Gerawan Farming, Inc. v. Agric. Labor Relations Bd.

Citation187 Cal.Rptr.3d 261,236 Cal.App.4th 1024
Decision Date14 May 2015
Docket NumberF068526,F068676
PartiesGERAWAN FARMING, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; United Farm Workers of America, Real Party in Interest. 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.
CourtCalifornia Court of Appeals

236 Cal.App.4th 1024
187 Cal.Rptr.3d 261


United Farm Workers of America, Real Party in Interest.

Gerawan Farming, Inc., Plaintiff and Appellant
Agricultural Labor Relations Board, Defendant and Respondent;

United Farm Workers of America, Real Party in Interest and Respondent.


Court of Appeal, Fifth District, California.

Filed May 14, 2015

Irell & Manella, David A. Schwarz ; Georgeson, Belardinelli and Noyes, C. Russell Georgeson ; Barsamian & Moody and Ronald H. Barsamian, for Petitioner, Plaintiff and Appellant.

NFIB Small Business Legal Center, Luke A. Wake; Benbrook Law Group, Bradley A. Benbrook, Stephen M. Duvernay ; Walter & Wilhelm Law Group, Paul J. Bauer; McCormick, Barstow, Sheppard, Wayte & Carruth, Anthony Raimondo ; California Farm Federation, Carl G. Borden; Ventura County Agricultural Association, Robert P. Roy; Center for Constitutional Jurisprudence, John C. Eastman, Anthony T. Caso ; Western Growers Association and Jason E. Resnick, for Amici Curiae on behalf of Petitioner, Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Douglas J. Woods, Assistant Attorney General, Mark R. Beckington and Benjamin M. Glickman, Deputy Attorneys General, for Defendant and Respondent.

Mario Martinez, Edgar Aguilasocho ; Altshuler Berzon, Scott A. Kronland and Jonathan Weissglass, for Real Party in Interest and Respondent.



Agricultural employer Gerawan Farming, Inc. (Gerawan) and United Farm

187 Cal.Rptr.3d 266

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 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.


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 direct-hire 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 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.

187 Cal.Rptr.3d 267

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

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.

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.

187 Cal.Rptr.3d 268

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 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 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

187 Cal.Rptr.3d 269

Gerawan Farm ing, 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...

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