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State coercion of the collective bargaining process is unconstitutional
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There currently is pending before the California Supreme Court a case in which core constitutional protections for private-sector employers and employees are at stake. Gerawan Farming, Inc. v. Agricultural Labor Relations Board is a challenge to the Legislature's imposition of a system of mandatory arbitration for labor contracts in the agricultural sector. The case pits the rights of employers and employees to make agreements framed by their independent choice, against a state-mandated process that empowers an outside mediator to dictate the terms and conditions that regulate the employer-employee relationship.

The Agricultural Labor Relations Act became law in 1975 and went for 25 years without substantive amendment. But in the waning days of the Gray Davis administration in 2002, the Legislature enacted and Governor Davis signed an amendment called the "Mandatory Mediation and Conciliation Process."

This process permits union leaders to break off bargaining - if it's not going to their liking - and directs the ALRB to order the contract-drafting process turned over to an outside "mediation" official. But far from mediating in the traditional sense, this mediator has no obligation to harmonize interests, or follow objective standards rather than personal preferences. In this capacity, the state-appointed mediator is virtually a freelance official with autocratic power and little accountability.

While mandatory arbitration has been part of California's public sector labor relations for many years, this heavy-handed amendment is its first introduction into the private sector. The National Labor Relations Board, a federal body, has no authority to bring in an outside mediator to impose mandatory contract provisions on the parties, nor has any other state taken such a step. Furthermore, imposing contract terms on the agricultural industry sets a dangerous precedent for other private sector industries.

But the most significant barrier to a mandatory mediation process in the private sector lies in the federal and state constitutions. It is unconstitutional for a number of reasons. It passes off substantial regulatory power to unelected and largely unaccountable private parties. It isn't guided by any industry-wide standards, so provisions imposed on one farm may be dramatically -- and unfairly -- inconsistent with contracts at competing farms. And it significantly burdens liberty of contract and other freedoms.

The challenge to this arbitrary process is being litigated by Gerawan Farming, a major, family-owned fruit grower based in Fresno. But the outcome will affect the rights of employers and employees on farms large and small throughout California.

California's Fifth District Court of Appeal ruled for Gerawan. The court recognized the substantial constitutional violations and struck down the Mandatory Mediation and Conciliation Process.

But the state appealed, and the state Supreme Court accepted the case.

Briefing at the High Court was recently completed, and the parties are now awaiting the scheduling of oral argument. Everyone who values accountability in government, and fairness and freedom in collective bargaining, should hope the California Supreme Court upholds the appellate decision and reject the dangerous notion that a state-mandated outside mediator should be vested with unfettered regulatory power.

- Schiff is an attorney with Pacific Legal Foundation, which filed an amicus brief in Gerawan for a broad coalition of agricultural and property rights groups. Stirling is a former vice president of PLF and served as General Counsel of the Agricultural Labor Relations Board from 1982-1989.