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Gerawan Farming, Inc. v. Agricultural Labor Relations Board

California Court of Appeals, Fifth District

September 24, 2019

GERAWAN FARMING, INC., Plaintiff and Appellant,
AGRICULTURAL LABOR RELATIONS BOARD, Defendant and Respondent LUPE GARCIA, Intervener and Appellant.

          APPEAL from a judgment of the Superior Court of Fresno County No. 13CECG03374. Mark Wood Snauffer, Judge.

          Irell & Manella, David A. Schwarz, Grace Chuchla; Georgeson & Belardinelli, C. Russell Georgeson; and Michael P. Mallery for Plaintiff and Appellant, Gerawan Farming, Inc.

          Sagaser, Watkins & Wieland and Paul J. Bauer for Intervener and Appellant, Lupe Garcia.

          Santiago Avila-Gomez and Todd M. Ratshin for Defendant and Respondent.


          DE SANTOS, J.

         After agricultural employer Gerawan Farming, Inc. (Gerawan) and the United Farm Workers Union (UFW) failed to agree on the terms of an initial collective bargaining agreement (CBA), the Agricultural Labor Relations Board (Board), at the UFW’s request, ordered the parties to “mandatory mediation and conciliation” (MMC) under the MMC statutory scheme, Labor Code section 1164 et seq.[1] In the MMC process, the parties present their disputed and undisputed issues to the mediator, who takes evidence and hears argument on the disputed issues in recorded proceedings, but retains discretion to go off the record at any time to clarify or resolve issues informally. (Cal. Code Regs., tit. 8, § 20407, subd. (a)(2).)[2] After the mediation period expires, if the parties do not “resolve the issues to their mutual satisfaction, ” the mediator submits a “report” to the Board that resolves all of the parties’ issues and establishes the CBA’s final terms. The grounds for the mediator’s determination of disputed issues must be stated in the report and supported by the record. (§ 1164, subds. (c) & (d).) When the report becomes the Board’s final order, it establishes the terms of an imposed, binding CBA. (§ 1164.3, subds. (a)-(e).)

         Four mediation sessions were held, two of which were on-the-record sessions in which witness testimony was transcribed by a court reporter. Lupe Garcia (Garcia), a Gerawan employee, attempted to attend and observe an early MMC proceeding, but the mediator denied his request. Garcia asked the Board to decide whether he and other Gerawan employees had the right to attend on-the-record MMC proceedings under the federal and state Constitutions. The Board issued a decision in which it held the public does not have a constitutional right to attend MMC proceedings. (Gerawan Farming, Inc. (2013) 39 A.L.R.B No. 13.) Gerawan filed a declaratory relief action in superior court, seeking a judicial declaration that the Board’s decision violates the right of public access protected under the federal and state Constitutions. Garcia intervened in the same action and filed a complaint in intervention seeking the same relief.

         In this appeal by Gerawan and Garcia, [3] we are called to review simultaneous summary judgment motions filed by Gerawan, Garcia, and the Board, on the issue of whether there is a public right of access to on-the-record MMC proceedings under the federal and state Constitutions, and whether Gerawan has standing to challenge the Board’s decision. The trial court found that while Gerawan had standing, the Board’s decision was not unconstitutional, as the public does not have a constitutional right of access to MMC proceedings. The trial court granted summary judgment in favor of the Board, and against Gerawan and Garcia, and entered judgment in the Board’s favor. Gerawan and Garcia challenge the trial court’s ruling, arguing the Board’s decision is unconstitutional, while the Board renews its argument that Gerawan has no standing. While we conclude Gerawan lacks standing, we agree with the trial court that there is no right of access under the federal and state Constitutions to on-the-record MMC proceedings. Accordingly, we affirm the judgment.


         The A.L.R.A

         In 1975, the Legislature enacted the Agricultural Labor Relations Act (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 Board (1979) 26 Cal.3d 1, 8; see § 1148 [in implementing the A.L.R.A, the Board follows applicable NLRA precedents].) The A.L.R.A was enacted to “ ‘ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations, ’ ” which the A.L.R.A achieves by declaring “ ‘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.’ ” (Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1118, 1131 (Gerawan Farming I).)

         “Under the A.L.R.A, ‘[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].)” (Gerawan Farming I, supra, 3 Cal.5th at p. 1131.) 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].) “The A.L.R.A also provides a process by which employees may petition to decertify a labor organization as their representative. (§ 1156.7.)” (Gerawan Farming I, at pp. 1131‒1132.)

         When a labor organization is certified as an election winner, thereby becoming the employees’ bargaining representative, certain legal consequences follow. First, a statutory bar exists to holding another representation election for at least the initial one-year certification period. (§§ 1155.2, subd. (b), 1156.5, 1156.6.) Second, a duty to bargain is created, which requires the employer and labor 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, ” although “such obligation does not compel either party to agree to a proposal.” (§ 1155.2, subd. (a).) The duty to bargain “has no time limit”-the duty continues until the union is replaced or decertified through a subsequent election. (Gerawan Farming I, supra, 3 Cal.5th at pp. 1153‒1154.) Once a union is certified, it “remains the employees’ exclusive bargaining representative until it is decertified or until the union is unwilling or unable to represent the bargaining unit.” (Id. at p. 1155.)

         The MMC Process

         In 2002, the Legislature determined “additional legislation was necessary to fulfill the goals of the A.L.R.A because it had proven ineffective at facilitating the negotiation and completion of [CBAs]. The Legislature therefore enacted the A.L.R.A’s ‘mandatory mediation and conciliation’ (MMC) provisions to ‘ensure a more effective collective bargaining process between agricultural employers and agricultural employees.’ ” (Gerawan Farming I, supra, 3 Cal.5th at p. 1130.) “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.’ [Citation.] 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.’ [Citation.] 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.’ ” (Id. at p. 1133.)

         An agricultural employer or certified labor organization invokes the MMC process by filing a declaration with the Board which states the parties failed to reach a CBA and requests the Board to order the parties to MMC. (§ 1164, subd. (a).) If the declaration satisfies the statutory requirements, “the board shall immediately issue an order directing the parties to [MMC] of their issues.” (§ 1164, subd. (b); Cal. Code Regs., § 20402.) The Board then requests a list of nine mediators with experience in labor mediation from the California State Mediation and Conciliation Service, from which the parties select a mediator. The parties bear equally the costs of mediation and conciliation. (§ 1164, subd. (b); Cal. Code Regs., § 20403.)

         Once appointed, the mediator “shall immediately schedule meetings at a time and location reasonably accessible to the parties.” (§ 1164, subd. (c); Cal. Code Regs., § 20405 [“The mediator shall appoint a time and place for the mediation ….”].) “Mediation” proceeds for a period of 30 days; on “expiration of the 30-day period, if the parties do not resolve the issues to their mutual satisfaction, the mediator shall certify that the mediation process has been exhausted.” (§ 1164, subd. (c).) The mediation period may be extended an additional 30 days “[u]pon mutual agreement of the parties.” (§ 1164, subd. (c); Cal. Code Regs., § 20407, subd. (a) [“The 30-day timelines may be waived by mutual agreement of the parties and with the approval of the mediator.”].) The 30 day period commences “on the date of the first scheduled mediation session.” (Cal. Code Regs., § 20407, subd. (a).)

         The Board’s implementing regulations specify how the mediation is to be conducted. Within seven days of receipt of a Board order directing the parties to MMC, the parties are required to serve on each other, and on the mediator upon his or her selection, a document which identifies the disputed and undisputed issues, as well as the standards by which they propose to resolve the disputed issues, and provides agreed upon contract language for the issues not in dispute. (Cal. Code Regs., § 20407, subd. (a)(1).) Thereafter, each party may demand from the other a witness list, which designates those witnesses who are experts, and a list of documents the party intends to introduce on the record at the mediation. (Id., §§ 20406, subd. (a), 20407, subd. (a).) Subpoenas requiring witness attendance and testimony, or the production of materials, may be issued on a party’s ex parte request-a Board member or Board-authorized person issues the subpoena if the request is made before the mediation begins, while the mediator addresses those requests made at or after the first mediation session. (Id., § 20406, subd. (b).) The mediator may enforce discovery duties by drawing adverse inferences, or imposing terms, conditions, or sanctions upon a party. (Id., § 20406, subd. (d).)

         The mediator presides at the mediation, rules on the admission and exclusion of evidence, as well as procedural questions, and “shall exercise all powers relating to the conduct of the mediation.” (Cal. Code Regs., § 20407, subd. (a)(2).) The evidence the mediator relies on in writing his or her report “shall be preserved in an official record through the use of a court reporting service or, with the consent of both parties and the approval of the mediator, by a stipulated record.” (Ibid.) The mediator “shall retain the discretion to go off the record at any time to clarify or resolve issues informally, ” but communications that take place off the record “shall not be the basis for any findings and conclusions in the mediator’s report.” (Ibid.) The parties are required to “provide the mediator with a detailed rationale for each of its contract proposals on issues that are in dispute” and “provide on the record supporting evidence to justify those proposals.” (Id., § 20407, subd. (a)(1).) In writing his or her report, the mediator is required to “cite evidence in the record that supports his or her findings and conclusions.” (Id., § 20407, subd. (a)(2).)

         The parties have the right to be represented by counsel or other representative, and are entitled to be heard, present evidence, and cross-examine witnesses appearing at the hearing, with witness testimony given under oath. The rules of evidence and judicial procedure, however, “need not be observed.” (Cal. Code Regs., § 20407, subd. (a)(3) & (4).)

         Within 21 days after the mediation period expires, the mediator files “a report with the board that resolves all of the issues between the parties and establishes the final terms of a [CBA], 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); Cal. Code Regs., § 20407, subd. (c) [“The mediator shall issue his or her report within twenty-one (21) days of the last mediation session.”].) The official record of the proceeding is available for public inspection at the Board’s offices in Sacramento. (Cal. Code Regs., § 20600, subd. (a)(5).)

         Either party may petition the Board for review of the mediator’s report within seven days of its filing 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).)[4] If a prima facie case for review is not shown or no petition is filed, the report becomes the Board’s final order. (§ 1164.3, subd. (b).) If the Board finds grounds to grant review, it issues a decision concerning the petition and, if it finds a provision of the mediator’s report to be unlawful, the Board requires the mediator to modify the CBA’s terms, meet with the parties for further mediation, and submit a second report. (§ 1164.3, subd. (c).) As before, the parties may petition the Board for review of the second report. (§ 1164.3, subd. (d).) If no petition is filed or the petition does not state a prima facie case of a violation of subdivision (a), the second report takes effect as an order of the Board. (§ 1164.3, subd. (c).) If a petition is subject to review under subdivision (a), the Board determines the issues and issues a final order. (Ibid.)

         Once the Board has issued a final order, a party may petition for writ of review in the Courts of Appeal or California Supreme 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 or 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, subd. (b).)

         In Gerawan Farming I, the California Supreme Court rejected the argument that the MMC statutory scheme was unconstitutional and concluded the MMC statute neither violated equal protection nor unconstitutionally delegated legislative power. (Gerawan Farming I, supra, 3 Cal.5th at pp. 1130‒1131.) The court also held “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.” (Id. at p. 1131.)


         Gerawan, a family owned farming business based in the Fresno area, grows, harvests, and packs stone fruit and table grapes, and provides employment to several thousand agricultural employees. In 1992, following a contested runoff election, the Board certified the United Farm Workers of America (UFW) as the exclusive bargaining representative of Gerawan’s agricultural employees. While some initial bargaining discussions took place, Gerawan and the UFW never entered into a CBA

         In October 2012, the UFW demanded negotiations with Gerawan resume. Following several bargaining sessions, the UFW filed a declaration with the Board on March 29, 2013, requesting MMC. The Board granted the UFW’s request and directed the parties to MMC. A mediator, Matthew Goldberg, was appointed in May 2013.

         The Mediator Denies Gerawan Employees Access to MMC

         Two mediation sessions were held in June 2013. Longtime Gerawan employee Garcia, his attorney, and a group of other Gerawan employees, attempted to attend the June 11 mediation session, held at a hotel conference room. Garcia attempted to enter the room to attend the session, but Goldberg denied him entry. Garcia’s attorney asked Goldberg for permission to attend the session with Garcia and the other employees, explaining they would remain silent and merely observe the process. Goldberg denied the request, as neither the attorney nor the employees were parties to the MMC procedure and the mediation was confidential. Goldberg told Gerawan and the UFW about the request. Gerawan supported the employees’ attendance and participation, but the UFW did not. Goldberg repeated his initial determination that the employees would not be permitted to attend because they were not parties.

         Garcia’s Petition to Intervene in the MMC Process

         On July 10, 2013, Garcia filed a petition with the Board as an alleged interested party, seeking the Board’s permission to formally intervene and participate in the MMC process. The Board found no basis for allowing him to intervene and dismissed the petition on July 29, 2013. In doing so, the Board recognized the UFW, as the certified bargaining representative of Gerawan’s agricultural employees, owed Garcia and his fellow employees a duty of fair representation; based on the statutory language, MMC was intended to be between the certified union and the employer; there was no statutory or regulatory authorization for intervention in MMC cases; and “if any employee who wished to do so could intervene in an MMC case, the process could quickly become unworkable and it would be fundamentally inconsistent with the union’s status as bargaining representative.”

         Gerawan submitted a response in support of Garcia’s petition in which it argued individual employees, such as Garcia, and other members of the public have a First Amendment right to attend on-the-record MMC proceedings. Garcia, however, did not raise the issue in his petition. The Board declined to reach the issue because Gerawan lacked standing to assert the legal rights of Garcia and other members of the public.

         The Board’s Order Concerning Public Access

         On August 2, 2013, Garcia filed a petition for reconsideration, asking the Board to decide whether the public, including himself and other Gerawan employees, has the right to attend on-the-record MMC proceedings under article I, section 3, subdivision (b) of the California Constitution and the First Amendment to the United States Constitution. On August 21, 2013, the Board denied Garcia’s access request in Gerawan Farming, Inc., supra, 39 A.L.R.B No. 13 (the Order). Although Garcia’s petition did not meet the standard for granting reconsideration, the Board nevertheless granted reconsideration on its own motion because “the issue raised by Garcia-whether Garcia and the public have a right of public access to MMC proceedings under the federal and state constitutions-presents an issue of first impression which, if left unresolved, could potentially result in the deprivation of constitutionally protected rights.”

         The Board discussed the relevant decisions of the United States and California Supreme Courts, as well as other precedents. The Board determined the MMC process, which imposes “a labor contract negotiation as a result of a bargaining impasse, ” bears no resemblance to civil trials or court-conducted arbitration proceedings in which the public has a right of access, as “MMC is a quasi-legislative proceeding invoked not to resolve the legal claims of parties, but to force negotiations (mediation) that, if unsuccessful, result in a binding contract imposed on the parties (binding interest arbitration).”

         The Board found MMC was not historically open to the press and general public, as “MMC is more akin to a labor contract negotiation, albeit a mandatory one once invoked by one of the parties, and we know of no tradition of labor contract negotiations being open to the public, even those involving public employees.” The Board also did not see “how public access would play a significant positive role in the functioning of MMC or any type of labor contract negotiation for that matter.” The Board therefore concluded there was no First Amendment right of access to its “quasi-legislative proceeding known as MMC.” The Board also ruled the public had no right of access to MMC proceedings under the California Constitution.

         The MMC Proceedings and Resulting CBA

         Gerawan and the UFW participated in MMC proceedings in June and August 2013, which included two on-the-record hearings, held at hotels in Modesto and Oakland on August 8 and 19, 2013, respectively.[5] As the parties were unable to voluntarily agree to all terms of a CBA, Goldberg issued a report to the Board on September 28, 2013, which fixed the CBA’s terms. Gerawan filed a petition for review of Goldberg’s report, which the Board granted as to several terms. The Board remanded the matter to Goldberg in accordance with section 1164.3, subdivision (c). The parties met with Goldberg and reached agreement on the remanded terms, which Goldberg incorporated into a second report dated November 6, 2013. (Gerawan Farming, Inc. (2013) 39 A.L.R.B No. 17, p. 2.) No party requested review of the second report and the Board ordered it to take effect as a final order of the Board.

         On November 5, 2013, the Board conducted a decertification election at Gerawan after a majority of Gerawan workers petitioned the Board to hold an election to decide whether the UFW would remain their certified bargaining representative. The Board impounded the ballots, subject to postelection proceedings to determine whether to set aside the election based on the UFW’s objections. (Gerawan Farming, Inc. (2013) 39 A.L.R.B No. 20, p. 1.)

         This Lawsuit

         Gerawan filed its complaint for declaratory relief in Fresno County Superior Court on October 28, 2013. The complaint alleged three causes of action. In the first and second causes of action, Gerawan sought a judicial declaration that the Board’s Order violates the federal and state Constitutions by denying members of the public and the press a right of access to the on-the-record phase of the MMC process. In the third cause of action, Gerawan sought damages, attorney fees and injunctive relief under section 1983 of title 42 of the United States Code (42 U.S.C. § 1983) against individual Board members or officials, premised on the alleged violation of access rights under the federal Constitution. Gerawan requested declarations that (1) the Board’s Order is unconstitutional under the federal and state Constitutions, and (2) the MMC proceedings between Gerawan and the UFW are null and void.

         Two months later, Garcia filed a motion to intervene in the action in order to file a proposed complaint in intervention, which the trial court granted. Garcia subsequently filed a complaint in intervention. Like Gerawan’s complaint, Garcia’s complaint in intervention sought, in the first and second causes of action, a judicial declaration that the Board’s Order violated federal and state constitutional protections of a right of public access to such proceedings. Garcia also sought, in his fourth cause of action, damages, attorney fees and injunctive relief under 42 U.S.C. section 1983 against individual Board members.[6]

         The Board’s Demurrers

         The Board demurred to both the complaint and complaint in intervention, arguing primarily that the trial court lacked jurisdiction to hear any challenge to the Board’s decision based on section 1164.9.[7] The Board also argued no cause of action was available against the individual Board members under 42 U.S.C. section 1983. In addition, in its demurrer to Garcia’s complaint in intervention, the Board argued his pleading was untimely under section 1164.5’s 30-day deadline for seeking judicial review and declaratory relief was not a proper means for challenging the Board’s rulings.

         On May 15, 2014, following a hearing on the demurrer to Gerawan’s complaint and the submission of letter briefs, the trial court sustained the demurrer without leave to amend. The trial court concluded the jurisdictional bar of section 1164.9 was dispositive of the matter and the 42 U.S.C. section 1983 claim failed because the individual defendants were immune. Following a separate hearing on the demurrer to Garcia’s complaint in intervention, the trial court sustained the demurrer without leave to amend based on the jurisdictional bar of section 1164.9 and Garcia’s failure to seek judicial review within 30 days of the Board’s Order. The trial court further found the individual defendants were immune from liability under 42 U.S.C. section 1983.

         The ...

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