. Norton Co. v. Agricultural Labor

Relations Bd. (1979) 26 Cal.3d 1, 8 (J.R. Norton Co.);

see § 1148 [in implementing the ALRA, the Board

follows applicable precedents of the NLRA].) The

ALRA declares it is the policy of the State of California

“to encourage and protect the right of agricultural

employees to full freedom of association, selforganization, and designation of representatives of

their own choosing … for the purpose of collective

bargaining or other mutual aid or protection.”

(§ 1140.2.)9 As noted by our Supreme Court, “[a]

9 The same employees also have the right “to refrain from any

or all of such activities .…” (§ 1152.)

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central feature in the promotion of this policy is the

[ALRA’s] procedure for agricultural employees to elect

representatives ‘for the purpose of collective

bargaining with respect to rates of pay, wages, hours

of employment, or other conditions of employment.’

(Id., § 1156 et seq.)” (J.R. Norton Co., supra, at p. 8.)

Under that election procedure, if a proper petition has

been filed, the Board directs that an election be held

by a secret ballot vote of employees to determine an

issue of employee representation, such as whether a

particular labor organization shall be the employees’

bargaining representative. 10

(§§ 1156, 1156.3.)

Except in certain runoff elections, every ballot “shall

provide the employee with the opportunity to vote

against representation by a labor organization by

providing an appropriate space designated ‘No Labor

Organizations.’” (§ 1156.3, subd. (c).) After the

election, the Board “shall certify” the result unless it

determines based on a sustained election challenge

“that there are sufficient grounds to refuse to do so.”

(§1156.3, subd. (e)(2) [stating grounds for such

refusal].)

If a labor organization (i.e., a union)11 is certified

as the winner of such an election and thus becomes the

employees’ bargaining representative, certain legal

consequences follow. First, a statutory bar exists to

holding another representation election for at least

the initial one-year certification period. (§§ 1155.2,

A similar procedure exists by which the agricultural

employees may vote to decertify a labor organization, so that it is

no longer their representative. (§ 1156.7.)

10

11 The terms “union” and “labor organization” are used

synonymously herein.

App-66

subd. (b), 1156.5, 1156.6.) Second, a duty to bargain is

created, which is owed by the employer to the union

and vice versa. (§§ 1152, 1153, subd. (e), 1154, subd.

(c).) However, unlike the election bar, the duty to

bargain does not expire with the initial one-year

period. That is because a union’s status as the

employees’ certified bargaining representative

continues beyond the one-year period for purposes of

extending the parties’ duty to bargain. (Montebello

Rose Co. v. Agricultural Labor Relations Bd. (1981)

119 Cal.App.3d 1, 24-26, 29 (Montebello Rose)

[affirming ALRB’s conclusion that a certified union

continues to enjoy that status after the initial

certification year expires, based in part on NLRB

precedent that there is a presumption of continuing

majority status]; F&P Growers Assn. v. Agricultural

Labor Relations Bd. (1985) 168 Cal.App.3d 667, 672

(F&P Growers) [noting “‘rebuttable presumption’”

under ALRA that a union continues to have majority

support

after

initial

one-year

period].) 12

Consequently, it has been held that once a union is

certified as the bargaining representative of an

employer’s agricultural employees, the employer’s

duty to bargain with that union continues until the

union is replaced or decertified through a subsequent

election pursuant to sections 1156.3 or 1156.7.

(Montebello Rose, supra, at pp. 23-24, 29 [approving

statutory interpretation adopted by the Board in

12 Although section 1155.2, subdivision (b), refers to an initial

one-year period of certification (and allows for a one-year

extension thereof), that time limitation has been held to relate

only to the election bar, not to the duty-to-bargain aspect of

certification. (Montebello Rose, supra, 119 Cal.App.3d at pp. 2430.)

App-67

Kaplan’s Fruit & Produce Co., Inc. (1977) 3 ALRB No.

28 (Kaplan’s)]; Adamek & Dessert, Inc. v. Agricultural

Labor Relations Bd. (1986) 178 Cal.App.3d 970, 983

(Adamek & Dessert, Inc.); Bruce Church, Inc. (1991) 17

ALRB No. 1, p. 13 [stating principle adhered to by the

Board that “a Union remains the certified

representative

until

decertified”];

Pictsweet

Mushroom Farms (2003) 29 ALRB No. 3, p. 7

[same].) 13

In summary, the ALRA recognizes, protects and

promotes agricultural employees’ right to collective

bargaining (§ 1140.2), and in the furtherance of that

right the ALRA requires the agricultural employer

and the employees’ certified representative to bargain

collectively in good faith (§§ 1153, subd. (e), 1154,

subd. (c)). The ALRA defines the parties’ mutual

obligation to bargain collectively in good faith as

follows: “[T]o bargain collectively in good faith is the

performance of the mutual obligation of the

agricultural employer and the representative of the

agricultural employees to meet at reasonable times

and confer in good faith with respect to wages, hours,

and other terms and conditions of employment, or the

negotiation of an agreement, or any questions arising

thereunder, and the execution of a written contract

incorporating any agreement reached if requested by

either party, but such obligation does not compel

13 A third consequence of certification is that no CBA may be

negotiated or entered into by the employer with any other (not

currently certified) labor organization. (§ 1153, subd. (f).) The

ALRA further declares that only a certified labor organization

may be a party to a legally valid CBA. (§ 1159.)

App-68

either party to agree to a proposal or require the

making of a concession.” (§ 1155.2, subd. (a).)

When an employer or labor organization fails to

bargain in good faith as required, or when other unfair

labor practices (or ULP’s) as defined in the ALRA have

occurred, recourse to the Board is provided and the

Board is empowered to issue orders or take remedial

action to effectuate the purposes of the ALRA.

(§§ 1160-1160.9; see, e.g., Harry Carian Sales v.

Agricultural Labor Relations Bd. (1985) 39 Cal.3d 209,

229-230 [discussing Board’s remedial authority

relating to ULP’s].)

B. The MMC Statute

In 2002, the Legislature made the following

legislative declaration and findings: “[A] need exists

for a mediation procedure in order to ensure a more

effective collective bargaining process between

agricultural employers and agricultural employees,

and thereby more fully attain the purposes of the

[ALRA], ameliorate the working conditions and

economic standing of agricultural employees, create

stability in the agricultural labor force, and promote

California’s economic well-being by ensuring stability

in its most vital industry.” (Stats. 2002, ch. 1145, § 1.)

To that end, the Legislature enacted the MMC statute

in 2002 (Stats. 2002, ch. 1145, § 2, as amended by

Stats. 2002, ch. 1146, § 1), creating a binding interest

arbitration procedure (what we have called the MMC

process) that may be ordered by the Board as a means

to establish the terms of an initial CBA where the

parties failed to reach an agreement. (Hess Collection

Winery v. Agricultural Labor Relations Bd. (2006) 140

App-69

Cal.App.4th 1584, 1591, 1597 (Hess).) 14 Proponents of

the law asserted that such measures were necessary

because, after unions were certified to represent

agricultural employees, many employers “refused to

agree to the terms of [CBA’s].” (Hess, supra, at

p. 1593.)

The heart of the MMC process is described in

section 1164. Pursuant to subdivision (a) of that

section, the employer or the certified labor

organization may seek to initiate the MMC process by

filing a declaration with the Board requesting such

relief. The declaration must show that the statutory

requirements for ordering the parties to the MMC

process have been met, and it may only be filed after

the relevant time period specified in the statute has

expired. (§ 1164, subd. (a); see Cal. Code Regs., tit. 8,

§ 20400.) In this regard, the precise wording of section

1164, subdivision (a), is in part as follows: “An

agricultural employer or a labor organization certified

as the exclusive bargaining agent of a bargaining unit

of agricultural employees may file with the board, at

any time following (1) 90 days after a renewed demand

As Hess noted, the MMC process (also called “interest

arbitration”) does not involve “interpreting an existing

agreement to resolve a dispute,” but “determining what the terms

of a new agreement should be.” (Hess, supra, 140 Cal.App.4th at

p. 1597.) Thus, despite the law’s use of the term “‘mediator,’” the

process “amounts to compulsory interest arbitration.” And,

although section 1164 refers to the end result being a “‘collective

bargaining agreement,’” there “is no agreement,” since the

employer in that case (as here) did not agree to be bound by its

terms nor to submit the matter to interest arbitration. (Hess,

supra, at p. 1597.) Rather, “[t]he terms of the ‘agreement’

determined by the arbitrator were imposed upon Hess by force of

law.” (Ibid.)

14

App-70

to bargain by an agricultural employer or labor

organization certified prior to January 1, 2003, which

meets the conditions specified in Section 1164.11,

(2) 90 days after an initial request to bargain by an

agricultural employer or labor organization certified

after January 1, 2003, … a declaration that the parties

have failed to reach a [CBA] and a request that the

board issue an order directing the parties to

mandatory mediation and conciliation of their issues.”

(Italics added.)

As the italicized language above states, section

1164.11 sets forth additional conditions that must be

satisfied (as prerequisites to the MMC process) if the

certification occurred prior to January 1, 2003.

Section 1164.11 states: “A demand made pursuant to

paragraph (1) of subdivision (a) of Section 1164 may

be made only in cases which meet all of the following

criteria: (a) the parties have failed to reach agreement

for at least one year after the date on which the labor

organization made its initial request to bargain,

(b) the employer has committed an unfair labor

practice, and (c) the parties have not previously had a

binding contract between them.”

When a declaration pursuant to subdivision (a) of

section 1164 is filed with the Board and shows that the

statutory requirements for ordering the MMC process

are satisfied, the Board “shall immediately issue an

order directing the parties to [MMC] of their issues,” 15

15 The Board also considers the answer (if any) filed by the other

party to the collective bargaining relationship. Pursuant to

California Code of Regulations, title 8, section 20401,

subdivision (a), the other party is permitted to file an answer to

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whereupon steps are taken to select a mediator.

(§ 1164, subd. (b).) Upon his or her appointment, the

mediator promptly begins a 30-day mediation process

seeking to resolve issues by voluntary agreement. 16

(§ 1164, subd. (c).) If that mediation process is deemed

exhausted (i.e., no CBA is reached), then, “[w]ithin 21

days, the mediator shall file a report with the board

that resolves all of the issues between the parties and

establishes the final terms of a [CBA] .…” (§ 1164,

subd. (d).) The mediator’s report to the Board must

include “the basis for the mediator’s determination”

and “shall be supported by the record.” (Ibid.)

In resolving disputed issues and deciding what

the CBA’s terms should be, the mediator “may

consider those factors commonly considered in similar

proceedings, including: (1) The stipulations of the

parties.

[¶]

(2) The financial condition of the

employer and its ability to meet the costs of the

contract in those instances where the employer claims

an inability to meet the union’s wage and benefit

demands. [¶] (3) The corresponding wages, benefits,

and terms and conditions of employment in other

[CBA’s] covering similar agricultural operations with

similar labor requirements. [¶] (4) The corresponding

wages, benefits, and terms and conditions of

employment prevailing in comparable firms or

industries in geographical areas with similar

economic conditions, taking into account the size of the

the declaration within three days of service of the declaration,

identifying any statements in the declaration that are disputed.

16 The mediator may extend the 30-day mediation period for an

additional 30 days on agreement of the parties. (§ 1164, subd.

(c).)

App-72

employer, the skills, experience, and training required

of the employees, and the difficulty and nature of the

work performed. [¶] (5) The average consumer prices

for goods and services according to the California

Consumer Price Index, and the overall cost of living,

in the area where the work is performed.” (§ 1164,

subd. (e).)

Within seven days of the filing of the mediator’s

report, either party may petition the Board for review

of the report. (§ 1164.3, subd. (a).) The grounds for

such review are that a provision of the CBA set forth

in the mediator’s report is (1) unrelated to wages,

hours, or other conditions of employment, (2) based on

clearly erroneous findings of material fact, or

(3) arbitrary or capricious in light of the mediator’s

findings of fact. (Ibid.) If a prima facie case for review

is not shown, or if no petition is filed, the report

becomes the final order of the Board. (§ 1164.3, subd.

(b).) If the Board determines that a prima facie case

for review is shown, it may grant review of the report.

(Ibid.) If, upon review, the Board finds that one or

more grounds for review have been established, it will

order the mediator to modify the problematic terms of

the CBA. (Id., subd. (c).) In that case, the mediator

meets with the parties again and files a second report

with the Board. (Ibid.) As before, the parties may

petition the Board for review of the second report. (Id.,

subd. (d).) If no petition is filed, the second report

takes effect as the final order of the Board. (Ibid.) If

a petition is filed but a prima facie showing is not

made, the Board “shall issue an order confirming the

mediator’s report and order it into immediate effect.”

(Ibid.) If the Board accepts review and finds that the

second report is defective, it will determine the

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remaining issues itself and issue a final order.

(Ibid.) 17

Section 1164.5 provides for judicial review of the

Board’s final order. That section states: “Within 30

days after the order of the board takes effect, a party

may petition for a writ of review in the court of appeal

or the California Supreme Court.” (Id., subd. (a).)

Appellate review is limited to the grounds specified in

section 1164.5, but those grounds include, inter alia, a

consideration of whether the Board acted in excess of

its powers, whether it failed to proceed in the manner

required by law, whether the Board’s order or decision

“was an abuse of discretion,” and/or whether the

Board’s order or decision “violate[d] any right of the

petitioner under” the federal or state constitutions.

(Id., subd. (b)(1)-(4).)

II. Standard of Review and Rules of Statutory

Construction

Having introduced the MMC statute, we next

consider the nature of the statutory claims raised in

Gerawan’s petition. In a nutshell, Gerawan argues

the Board did not follow the law when it ordered the

parties to the MMC process because several of the

statutory requirements for such an order (set forth in

17 The parties also have a right to file a petition to set aside the

mediator’s report on the ground that (1) the mediator’s report

was procured by corruption, fraud, or other undue means,

(2) there was corruption in the mediator, or (3) the rights of the

petitioning party were substantially prejudiced by the

misconduct of the mediator. If any of these grounds are found to

exist, the Board will vacate the report, order the selection of a

new mediator, and the mediation process starts over. (§ 1164.3,

subd. (e).)

App-74

sections 1164 and 1164.11) allegedly were not met.

According to Gerawan, the Board adopted erroneous

interpretations of the statutory provisions at issue,

causing it to incorrectly conclude that the statutory

requirements were satisfied. Additionally, Gerawan

asserts the Board improperly rejected its argument

that UFW abandoned its status as the employees’

bargaining representative and, therefore, lacked

standing to invoke the MMC process under section

1164.

It is clear that Gerawan’s claims involve questions

of law relating to statutory construction. The rules

governing statutory construction are well settled. “We

begin with the fundamental premise that the objective

of statutory interpretation is to ascertain and

effectuate legislative intent.

[Citations.]

To

determine legislative intent, we turn first to the words

of the statute, giving them their usual and ordinary

meaning. [Citations.] When the language of a statute

is clear, we need go no further.” (Nolan v. City of

Anaheim (2004) 33 Cal.4th 335, 340 (Nolan).) In that

case, “no court need, or should, go beyond that pure

expression of legislative intent. [Citation.]” (Green v.

State of California (2007) 42 Cal.4th 254, 260.) “If the

words themselves are not ambiguous, we presume the

Legislature meant what it said, and the statute’s plain

meaning governs.” (Wells v. One2One Learning

Foundation (2006) 39 Cal.4th 1164, 1190.)

However, when the language of the statute “is

susceptible

of

more

than

one

reasonable

interpretation, we look to a variety of extrinsic aids,

including the ostensible objects to be achieved, the

evils to be remedied, the legislative history, public

App-75

policy, contemporaneous administrative construction,

and the statutory scheme of which the statute is a

part. [Citations.]” (Nolan, supra, 33 Cal.4th at p.

340.) Using these extrinsic aids, we “‘select the

construction that comports most closely with the

apparent intent of the Legislature, with a view to

promoting rather than defeating the general purpose

of the statute, and avoid an interpretation that would

lead to absurd consequences.’ [Citation.]” (People v.

Sinohui (2002) 28 Cal.4th 205, 212.)

Where judicial interpretation is required, courts

give

deference

to

an

agency’s

reasonable

interpretation of the statutory enactment that the

agency has been entrusted by law to enforce.

(Montebello Rose, supra, 119 Cal.App.3d at p. 24.)

Nevertheless, it is fundamental in statutory

construction that courts should ascertain the intent of

the Legislature so as to effectuate the purpose of the

law. (J.R. Norton Co., supra, 26 Cal.3d at p. 29.)

Thus, while an administrative agency is entitled to

deference when interpreting policy in its field of

expertise, it cannot alter or amend the statute that it

is interpreting, or enlarge or impair its scope. (Ibid.;

Adamek & Dessert, Inc., supra, 178 Cal.App.3d at

p. 978.)

To the above, we add the following basic precepts

regarding a court’s role in the interpretation of

statutes. As expressed in Cadiz v. Agricultural Labor

Relations Bd. (1979) 92 Cal.App.3d 365, at page 372:

“The guiding principle of interpretation was laid down

by the Legislature in Code of Civil Procedure section

1858: ‘In the construction of a statute or instrument,

the office of the Judge is simply to ascertain and

App-76

declare what is in terms or in substance contained

therein, not to insert what has been omitted, or to omit

what has been inserted; and where there are several

provisions or particulars, such a construction is, if

possible, to be adopted as will give effect to all.’ That

prime rule of construction has been adopted and

restated by the cases.” Furthermore, it is not a court’s

function to second-guess the policy choices or wisdom

of particular legislation: “‘Courts do not sit as superlegislatures to determine the wisdom, desirability or

propriety of statutes enacted by the Legislature.’

[Citations.]” (Ibid.)

III. Requirements of Section 1164.11

Gerawan contends that two of the conditions for

relief stated in section 1164.11 were not shown by

UFW and, therefore, the Board should not have

ordered the parties to the MMC process. Under that

section, where the union’s certification occurred prior

to January 1, 2003, no demand to the Board may be

made for referral to the MMC process unless the

following criteria are met: “(a) the parties have failed

to reach agreement for at least one year after the date

on which the labor organization made its initial

request to bargain, (b) the employer has committed an

unfair labor practice, and (c) the parties have not

previously had a binding contract between them.”

(§ 1164.11; cf. § 1164, subd. (a)(1).)

Specifically,

Gerawan argues that the requirements of criteria (a)

and (b) of section 1164.11 (hereafter sections

1164.11(a) and 1164.11(b)) were not established based

on Gerawan’s proposed interpretations of those

provisions. As explained below, we reject Gerawan’s

arguments regarding the construction of the statutory

App-77

language and conclude that the Board followed the

clear and unequivocal terms of section 1164.11 when

it held that the requirements thereof were met.

A. The Parties Failed to Reach Agreement for at

Least One Year

Section 1164.11(a) states a requirement for

seeking the MMC process in cases involving pre-2003

certifications that “the parties have failed to reach

agreement for at least one year after the date on which

the labor organization made its initial request to

bargain.” (Italics added.) In the proceedings before

the Board, Gerawan insisted this language meant

there had to be “‘a good faith and sustained effort’” at

negotiation for at least a one-year period. It further

argued that since UFW did not make such a showing,

the Board was constrained to deny UFW’s request.

The Board disagreed. It explained that section

1164.11(a) does not contain any language requiring

proof of one year of sustained and active bargaining,

but only that “the parties failed to reach an agreement

for at least one year” after the initial request to

bargain, which the Board found to be the case.

In its opening brief herein, Gerawan argues the

Board erred because the provision should be construed

to specifically require a showing that the parties

“actively attempt[ed] to bargain for at last one year,”

since “one cannot ‘fail’ to reach an agreement if one

does not try.”

We reject Gerawan’s proposed

interpretation.

The plain language of section

1164.11(a) simply requires that (1) the parties have

not reached agreement and (2) at least one year has

passed since the initial request to bargain. The

provision makes no mention of the particular

App-78

circumstances surrounding the parties’ failure to

agree. Contrary to Gerawan’s suggestion, nothing in

section 1164.11(a) mandates an affirmative showing of

active and/or sustained bargaining over a one-year

period. “When the language of a statute is clear, we

need go no further.” (Nolan, supra, 33 Cal.4th at

p. 340.) Whether or not it would have been wise to

include a threshold requirement that before a party

may invoke the MMC process, the party must

demonstrate there was one year of sustained

bargaining, the Legislature did not do so in the

particular provision under consideration here. One

may argue it should have, but we are constrained by

the fact that it did not. That ends the matter, since it

is not our function to insert what the Legislature has

omitted, nor may we, “under the guise of construction,

rewrite the law or give the words an effect different

from the plain and direct import of the terms used.’

[Citation.]” (People v. Leal (2004) 33 Cal.4th 999,

1008.)

Although, as Gerawan points out, other provisions

of the ALRA obligate the parties to bargain in good

faith (e.g., §§ 1153, subd. (e), 1154, subd. (c), 1155.2,

subd. (a)), those provisions do not alter the plain

meaning of what must be shown under section

1164.11(a). 18 Even if, based on the general bargaining

obligation, the parties should have engaged (or

18 Of course, if a labor union refuses to bargain in good faith,

including a failure to respond to the employer within a

reasonable time or other dilatory or evasive action, the employer

can raise the union’s failure in a ULP charge pursuant to section

1154, subdivision (c). (See Dole Fresh Fruit Co. (1996) 22 ALRB

No. 4, pp. 22-25.) “[T]he duty to bargain is not unilateral, neither

are the Board’s processes.” (Id., p. 23, fn. omitted.)

App-79

attempted to engage) in active and/or sustained

bargaining during the one-year period specified in

section 1164.11(a), the latter provision does not

require that such conduct be affirmatively

demonstrated as part of the necessary prima facie

showing to request the MMC process. 19

In this case, it is not disputed that UFW’s initial

request to bargain was made in 1992. Additionally,

UFW followed up its request by making a contract

proposal to Gerawan in 1994, and one bargaining

session occurred between the parties in early 1995.

Insofar as the parties have still not reached

agreement, the discrete statutory requirement set

forth in section 1164.11(a) was clearly satisfied.

Gerawan’s Further Arguments Do Not Persuade Us to

Depart From the Plain Meaning of Section 1164.11(a)

Having upheld the plain meaning of section

1164.11(a), we briefly explain why we have not

accepted Gerawan’s arguments that we should depart

from the statute’s clear and literal terms.

In essence, Gerawan asserts that if the statute

were treated as simply a passage-of-time requirement,

it would lead to absurd results and contravene the

overall legislative purposes of the ALRA and MMC

statutes. To avoid that outcome, Gerawan argues that

19 Consistent with our conclusion as to the plain meaning of

this provision, we observe that each of the conditions set forth in

sections 1164 and 1164.11 appear to be matters that are

ordinarily capable of being readily and quickly ascertained

(rather than debatable factual matters that might have to be

litigated), which comports with the Legislature’s apparent wish

to create an expedited process, at least in the usual or typical

case.

App-80

we should construe the provision to include an active

or sustained bargaining requirement, even if that is

not its plain meaning. (See, e.g., California School

Employees Assn. v. Governing Board (1994) 8 Cal.4th

333, 340 [stating rule that a court need not follow the

plain meaning of a statute when to do so would

frustrate the manifest purpose of the legislation as a

whole or lead to absurd results]; DaFonte v. Up-Right,

Inc. (1992) 2 Cal.4th 593, 601 [stating rule that plain

meaning may be disregarded only when that meaning

is repugnant to the general purview of the act or for

some other compelling reason].) In this regard, it is

pointed out that the ALRA (of which the MMC statute

is a part) has a purpose to promote good faith

bargaining between the employer and the employees’

chosen representative so they may potentially reach a

mutually acceptable agreement, which purpose is

supported by the duty to bargain collectively in good

faith (see §§ 1140.2, 1155.2, subd. (a)). According to

Gerawan, if the Board’s interpretation 20 were correct,

a union could make an initial request to bargain and

then simply wait out the clock or engage in surface

bargaining until enough time had passed to demand

the MMC process (i.e., precisely what Gerawan

contends happened here). Allegedly, a union in that

situation would have no incentive to make voluntary

concessions or otherwise engage in serious or genuine

efforts to reach an agreement. In short, Gerawan

maintains that the Board’s interpretation would lead

to absurd results at odds with the legislative purposes

by (1) undermining a union’s incentive to bargain in

20 That is, a literal reading of the statute according to its plain

meaning, as we have adopted herein.

App-81

good faith and (2) potentially forcing employers to

undergo the MMC process without a sustained period

of good faith bargaining for an entire year.

While Gerawan’s arguments identify significant

concerns as to the potential impacts of section

1164.11(a), we believe they fall short of showing that

we should effectively rewrite the statute by construing

it to include a sustained or active bargaining

requirement that the Legislature did not put there.

(See Unzueta v. Ocean View School Dist. (1992) 6

Cal.App.4th 1689, 1698 [absurdity exception to plain

meaning rule “should be used most sparingly by the

judiciary and only in extreme cases else we violate the

separation of powers principle of government”].)

Among other things, Gerawan’s analysis of the

statutory purposes fails to adequately account for the

fact that the ALRA was amended by the MMC statute.

The Legislature determined that the ALRA, in its

original form, was not adequately fulfilling its

purposes. (Stats. 2002, ch. 1145, § 1; Hess, supra, 140

Cal.App.4th at p. 1600.) New measures were deemed

necessary because it was perceived that many

employers were unwilling to enter into an initial CBA.

(Hess, supra, at p. 1593.) Therefore, the MMC statute

was enacted as an amendment to the ALRA to create

a “one-time” compulsory process to bring about an

initial CBA between parties who have never entered

into such an agreement, where certain statutory

conditions were met. (Hess, supra, at pp. 1600-1601

[noting the purpose “to change attitudes toward

collective bargaining by compelling the parties to

operate for at least one term” with an imposed CBA].)

Among those statutory conditions is the one now

before us—the passage of the one-year time period

App-82

described in section 1164.11(a). In that provision, the

Legislature specified that expiration of the one-year

time period without a CBA (i.e., “the parties have

failed to reach agreement for at least one year after”

the union’s initial request to bargain) was one of the

threshold requirements for seeking a referral to the

MMC process in cases involving pre-2003

certifications. Evidently, the Legislature believed

that if more than one year elapsed without a CBA

being reached, that fact reasonably indicated the

MMC process was appropriate, assuming that the

other requirements were also met. Viewed in light of

the entire statutory context, we are unable to conclude

that the one-year provision of section 1164.11(a),

when accorded its plain and literal meaning, would

substantially frustrate the main purpose of the ALRA

as amended by the MMC statute, or otherwise lead to

absurd results.

In a further effort to support its position on this

issue, Gerawan notes that the Board’s own past

decisions had, on at least two occasions, expressed an

understanding of the relevant statutory provisions

that sounded remarkably similar to Gerawan’s

position. (See Pictsweet Mushroom Farms, supra, 29

ALRB No. 3, p. 12 [to be sent to MMC process,

employer “must have been through a period of

bargaining for a year without having reached a

contract”]; D’Arrigo Bros. Co. (2007) 33 ALRB No. 1,

p. 7 [MMC process may not be invoked unless parties

have attempted to negotiate on their own for the

statutory period].) 21 However, it appears that such

21 Also, the Governor’s written signing message indicated that

the bill’s (the MMC statute’s) provisions would “‘Appl[y] to first

App-83

comments were made by the Board in connection with

tangential issues, and that once the Board directly

considered the present issue of statutory construction,

it followed the plain meaning (see, e.g., Gerawan

Farming, Inc. (2013) 39 ALRB No. 5, p. 3). In any

event, we are bound to do so here. 22

Still, the Board’s earlier comments about the

import of the relevant statutory provisions provide

some evidence that Gerawan’s proposed construction

is not mere wishful thinking on its part. There is

cogency and common sense in Gerawan’s argument

that active bargaining should precede the MMC

process, and it is not unreasonable to suggest that the

former should be a prerequisite to commencing the

latter. But such argument is more properly presented

to the Legislature, whose exclusive function is to enact

statutes such as those at issue here. Moreover, if we

were to adopt Gerawan’s interpretation, what

additional specific language would we incorporate into

the statute: sustained bargaining, active bargaining,

actual bargaining, attempted bargaining? Would we

likewise be expected to delineate how much or what

quality of bargaining effort would constitute

contracts only,’” and as to pre-2003 certifications, “‘[t]he parties

must have attempted to negotiate for one year .…’” (Historical

and Statutory Notes, 44A West’s Ann. Lab. Code (2011 ed.) foll.

§ 1164, p. 401.)

We must ascertain the intent of the Legislature so as to

effectuate the purpose of the law. (J.R. Norton Co., supra, 26

Cal.3d at p. 29.) Although an administrative agency is entitled

to deference when interpreting policy in its field of expertise, it

cannot alter or amend the statute that it is interpreting, or

enlarge or impair its scope. (Ibid.; Adamek & Dessert, Inc., supra,

178 Cal.App.3d at p. 978.)

22

App-84

sustained, active, actual, or attempted bargaining?

And if there was no bargaining during the one-year

period under any definition, would it matter why there

was no bargaining, or whose fault, if any, it was for the

parties’ failure to reach an agreement? These are

some of the prickly questions that would be raised if

this court, or any court, felt inclined to impose

additional substantive requirements beyond those

specified in the statute before the Board could refer a

case to the MMC process. The nature of these

quandaries reinforces our concern that, if we went

down that path, we would be intruding into the

legislative arena. We decline to do so. As was aptly

stated by another Court of Appeal: “[E]xcept in the

most extreme cases where legislative intent and the

underlying purpose are at odds with the plain

language of the statute, an appellate court should

exercise judicial restraint, stay its hand, and refrain

from rewriting a statute to find an intent not

expressed by the Legislature.” (Unzueta v. Ocean

View School Dist., supra, 6 Cal.App.4th at p. 1700.)

B.

The Employer Committed a ULP

Gerawan also challenges the Board’s conclusion

that section 1164.11(b) was satisfied in this case.

Section 1164.11(b) states an additional requirement to

invoking the MMC process in cases involving pre-2003

certifications that “the employer has committed an

unfair labor practice.” (Italics added.) The Board held

that this requirement was met as a result of two 1992

cases in which Gerawan was found to have committed

ULP’s: “The cases identified by the UFW in its

declaration, Gerawan Ranches (1992) 18 ALRB No. 5

and Gerawan Ranches (1992) 18 ALRB No. 16, which

App-85

involved multiple ULP’s committed in connection with

the elections that resulted in the certification of the

UFW, including a refusal to bargain over unilateral

changes made in the post-election, pre-certification

period, meet the requirement of … section 1164.11[(b)]

that the employer ‘committed an unfair labor

practice.’”

Gerawan contends the Board erred because the

two cases relied upon by the Board allegedly did not

come within the scope of this provision. According to

Gerawan, the cases did not qualify because the

particular conduct constituting the ULP’s (1) occurred

prior to the date of UFW’s certification and (2) did not

involve a finding that Gerawan resisted CBA

negotiations with UFW after that union was certified.

We reject Gerawan’s assertion that section 1164.11(b)

is limited solely to postcertification conduct or to

special types of ULP’s in relation to the union. The

actual language of the provision is clear and explicit,

stating simply that “the employer has committed an

unfair labor practice”; it contains no hint of the

additional requirements or limitations urged by

Gerawan. (§ 1164.11(b).) As with the requirement

contained in section 1164.11(a), we follow the plain

meaning with respect to section 1164.11(b). “If the

words themselves are not ambiguous, we presume the

Legislature meant what it said, and the statute’s plain

meaning governs.” (Wells v. One2One Learning

Foundation, supra, 39 Cal.4th at p. 1190.)

We

conclude the Board correctly interpreted and applied

this provision.

App-86

IV. Requirements of Section

Abandonment Issue

1164

and

the

Pursuant to section 1164, a union must be

“certified as the exclusive bargaining agent of

[the]… agricultural employees” to have the right to

petition the Board for an order directing the parties to

commence the MMC process. (§ 1164, subd. (a), italics

added.)

In the proceedings below, Gerawan

challenged UFW’s standing as the employees’ certified

bargaining representative on the ground that such

status was forfeited by abandonment based upon

UFW’s nearly two-decade absence.

The Board

summarily rejected the abandonment claim, relying

on its prior holdings on that issue.

(Gerawan

Farming, Inc., supra, 39 ALRB No. 5, pp. 3-4.)

As reflected in its prior holdings, the Board’s

position is that abandonment does not exist unless a

union is either unwilling or unable to continue to

represent the subject employees. (Bruce Church, Inc.,

supra, 17 ALRB No. 1, p. 13.) Further, the Board has

elaborated in its holdings that a union will only be

found unwilling to represent the employees where it

has expressly disclaimed or abdicated its status as the

employees’ bargaining representative, and a union

will only be found unable to carry out its

responsibilities if it has become defunct as an

organization. According to the Board, aside from

these narrowly defined grounds for abandonment, a

union’s status as the employee’s certified bargaining

representative continues unabated until that union is

replaced or decertified by a subsequent election. (See,

e.g., San Joaquin Tomato Growers, Inc. (2011) 37

ALRB No. 5, pp. 3-4; Pictsweet Mushroom Farms,

App-87

supra, 29 ALRB No. 3, pp. 7, 14; Dole Fresh Fruit Co.,

supra, 22 ALRB No. 4, pp. 12-13; Bruce Church, Inc.,

supra, p. 13.) 23 Additionally, according to the Board’s

analysis, “what may appear to an employer to be

abandonment may be overcome by the union’s

demonstration that it is in fact able and willing to

continue to represent employees.” (Dole Fresh Fruit

Co., supra, p. 12; see Pictsweet Mushroom Farms,

supra, p. 14.) Since at the precise time that UFW

sought to invoke the MMC process it was purportedly

able and willing to resume its representation of

Gerawan’s employees, any past prolonged absence on

the part of UFW would be, under the Board’s view,

irrelevant.

Gerawan contends the Board reversibly erred in

disallowing the abandonment theory in the context of

the MMC process. Among other things, Gerawan

points out that under well-established case law, after

the initial one-year period there is a rebuttable

presumption that a union continues to be supported

by a majority of employees. Since there is such a

presumption, Gerawan asserts it is reasonable to

consider whether there are circumstances (such as

those present here) in which the presumption may be

overcome. Additionally, Gerawan points out that the

forfeiture of rights by abandonment is a recognized

legal principle that should be given application here

as in other cases. As to the employer’s continuing duty

to bargain, Gerawan does not dispute that such a duty

exists, but notes the MMC process is qualitatively

23 Thus, the Board’s position on abandonment is sometimes

referred to by the parties as an application of the general

principle that a union is certified until decertified.

App-88

different than consensual bargaining as defined in the

ALRA (see § 1155.2, subd. (a)) because, under the

MMC process, voluntary negotiations quickly give

way to a compulsory procedure that will mandate the

imposition of a CBA by administrative edict. For these

and other reasons, Gerawan maintains that when a

union files a request to the Board for an order to

commence the MMC process, the employer may

defensively challenge the union’s presumed status as

the “labor organization certified as the exclusive

bargaining agent of [the] bargaining unit” (§ 1164,

subd. (a)) by showing that the union forfeited that

status through abandonment.

After carefully considering the matter, we believe

that Gerawan’s position is largely correct. Without

disturbing the well-settled rule that an employer’s

duty to bargain is a continuing one, we conclude that

abandonment may be raised defensively in response to

a union’s demand to invoke the substantial legal

measures of the MMC process. Allowing such a

challenge would not add to the MMC statute’s express

provisions, but would simply permit the employer to

negate a statutory element of section 1164—that is,

the union’s representative status, which is a

qualification for MMC relief. We now proceed to

explain our conclusion.

A. Prior Judicial Construction of Statutory

Terminology

A foundational step in our analysis of this difficult

issue is to consider prior judicial construction of the

statutory concept of a union’s certification status.

When the Legislature enacts a statute, it is presumed

to have knowledge of the existing judicial decisions

App-89

construing the statute or related statutes and to have

enacted new statutes or amendments in light of those

decisions. (People v. Giordano (2007) 42 Cal.4th 644,

659; People v. Yartz (2005) 37 Cal.4th 529, 538;

Scottsdale Ins. Co. v. State Farm Mutual Automobile

Ins. Co. (2005) 130 Cal.App.4th 890, 900.)

Furthermore, where the language of a statute uses

terms that have been judicially construed, courts

generally presume that the Legislature intended the

terms to have the same precise meaning as was placed

on them by the courts. (Hughes v. Pair (2009) 46

Cal.4th 1035, 1046.) “When legislation has been

judicially construed and a subsequent statute on a

similar subject uses identical or substantially similar

language, the usual presumption is that the

Legislature intended the same construction, unless a

contrary intent clearly appears.” (People v. Lopez

(2003) 31 Cal.4th 1051, 1060.)

Here, in light of the particular judicial decisions

that have explained and fleshed out the meaning of a

union’s certification status under the ALRA, we do not

operate on a blank slate and neither did the

Legislature when it enacted the MMC statute in 2002.

To the contrary, such prior judicial construction of the

ALRA clearly set the stage for the Legislature’s usage

of the certification terminology in section 1164,

subdivision (a).

A key decision construing the meaning and

implications of a union’s certification status under the

ALRA was Montebello Rose, supra, 119 Cal.App.3d 1.

In that case, the issue to be determined on appeal was

“whether an employer’s duty to bargain with the

certified employee representative continues beyond

App-90

the initial certification year absent an extension of the

certification period as provided in section 1155.2,

subdivision (b) .…” (Id. at p. 6.) 24 The employer had

argued that it could not have violated the duty to

bargain in good faith with the union because the

union’s certification period had lapsed; that is, the

one-year period of certification specified under section

1155.2, subdivision (b), had expired and no extension

had been granted under that section. (Montebello

Rose, supra, at pp. 23-24.) We disagreed with the

employer’s argument and concluded that, for the

reasons set forth in the Board’s decision in Kaplan’s,

supra, 3 ALRB No. 28, an employer’s duty to bargain

continues beyond the initial certification year.

(Montebello Rose, supra, at pp. 29-30.)

Our conclusion in the Montebello Rose case was

based on two principal grounds. The first was that

analogous NLRA precedent had held that after the

initial certification year expired, there was a

rebuttable presumption that a certified union

continued to enjoy majority support. (Montebello

Rose, supra, 119 Cal.App.3d at p. 24.) Since no section

of the ALRA negated this rule, the presumption of a

union’s continuing majority status was held applicable

24 Section 1155.2, subdivision (b) provides:

“Upon the filing by

any person of a petition not earlier than the 90th day nor later

than the 60th day preceding the expiration of the 12-month

period following initial certification, the board shall determine

whether an employer has bargained in good faith with the

currently certified labor organization. If the board finds that the

employer has not bargained in good faith, it may extend the

certification for up to one additional year, effective immediately

upon the expiration of the previous 12-month period following

initial certification.”

App-91

to the ALRA. (Montebello Rose, supra, at p. 24; see

§ 1148 [the Board must follow “applicable” precedents

of the NLRA].) On this point, we agreed with the

Board’s analysis in Kaplan’s that after the one-year

period expired, certification lapsed for the purpose of

the election bar, but not for the purpose of the

bargaining duty. (Montebello Rose Co., supra, at pp.

24-25.) Thus, the application of the rebuttable

presumption rule to the ALRA system did not conflict

with section 1155.2, subdivision (b). 25

The second ground for our holding in Montebello

Rose was the fact that, as was recognized in Kaplan’s,

a number of agricultural policy considerations

supported the conclusion that an employer’s duty to

bargain did not lapse at the end of the certification

year. Among these policy considerations were the

following: (1) good faith bargaining takes time to

nurture; (2) if the process had to be compressed into

one year, time pressures might lead to unnecessary

strikes and other unrest; (3) once the one-year period

lapsed, it would be difficult to hold another election

until at least the next peak season, which would

seriously impair the employees’ right to be

represented by a union; and (4) it would create an

unreasonable burden to require annual or biannual

elections whenever the parties failed to reach an

agreement within the initial certification year.

25 We noted further that, in Kaplan’s, the Board had stated in

deciding this issue “‘[t]he balance to be struck is between the

employees’ right to reject the incumbent union and the need for

stability in the bargaining relationships. The employer’s “right”

not to bargain is no part of the equation.’” (Montebello Rose,

supra, 119 Cal.App.3d at p. 25, quoting from Kaplan’s, supra, 3

ALRB No. 28, p. 4.)

App-92

(Montebello Rose, supra, 119 Cal.App.3d at p. 25.) As

to the latter consideration, we cited with approval the

Board’s reasoning in Kaplan’s that, where the union

was still acting on behalf of the employees, there was

“no need to conduct a ritual reaffirmance of a union’s

certification where the employees are satisfied with

their representative.” (Montebello Rose, supra, at

pp. 25-26.)

A final consideration was that the

Legislature “could not have intended to ‘make the

process of collective bargaining into a kind of sporting

event in which the parties play against each other and

against a clock at the same time, with the employees’

right to effective representation as the stakes

[citation].’” (Id. at p. 26.)

Our holding in Montebello Rose gave deference to

Kaplan’s “somewhat strained” interpretation of the

ALRA because it appeared to be true to the underlying

purpose of the ALRA as a whole: It would promote

stability in the agricultural fields through collective

bargaining; it would avoid a beat the clock approach

to collective bargaining, and it would allow the time

necessary for the nurturing of the bargaining process.

(Montebello Rose, supra, 119 Cal.App.3d at p. 29.) We

therefore “approve[d] Kaplan’s on the employer’s duty

to bargain beyond the initial certification year.” (Id.

at pp. 29-30.)

A second case, F&P Growers Assn., supra, 168

Cal.App.3d 667, involved the issue of whether the

rebuttable presumption rule may be used by an

employer as a basis for refusing to bargain with an

originally certified union. In F&P Growers, the

employer refused to continue bargaining with the

originally certified union in that case, the UFW,

App-93

because allegedly “objective criteria revealed that a

majority of employees in the bargaining unit no longer

supported the UFW .…” (Id. at p. 670.) The employer

had argued that since the NLRA’s rebuttable

presumption rule had been found applicable to the

ALRA, related NLRA precedents likewise should be

adopted—including the rule allowing an employer to

refuse to bargain with a certified union if the employer

had a good faith belief that the union had lost its

majority support. (F&P Growers, supra, at pp. 672677.) In its discussion of that issue, the Court of

Appeal acknowledged that prior ALRA judicial (and

Board) precedent had adopted the NLRA rule that “a

year after certification, there is a rebuttable

presumption that a union continues to be supported

by a majority of employees” (F&P Growers, supra, at

p. 672), but concluded that the loss-of-majority

support defense to bargaining with a particular union

was clearly inapplicable to the ALRA because of

important differences between the ALRA and the

NLRA. (F&P Growers, supra, at pp. 674-676.) For

example, the NLRA permitted an employer to bargain

with a union that had demonstrated its majority

status by means other than an election, but the ALRA

only allowed an employer to bargain with a union that

had won an election. Moreover, the NLRA permitted

employers to petition for an election, but the ALRA did

not allow employers to file election petitions regarding

the certification or decertification of a union. (F&P

Growers, supra, at pp. 674-678.) As noted in F&P

Growers, these distinctive provisions of the ALRA

indicated the Legislature did not intend for an

agricultural employer to participate in deciding

whether or not it shall bargain with a particular

App-94

union, or to have influence over the selection or

deselection of a union. Such choices were left solely to

the employees, and were removed from the employer.

(F&P Growers, supra, at pp. 677-678.) For these

reasons, the Court of Appeal held that employers could

not refuse to bargain with a particular union based on

a good faith belief in loss-of-majority status, since that

would allow employers to do indirectly (i.e., effectively

decertify a union) what the Legislature had removed

from the employer’s purview. (Id. at p. 677.)

To recapitulate what we have said thus far, when

the Legislature used ALRA certification terminology

in the MMC statute (i.e., “a labor organization

certified as the exclusive bargaining agent” of the

agricultural employees, § 1164, subd. (a)), it did so

with an understanding of the nature and import of the

certification status as previously judicially construed.

That prior judicial construction included the rulings in

the Montebello Rose case, discussed above, that

(1) after the initial one-year period, certification

expires for the purpose of the election bar, but

continues for the purpose of the employer’s duty to

bargain and (2) after the initial one-year period, a

rebuttable presumption exists that a certified union

continues to enjoy majority support by the

employees. 26 It also included the clarification given in

F&P Growers that, notwithstanding the adoption of

26 We recognize the one-year period may be extended for an

additional year in certain circumstances (see § 1155.2, subd. (b)).

In the interest of brevity and ease of expression, our discussion

has sometimes omitted qualifying statements such as “unless

extended for an additional year under section 1155.2, subdivision

(b).”

App-95

the rebuttable presumption rule, the ALRA did not

permit an employer to refuse to bargain in good faith

with the originally certified union based on a belief

that the union had lost its majority status. Since no

contrary intention was indicated in the MMC statute,

we conclude that the Legislature intended to adopt the

same meanings and implications of the certification

status (i.e., its nature and duration) as was decided by

said prior judicial construction. 27 This conclusion

provides us with the basic framework for

understanding the statutory certification28 concept as

we proceed to navigate through an analysis of the

abandonment issue.

B. The Duty to Bargain Does Not Prevent

Raising Abandonment Issue at the MMC

Stage

As an initial premise for its position, Gerawan

contends that the continuing duty to bargain did not

prevent it from asserting, as a defense to the MMC

process, that UFW abandoned its status as certified

bargaining representative of its agricultural

employees. We agree with that contention. The

decisions in Montebello Rose and F&P Growers

addressed the situation of employers who had refused

to continue bargaining and, therefore, those cases are

distinguishable. The rule that an employer must

continue to bargain in good faith with the originally

certified union is not affected or impaired by allowing

27 For this reason, we reject Gerawan’s contention that after

one year, UFW’s certification lapsed for all purposes under

section 1155.2, subdivision (b).

28 For convenience, we sometimes refer to this as the union’s

representative status.

App-96

an employer to raise the issue of abandonment in

response to a request to commence the MMC process.

That is because, aside from a brief 30-day period of

bargaining at the outset (§ 1164, subd. (c)), the MMC

process brings an end to voluntary negotiation and

mutual consent, which are the hallmarks of

bargaining under the ALRA (§ 1155.2, subd. (a) [good

faith bargaining does not compel agreement or require

either party to make a concession]), as it shifts to a

compulsory legal process whereby a CBA will simply

be imposed by the force of law. Indeed, as the Board

expressly recognized in Kaplan’s, supra, 3 ALRB No.

28 at page 7, the rule that certification continued

beyond the first year for purposes of the employer’s

duty to bargain did not “alter[] the statutory

protection given to employers” because “[t]heir duty to

bargain, no matter how long its duration, does not

compel them to agree to a proposal or require them to

make a concession.” Thus, as the Board’s own

precedent reflects, any process by which parties are

compelled to agree to imposed terms—which is the

crux of the MMC process—does not fit into the

parameters of bargaining under the ALRA.

Accordingly, since the MMC process differs materially

from bargaining and is largely a postbargaining

process, the employer’s continuing duty to bargain is

not an impediment to our recognition of the employer’s

ability to raise, at that stage, a defense that the union

forfeited its representative status by abandonment.

For the same reasons, the so-called “certified until

decertified” rule does not preclude abandonment from

being raised at the MMC stage, because that rule has

its application to cases within the bargaining context

to enforce the employer’s continuing duty to bargain.

App-97

(See Montebello Rose, supra, 119 Cal.App.3d at pp. 2324 [“employer’s duty to bargain does not lapse after

one year b

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