Filed 9/24/19




                            CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIFTH APPELLATE DISTRICT



 GERAWAN FARMING, INC.,
                                                        F076148, F076150
          Plaintiff and Appellant,
                                                  (Super. Ct. No. 13CECG03374)
                  v.

 AGRICULTURAL LABOR RELATIONS                             OPINION
 BOARD,

          Defendant and Respondent;

 LUPE GARCIA,

          Intervener and Appellant.




        APPEAL from a judgment of the Superior Court of Fresno County. 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.
                                          -ooOoo-
       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).)




1      Undesignated statutory references are to the Labor Code.
2     Further references to regulations are to title 8 of the California Code of
Regulations.


                                              2.
       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 ALRB 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.

3     Gerawan and Garcia separately appealed from the resulting judgment in the
Board’s favor on their complaints. We granted the parties’ stipulation to consolidate the
appeals.


                                             3.
                          THE STATUTORY FRAMEWORK
The ALRA
       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 ALRA, the Board follows
applicable NLRA precedents].) The ALRA was enacted to “ ‘ensure peace in the
agricultural fields by guaranteeing justice for all agricultural workers and stability in
labor relations,’ ” which the ALRA 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 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].)” (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 ALRA 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

                                              4.
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 ALRA because it had proven ineffective at facilitating the negotiation
and completion of [CBAs]. 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.’ ”
(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

                                              5.
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

                                              6.
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

                                               7.
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.)


4      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.” (§ 1164.3, subd. (e).)


                                              8.
        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.)
                          THE HISTORY OF THIS DISPUTE
       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.

                                             9.
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

                                           10.
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 ALRB 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

                                             11.
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 ALRB
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
ALRB 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

5       Notably, Daniel Gerawan sought assurances and an order from the mediator in the
underlying MMC proceedings that there would not be any visual or audio recording of
his testimony.


                                             12.
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

6      In July 2014, the trial court granted the Board’s motion to strike Garcia’s third
cause of action, which sought a declaration that the Board’s denial of his request to be
heard during the on-the-record proceedings violated the California Constitution.
7       Section 1164.9 provides, in relevant part: “No court of this state, except the court
of appeal or the Supreme Court, to the extent specified in this article, shall have
jurisdiction to review, reverse, correct, or annul any order or decision of the board ….”


                                             13.
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 Prior Appeal
       Gerawan and Garcia appealed the resulting judgments entered against them. In a
partially published opinion, this court held section 1164.9 is unconstitutional to the extent
it purports to completely divest superior courts of jurisdiction. Accordingly, we reversed
the judgments of dismissal and remanded the case to the trial court, as it had jurisdiction
to reach the constitutional issues raised in Gerawan’s and Garcia’s complaints.8
(Gerawan Farming II, supra, 247 Cal.App.4th at p. 289.)
       In the unpublished portion of the opinion, we held section 1164.5’s timing
provision did not apply to Garcia’s claims and declaratory relief was the proper vehicle to
challenge the legal validity of the Board’s Order. (Gerawan Farming II, supra, F069896


8      Our earlier opinion is contained in the appellant’s appendix of the present appeal.
That prior opinion was partially published; the nonpublished portions of the opinion fall
within the exception to California Rules of Court, rule 8.1115(b)(1). (See Gerawan
Farming, Inc. v. Agricultural Labor Relations Bd. (2016) 247 Cal.App.4th 284 (Gerawan
Farming II); see also id. (May 9, 2016, F069896) [nonpub. opn.].)


                                             14.
[nonpub. opn.].) With respect to the trial court’s ruling on the 42 U.S.C. section 1983
causes of action, we affirmed to the extent it eliminated any damage claims against the
Board or its individual officials or members, but reversed because a limited basis for
relief under 42 U.S.C. section 1983 exists for prospective injunctive relief against the
individual defendants in their official capacities, subject to the prerequisite of “an
ongoing violation of federal constitutional law concerning public access.” (Gerawan
Farming II, supra, F069896 [nonpub. opn.].) Finally, we declined to reach the
underlying question of whether the Board’s Order violated the right of public access
protected under the federal or state Constitutions, and instead remanded to the trial court
for further proceedings. (Ibid.)
The Summary Judgment Motions
       Following issuance of the remittitur, the Board answered Gerawan’s and Garcia’s
complaints, asserting as an affirmative defense to Gerawan’s complaint that Gerawan
lacked standing. The parties thereafter agreed to proceed on cross-summary judgment
motions on the issue of whether there is a public right of access to on-the-record MMC
proceedings under the federal and state Constitutions, with each party filing a separate
motion. In addition to arguing it was entitled to summary judgment on appellants’
constitutional claims because no legal right of access to MMC proceedings exists, the
Board argued it was entitled to summary judgment on Gerawan’s complaint because
Gerawan lacked standing to assert them.
       After hearing argument on the motions and taking the matter under submission,
the trial court issued its order denying appellants’ summary judgment motions, and
granting summary judgment in the Board’s favor on appellants’ complaints. The trial
court first found Gerawan had standing to bring its suit, as it pled an independent interest
in attending other employers’ MMC proceedings. The trial court, however, found that
the Board’s Order did not violate the federal and state Constitutions, as the public did not
have a right of access to MMC proceedings under either the federal or state Constitutions,

                                             15.
and since there was no violation of the federal Constitution, the 42 U.S.C. section 1983
claims also failed. The trial court rejected Garcia’s additional arguments that the Board’s
Order was an unconstitutional prior restraint on speech and constituted viewpoint
discrimination.
       During the pendency of this appeal, the Board certified the results of the
decertification election in Gerawan Farming, Inc. (2018) 44 ALRB No. 10, pages 11‒12.
Under established Board precedent, the UFW’s decertification dates back to the date of
the election. (Gerawan Farming, Inc. (2018) 44 ALRB No. 11, p. 13.)9
                                       DISCUSSION
I.     Standard of Review
       Appellants’ challenge to the trial court’s ruling denying their summary judgment
motions and granting the Board’s motions is based on undisputed facts and is limited
solely to questions of law. Whether analyzed under the review standard applicable to
summary judgment motions or the standard applicable to issues of law, our review is de
novo and independent. (Hill Brothers Chemical Co. v. Superior Court (2004) 123
Cal.App.4th 1001, 1005 [“Summary judgment is properly granted when the papers show
there is no triable issue of material fact, and the moving party is entitled to judgment as a
matter of law. [Citation.] Issues of law, including statutory construction and the
application of that construction to a set of undisputed facts, are subject to this court’s
independent review.”]; see Sorenson v. Superior Court (2013) 219 Cal.App.4th 409, 424

9       We asked the parties to address in supplemental briefing the effect, if any, of the
UFW’s decertification on the issues or arguments raised, in this appeal. The parties agree
that the decertification does not render this appeal moot. We agree. (See Clovis Unified
School Dist. v. Chiang (2010) 188 Cal.App.4th 794, 809 [declaratory relief is an
appropriate method to challenge an administrative agency’s “ ‘overarching, quasi-
legislative policy’ ”]; People v. Harrison (2013) 57 Cal.4th 1211, 1217‒1218 [court
exercised inherent discretion to resolve issue that had become moot as to the defendant,
as it was an issue of “broad public interest that is likely to recur” and was likely to evade
review].)


                                              16.
(Sorenson) [“Where the issue to be decided implicates First Amendment rights, appellate
courts are required to conduct an independent review of the record.”]; Silvers v. Board of
Equalization (2010) 188 Cal.App.4th 1215, 1219 [review of trial court’s decision is de
novo where “the case concerns the application of constitutional and statutory provisions
to undisputed facts.”].)
II.    Gerawan Has No Standing
       We first address the Board’s contention that Gerawan lacks standing to assert any
of the causes of action alleged in its complaint. The Board contends Gerawan does not
have standing because it has not asserted any claim on its own behalf and has not suffered
any injury or constitutional deprivation. Instead, the Board asserts, Gerawan’s complaint,
as well as its summary judgment motion, focuses solely on the attempts by Garcia and
other Gerawan employees to attend the MMC proceedings and purports to advocate their
interests, not its own. The Board further argues that, by asserting the constitutional rights
of its employees, Gerawan impermissibly interferes with the employee-union
relationship.10
       “A declaratory relief action requires an ‘actual controversy relating to the legal
rights and duties of the respective parties.’ (Code Civ. Proc., § 1060.) Courts will
decline to resolve lawsuits that do not present a justiciable controversy, and justiciability
‘involves the intertwined criteria of ripeness and standing.’ ” (County of San Diego v.
San Diego NORML (2008) 165 Cal.App.4th 798, 813.)
       “As a general principle, standing to invoke the judicial process requires an actual
justiciable controversy as to which the complainant has a real interest in the ultimate


10      While this court concluded in the prior appeal that Gerawan’s declaratory relief
claims could be heard in superior court, we held only that the superior court had
jurisdiction to hear and consider the causes of action alleged in Gerawan’s complaint.
(Gerawan Farming, II, supra, F069896 [nonpub. opn.].) We did not address whether
Gerawan had standing to raise its claims.


                                             17.
adjudication because he or she has either suffered or is about to suffer an injury of
sufficient magnitude reasonably to assure that all of the relevant facts and issues will be
adequately presented to the adjudicator. [Citations.] To have standing, a party must be
beneficially interested in the controversy; that is, he or she must have ‘some special
interest to be served or some particular right to be preserved or protected over and above
the interest held in common with the public at large.’ [Citation.] The party must be able
to demonstrate that he or she has some such beneficial interest that is concrete and actual,
and not conjectural or hypothetical. A complaining party’s demonstration that the subject
of a particular challenge has the effect of infringing some constitutional or statutory right
may qualify as a legitimate claim of beneficial interest sufficient to confer standing on
that party.” (Holmes v. California Nat. Guard (2001) 90 Cal.App.4th 297, 314‒315; see
Azusa Western, Inc. v. City of West Covina (1975) 45 Cal.App.3d 259, 266 [“ ‘It is a
firmly established principle of law that one may not urge the unconstitutionality of a
statute unless his rights are adversely affected thereby ….’ ”].) “The focus of the
standing inquiry is on the plaintiff, not on the issues he or she seeks to have determined.”
(Surrey v. TrueBeginnings, LLC (2008) 168 Cal.App.4th 414, 417, disapproved on
another point in White v. Square, Inc. (2019) 7 Cal.5th 1019, 1033.)
       Here, Gerawan alleged in its complaint it had an interest in attending other
agricultural employer’s MMC proceedings, which the Board’s Order would preclude it
from doing. Specifically, Gerawan alleged it: (1) “has a constitutional right of access to
government proceedings”; (2) “has the right to attend any [on-the-record] Proceeding,
whether or not it is the party compelled into the process”; (3) “has an interest in seeking
vindication of its right … to know the process by which the ALRB determines state-
imposed contracts with profound and expansive impact on agriculture in the State of
California; and (4) “is not excepted from the California Constitution’s guarantee that ‘the
people’ of this State have the right of public access.” Moreover, in its declaratory relief



                                             18.
causes of action, Gerawan alleged the Board’s actions violated its “right to public access
to on-the-record MMC proceedings.”
       The Board argues these allegations are insufficient to confer standing because
Gerawan’s complaint does not allege Gerawan asked to attend other employer’s MMC
proceedings but was denied access, or even mention other employer’s MMC proceedings.
Instead, Gerawan’s complaint focuses solely on Garcia’s attempts, and those of other
Gerawan employees, to attend MMC proceedings between it and the UFW, and purports
to advocate their interests in attending those proceedings. We agree. In order to have
standing to challenge the Board’s no access policy, Gerawan must establish it suffered a
concrete injury as a result of the policy, such as by alleging it attempted to attend an
MMC, but was denied access. (N.Y. Civil Liberties Union v. N.Y. City Transit (2d Cir.
2012) 684 F.3d 286, 295 (NYCLU).)
       Gerawan’s challenge to the Board’s no access policy is essentially a facial
challenge, as Gerawan has not yet been denied access to an MMC proceeding. For
example, a plaintiff whose constitutional rights have not been violated may bring a facial
challenge to a law, which requires the party to demonstrate the legislation is invalid under
any set of circumstances. (People v. Hsu (2000) 82 Cal.App.4th 976, 982; United States
v. Salerno (1987) 481 U.S. 739, 745; Tennison v. Paulus (9th Cir. 1998) 144 F.3d 1285,
1287.) “[A] plaintiff generally must assert his own legal rights and interests, and cannot
rest his claim to relief on the legal rights or interests of third parties.” (Warth v. Seldin
(1975) 422 U.S. 490, 499.) The reasons for this rule are to prevent unnecessary
pronouncements and premature statutory interpretations “ ‘in areas where their
constitutional application might be cloudy,’ ” and to assure that issues before the court
“will be concrete and sharply presented.” (Secretary of State of Md. v. J.H. Munson Co.
(1984) 467 U.S. 947, 955.)
       The limitation that a party must assert his own legal rights is relaxed when a party
brings a facial challenge implicating the free speech aspect of the First Amendment.

                                              19.
(Tennison v. Paulus, supra, 144 F.3d at p. 1287; Prigmore v. City of Redding (2012)
211 Cal.App.4th 1322, 1349; People v. Hsu, supra, 82 Cal.App.4th at p. 982.) This is
because “when there is a danger of chilling free speech, the concern that constitutional
adjudication be avoided whenever possible may be outweighed by society’s interest in
having the statute challenged.” (Secretary of State of Md. v. J.H. Munson Co., supra,
467 U.S. at p. 956.)
       Although Gerawan raises a First Amendment challenge to the Board’s policy, the
basis of the challenge is the right of access, not the right of free speech. The relaxed
standing rules for First Amendment facial challenges have been applied in the free speech
area, the rationale being that the relaxed rules are necessary to prevent a chilling of free
speech. We are not aware of any case that applied such relaxed standing requirements in
right of access cases, and Gerawan has cited no such case authority. We conclude
Gerawan has no standing to challenge the Board’s policy on First Amendment grounds.
Accordingly, we will address only Garcia’s arguments on the right of access issue.
III.   Constitutional Right of Access to MMC Proceedings
       The United States Supreme Court has recognized that the First Amendment, which
applies to the states through the Fourteenth Amendment, embodies a qualified “right of
access” of the press and public to attend certain governmental proceedings. (Press-
Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 9 (Press-Enterprise II).) The
Supreme Court first articulated this right in Richmond Newspapers, Inc. v. Virginia
(1980) 448 U.S. 555, 580 (Richmond Newspapers), in which seven Justices recognized
there is a qualified right of access under the First Amendment to attend criminal trials.11
(Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 603 [striking down as
unconstitutional a state statute mandating that the testimony of minor victims in criminal


11    To avoid confusion, we will refer to the United States Supreme Court as the
“Supreme Court,” and the California Supreme Court as the “high court.”


                                             20.
trials involving certain sex offenses be taken in closed proceedings].) The Supreme
Court subsequently extended this right of access to the jury selection process in a
criminal trial (Press-Enterprise Co. v. Superior Court (1984) 464 U.S. 501, 511, 513
(Press-Enterprise I), and criminal preliminary hearings (Press-Enterprise II, at pp. 8‒9.)
       In Press-Enterprise II, the Supreme Court described a two-part test for access
claims: “In cases dealing with the claim of a First Amendment right of access to criminal
proceedings, our decisions have emphasized two complementary considerations. First,
because, a ‘ “tradition of accessibility implies the favorable judgment of experience,” ’
[citations], we have considered whether the place and process have historically been open
to the press and general public. [¶] … [¶] Second, in this setting the Court has
traditionally considered whether public access plays a significant positive role in the
functioning of the particular process in question…. [¶] These considerations of
experience and logic are, of course, related, for history and experience shape the
functioning of governmental processes. If the particular proceeding in question passes
these tests of experience and logic, a qualified First Amendment right of public access
attaches.” (Press-Enterprise II, supra, 478 U.S. at pp. 8‒9.)
       When a right of access attaches, however, it is not absolute. (Press-Enterprise II,
supra, 478 U.S. at p. 9.) “ ‘[The] presumption [of access] may be overcome only by an
overriding interest based on findings that closure is essential to preserve higher values
and is narrowly tailored to serve that interest. The interest is to be articulated along with
findings specific enough that a reviewing court can determine whether the closure order
was properly entered.’ ” (Id. at pp. 9‒10.)
       Based on this Supreme Court precedent, one California appellate court declined to
extend the constitutionally protected public right of access to trials and pretrial
proceedings in criminal cases to juvenile dependency proceedings. (San Bernardino
County Dept. of Public Social Services v. Superior Court (1991) 232 Cal.App.3d 188,
192.) In its decision, the court explained the Supreme Court’s cases, taken together,

                                              21.
“indicate that (1) the right of access does not extend automatically to every proceeding in
court; (2) whether the right extends to a particular proceeding depends on whether the
particular proceeding passes the tests of experience and logic (Press–Enterprise II); (3) if
the right does apply to a particular proceeding, a statute mandating that such proceeding
be closed is unconstitutional (Globe); and finally (4) if there is a constitutional right of
access to a particular proceeding, any order closing all or part of that proceeding must be
supported by articulated findings indicating that closure is necessary to serve an
overriding and compelling state interest and that the order closing the proceedings is
narrowly tailored to serve that interest.” (Id. at p. 197.)
       While the Supreme Court has not explicitly recognized a First Amendment right of
access outside the criminal context, our high court, as well as numerous federal circuit
courts, have held the right applies to civil as well as criminal proceedings. (NBC
Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1181‒1182 (NBC
Subsidiary); Rushford v. New Yorker Magazine, Inc. (4th Cir. 1988) 846 F.2d 249,
253-254; Westmoreland v. Columbia Broadcasting System, Inc. (2d Cir. 1984) 752 F.2d
16, 22; Publicker Industries, Inc. v. Cohen (3d Cir. 1984) 733 F.2d 1059, 1070; Matter of
Continental Illinois Securities Litigation (7th Cir. 1984) 732 F.2d 1302, 1308; Brown &
Williamson Tobacco Corp. v. F.T.C (6th Cir. 1983) 710 F.2d 1165; Newman v. Graddick
(11th Cir. 1983) 696 F.2d 796, 801.)
       In NBC Subsidiary, our high court held, “in light of [Supreme Court] case law and
its progeny, that, in general, the First Amendment provides a right of access to ordinary
civil trials and proceedings, [and] that constitutional standards governing closure of trial
proceedings apply in the civil setting ….” (NBC Subsidiary, supra, 20 Cal.4th at
p. 1212.) Thus, “substantive courtroom proceedings in ordinary civil cases are
‘presumptively open’ and that [Code of Civil Procedure] section 124 [governing public
court sittings] must be interpreted to preclude closure of proceedings that satisfy the
[Supreme] court’s historical tradition/utility considerations….” (Id. at p. 1217.) “The

                                              22.
presumption of openness, or preclusion of closure, in ordinary civil cases applies unless
the trial court (1) provides notice of a contemplated closure, and (2) holds a hearing and
expressly finds that: ‘(i) there exists an overriding interest supporting closure and/or
sealing; (ii) there is a substantial probability that the interest will be prejudiced absent
closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to
serve the overriding interest; and (iv) there is no less restrictive means of achieving the
overriding interest.’ ” (In re Marriage of Burkle (2006) 135 Cal.App.4th 1045, 1052,
citing NBC Subsidiary, at pp. 1217‒1218.)
       Our high court, however, emphasized its decision was a limited one: “We address
herein the right of access to ordinary civil proceedings in general, and not any right of
access to particular proceedings governed by specific statutes.” (NBC Subsidiary, supra,
20 Cal.4th at p. 1212, fn. 30.) Later, our high court reiterated the limited nature of its
holding in NBC Subsidiary and noted that in that decision, it explained the concern that a
constitutional right of access, “ ‘ “if not subjected to practical limitations, would
theoretically warrant permitting the public to sit and contemporaneously eavesdrop upon
everything their government does,” ’ … ‘has been accounted for in decisions that have
been careful not to extend the public’s right of access beyond the adjudicative
proceedings and filed documents of trial and appellate courts.’ (NBC Subsidiary, at
p. 1212, italics added, fn. omitted.)” (Copley Press, Inc. v. Superior Court (2006)
39 Cal.4th 1272, 1303.) In addition, our high court has declined to extend the First
Amendment right of access to records of the State Bar of California, as the First
Amendment requires disclosure to the public of “records of civil and criminal
adjudicatory proceedings” and State Bar records “are not records of adjudicatory
proceedings.” (Sander v. State Bar of California (2013) 58 Cal.4th 300, 319, fn. 7.)
       This case requires us to decide whether the presumption of openness applies to
on-the-record MMC proceedings.



                                              23.
       A. It is Garcia’s Burden to Show a Presumed Right of Access
       Garcia asserts the trial court’s decision was based on “the erroneous assumption
that courts presume that government proceedings are closed unless the party who is
seeking access points to a specific statute mandating openness or provides evidence that
access is necessary to remedy the harms that would be caused by secrecy.” Garcia
contends he is entitled to a presumption of access because, under the First Amendment
and California Constitution, government proceedings are presumptively open to the
public, and it is the Board’s burden to justify closure.
       As we have explained, our high court in NBC Subsidiary extended the
presumption of access only to “ordinary civil trials,” not to other proceedings. (See
Phoenix Newspapers v. U.S. Dist. Court (9th Cir. 1998) 156 F.3d 940, 946 (Phoenix
Newspapers) [“there is no right of access which attaches to all judicial proceedings, even
all criminal proceedings”].) On-the-record MMC proceedings are not ordinary civil
trials, and are not even quasi-judicial or quasi-adjudicative. (Hess Collection Winery v.
Agricultural Labor Relations Bd. (2006) 140 Cal.App.4th 1584, 1598 (Hess).) Rather,
they are “quasi-legislative in character,” as they create new rules for future application.
(Ibid.; see Gerawan Farming II, supra, 3 Cal.5th at p. 1133.) As such, they do not
constitute civil proceedings entitled to a presumed right of access.
       Since MMC proceedings are not ordinary civil trials, to qualify for a presumption
of access, Garcia must first establish through application of the “experience and logic”
test that a right of access attaches to on-the-record MMC proceedings. (Phoenix
Newspapers, supra, 156 F.3d at p. 946 [the two-part experience and logic test articulated
by the Supreme Court determines whether a right of access attaches to a particular
proceeding]; North Jersey Media Group, Inc. v. Ashcroft (2002) 308 F.3d 198, 208‒209
(North Jersey) [applying experience and logic test to determine whether the press and
public have a First Amendment right to attend deportation hearings]; U.S. v. Black (N.D.
Ill. 2007) 483 F.Supp.2d 618, 622‒623; USA v. Sleugh (N.D. Cal. 2016) 318 F.R.D. 370,

                                             24.
374; Matter of 2 Sealed Search Warrants (Del. Super. 1997) 710 A.2d 202, 207 [“[t]he
party seeking a First Amendment right of access must make a two-part threshold showing
known as the experience and logic tests”].)
       If a right of access attaches, then the burden shifts to the Board to present facts to
overcome the presumption of disclosure. “If a proceeding fulfills both parts of the test, a
qualified First Amendment right of access arises, to be overcome ‘only by an overriding
interest based on findings that closure is essential to preserve higher values and is
narrowly tailored to serve that interest.’ The trial court must articulate this interest ‘along
with findings specific enough that a reviewing court can determine whether the closure
order was properly entered.’ ” (Phoenix Newspapers, supra, 156 F.3d at pp. 946‒947,
quoting Press–Enterprise II, supra, 478 U.S. at pp. 9–10.)12
       Garcia also contends the presumption of access was codified in the California
Constitution by Proposition 59, which amended the California Constitution effective
November 3, 2004, to specifically provide for “the people’s right of access to information
in public settings.” (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588,


12      The cases Garcia cites are consistent with this approach. In Waller v. Georgia
(1984) 467 U.S. 39, the Supreme Court, in holding the Sixth Amendment right to a public
trial extended to a suppression hearing, first concluded there was a right of access to
suppression hearings and then determined whether the party seeking to close the hearing
advanced an overriding interest. (Id. at pp. 44‒48.) In Oregonian Pub. v United States
Dist. Court for Dist. of Or. (9th Cir. 1990) 920 F.2d 1462, the court first applied the
experience and logic test to determine whether the presumed right of access extended to
plea agreements and related documents in criminal cases. (Id. at pp. 1465‒1466.) Once
it determined such a right existed, the presumption of disclosure attached and the party
seeking closure had the burden of justifying it. (Id. at pp. 1466‒1467; accord United
States v. Brooklier (9th Cir. 1982) 685 F.2d 1162, 1167‒1169 [court first concluded that
under experience and logic test, the First Amendment right of access attaches to voir dire
and then determined whether the party seeking closure established the applicable grounds
to support closure]; In re Marriage of Burkle, supra, 135 Cal.App.4th at pp. 1060‒1061
[applying experience and logic test to determine presumption of access attaches to
divorce proceedings, then assessing constitutionality of statute mandating sealing of
presumptively open court records at the request of either party].)


                                              25.
597.)13 He asserts Proposition 59 requires courts to “construe the rules in a manner
favoring a right of access.” (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th
60, 101.) While Proposition 59 provides for the broad construction of statutes furthering
the people’s right of access to information concerning the conduct of the people’s
business (Cal. Const., art. I, § 3, subd. (b)(2)), there is nothing to suggest that it
independently establishes a right of public access to MMC proceedings. (See Sorenson,
supra, 219 Cal.App.4th at p. 436, fn. 20 [as no qualified First Amendment right of public
access exists with respect to involuntary commitment proceedings, and a statute that
predated Proposition 59 created an exception to the requirement of open courtroom
proceedings, “[A]rticle I, section 3, subdivision (b) of the California Constitution does
not establish independently a right of public access to [those] proceedings”].) While the
court stated in Sorenson that, with Proposition 59’s passage, “the people’s right of access
to information in public settings [as articulated in NBC Subsidiary] now has state
constitutional stature, grounding the presumption of openness in civil court proceedings
with state constitutional roots” (Savaglio v. Wal-Mart Stores, Inc., supra,
149 Cal.App.4th at p. 597), our high court has yet to extend that presumption beyond
ordinary civil court proceedings.
       Therefore, we must look to the Supreme Court’s experience and logic test to
determine whether there is a presumed right of access to on-the-record MMC
proceedings.
       B. The Experience Prong
       “Under the experience prong of the experience and logic test, we ‘consider
whether “the place and process have historically been open to the press and general


13      Article I, section 3, subdivision (b)(1) of the California Constitution provides:
“The people have the right of access to information concerning the conduct of the
people’s business, and, therefore, the meetings of public bodies and the writings of public
officials and agencies shall be open to public scrutiny.”


                                               26.
public,” because such a “tradition of accessibility implies the favorable judgment of
experience.” ’ [Citation.] In order to satisfy the experience test, the tradition of openness
must be strong; however, ‘a showing of openness at common law is not required.’ ”
(Delaware Coalition for Open Government v. Strine (3d Cir. 2013) 733 F.3d 510, 515
(Strine).) The inquiry “is objective” and does not look to “ ‘the practice of the specific
public institution involved, but rather to whether the particular type of government
proceeding had historically been open in our free society.’ ” (PG Pub. Co. v. Aichele
(3d Cir. 2013) 705 F.3d 91, 108 (PG Pub.).)
       As the Board points out, Garcia offers no evidence of a history of public access to
MMC proceedings. The MMC statutes do not specifically provide for such access and
Garcia does not provide any history or practice of public access since the statute took
effect in 2003.14
       The lack of history of public access to MMC proceedings is not dispositive,
however, since we examine, not the practice of the specific institution, but rather the
history of openness of the type of government proceeding involved. The parties disagree
as to which history is relevant to this inquiry. Garcia asserts we should examine the
history of civil trials and mandatory interest arbitrations, while the Board asserts we
should examine the history of collective bargaining and labor arbitrations. In order to


14      Legislation was proposed in 2015 to amend the MMC statute to deem bargaining
unit members parties for the purpose of MMC proceedings and grant them the right to
attend all meetings scheduled by the mediator. (Assem. Bill No. 1389 (2015-2016 Reg.
Sess.), as amended May 4, 2015, § 2.) As explained in the committee analysis of the bill,
the bill “would amend the law” to allow bargaining unit members to attend MMC
proceedings. (Assem. Com. on Lab. and Employment, Rep. on Assem. Bill No. 1389
(2015-2016 Reg. Sess.) May 6, 2015.) The Legislature, however, never voted on the
proposed legislation. The Board has asked us to take judicial notice of the bill and
assembly report, while appellants have asked us to take judicial notice of the “Bill
History of Assembly Bill No. 1389,” which shows the bill never left the committee and
was not voted on by the full Assembly or Senate. We deferred ruling on the requests,
which we now grant.


                                             27.
fully consider the “judgment of experience” (Press Enterprise II, supra, 478 U.S. at
p. 11), we will explore all of these histories. (See Strine, supra, 733 F.3d at pp. 515‒516
[examining the history of civil trials as well as arbitrations when determining whether
government-sponsored arbitrations have a strong tradition of openness].)
              1. Civil Trials
       There is undoubtedly a long history of access to civil trials (Strine, supra,
733 F.3d at p. 516) and, as our high court has concluded, the First Amendment provides a
right of access to ordinary civil trials and proceedings. (NBC Subsidiary, supra,
20 Cal.4th at p. 1212.) “The courthouse, courtroom, and trial remain essential to the way
the public conceives of and interacts with the judicial system.” (Strine, at p. 516.)
              2. Collective Bargaining
       Collective bargaining negotiations historically have been considered private and
closed to the public, even in the public sector. Negotiating sessions under the
Educational Employment Relations Act (EERA) (Gov. Code, § 3540 et seq.) “are
intended to be private unless both parties agree otherwise.” (Ross School District Board
of Trustees (1978) PERB Dec. No. 48, p. 5; see San Mateo City School Dist. v. Public
Employment Relations Bd. (1983) 33 Cal.3d 850, 964 [public is excluded from actual
negotiating sessions under the EERA]; California Aware v. Joint Labor/Management
Benefits Committee (2011) 200 Cal.App.4th 972, 974, 980 [labor/management committee
formed to further college district’s collective bargaining with the unions representing the
district’s employees was exempt from the open meeting requirements of the Ralph M.
Brown Act (Brown Act) (Gov. Code, § 54950 et seq.)]; 92 Ops.Cal.Atty.Gen. 102, 105,
106 (2009) [same]; Petaluma City Elementary School District/Joint Union High School
District (2016) PERB Dec. No. 2485, pp. 28‒29 (Petaluma City) [there is “a legislative
preference or default rule that, in the absence of agreement to the contrary, negotiations
will occur solely between the parties’ representatives”; employees do not have an
independent right to attend negotiations].) Similarly, negotiating sessions under the

                                             28.
Meyers-Milias Brown Act (MMBA) (Gov. Code, § 3500 et seq.) are not required to be
open to the public, but may be held in private. (61 Ops.Cal.Atty.Gen. 1, 5‒6, 20 (1978)
[because of the need to caucus and bargain in private, the Legislature did not intend to
require “local agencies to do their labor bargaining in a fish bowl”].)
       These California authorities are consistent with the findings of other states that
collective bargaining negotiations are not open to the public, including: (1) several state
supreme courts—Burlington Community School Dist. v. Public Employment Relations
Bd. (Iowa 1978) 268 N.W.2d 517, 523, Talbot v. Concord Union School Dist. (1974)
114 N.H. 532 [323 A.2d 912, 913‒914], Appeal of Exeter (1985) 126 N.H. 685 [495 A.2d
1288, 1290]; (2) state appellate courts—State ex rel. Bd. of Pub. Utilities v. Crow
(Mo.Ct.App. 1979) 592 S.W.2d 285, 289‒290, Board of Selectmen v. Labor Relations
Com’n (1979) 7 Mass.App.Ct. 360 [388 N.E.2d 302, 303], County of Saratoga v.
Newman (1984) 476 N.Y.S.2d 1020 [124 Misc.2d 626, 629]; and (3) a wide consensus
among state labor boards—County of Saratoga (N.Y. 1984) N.Y. PERB Case Nos.
U-7166, U-7191, pp. 8‒9, Brielle Board of Education (N.J. 1977) N.J. PERC No. 77‒72,
pp. 7, 11, Washoe County School Dist. (1976) Nev. Emp. Mgmt. Rel. Bd., Item No. 54,
Burlington Community School Dist. (Iowa 1976) 76 PERB 840 [Case No. 840], City of
Sparta and City of Sparta Water Utility (1976) Wis. Emp. Rel. Comm. Dec. No. 14520,
p. 5, Bethlehem Area School Dist. (Pa. 1973) 3 PPER 102, 104, Board of Education of the
City of Menominee (1968) Mich. Lab. Opn. 383 [Case No. C67 E-38].15


15      The Board asks us to take judicial notice of seven of these decisions: Bethlehem
Area School District (Pa. 1973) 3 PPER 102; Board of Education of the City of
Menominee (Mich. 1968) Mich. Lab. Opn. 383 [Case No. C67 E-38]; Brielle Board of
Education (N.J. 1977) N.J. PERC No. 77-72; Burlington Community School District
(Iowa 1976) 76 PERB 840 [Case No. 840]; City of Sparta and City of Sparta Water
Utility (Wis. 1976) Wisc. Emp. Rel. Comm. Decision No. 14520; County of Saratoga
(N.Y. 1984) N.Y. PERB Case Nos. U-7166, U-7191; and Washoe County School District
(Nev. 1976) Nev. Emp. Mgmt. Rel. Bd., Item No. 54. The Board also asks us to take
judicial notice of two decisions not mentioned here, County of Essex (N.J. 2005) N.J.

                                             29.
       Under the NLRA, an employer commits an unfair labor practice when it invites
rank-and-file employees to attend negotiations and insists on their presence. (L.G.
Everist, Inc. (1953) 103 NLRB 308, 308‒309; see Jasper Blackburn Products Corp.
(1940) 21 NLRB 1240, 1250.) This is because the employees’ presence is “not
conducive to the orderly, informal, and frank discussion of the issues confronting the
negotiators necessary to reach a contract,” and constitutes “interference with the
employees’ right to bargain through the representatives of their own choosing.” (L.G.
Everist, Inc., at pp. 308‒309.)
              3. Labor Arbitrations
       Arbitration proceedings in the civil arena have a mixed record of openness.
(Strine, supra, 733 F.3d at p. 518.) As explained in Strine: “Although proceedings
labeled arbitrations have sometimes been accessible to the public, they have often been
closed, especially in the twentieth century. This closure, however, can be explained by
the private nature of most arbitrations. Confidentiality is a natural outgrowth of the status
of arbitrations as private alternatives to government-sponsored proceedings. Indeed, we
would be surprised to find that private arbitrations—taking place before private
arbitrators in private venues—had historically been accessible to the public.” (Id. at
p. 518.)
       Arbitrations concerning labor issues generally are private proceedings. (United
Food & Commercial Workers Int’l. Union, etc. v. SIPCO, Inc. (S.D. Iowa Dec. 30, 1992)
1992 U.S. Dist. LEXIS 21332, at *25 (SIPCO) [finding it improper for the arbitrator to
permit nonparties to attend grievance arbitration; “[a]n arbitration is a private proceeding,
normally to be attended only by the parties”]; Hoteles Condado Beach etc. v. Union De
etc. (1st Cir. 1985) 763 F.2d 34, 39 [recognizing that arbitration is “a private proceeding


PERC No. 2005-52 and King County (Wash. 1992) Wash. PECB Decision No. 4236. We
deferred ruling on the request, which we now grant. (Evid. Code, § 452, subd. (c).)


                                             30.
which is generally closed to the public”]; Elkouri & Elkouri, How Arbitration Works
(8th ed. 2016) p. 7‒20 [“An arbitration hearing usually is not open to the public, even in
the public sector, although some public-sector interest arbitration hearings are open by
statute.”].)
       Garcia points to mandatory labor arbitration statutes dating back to the 1920’s
which required open proceedings. He cites first to the Kansas Industrial Court Act of
1920 (Kansas Act). The Kansas Act created the court of industrial relations (CIR)—a
three-member tribunal, which was really an administrative board, invested with the
power to investigate and adjudicate disputes “over certain ‘key’ industries declared to be
essential to the public welfare.” (Herbert Rabinowitz, The Kansas Industrial Court Act
(1923) 12 Cal. L. Rev. 1, p. 2 (Rabinowitz); 1920 Kan.Sess.Laws, ch. 29, §§ 1‒3,
pp. 36-38.)
       The CIR was given the power, either on its own initiative or at the request of a
party to a dispute, to investigate and decide any controversy which “ ‘may endanger the
continuity and efficiency … of said industry.’ ” (Rabinowitz, at p. 2; 1920
Kan.Sess.Laws, ch. 29, § 7, p. 39.) The CIR could issue subpoenas, administer oaths,
take testimony, rule on evidence, and adjudicate disputes regarding working conditions
and wages. (1920 Kan.Sess.Laws, ch. 29, §§ 5 & 11, pp. 38‒39, 41‒42.) Testimony was
transcribed and became the official record of the proceedings, which were public records
open to inspection. (Id., §§ 4 & 5, at pp. 38‒39.) A party could bring a proceeding in the
Kansas Supreme Court to review the CIR’s orders. (Id., § 12, at p. 42.) While the
Kansas Act did not expressly state the CIR’s proceedings were open to the public, the
bill’s author described the law as providing “for the adjudication of industrial disputes in
very much the same way that other classes of controversies have been adjudicated in all
the Anglo-Saxon countries of the world for hundreds of years.” (William L. Huggins,
A Few of the Fundamentals of the Kansas Industrial Court Act (1921) 7 Am. Bar Assn. J.
265, 268.) The Kansas Act, however, was short-lived, as by 1925, the Supreme Court

                                             31.
had invalidated it as unconstitutional in two decisions, Wolff Co. v. Industrial Court
(1923) 262 U.S. 522, 544 and Wolff Packing Co. v. Indus. Court (1925) 267 U.S. 552,
569.
       Garcia also points to Colorado’s Industrial Relations Act of 1915 (the Colorado
Act), which established a new public authority, the industrial commission, and
empowered it to intervene in all labor disputes. (Martin v. Montezuma-Cortez School
District RE-1 (1992) 841 P.2d 237, 242 (Martin).) The Colorado Act conferred on the
industrial commission the power, among other things, to inquire “ ‘into the extent and
results of methods of collective bargaining,’ ” and “to promote the voluntary arbitration,
mediation and conciliation of disputes between employers and employees.” (Martin, at
p. 243.) Employers and employees were subjected to the commission’s initial
jurisdiction in order to defuse potential labor disputes. (Id. at p. 246.)16
       Voluntary arbitration or mediation could be held before a commissioner or
commission-appointed board of arbitration, which had the power to compel the
attendance of witnesses, administer oaths, and admit evidence. (1915 Colo.Sess.Laws,
ch. 180, §§ 25 & 28, pp. 575‒577, 577-578.) Findings, orders, awards or decisions of the
commissioner or board of arbitration, when approved and confirmed by the commission,
were deemed to be the commission’s finding, order, award or decision, but they were not
binding on the parties unless the parties agreed in writing. (Id., §§ 27 & 31, pp. 577,
579.) “[S]essions of the commission” were open to the public and its proceedings a

16      As explained by the Colorado Supreme Court: “Employers and employees were
required to give notice to the industrial commission before engaging in a ‘lockout or
strike, or a suspension or discontinuation of work or employment’ on account of a dispute
over compensation or hours. Moreover, the Industrial Relations Act made it ‘unlawful
for any employer to declare or cause a lockout, or for any employee to go on strike, on
account of any dispute prior to or during an investigation, hearing, or arbitration of such
dispute by the commission….’ [Citation.] After such dispute ‘has been duly
investigated, heard, or arbitrated,’ employers and employees were free to lockout or to
strike, respectively.’ ” (Martin, supra, 841 P.2d at p. 243.)


                                              32.
public record. (Id., § 9, p. 567.)17 The commission’s findings, orders or awards were
subject to review first by the commission itself, and then by a district court. (Id.,
§§ 34-37, pp. 580‒582.)
       Finally, Garcia asserts that several California city and county charters, as well as
out-of-state statutes and administrative rules, mandate public access to public-sector
interest arbitrations. (See Sac. County Charter, art. XVIII, § 94(c) [mandating that
arbitrators “hold public hearings, receive evidence from the parties and cause a transcript
of the proceedings to be prepared”]; Anaheim City Charter, art. X, § 1053 [same]; S.F.
Charter, § A8.590-5 [same]; Del. Code, tit. 19, ch. 13, § 1313(b) [“Hearings conducted
by binding interest arbitrators shall be open to the public.”]; Or. Admin. Rules, ch. 115,
div. 40, rule 115-040-0015(7)(e) [binding interest arbitration hearings “shall be open to
the public unless otherwise mutually agreed to by the parties”]; Iowa Code, tit. I, ch. 20,
§ 20.17(3) [bargaining sessions at which the parties present their initial bargaining
positions are open to the public, as are “[h]earings conducted by arbitrators”].)
       The Board, in contrast, points to California public-sector labor relations statutes,
which provide for private factfinding in the event of a public agency’s impasse in
negotiations with a union. For example, the EERA, governing labor relations in
California’s public school system, provides for a factfinding panel in the case of an
impasse, which may hold hearings at which testimony is taken and evidence produced.
(Gov. Code, §§ 3548.1, 3548.2.) If the dispute is not settled, the panel makes factual
findings and an advisory recommendation as to settlement terms, which are submitted to
the parties privately before they are made public. (Id., § 3548.3, subd. (a).) The EERA

17     The industrial commission act, however, is silent on whether voluntary mediations
and arbitrations were open to the public. The commission could “regulate the mode and
manner of all investigations and hearings” (1915 Colo.Sess.Laws, ch. 180, § 11(f),
pp. 568‒569), and delegate to agents conducting investigations on the commission’s
behalf “the taking of all testimony bearing upon any investigation or hearing” (id., § 17,
p. 572).


                                             33.
exempts factfinding proceedings from open meeting requirements. (Gov. Code,
§ 3549.1, subd. (c).) The same is true with respect to the Higher Education Employer-
Employee Relations Act governing labor relations with the University of California.
(Gov. Code, §§ 3592, 3593, subd. (a), 3596.)
              4. Experience Analysis
       According to these histories, while there is a strong tradition of openness for civil
trials, the same tradition is lacking as to collective bargaining and labor arbitrations.
Moreover, Garcia has not provided us with any significant history relating to compulsory
interest arbitration. The Kansas Act was short-lived, and while the Colorado Act
provided for open proceedings, it appears the commission’s decisions were not binding
on the parties unless they agreed to be bound. That public-sector interest arbitration
hearings are open to the public in some states does not establish a strong tradition of
openness for private-sector interest arbitration hearings such as MMC proceedings.18
       Garcia contends the strong tradition of openness of civil trials should apply to on-
the-record MMC proceedings, citing Strine. There, the Third Circuit Court of Appeals
was required to determine whether the public had a First Amendment right of access to
Delaware’s state-sponsored arbitration program, which created an arbitration process as
an alternative to trial for business disputes where the amount in controversy exceeds one
million dollars. (Strine, supra, 733 F.3d at p. 512.) Arbitrations between qualified
parties, who had to consent to the proceeding, were presided over by a chancery court
judge and conducted in a Delaware courthouse during normal business hours. Once a
decision was reached, a final judgment or decree was entered automatically, and the
parties had the right to appeal the resulting “ ‘order of the Court of Chancery,’ ” to the


18      As our high court recognized in Gerawan Farming I, interest arbitration in the
private sector is rare, and “likely stems from the high court’s determination that the
NLRA, which preempts most state labor regulation, does not authorize compulsory
arbitration.” (Gerawan Farming I, supra, 3 Cal.5th at p. 1140.)


                                              34.
Delaware Supreme Court, which reviewed the arbitration under a deferential standard of
review. The statute and rules governing Delaware’s proceedings barred public access,
and the record of the proceedings was considered confidential and not a public record.
(Id. at p. 513.)
       The appellate court applied the experience and logic test to determine whether
there was a right of access to Delaware’s arbitration process. (Strine, supra, 733 F.3d at
p. 515.) With respect to the experience prong, the court found, after reviewing the
history of openness of civil trials and arbitrations, that history “demonstrates a strong
tradition of openness for proceedings like Delaware’s government-sponsored
arbitrations.” (Id. at p. 518.) The court explained: “Proceedings in front of judges in
courthouses have been presumptively open to the public for centuries. History teaches us
not that all arbitrations must be closed, but that arbitrations with non-state action in
private venues tend to be closed to the public. Although Delaware’s government-
sponsored arbitrations share characteristics such as informality, flexibility, and limited
review with private arbitrations, they differ fundamentally from other arbitrations
because they are conducted before active judges in a courthouse, because they result in a
binding order of the Chancery Court, and because they allow only a limited right of
appeal.” (Ibid., fn. omitted.) The court further explained that “[w]hen we properly
account for the type of proceeding that Delaware has instituted—a binding arbitration
before a judge that takes place in a courtroom—the history of openness is comparable to
the history” of civil or criminal trials. (Ibid.) Thus, the court found its “experience
inquiry” counseled in favor of granting public access to Delaware’s proceeding because
the place and process of the proceeding had historically been open to the press and
public. (Ibid.)
       MMC, however, differs from the state-sponsored arbitration in Strine. As Garcia
correctly points out, on-the-record MMC proceedings have many of the features of a civil
trial. As in a civil trial, each party has the right to be represented by counsel, present

                                              35.
evidence and cross-examine witnesses. The mediator has the authority to administer
oaths, subpoena witnesses, hear sworn testimony, rule on the admission and exclusion of
evidence, sanction parties, and proceed with hearings even if one party refuses to
participate. MMC proceedings, however, are not held before a judge, do not take place in
a courtroom or courthouse, and do not result in a court-issued order. Instead, MMC
proceedings are conducted by a private mediator who is not a public official and the
parties pay the costs of the process. (§ 1164, subd. (b); Hess, supra, 140 Cal.App.4th at
p. 1608 [“The act of delegating legislative authority to a private mediator does not render
the mediator a public official.”].) Unlike the arbitrations in Strine, MMC is not judicial
or even quasi-judicial; rather, MMC results in quasi-legislative action by which the
mediator determines the terms of the collective bargaining agreement imposed on the
employer by force of law. (Gerawan Farming I, supra, 3 Cal.5th at p. 1133; Hess, supra,
140 Cal.App.4th at p. 1597.)
       On-the-record MMC proceedings also differ from civil trials because they operate
as “a continuation of the ordinary bargaining process.” (Gerawan Farming I, supra,
3 Cal.5th at p. 1156.) They simply formalize the usual give and take of contractual
negotiations with a mediator, so the ultimate decision can be more accurately reviewed
on appeal. When the Board orders MMC, the parties identify for the mediator the
disputed and undisputed issues of their negotiations, provide the standards for resolving
the disputed issues, and present evidence as to each disputed issue. During the
presentation of evidence, the mediator may go off the record to informally resolve the
disputed issues. (Cal. Code Regs., § 20407.) Contrary to Garcia’s assertion, the
proceedings are not intended to be adversarial; rather, they are intended to be factfinding
proceedings that create a record from which the mediator determines those terms the
parties are unable to resolve by the end of the MMC process.19 Throughout the process,

19     As a Pennsylvania court explained, “ ‘[t]he purpose of arbitration represents an
extension of the collective bargaining process. Both sides present proposals and

                                            36.
the parties are free to resolve the disputed issues. As our high court recognized, “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.” (Gerawan
Farming I, supra, 3 Cal.5th at p. 1156; Cal. Code Regs., § 20407, subd. (e) [“Where the
parties agree to a collective bargaining agreement without the issuance of a mediator’s
report, as defined in subdivision (d), the parties shall notify the Board and submit a copy
of the signed agreement pursuant to Regulation 20450.”].)
       Thus, on-the-record MMC proceedings are part and parcel of the negotiating
process. As our high court explained, “[t]he 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.” (Gerawan Farming I,
supra, 3 Cal.5th at p. 1157 [noting that other courts “have similarly described interest
arbitration ‘not as a substitute for collective bargaining, but as an instrument of the
collective bargaining process’ ”].)
       Garcia, however, attempts to separate on-the-record MMC proceedings from the
collective bargaining process. He asserts MMC consists of two phases—an off-the-
record phase that proceeds for at least 30 days, followed by a second, on-the-record
phase, which begins when the mediator formally “certif[ies] that the mediation process
has been exhausted.” (§ 1164, subd. (c).) Garcia claims that once the second phase
begins, bargaining has ended. The Board asserts this is incorrect, as the “mediation”
described in the statute is the interest arbitration proceeding, and the mediator’s

supporting evidence to allow the arbitrators to make a decision on the issues presented to
them.’ By its very nature, it is an informal proceeding.” (Dunmore Police Ass’n v.
Dunmore Bor. (Pa.Cmwlth.Ct. 1987) 107 Pa.Cmwlth. 306, 311 [528 A.2d 299, 301]; see
County of Essex, supra, N.J. PERC No. 2005-52, pp. 6‒7 [“Interest arbitration is an
extension of the negotiations process … and throughout formal arbitration proceedings
the arbitrator may continue to mediate and assist the parties in reaching a mutually
agreeable settlement .… Thus, interest arbitration is a labor relations process, not a civil
action….].)


                                             37.
certification that the process has been exhausted only operates to trigger the 21-day
period for the mediator to file a report with the Board. (§ 1164, subd. (d); Cal. Code
Regs., § 20407, subd. (c).)
       The Board’s interpretation is supported by the implementing regulations, which do
not prescribe separate off- and on-the-record proceedings, but instead contemplate a fluid
process that allows the mediator to go off the record at any time to resolve issues
informally and, if this is not successful, to conclude the process with interest arbitration.
(Cal. Code Regs., § 20407, subd. (a)(2).) Regardless of when the mediator certifies the
mediation process has been exhausted, bargaining does not necessarily end when on-the-
record proceedings begin, as off-the-record discussions may continue even during on-the-
record proceedings and, as contemplated in the regulations, the parties may reach an
agreement on the disputed terms, thereby eliminating the need for the mediator to issue a
report. (Id., § 20407, subd. (e).) This is consistent with our high court’s description of
the process, in which it noted the MMC statute requires the parties, with the mediator’s
assistance, to “conduct considerable negotiation before the interest arbitration phase,” but
recognized that in many cases, the parties may reach a voluntary agreement on disputed
terms before the mediator’s report is written or the Board issues its final order. (Gerawan
Farming I, supra, 3 Cal.5th at p. 1156.)
       We therefore reject Garcia’s contention that on-the-record MMC proceedings and
civil trials are “functionally comparable.” (Butz v. Economou (1978) 438 U.S. 478, 513.)
MMC proceedings do not “walk[], talk[], and squawk[]” like a lawsuit. (South Carolina
Ports v. Federal Maritime Com’n (4th Cir. 2001) 243 F.3d 165, 174, affd. Federal
Maritime Comm’n v. South Carolina Ports Authority (2002) 535 U.S. 743.) This is not a
situation where the government has tried to deprive the public of an access right it once
possessed by assigning to an administrative agency a function courts historically
performed or dressing up a civil trial in the guise of an administrative hearing. (North
Jersey, supra, 308 F.3d at p. 215; NYCLU, supra, 684 F.3d at p. 301.) Moreover, the

                                             38.
right of access to compulsory interest arbitration is not “deeply rooted in the way the
judiciary functions in a democratic society,” as was the government-sponsored arbitration
in Strine. (Strine, supra, 733 F.3d at p. 518.)
       Garcia emphasizes that we must look to the process involved in on-the-record
MMC proceedings. (NYCLU, supra, 684 F.3d at pp. 301‒302.) We agree. That process
involves the presentation of each party’s respective contract proposals and supporting
rationales to the mediator, who may go off the record at any time throughout the
proceeding to resolve issues and, if the parties do not reach an agreement as to all
disputed terms, issues a report that resolves all issues and establishes the final terms of a
collective bargaining agreement. There is nothing to suggest, however, that this process
was presumptively open or that it boasts a sufficient tradition of openness to satisfy
Richmond Newspapers or Press-Enterprise II. We may not “dispense with the Richmond
Newspapers ‘experience’ requirement where history is ambiguous or lacking,” or
“recognize a First Amendment right based solely on the ‘logic’ inquiry.” (North Jersey,
supra, 308 F.3d at p. 213.)
       C. The Logic Prong
       Since we have not found a strong showing of openness under the experience
prong, we need not address the logic prong, as both elements are required. Nevertheless,
we conclude that there is not a right of access under the logic prong.
       The logic analysis requires a court to consider “ ‘whether public access plays a
significant positive role in the functioning of the particular process in question.’ ” (PG
Pub., supra, 705 F.3d at p. 110.) The Supreme Court has identified various utilitarian
attributes or benefits of open trials, which help explain why they are entitled to
constitutional protection: (1) they “enhance the performance and accuracy of trial
proceedings, educate the public, and serve a ‘therapeutic’ value to the community”;
(2) they “serve to demonstrate that justice is meted out fairly, thereby promoting public
confidence in such governmental proceedings”; (3) they “provide a means … by which

                                             39.
citizens scrutinize and ‘check’ the use and possible abuse of judicial power”; and (4) they
“serve to enhance the truth-finding function of the proceeding.” (NBC Subsidiary, supra,
20 Cal.4th at pp. 1200‒1202.)20
          “In addition to considering the benefits that would result from press and public
access, we must ‘take account of the flip side—the extent to which openness impairs the
public good.’ [Citation.] Indeed, the logic analysis must account for the negative effects
of openness, for otherwise ‘it is difficult to conceive of a government proceeding to
which the public would not have a First Amendment right of access.’ ” (PG Pub., supra,
705 F.3d at p. 111.) Like the experience prong, the logic inquiry is an objective one.
(Ibid.)
          Here, Garcia contends public access to on-the-record MMC proceedings plays a
significant positive role in the functioning of the MMC process. He asserts “[t]he MMC
process involves extensive fact-finding that would be improved by public scrutiny.”
Specifically, he argues public access would: (1) allow Gerawan employees and others to
independently gauge the testimony at the hearing; (2) increase “the ‘testimonial
trustworthiness’ of the[] witnesses”; (3) “ ‘foster[] an appearance of fairness, thereby
heightening public respect for the judicial process’ ”; and (4) provide information which
would lead to a better understanding of the government’s operation and confidence in,
and respect for, our judicial system.



20     Similarly, the Third Circuit has identified “six broad ‘values’ that are typically
served by openness: [¶] [1] promotion of informed discussion of governmental affairs
by providing the public with the more complete understanding of the [proceeding];
[2] promotion of the public perception of fairness which can be achieved only by
permitting full public view of the proceedings; [3] providing a significant community
therapeutic value as an outlet for community concern, hostility and emotion; [4] serving
as a check on corrupt practices by exposing the [proceeding] to public scrutiny;
[5] enhancement of the performance of all involved; and [6] discouragement of [fraud].”
(PG Pub., supra, 705 F.3d at pp. 110‒111.)


                                               40.
       While these goals certainly would be served by public access to on-the-record
MMC proceedings, we also must account for the negative effects of openness, which
relate to the nature of the collective bargaining process. As the Board explained in its
decision denying access, the purpose of the MMC process is to build a labor negotiation
relationship between the parties to both accomplish the creation of the first contract and
further the parties’ future negotiations, and during labor contract negotiations, “strategic
compromises are often made” that further these goals. (Gerawan Farming, supra,
39 ALRB No. 13, p. 7.) If on-the-record proceedings were open to the public, those
“compromises would not be made with the prospect of real-time publicity of those
compromises and demands for explanations prior to the conclusion of negotiations.
‘[L]abor negotiations are conducted in private in order that negotiators may speak freely
without fear of offending their constituencies and reach compromises without appearing
weak.’ ” (Ibid.)
       Moreover, as we have stated, rank-and-file employees do not have an independent
right to attend collective bargaining negotiations. (Petaluma City, supra, PERB Dec.
No. 2485-E, p. 29.) This is premised on the union’s legal status as the employees’
exclusive representative, which necessarily includes “the derivative right of the duly
elected bargaining agent to select the bargaining team which will represent it at the
negotiating table.” (General Electric Co. (1968) 173 NLRB 253, 254, enfd. by General
Electric Company v. NLRB (2d Cir. 1969) 412 F.2d 512, 516‒517 [“This right of
employees and the corresponding right of employers … to choose whomever they wish to
represent them in formal labor negotiations is fundamental to the statutory scheme. In
general, either side can choose as it sees fit and neither can control the other’s selection, a
proposition confirmed in a number of opinions, some of fairly ancient vintage.”].)
       As explained in Petaluma City: “If employees could assert an independent
statutory right to attend negotiations, even against the wishes of their bargaining
representative, then much of the decisional law prohibiting direct dealing and bad-faith

                                              41.
bargaining would need to be rewritten. Granting employees unfettered access to
negotiations would permit the employer to comment directly to the employees on the
bargaining proposals and conduct of their representatives. Indeed, employers would be
required to present proposals simultaneously to employees and the representative
anytime employees were present. Even if employees remained silent observers, their
mere presence at negotiations could ‘substantially modif[y] the collective-bargaining
system … by weakening the independence of the ‘representative’ chosen by the
employees,’ because it would ‘enable[] the employer, in effect, to deal with its employees
rather than with their statutory representative.’ ” (Petaluma City, supra, PERB Dec.
No. 2485-E, pp. 32‒33.) These principles hold true in collective bargaining procedures
like MMC, which operate as part of the bargaining process. As the Board asserts, these
circumstances present the employer the opportunity to “driv[e] a wedge between” the
union and employees. (Safeway Trails, Inc. (1977) 233 NLRB 1078, 1081.)
       Garcia responds that the rationale for holding closed proceedings, namely, that
confidentiality can encourage compromise, “defies logic,” as no bargaining occurs during
the on-the-record phase. As we have explained, this view of MMC proceedings is
incorrect, as bargaining can occur during the on-the-record phase and may result in the
parties reaching an agreement on disputed terms. Garcia also argues the contention that
the presence of employees at on-the-record MMC proceedings would drive a wedge
between those employees and the union is nullified because a transcript of the testimony
is available to the public. The transcript, however, is not available until the official
record is available, presumably at the conclusion of the MMC proceedings. Thus, while
the employer’s proposals may eventually be revealed, it would not be until after the terms
of a collective bargaining agreement have been determined, either by the parties or the
mediator.
       Garcia asserts a union’s right to be the employees’ exclusive representative does
not permit the state to infringe on the First Amendment right of access of employees and

                                             42.
the public. Garcia claims that by denying workers the ability to witness the proceedings
and discuss the MMC process, the state is interfering with their “absolute right” to
consult among themselves and communicate their views to the public, citing City of
Madison Sch. Dist. v. Wisconsin Emp. Rel. Comm’n (1976) 429 U.S. 167 (City of
Madison).
       The rights at issue in the present case are wholly unlike those at stake in City of
Madison, in which the Supreme Court “upheld a claim of access to a public forum,
applying standard public-forum First Amendment analysis.” (Minnesota Bd. for
Community Colleges v. Knight (1984) 465 U.S. 271, 281.) “The school board meetings
at issue there were ‘opened [as] a forum for direct citizen involvement,’ [citation], and
‘public participation [was] permitted,’ [citation]. The First Amendment was violated
when the meetings were suddenly closed to one segment of the public even though they
otherwise remained open for participation by the public at large.” (Ibid.) This case, in
contrast, does not involve selective closure of a generally open forum, and hence any
reliance on City of Madison is misplaced.
       Moreover, the principle of union exclusivity is not being used to “muzzle a public
employee who, like any other citizen, might wish to express his view about governmental
decisions concerning labor relations.” (Abood v. Detroit Board of Education (1977)
431 U.S. 209, 230, overruled by Janus v. American Federation of State, County, and
Mun. Employees, Council 31 (2018) ___U.S.___ [138 S.Ct. 2448, 2460].) Garcia and the
other Gerawan employees always remained free to express their views about the
collective bargaining process, including MMC. (See Minnesota Bd. for Community
Colleges v. Knight, supra, 465 U.S. at p. 288 [faculty members speech and associational
rights not infringed by state’s restriction of participation in meet and confer sessions to
faculty’s exclusive representative; the state has not restrained the faculty members’
freedom to speak or their freedom to associate, and has not attempted to suppress any
ideas].)

                                             43.
       Garcia next contends the “logic” prong demands that MMC be open to the public
because there are due process violations inherent in secret proceedings.21 In support, he
cites cases which discuss the due process requirements in administrative proceedings of a
quasi-judicial character or are otherwise distinguishable. (See Anti-Fascist Committee v.
McGrath (1951) 341 U.S. 123, 201, fn. 15 (dis. opn. of Reed, J.) [stating that the
statutory requirement for a hearing in Morgan v. United States (1938) 304 U.S. 1, 14,
explains the statement in that case that “ ‘in administrative proceedings of a quasi-judicial
character the liberty and property of the citizen shall be protected by the rudimentary
requirements of fair play. These demand “a fair and open hearing,” … [which] has been
described as an “inexorable safeguard.” ’ ”]; Ohio Bell Tel. Co. v. Comm’n. (1937)
301 U.S. 292, 300 [company deprived of “fair hearing essential to due process” when
public utilities commission ordered refunds based on unknown documents and failed to
report the proofs underlying its calculations]; Fitzgerald v. Hampton (D.C. Cir. 1972)
467 F.2d 755, 756, 764‒767 [due process required quasi-judicial hearing on employee’s
appeal for reinstatement to federal employment to be open to the public; “Where
administrative proceedings have been challenged on grounds of procedural due process,
the Supreme Court’s decisions have consistently distinguished the due process
requirements in administrative proceedings of a quasi[-]judicial character from the due
process requirements in proceedings which are purely investigative and fact-finding.”];
Pechter v. Lyons (S.D.N.Y. 1977) 441 F.Supp. 115, 117‒118 [regulation requiring open
deportation hearings manifests the policy that “judicial proceedings, especially those in
which the life or liberty of an individual is at stake, should be subject to public
scrutiny”].)



21    Notably, neither Garcia nor Gerawan alleged a due process violation in their
complaints. Moreover, while Gerawan made a due process argument in the trial court,
Garcia did not.


                                             44.
       Here, as we have explained, MMC proceedings are not quasi-judicial hearings and
are not comparable to judicial proceedings. While Garcia finds it “impossible to
understand how public observation would hamper” the goals of achieving a contract and
building a labor relationship, as explained in Petaluma City, the mere presence of
employees at collective bargaining negotiations could substantially modify the collective
bargaining system by weakening the independence of the employees’ union
representative. (Petaluma City, supra, PERB Dec. No. 2485-E, p. 33.)
       Finally, Garcia contends the Board’s rationale for denying access to MMC
proceedings, as stated on page seven of the Board’s Order, that “compromises would not
be made with the prospect of real-time publicity of those compromises and demands for
explanations prior to the conclusion of negotiations,” results in both a prior restraint of
speech and viewpoint discrimination. He asserts the right of access to government
proceedings includes the right to receive information and listen, as well as to disseminate
informed opinions from the information received; therefore, “viewpoint discrimination—
whereby a government action has the effect of fostering the dissemination of certain
opinions and discouraging the dissemination of others—and prior restraints—whereby
the government attempts to prevent the publication of certain opinion either through an
outright ban or unduly burdensome regulations—are part and parcel of a right-of-access
claim.” Essentially, Garcia is contending that if he does not have access to the
information presented in on-the-record MMC proceedings, he is precluded from
disseminating that information and his opinion about it, while those who attended the
proceeding are able to disseminate theirs.
       As the Board points out, the present case has nothing to do with prior restraints or
viewpoint discrimination. The Board’s Order does not prevent Garcia, or anyone else,
from publishing or reporting information, or expressing any particular viewpoint. There
is no issue here concerning the trial court’s authority to prevent the publication of
information, as in Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539. Instead, the case

                                             45.
concerns access to information. (Application of The Herald Co. (2d. Cir. 1984) 734 F.2d
93, 96 [issue of whether the First Amendment limits a trial judge’s authority to exclude
the public from a pretrial suppression hearing involved access to information, not prior
restraint]; see Gannett Co. v. DePasquale (1979) 443 U.S. 368, 393, fn. 25 [order
excluding press from suppression hearing in criminal case did not involve a direct prior
restraint, as it did not prevent the publication of information in the petitioner’s
possession]; Application of National Broadcasting Co., Inc. (1987) 828 F.2d 340, 343
[case concerned the media’s right to access court documents in a criminal case, not a
district court’s order restraining the media from publishing or broadcasting documents in
its possession].)
       While the rights of access and publication both have their roots in the First
Amendment, “these principles are doctrinally discrete, and precedents in one area may
not be indiscriminately applied to the other. In general, the right of publication is the
broader of the two, and in most instances, publication may not be constitutionally
prohibited even though access to the particular information may properly be denied.”
(First Amendment Coal. v. Judicial Inquiry & Review (3d Cir. 1986) 784 F.2d 467,
471-472.) Here, “the government is not restricting access to information per se; rather, it
is restricting access to a particular proceeding,” namely, on-the-record MMC
proceedings. (PG Pub., supra, 705 F.3d at p. 101.) Garcia and other employees are free
to contact the participants in the MMC proceeding to obtain information about what went
on inside. (Ibid.; see Petaluma City, supra, PERB Dec. No. 2485-E, p. 32 [“an employer
is free to communicate with exclusively-represented employees about negotiations”].)
       The Order also does not constitute viewpoint discrimination. An on-the-record
MMC proceeding is not a forum for the public to express differing views regarding the
collective bargaining agreement; by excluding employees and the general public, the
Board is not allowing “the presentation of one side of a highly controversial issue,” while
excluding the opposing view. (San Diego Committee v. Governing Bd. (9th Cir. 1986)

                                              46.
790 F.2d 1471, 1481.) Instead, it is a negotiation between the employees’ exclusive
bargaining representative and the employer. While Garcia complains that the Order
allowed the union to select its own representatives, an exclusive bargaining representative
has the right to select its own bargaining team, just as an employer has a right to select its
own team. (General Electric Company v. NLRB, supra, 412 F.2d at pp. 516‒517.) Thus,
the access given to union representatives is based on their status rather than their views.
(Perry Ed. Assn. v. Perry Local Educators’ Assn. (1983) 460 U.S. 37, 49 [where rival
union alleged certified union’s access to teacher mailboxes constituted viewpoint
discrimination, “it is more accurate to characterize the access policy as based on the
status of the respective unions rather than their views.”].)
       In sum, given that on-the-record MMC proceedings are part of the collective
bargaining process, the benefits of open MMC proceedings are far less than the benefits
of open criminal or ordinary civil proceedings. This finding, coupled with the absence of
a showing of a historical tradition of public access, leads us to conclude there is no
constitutional right of public access to on-the-record MMC proceedings. (See Sorenson,
supra, 219 Cal.App.4th at p. 436 [First Amendment right of access does not apply to
involuntary conservatorship proceedings where utility of open involuntary
conservatorship proceedings is less than that of open criminal or ordinary civil
proceedings and there was no showing such proceedings were historically open].)22



22     Two days after oral argument, Gerawan submitted for our consideration a case that
was published on the day of oral argument, First Amendment Coalition of Arizona, Inc. v.
Ryan (9th Cir. Sept. 17, 2019, No. 17-16330) ___F.3d___ [2019 WL 4419676]. There,
applying the experience and logic test, the appellate court held “the First Amendment
right of access to governmental proceedings encompasses a right to hear the sounds of
executions in their entirety.” (Id. at p. *4.) The court determined the historical tradition
of public viewing of executions included the ability to hear its sounds, and “[b]arring
witnesses from hearing sounds after the insertion of intravenous lines means that the
public will not have full information regarding the administration of lethal-injection
drugs and the prisoner’s experience as he dies.” (Id. at pp. *4-5.) In contrast here, there

                                             47.
Accordingly, the trial court did not err in granting summary judgment in favor of the
Board, and denying Gerawan’s and Garcia’s summary judgment motions.
                                    DISPOSITION
      The judgment is affirmed. Costs on appeal are awarded to the Board.



                                                               _____________________
                                                                       DE SANTOS, J.
WE CONCUR:


 _____________________
FRANSON, Acting P.J.


 _____________________
PEÑA, J.




is not a strong historical tradition of public access to on-the-record MMC proceedings,
and the benefits of openness are far less than that of criminal proceedings.


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