JASON RESNICK | WG VICE PRESIDENT AND GENERAL COUNSEL AGRICULTURE & THE LAW
Legal Advocacy: Western Growers Fighting For You As a Western Growers member, you belong to a regional association with a national presence that prioritizes advocacy on public policy that directly affects you and your business. Western Growers members are well aware of the tremendous work that WG’s Government Affairs team does on behalf of the specialty crop industry. They work tirelessly before legislative bodies and regulatory agencies to advance the association’s policy priorities on the state and federal level.
However, you may not know about the advocacy that Western Growers’ Legal team undertakes, typically in collaboration with outside counsel and association partners, on important cases being litigated in state and federal courts of appeal. Sometimes that advocacy takes the form of Western Growers intervening as a party to the litigation if we have legal “standing” to do so. More often, we appear as amicus curiae —or a “friend of the court”—to educate the court about the importance of the issues before it to the agricultural industry and to persuade the court to rule in a way that will help, or at least not harm, ag interests. As amicus, we are in a unique position to give the court additional information and perspectives that the parties alone cannot muster due to strict briefing page limits, or being confined to the evidence contained in the trial court’s “record,” or other limitations inherent in appellate procedure. Employment and Labor Litigation As you might expect, Western Growers has been active on the employment and labor front of litigation over the years. In fact, Western Growers has filed amicus briefs in many seminal employment and labor law cases decided by the California Supreme Court, including the landmark decisions in Brinker Restaurant Corp. v. Superior Court (clarifying an employer’s duty to provide meal and rest breaks); S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (creating the multi-factor or economic realities test for determining if a worker is an employee or an independent contractor); and Martinez v. Combs (clarifying the term “employer” and who may be liable in an action to recover unpaid minimum wages). WG also filed an amicus brief in Hess Collection Winery v. Agricultural Labor Relations Board, the first case to challenge the constitutionality of mandatory interest arbitration (aka “mandatory mediation and conciliation” or “MMC”) between
agricultural employers and workers under California Labor Code section 1164. Nearly 10 years later, Western Growers, joined by California Farm Bureau Federation and Ventura County Agricultural Association, took another crack at the MMC statute, in Gerawan Farming, Inc. v. Agricultural Labor Relations Board. In Gerawan , the United Farm Workers Union 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 ALRB ordered the parties to engage in the MMC process. Gerawan challenged the validity of the MMC on both statutory and constitutional grounds and further contended that UFW abandoned the workers and its status as the employees’ bargaining representative as a result of the UFW’s lengthy absence. Western Growers’ amicus brief supported these arguments, and the court of appeal agreed that the MMC statute violated equal protection policies. The court also agreed with Gerawan’s abandonment argument. Finally, the court also expressly agreed with the arguments raised in our amicus brief, concluding that the MMC process constitutes an improper delegation of legislative authority. However, the UFW sought, and the California Supreme Court granted, review of the lower court’s decision. Once again, we filed an amicus brief in support of the industry. Unfortunately, the California Supreme Court unanimously reversed the lower court’s ruling, holding that the MMC statute is constitutional and statutorily valid, and 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. In yet another chapter in the Gerawan v. ALRB litigation saga, Western Growers and industry partners filed an amicus
30 Western Grower & Shipper | www.wga.com MARCH | APRIL 2020
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