I respectfully dissent.
Labor Code section 1153 provides that it is an unfair labor practice for an agricultural employer either “To refuse to bargain collectively in good faith with labor organizations certified” pursuant to the relevant provisions of the code (id., subd. (e)) or, alternatively, “To recognize, bargain with, or sign a collective bargaining agreement with any labor organization not certified” pursuant thereto. (Id., subd. (f), italics added.)
In obedience to this clear statutory injunction, Highland refused to bargain with the United Farm Workers prior to its certification pursuant to the statute. The majority now holds for the first time that such refusal to commit an unfair labor practice constitutes itself an unfair labor practice because “an employer may not seize upon the absence of formal certification when it can entertain no reasonable doubt that the union which has prevailed in a representative election will in fact be certified.” (Ante, p. 862.) Elsewhere, the majority adds the requirement that the doubt be a “good faith” one, as well as “reasonable.” (Ante, p. 861.) Such judicial “amendment” of the statute is wholly untenable, and in my view constitutes a glaring example of judicial redrafting of the controlling statute.
Section 1153, of course, provides no such exceptions to its commands. In requiring an employer to bargain with certified unions (§ 1153, subd. (e)) and to refrain from bargaining with uncertified ones (id., subd. (f)) the Legislature formulated a clear-cut directive for agricultural employers to follow in their relations with labor organizations. Such clarity, however, is scorned by the majority as somehow “literalistic.” (Ante, p. 858.) In my view, however, “adherance to the explicit substance of” *869the law (see Webster's Third New Internat. Dict. (1961) p. 1321) is both reasonable and should apply, in fairness, to the Agricultural Labor Relations Act (ALRA).
To what does the majority propose to cling instead? Initially, it is suggested that the “available legislative history” supports its construction of the statute. When statutory language is clear and unambiguous, however, we have heretofore insisted that courts should not indulge in any “construction” at all. (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198 [137 Cal.Rptr. 460, 561 P.2d 1148].) Further, while the majority’s references to asserted legislative history are instructive, in my opinion they undercut, rather than support, its position.
Thus, the majority notes that the proponents of the ALRA “repeatedly stressed that the act would ‘only allow one way of recognition and that’s through a secret ballot election. We don’t allow recognitional strikes [and] we don’t allow authorization cards as they do under the NLRA.. ..’” (Ante, p. 859.) Having focused upon this crucial distinction between the ALRA and the NLRA, the majority then fails to take the next logical step in its analysis and inquire: How does the California law provide for that designated “one way of recognition” to be accomplished? The answer is very clear: By certification of a secret ballot election by the Agricultural Labor Relations Board. (Lab. Code, § 1156.3.) No certification, no recognition. Unsatisfied with the result of such logic, however, the majority must search for other support for its “construction.” It does so, but with no greater success.
Acknowledging then that the legislative hearings surrounding adoption of the ALRA contain no actual reference to subdivision (f) of the statute (ante, p. 860), the majority turns to a law review article authored by a labor law consultant. The article reads: “‘One new provision contained in the ALRA makes it an unfair labor practice for an employer to recognize [or] bargain with ... any labor organization not certified pursuant to the Act [citing § 1153, subd. (f)]. This section ties in with the election procedure of the Act, which specifies that the sole means by which a labor organization can achieve certification as a bargaining representative is to win a secret ballot election conducted by the board. These sections thus prohibit voluntary recognition of a labor organization by an employer based on authorization cards signed by the employees ..., a practice permitted by decisions interpreting the NLRA. The ALRA’s certification procedure reflects the feeling that the best method for determining the employees’ choice of a bargaining *870representative is via the secret ballot election.’” (Ante, p. 860; Levy, The Agricultural Labor Relations Act of 1975—La Esperanza de California Para el Futuro (1975) 15 Santa Clara Law. 783, 789-790.)
Taken at face value, the quoted passage demonstrates the absolute necessity of certification of a secret ballot election as the only means of choosing a bargaining representative under the ALRA. The article’s distinction between California’s “certification” procedure and the alternative “authorization cards” method of achieving recognition under the federal law underscores the central role played by certification under the ALRA, but the majority either fails or refuses to recognize it. While conceding that these “indicia of legislative intent” do support the conclusion that subdivision (f) was designed to prevent an employer from dealing with a union that has not been selected as a bargaining representative through the ALRB’s “secret election process,” the majority unaccountably declares that only a portion of that “process” must be completed before the employer’s duty to bargain arises. My colleagues assert that once a union emerges “apparently victorious” from the polling booth, then an employer not only is freed from the statute’s prohibition against bargaining with an uncertified union, but indeed incurs an absolute duty to so bargain, unless it subsequently can establish that it entertained at the crucial time a “good faith, reasonable doubt as to the representative status of a union that has not yet been formally certified by the ALRB .....” (Ante, p. 861.) Otherwise, the employer acts “at its peril” in refusing to bargain with a union prior to its certification. (Ibid.)
Hacking with a dull blade, the majority thus chops out of the statute the clear-cut, readily understood and temporally fixed “certification” test for union recognition which lies at the heart of the ALRA. In its place the majority attempts to graft an amorphous subjective/objective test of “good faith, reasonable doubt” as to a union’s representative status, substituting guess-work for certainty, while simultaneously transplanting from inapposite federal cases the notion that an employer who is subjected to the new standard fails the test “at its peril.” The transplant will not take; the attempted graft should be rejected.
As Highland notes here, and as the majority cannot deny, there is no counterpart in the NLRA to subdivision (f) of section 1153 of the Labor Code. Under the federal act a union’s recognition as a bargaining representative may come from a secret ballot election, as under California law. Unlike the California act, however, the federal law also provides for recognition upon an independent showing of support for a *871union by recognitional strikes or through the signing of authorization cards by a majority of the employees involved. In such circumstances, where recognition does not hinge upon so precise an action as certification by an administrative board, it may make some sense to impose upon an employer a duty to construe the apparent indicia of majority support “at its peril.” With due respect, however, superimposition of that additional burden upon the already well defined certification requirement of the California statute makes absolutely no sense. We should bear in mind that it is only “applicable” precedents of the NLRA which the ALRB is constrained to follow. (Lab. Code, § 1148, italics added.)
In addition, even under the distinctly different provisions of the NLRA it is doubtful whether an employer would have a duty to bargain with an unrecognized union over the effects of that employer’s termination or sale of its business. None of the cases apparently cited for that very dubious proposition by the majority (ante, p. 857) supports it.
The Supreme Court’s ruling in Textile Workers v. Darlington Co. (1965) 380 U.S. 263 [13 L.Ed.2d 827, 85 S.Ct. 994], for example, is clear: “We hold here only that when an employer closes his entire business, even if the liquidation is motivated by vindictiveness toward the union, such action is not an unfair labor practice.” (Id., at pp. 273-274 [13 L.Ed.2d at pp. 835-836].) In the instant case, the majority acknowledges that an employer has no obligation to bargain with any union before making such a decision. (Ante, p. 857.) In view of the Textile court’s further ruling that an employer’s closing of a part of its business “motivated by purpose to chill unionista” in its remaining plants did constitute an unfair labor practice under the federal act (380 U.S., at p. 275 [13 L.Ed.2d at p. 836]), that court had no occasion to, and did not, address the question of an employer’s duty to bargain with any union concerning the effects of a decision to close or sell its business after that decision was made.
Three of the cases cited by the majority did examine an employer’s duty to notify a union of its decision to close its plant and relocate its business so that the union could bargain on behalf of the employees it represented as to the effects of that decision. Each of them, however, involved an already recognized union, and not one which had yet to satisfy the requirements of the federal law to achieve that recognition. (See N. L. R. B. v. Transmarine Navigation Corporation (9th Cir. *8721967) 380 F.2d 933, 934, 939 [employer had a duty to bargain with a union certified in 1960 over the effects of the employer’s 1963 decision to relocate its operations]; Cooper Thermometer Company v. N. L. R. B. (2d Cir. 1967) 376 F.2d 684, 685, 687-688 [employer had a duty to bargain over the effect of its 1964 relocation decision on members of a union recognized under a 1962 contract]; Automation Institute of L. A. (208 N.L.R.B. No. 92, 1974) 85 L.R.R.M. 1257 [employer violated duty to bargain with union about the effects of discontinuance of operations after certification of the union].) None of these authorities imposes any duty whatever to bargain with an unrecognized union, which is the distinguishing factor in the case before us.
The final case relied upon by the majority in support of its assertion that federal law requires notification of, and bargaining with, a union while objections to that union’s recognition are still pending did not involve the termination or sale of the employer’s business at all. (See N.L.R.B. v. W. R. Grace & Co., Const. Products (5th Cir. 1978) 571 F.2d 279.) Instead, Grace was concerned with an employer’s unilateral change of employment conditions—laying off four employees and changing work shifts—without advance notice to the union. (Id., at pp. 282-283.) As the majority notes, federal law has long recognized that an employer has a duty to bargain over proposed changes in such working conditions pending resolution of election objections. (Ante, p. 856.) The reason for such a duty is to prevent the employer’s unilateral and possibly irreversible implementation of work policies. The union, if ultimately recognized, should participate in such a decision because its members will be governed thereby in the future, and the union’s representative status and its effectiveness in subsequent negotiations would be adversely affected. That rationale, however, has no applicability whatever to a case in which a business is sold or terminated and the employer-union relationship ceases. Grace neither dilutes an employer’s absolute freedom to go out of business for any reason without advance notice to, or consultation with, any union, certified or not (see Textile, supra, 380 U.S. 263, 272-274 [13 L.Ed.2d 827, 835-836]), nor examines the issue of an employer’s duty to bargain with a union after such a decision has been made.
With due respect, I think that the majority thus misstates even federal law in suggesting that under the NLRA an employer’s duty to bargain over the effects of sale or termination of a business extends to an unrecognized union.
*873The command of Labor Code section 1153 is plain, simple, and unambiguous. An agricultural employer (1) must bargain in good faith with certified labor organizations and (2) must not bargain with non-certified ones. Our judicial obligation is equally clear. We are to read the law as it is, not as it might have been. At the majority’s hands Highland’s refusal to commit an unfair labor practice thereby becomes an unfair labor practice. In my view, the majority uses a clearly erroneous analysis to establish a plainly bad precedent, thereby turning the statute upside down. To me, it approaches the preposterous to impose a “backpay” penalty on an employer for its failure to anticipate that this court would require that which the Labor Code explicitly prohibits. There is no common sense way of interpreting Labor Code section 1153, subdivision (f), in such a manner as to convert Highland’s refusal to bargain with an uncertified union into an unfair labor practice, and I would so hold.
Files, J.,* concurred.
Assigned by the Acting Chairperson of the Judicial Council