BILL NUMBER: AB 2386	ENROLLED
	BILL TEXT

	PASSED THE SENATE  AUGUST 27, 2008
	PASSED THE ASSEMBLY  AUGUST 29, 2008
	AMENDED IN SENATE  AUGUST 22, 2008
	AMENDED IN SENATE  AUGUST 4, 2008
	AMENDED IN ASSEMBLY  APRIL 2, 2008

INTRODUCED BY   Assembly Member Nunez

                        FEBRUARY 21, 2008

   An act to amend Sections 1142, 1143, 1154, 1156, 1156.2, 1156.4,
1156.7, 1157, 1158, 1160.3, 1160.5, 1160.6, and 1161 of, to add
Section 1159.5 to, to add the heading of Article 1 (commencing with
Section 1156) to Chapter 5 of Part 3.5 of Division 2 of, to add
Article 2 (commencing with Section 1156.310) and Article 3
(commencing with Section 1156.350) to Chapter 5 of Part 3.5 of
Division 2 of, to add the heading of Article 4 (commencing with
Section 1156.4) to Chapter 5 of Part 3.5 of Division 2 of, and to
repeal Sections 1156.3 and 1157.2 of, the Labor Code, relating to
employment.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2386, Nunez. Employment: Agricultural labor.
   (1) Under existing law, the Agricultural Labor Relations Board is
empowered to prevent a person from engaging in an unfair labor
practice and to order relief to an aggrieved agricultural employee,
as prescribed. Monetary relief ordered by the board to be paid by an
employer to an aggrieved agricultural employee must be collected by
the board on behalf of the employee. The board is then required to
remit the collected moneys to the employee. However, if the board is
unable to locate the employee or a lawful representative of the
employee for a period of 2 years after the date the board collected
the monetary relief, the board is to deposit those moneys in the
Agricultural Employee Relief Fund, which is to be used by the board
to pay an employee the unpaid balance of monetary relief ordered by
the board to be paid by an employer to an employee. Under existing
law, the board was required, on or before July 1, 2002, to report to
the Legislature on the status of the Agricultural Employee Relief
Fund.
   Existing law requires the board, at the close of each fiscal year,
to issue a written report to the Legislature and the Governor
regarding the cases it has heard, the decisions it has rendered, the
names, salaries, and duties of the employees and officers that it
employs or supervises, and an account of all moneys it has disbursed.

   This bill would require the board to include information
concerning the status of the Agricultural Employee Relief Fund in its
yearly report to the Legislature and the Governor.
   (2) Existing law provides that the agricultural employees in a
bargaining unit, as defined, have the right to select a
representative for the purpose of collective bargaining with respect
to wages, working hours, and other conditions of employment. Existing
law further provides procedures for agricultural employees to select
a representative by means of a secret ballot election, including the
filing of a petition for an election, the printing and distribution
of ballots, and the means by which the outcome of an election may be
challenged.
   This bill would instead provide 2 methods by which agricultural
employees may select by secret ballot a representative for collective
bargaining purposes. First, the bill would permit agricultural
employees to select a representative through a ballot booth election
pursuant to existing law. Second, the bill would provide for a
mediated election, as defined, as an additional and alternative means
for the selection by agricultural employees of a representative for
collective bargaining purposes. The bill would prescribe detailed
procedures for a labor organization to petition for a mediated
election, for the selection of a mediator, for the distribution of
ballots, and for the conducting of a mediated election where
agricultural employees may elect either to designate the labor
organization as their representative or to hold a ballot booth
election. The bill would establish criteria for the proper tallying
of ballots and for the determination by the mediator of the outcome
of the election, and it would create mechanisms by which an aggrieved
party could challenge the outcome of a mediated election.
   (3) Existing law authorizes the Agricultural Labor Relations Board
to entertain and hold a hearing on a complaint that a person has
engaged, or is engaging, in unfair labor practices, as defined. Upon
a finding of unfair labor practices, the board is empowered to issue
an order that provides for certain remedial actions, including
cessation of the unfair labor practice, reinstatement of employees,
and payment of backpay.
   This bill would, in addition, authorize the board to impose a
civil penalty of up to $20,000 for each violation if the board finds
that an employer has engaged in specified unfair labor practices.
   (4) Existing law provides that, if charges of specified unfair
labor practices are made, a priority preliminary investigation shall
be made and appropriate injunctive relief granted if justified.
   This bill would add specified unfair labor practices to the list
of practices that trigger a priority preliminary investigation and
the granting of injunctive relief.
   (5) The bill would also make conforming changes to existing law.



THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1142 of the Labor Code is amended to read:
   1142.  (a) The principal office of the board shall be in
Sacramento, but it may meet and exercise its power at another place
in California.
   (b) Besides the principal office in Sacramento, as provided in
subdivision (a), the board may establish offices in other cities as
it deems necessary. The board may delegate to the personnel of these
offices powers as it deems appropriate to determine the unit
appropriate for the purpose of collective bargaining, to investigate
and provide for a hearing, to determine whether a question of
representation exists, to direct an election pursuant to the
provisions of Chapter 5 (commencing with Section 1156), and to
certify the results of such election, and to investigate, conduct a
hearing and make determinations relating to an unfair labor practice.
The board may review action taken pursuant to the authority
delegated under this section upon a request for a review of such
action filed with the board by an interested party. Such review made
by the board shall not, unless specifically ordered by the board,
operate as a stay of action taken. The entire record considered by
the board in considering or acting upon such request or review shall
be made available to all parties prior to such consideration or
action, and the board's findings and action thereon shall be
published as a decision of the board.
  SEC. 2.  Section 1143 of the Labor Code is amended to read:
   1143.  (a) The board shall, at the close of each fiscal year, make
a report in writing to the Legislature and to the Governor stating
in detail the cases it has heard, the decisions it has rendered, the
names, salaries, and duties of the employees and officers in the
employ or under the supervision of the board, and an account of all
moneys it has disbursed.
   (b) The report required by subdivision (a) shall include
information concerning the status of the Agricultural Employee Relief
Fund described in Section 1161.
  SEC. 3.  Section 1154 of the Labor Code is amended to read:
   1154.  It shall be an unfair labor practice for a labor
organization or its agents to do any of the following:
   (a) To restrain or coerce:
   (1) An agricultural employee in the exercise of the rights
guaranteed in Section 1152. This paragraph shall not impair the right
of a labor organization to prescribe its own rules with respect to
the acquisition or retention of membership therein.
   (2) An agricultural employer in the selection of his or her
representative for the purposes of collective bargaining or the
adjustment of a grievance.
   (b) To cause or attempt to cause an agricultural employer to
discriminate against an employee in violation of subdivision (c) of
Section 1153, or to discriminate against an employee with respect to
whom membership in such organization has been denied or terminated
for reasons other than failure to satisfy the membership requirements
specified in subdivision (c) of Section 1153.
   (c) To refuse to bargain collectively in good faith with an
agricultural employer, provided it is the representative of his or
her employees subject to the provisions of Chapter 5 (commencing with
Section 1156).
   (d) (1) To do either of the following:
   (A) To engage in, or to induce or encourage any individual
employed by a person to engage in, a strike or a refusal in the
course of his or her employment to use, manufacture, process,
transport, or otherwise handle or work on goods, articles, materials,
or commodities, or to perform any services.
   (B) To threaten, coerce, or restrain any person.
   (2) In order for paragraph (1) to apply, the activity described in
subparagraphs (A) and (B) of paragraph (1) must be done with the
intent to accomplish any of the following:
   (A) Forcing or requiring an employer or self-employed person to
join a labor or employer organization or to enter into any agreement
which is prohibited by Section 1154.5.
   (B) Forcing or requiring a person to cease using, selling,
transporting, or otherwise dealing in the products of another
producer, processor, or manufacturer, or to cease doing business with
another person, or forcing or requiring another employer to
recognize or bargain with a labor organization as the representative
of the employees of the employer unless the labor organization has
been certified as the representative of the employees. Nothing
contained in this paragraph shall be construed to make unlawful,
where not otherwise unlawful, a primary strike or primary picketing.
   (C) Forcing or requiring an employer to recognize or bargain with
a particular labor organization as the representative of the
agricultural employees of the employer if another labor organization
has been certified as the representative of the employees under the
provisions of Chapter 5 (commencing with Section 1156).
   (D) Forcing or requiring an employer to assign particular work to
an employee in a particular labor organization or in a particular
trade, craft, or class, unless the employer fails to conform to an
order or certification of the board determining the bargaining
representative for employees performing such work.
   (3) (A) Nothing contained in this subdivision shall be construed
to prohibit publicity, including picketing for the purpose of
truthfully advising the public, including consumers, that a product
or ingredient thereof is produced by an agricultural employer with
whom the labor organization has a primary dispute and are distributed
by another employer, as long as the publicity does not have an
effect of inducing an individual employed by a person other than the
primary employer in the course of his or her employment to refuse to
pick up, deliver, or transport goods, or not to perform services at
the establishment of the employer engaged in such distribution, and
as long as the publicity does not have the effect of requesting the
public to cease patronizing the other employer. However, publicity
which includes picketing and has the effect of requesting the public
to cease patronizing another employer, shall be permitted only if the
labor organization is currently certified as the representative of
the primary employer's employees.
   (B) Publicity other than picketing, but including peaceful
distribution of literature which has the effect of requesting the
public to cease patronizing the other employer, as described in
subparagraph (A), shall be permitted only if the labor organization
has not lost an election for the primary employer's employees within
the preceding 12-month period, and no other labor organization is
currently certified as the representative of the primary employer's
employees.
   (4) Nothing contained in this subdivision shall be construed to
prohibit publicity, including picketing, which may not be prohibited
under the United States Constitution or the California Constitution.
   (5) Nothing contained in this subdivision shall be construed to
apply or be applicable to a labor organization in its representation
of workers who are not agricultural employees. Such a labor
organization shall continue to be governed in its intrastate
activities for nonagricultural workers by Section 923 and applicable
judicial precedent.
   (e) To require of an employee covered by an agreement authorized
under subdivision (c) of Section 1153 the payment, as a condition
precedent to becoming a member of a labor organization, of a fee in
an amount which the board finds excessive or discriminatory under the
totality of the circumstances. In making such a finding, the board
shall consider, among other relevant factors, the practices and
customs of labor organizations in the agriculture industry and the
wages currently paid to the employees affected.
   (f) To cause or attempt to cause an agricultural employer to pay
or deliver, or agree to pay or deliver, money or another thing of
value, in the nature of an exaction, for services which are not
performed or not to be performed.
   (g) (1) To picket or cause to be picketed, or threaten to picket
or cause to be picketed, an employer where an intent thereof is
either forcing or requiring an employer to recognize or bargain with
a labor organization as the representative of the employees of the
employer, or forcing or requiring the employees of an employer to
accept or select the labor organization as their
collective-bargaining representative, unless the labor organization
is currently certified as the representative of such employees, in
any of the following cases:
   (A) Where the employer has lawfully recognized in accordance with
this part any other labor organization and a question concerning
representation may not appropriately be raised pursuant to Article 2
(commencing with Section 1156.310) of Chapter 5.
   (B) Where within the preceding 12 months a valid election under
Chapter 5 (commencing with Section 1156) has been conducted.
   (2) (A) Nothing in this subdivision shall be construed to prohibit
picketing or other publicity for the purpose of truthfully advising
the public (including consumers) that an employer does not employ
members of, or have a contract with, a labor organization, unless an
effect of such picketing is to induce an individual employed by
another person in the course of his or her employment, not to pick
up, deliver, or transport goods or not to perform services.
   (B) Nothing in this subdivision shall be construed to permit an
act which would otherwise be an unfair labor practice under this
section.
   (h) To picket or cause to be picketed, or threaten to picket or
cause to be picketed, an employer where an object thereof is either
forcing or requiring an employer to recognize or bargain with the
labor organization as a representative of the employees of the
employer unless the labor organization is currently certified as the
collective-bargaining representative of such employees.
   (i) Nothing contained in this section shall be construed to make
unlawful a refusal by a person to enter upon the premises of an
agricultural employer, other than his or her own employer, if the
employees of the employer are engaged in a strike ratified or
approved by a representative of the employees whom the employer is
required to recognize under this part.
  SEC. 4.  The heading of Article 1 (commencing with Section 1156) is
added to Chapter 5 of Part 3.5 of Division 2 of the Labor Code, to
read:

      Article 1.  General Provisions


  SEC. 5.  Section 1156 of the Labor Code is amended to read:
   1156.  (a) A representative designated or selected by a secret
ballot either by a ballot booth election pursuant to Article 2
(commencing with Section 1156.310), or by a mediated election
pursuant to Article 3 (commencing with Section 1156.350), for the
purposes of collective bargaining by the majority of the agricultural
employees in a bargaining unit shall be the exclusive representative
of the agricultural employees in the unit for the purpose of
collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
   (b) An individual agricultural employee or a group of agricultural
employees has the right at any time to present grievances to their
agricultural employer and to have those grievances adjusted, without
the intervention of the bargaining representative, as long as the
adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect, if the
bargaining representative has been given an opportunity to be present
at the adjustment.
  SEC. 6.  Section 1156.2 of the Labor Code is amended to read:
   1156.2.  For the purposes of this chapter, a bargaining unit is
the agricultural employees of an employer. If the agricultural
employees of an employer are employed in two or more noncontiguous
geographical areas, the board shall determine the appropriate unit or
units of agricultural employees in which a ballot booth election or
a mediated election shall be conducted.
  SEC. 7.  Section 1156.3 of the Labor Code is repealed.
  SEC. 8.  Article 2 (commencing with Section 1156.310) is added to
Chapter 5 of Part 3.5 of Division 2 of the Labor Code, to read:

      Article 2.  Ballot Booth Elections


   1156.310.  A petition that is either signed by, or accompanied by
authorization cards signed by, a majority of the currently employed
employees in the bargaining unit, may be filed by an agricultural
employee or group of agricultural employees, or an individual or
labor organization acting on behalf of those agricultural employees,
in accordance with the rules and regulations prescribed by the board.
The petition shall allege all of the following:
   (a) That the number of agricultural employees currently employed
by the employer named in the petition, as determined from the
employer's payroll immediately preceding the filing of the petition,
is not less than 50 percent of the employer's peak agricultural
employment for the current calendar year.
   (b) That a valid election pursuant to this section has not been
conducted among the agricultural employees of the employer named in
the petition within the 12 months immediately preceding the filing of
the petition.
   (c) That a labor organization is not currently certified as the
exclusive collective-bargaining representative of the agricultural
employees of the employer named in the petition.
   (d) That the petition is not barred by an existing
collective-bargaining agreement.
   1156.311.  (a) Upon receipt of a signed petition, as described in
Section 1156.310, the board shall immediately investigate the
petition. If the board has reasonable cause to believe that a bona
fide question of representation exists, it shall direct a
representation election by ballot booth to be held, upon due notice
to all interested parties and within a maximum of seven days of the
filing of the petition. If, at the time the election petition is
filed, a majority of the employees in a bargaining unit are engaged
in a strike, the board shall, with all due diligence, attempt to hold
a ballot booth election within 48 hours of the filing of the
petition. The holding of elections under strike circumstances shall
take precedence over the holding of other ballot booth elections.
   (b) For purposes of this chapter, a ballot booth election is an
election where an employee casts his or her ballot in an election
booth that is provided by the board.
   1156.312.  (a) The board shall make available at a ballot booth
election held pursuant to this section ballots, and all other
election materials used to select labor representatives, printed in
English and Spanish. The board may also make available at the ballot
booth election ballots, and all other election materials used to
select labor representatives, printed in any other language as may be
requested by an agricultural labor organization or any agricultural
employee eligible to vote under this part. A ballot booth election
ballot, except ballots in runoff elections in which the choice is
between labor organizations, shall provide the employee with the
opportunity to vote against representation by a labor organization by
providing an appropriate space designated "No Labor Organizations."
   (b) Any other labor organization shall be qualified to appear on
the ballot if it presents authorization cards signed by at least 20
percent of the employees in the bargaining unit at least 24 hours
prior to the election.
   1156.313.  In an election by ballot booth where none of the
choices on the ballot receive a majority of the valid votes cast, a
runoff shall be conducted. The runoff ballot shall provide for a
selection between the two choices receiving the largest and second
largest number of valid votes cast in the ballot booth election.
   1156.314.  (a) Within five days after an election, a person may
file with the board a signed petition asserting that allegations made
in the petition filed pursuant to Section 1156.310 were incorrect,
asserting that the board improperly determined the geographical scope
of the bargaining unit, or objecting to the conduct of the election
or conduct affecting the results of the election.
   (b) Upon receipt of a petition under this section, the board, upon
due notice, shall conduct a hearing to determine whether the
election shall be certified. This hearing may be conducted by an
officer or employee of a regional office of the board. The officer
may not make a recommendation with respect to the certification of
the election. The board may refuse to certify the election if it
finds, on the record of the hearing, that an assertion made in the
petition filed pursuant to this section is correct, that the election
was not conducted properly, or that misconduct affecting the results
of the election occurred. The board shall certify the election
unless it determines that there are sufficient grounds to refuse to
do so.
   (c) If a petition is not filed pursuant to subdivision (a) within
five days of the election, the board shall certify the election.
  SEC. 9.  Article 3 (commencing with Section 1156.350) is added to
Chapter 5 of Part 3.5 of Division 2 of the Labor Code, to read:

      Article 3.  Mediated Elections


   1156.350.  (a) A labor organization may be certified as the
exclusive bargaining representative of a bargaining unit by means of
a mediated election. For purposes of this chapter, a mediated
election is a representative election that is mediated by a neutral
mediator and that permits a bargaining unit to either select a labor
organization as its representative for collective bargaining purposes
without holding a ballot booth election or to choose to hold a
ballot booth election.
   (b) A mediated election held pursuant to this section is a valid
election for purposes of Section 1156.5.
   1156.351.  (a) A labor organization may file with the board a
petition for a mediated election. The petition shall allege all of
the following:
   (1) That the number of agricultural employees currently employed
by the employer named in the petition, as determined from the
employer's payroll immediately preceding the filing of the petition,
is not less than 50 percent of the employer's peak agricultural
employment for the current calendar year.
   (2) That a valid election has not been conducted among the
agricultural employees of the employer named in the petition within
the 12 months preceding the filing of the petition.
   (3) That a labor organization is not currently certified as the
exclusive collective bargaining representative of the employees of
the agricultural employer named in the petition.
   (4) That the petition is not barred by an existing collective
bargaining agreement.
   (b) Upon the filing of a petition for a mediated election pursuant
to this section, the board shall not permit the filing of either of
the following until the board determines the final disposition of the
petition for mediated election:
   (1) A petition for a ballot booth election pursuant to Article 2
(commencing with Section 1156.310).
   (2) Another petition for a mediated election pursuant to this
section that names the same agricultural employer.
   1156.352.  (a) A labor organization that has filed a petition for
a mediated election pursuant to Section 1156.351 shall serve the
petition on the agricultural employer named in the petition on the
same day the petition is filed with the board.
   (b) Within 48 hours of being served with a petition, the employer
shall file with the board a response to the petition in accordance
with any rules and regulations prescribed by the board. The response
shall include, in both printed and electronic formats, a complete and
accurate list, organized by crew or department, of the full name,
current mailing and residence addresses, telephone number, and job
classification of each agricultural employee who was employed by the
employer at any time during the employer's last payroll period that
ended prior to the filing of the petition.
   (c) Immediately upon receiving the list of employees described in
subdivision (b), the board shall provide the list, in both printed
and electronic formats, to the labor organization that filed the
petition.
   1156.353.  (a) Upon receipt of a petition for a mediated election,
the board immediately shall notify the agricultural employees of the
employer named in the petition of the filing of the petition and
shall provide to each employee the Rules of Conduct described in
Section 1156.365.
   (b) An employee shall have five days from the filing of the
petition to mail or deliver his or her mediated election ballot to
the board. Upon the expiration of the five-day period following the
filing of a mediated election petition, the board shall allow an
additional four days for the purpose of receiving mailed ballots. A
ballot shall be valid only if it is postmarked or delivered to the
board within the five-day period.
   (c) A ballot may not be filed with the board until a petition for
a mediated election is filed by a labor organization naming the
relevant agricultural employer. A ballot received by the board prior
to the filing of a petition shall be rejected and returned to the
voting employee.
   (d) The board shall designate a central location for the receipt,
filing, and date stamping of mediated election ballots received by
the board.
   1156.354.  (a) Upon receipt of a petition for a mediated election,
the board shall notify the mediator who is designated to be the
standby mediator under the schedule established pursuant to
subdivision (a) of Section 1156.363 or, if he or she is not
available, the designated alternate mediator.
   (b) Upon receiving notification from the board pursuant to
subdivision (a), the notified mediator shall immediately commence an
investigation into the validity of the petition for a mediated
election. The board shall provide any necessary assistance required
by the mediator for purposes of carrying out his or her investigation
and resolving the petition.
   (c) Within 48 hours of receiving notification from the board of
the filing of the petition, the mediator shall convene a preelection
conference that shall include representatives of the agricultural
employer and the labor organization. At the preelection conference,
the mediator shall review the petition for a mediated election filed
by the labor organization and the response filed by the employer, if
any, and shall determine all of the following:
   (1) Whether the petition meets the requirements set forth in
subdivision (a) of Section 1156.351.
   (2) The appropriate bargaining unit for the mediated election.
   (3) Which employees are eligible to vote in the mediated election
and a challenge made to the eligibility of an employee to vote in the
mediated election. The board shall promulgate regulations that set
forth a process for resolving challenges to the eligibility of an
employee to vote in the mediated election.
   (4) The appropriate resolution of any other issue related to
conducting the mediated election.
   1156.355.  (a) On the day following the expiration of the four-day
period for receiving mailed ballots, as set forth by subdivision (b)
of Section 1156.353, the mediator shall reconvene the parties that
attended the preelection conference pursuant to subdivision (c) of
Section 1156.354 for the purpose of determining the outcome of the
petition. The mediator shall tally the ballots according to the
following procedures:
   (1) The mediator first shall determine whether all of the names on
the mediated election ballot envelopes match names on the eligible
voter list established at the preelection conference. If less than 50
percent of the agricultural employees whose names appear on the
eligible voter list submit ballots, the mediator shall dismiss the
petition for a mediated election. If the board receives ballots from
50 percent or more of the agricultural employee whose names appear on
the eligible voter list, the mediator shall open each mediated
election ballot envelope.
   (2) In making the determination required by paragraph (1), the
mediator shall compare the name on each mediated election ballot
envelope received by the board with the names on the eligible voter
list established at the preelection conference. The mediator shall
resolve any discrepancies in favor of counting the ballot if the
preponderance of the evidence establishes that the employee who
signed the envelope is the same person as the employee on the
eligible voter list.
   (3) The mediator shall also determine a challenge made to a voter'
s ballot made by the employer or the labor organization. A challenge
made pursuant to this paragraph shall be governed according to
regulations promulgated by the board pursuant to paragraph (3) of
subdivision (c) of Section 1156.354.
   (4) The mediator shall tally the ballots received from eligible
employees and shall record the votes for each of the two choices
described in paragraph (2) of subdivision (a) of Section 1156.359. If
the board receives two ballots from the same employee delivered at
two different points in time, only the ballot received first in time
shall be opened and counted. If the board receives two ballots from
the same employee at the same point in time, both ballots shall be
opened and examined. If both ballots make the same selection, one
ballot shall be counted and the other ballot shall be void. If the
ballots make different selections, both ballots shall be void.
   (b) The board shall maintain the confidentiality of the employee
name on the mediated election ballot. The board shall treat the
mediated election ballot with the same confidentiality as a regular
ballot in a ballot booth election.
   1156.356.  (a) The petition for a mediated election shall be
resolved as follows:
   (1) If the tally of ballots shows that more than 50 percent of the
employees eligible to vote voted for representation by a labor
organization, the mediator shall issue a report to the board
recommending that the labor organization be certified. The board,
upon receiving the mediator's report, shall issue an order certifying
the labor organization as the exclusive bargaining representative of
the employees in the bargaining unit. The employer's duty to bargain
with the labor organization commences immediately upon certification
of the organization by the board.
   (2) If the tally of ballots shows that more than 50 percent of the
employees eligible to vote voted for a ballot booth election, the
mediator shall issue a report to the board recommending that the
board conduct a ballot booth election. The board, upon receiving the
mediator's report, shall order that a ballot booth election be
conducted.
                                                 (3) If the tally of
ballots shows that neither option on the ballot received more than 50
percent of the votes of employees eligible to vote, the mediator
shall issue a report to the board recommending that the board dismiss
the petition. The board, upon receiving the mediator's report, shall
order that the petition for a mediated election be dismissed.
   (b) If the board orders that a ballot booth election be held, the
board shall hold a ballot booth election pursuant to Article 2
(commencing with Section 1156.310) within seven days. The labor
organization that submitted the petition for a mediated election
shall be deemed qualified to appear on the ballot of the ballot booth
election.
   1156.357.  (a) Within five days after the board certifies a labor
organization pursuant to subdivision (a) of Section 1156.356, any
other labor organization or the agricultural employer named in the
mediated election petition may file with the board a petition
objecting to the certification on one or more of the following
grounds:
   (1) The allegations in the petition for a mediated election are
false.
   (2) The mediator improperly determined the geographical scope of
the bargaining unit.
   (3) The mediated election was conducted improperly, and the
impropriety affected the results of the election.
   (b) The party filing the petition objecting to certification shall
serve the petition on the labor organization certified by the board.

   (c) Upon the filing of a petition objecting to certification, the
board shall schedule a hearing on the petition and shall notify the
petitioner and the labor organization whose certification is being
challenged of the time and place of the hearing.
   (d) If, after a hearing on the petition, the board determines that
the petitioner has made valid objections under subdivision (a) and
that the allegations supporting the objections are true, the board
shall revoke the certification granted to the labor organization. If
the board further determines that the grounds for revoking
certification result from intentional misconduct by the labor
organization, the board may, at its discretion, bar the labor
organization for one year from filing a petition for a mediated
election naming the same agricultural employer.
   (e) If, after a hearing on the petition, the board determines that
an agricultural employer has assisted, supported, created, or
dominated a labor organization for the purpose of filing a mediated
election petition, the board shall revoke the certification awarded
pursuant to the mediated election and shall order the employer to pay
all costs and expenses incurred by the labor organization
challenging the results of the mediated election.
   (f) If, after a hearing on the petition, the board determines that
the objections raised in the petition are without merit, the board
shall dismiss the petition.
   (g) The filing of a petition objecting to certification under this
section shall not suspend the duty of an agricultural employer to
bargain with the labor organization, nor shall it toll the 180-day
period set forth in subdivision (a) of Section 1164.
   1156.358.  (a) A labor organization that has been denied
certification based on the results of a mediated election or a ballot
booth election that was directed by the board pursuant to Section
1156.356, or that has had a petition for a mediated election
dismissed or withdrawn, may, within five days after that result, file
with the board a petition objecting to that result on one or more of
the following grounds:
   (1) The agricultural employer named in the petition for a mediated
election engaged in misconduct in opposing the petition.
   (2) The mediator improperly determined the geographical scope of
the bargaining unit.
   (3) The mediated election was conducted improperly, and the
impropriety affected the results of the election.
   (b) If, after a hearing on the petition, the board determines that
one or more of the grounds set forth in subdivision (a) were
violated and that the misconduct affected the outcome of the mediated
election, the board may, at its discretion, order that the labor
organization be certified as the exclusive bargaining representative
of the employees in the bargaining unit and that the employer pay all
costs and expenses incurred by the labor organization.
   1156.359.  (a) For purposes of this chapter, a mediated election
ballot is a ballot that is used by the board in a mediated election.
The board is responsible for developing a standard mediated election
ballot, and an accompanying envelope, that comply with all of the
following:
   (1) A mediated election ballot shall be marked with a unique
number.
   (2) A mediated election ballot shall provide for the selection by
the voting agricultural employee of one of the following:
   (A) Representation by a labor organization.
   (B) That a ballot booth election be conducted.
   (3) The ballot and the outside of a mediated election ballot
envelope shall contain a space for the voting agricultural employee
to sign his or her name, thereby acknowledging both of the following:

   (A) That, by signing the ballot and the envelope, the employee
understands that he or she is casting a ballot in a mediated election
for the purpose of either selecting union representation or choosing
to hold a ballot booth election.
   (B) That, by signing the ballot and the envelope, the employee
represents that a promise or threat was not made to the employee
regarding the casting of his or her ballot.
   (4) The outside of a mediated election ballot envelope shall
contain space for the following information:
   (A) The name of the agricultural employer.
   (B) The name of the labor organization.
   (C) The name, address, and telephone number of the voting
agricultural employee.
   (b) A mediated election ballot is valid for the purposes of a
mediated election if the ballot is signed by the voting agricultural
employee and the envelope for the ballot is sealed and the outside of
the envelope contains the name of the labor organization, the name
of the agricultural employer, the name of the voting agricultural
employee, and the signature of the employee. The voting agricultural
employee is the only person permitted to place his or her mediated
election ballot in the accompanying envelope provided by the board
and to seal the envelope. A mediated election ballot may only be
mailed or delivered to the board in the envelope provided by the
board.
   (c) A labor organization may fill out all of the information
contained on the outside of the envelope, except for the employee's
signature, and may mail or deliver to the board a mediated election
ballot the labor organization has received from a voting agricultural
employee.
   (d) A mediated election ballot that satisfies the requirements of
this section shall be valid for 12 months from the date the voting
agricultural employee signs the ballot envelope that contains his or
her ballot.
   1156.360.  (a) The board shall make available at a mediated
election held pursuant to this article ballots, and all other
election materials used to select labor representatives, printed in
English and Spanish. The board may also make available at the
mediated election ballots, and all other election materials used to
select labor representatives, printed in any other language as may be
requested by an agricultural labor organization or any agricultural
employee eligible to vote under this part.
   (b) The board shall be responsible for providing blank mediated
election ballots and their accompanying envelopes to labor
organizations and agricultural employees that request them. Only
labor organizations or an agricultural employees may request and
receive ballots from the board. An agricultural employee may request
and receive only one ballot for himself or herself. Upon the request
of a labor organization, the board shall issue to the labor
organization standard mediated election ballots and accompanying
envelopes in such numbers as are requested by the labor organization.
A representative of the labor organization shall sign for the
release of the requested mediated election ballots and accompanying
envelopes.
   (c) The board shall maintain a public record that contains all of
the following information:
   (1) The name of each agricultural employee who receives a mediated
election ballot and the name of his or her employer.
   (2) The name of each labor organization representative who
receives a mediated election ballot and the name of the labor
organization of the representative.
   (3) The number of ballots received by each labor organization.
   1156.361.  An agricultural employer and its agents shall not do
any of the following:
   (a) Request or receive a mediated election ballot from the board.
   (b) Assist an agricultural employee in filling out a mediated
election ballot envelope.
   (c) Participate in, or in any way interfere with, an agricultural
employee's selection of a choice on a mediated election ballot.
   (d) The board may issue an order barring a representative of a
labor organization from distributing mediated election ballots for a
period of not more than five years if, after a hearing, the board
determines by clear and convincing evidence that the representative
of the labor organization has done any of the following:
   (1) Forged a mediated election ballot or mediated election ballot
envelope.
   (2) Opened a sealed mediated election ballot envelope.
   (3) Destroyed a valid mediated election ballot.
   (4) Withheld from turning in to the board a valid mediated
election ballot.
   (5) Forged a signature on a mediated election ballot or mediated
election ballot envelope.
   1156.362.  (a) Within 30 days after the effective date of the
statute that added this section, the board shall do both of the
following:
   (1) Request from the California State Mediation and Conciliation
Service a list of 12 mediators who have experience in labor
mediation. The list provided by the service may include names chosen
from its own mediators or from a list of names supplied by the
American Arbitration Association or the Federal Mediation and
Conciliation Service.
   (2) Designate two representatives, for the purpose of selecting
mediators, as follows:
   (A) One representative shall be a representative of the labor
organization that has participated in the highest number of elections
under this part.
   (B) One representative shall be a representative of the
agricultural industry.
   (b) (1) Within 45 days after the effective date of the statute
that added this section, the two representatives designated pursuant
to paragraph (2) of subdivision (a) shall jointly select six
mediators from the list compiled pursuant to paragraph (1) of
subdivision (a). If the two representatives cannot mutually agree on
six mediators, they shall alternately strike names from the list
until six mediators are chosen by process of elimination. If either
representative fails or refuses to participate in the selection of
mediators, the other representative shall select the mediators.
   (2) If a selected mediator subsequently becomes unavailable, the
representatives shall meet and select a replacement mediator using
the process set forth in paragraph (1).
   (c) A mediator selected pursuant to this section is an agent of
the board in the performance of his or her duties.
   1156.363.  Upon selection of the six mediators pursuant to Section
1156.362, the board shall do all of the following:
   (a) Establish a rotating schedule whereby at least one mediator
and one alternate mediator are on standby throughout the calendar
year to address any issues that arise in connection with the mediated
election process.
   (b) Publicly post the schedule of the mediators, including the
names of the mediator and the alternate mediator for each period of
time in the scheduled rotation.
   (c) Establish and publicize a toll-free telephone number that
agricultural employees may use to contact a mediator with questions
regarding the mediated election process or their rights under this
part, or to report an incident of intimidation, a threat, or coercion
by a labor organization or an agricultural employer. When needed,
the board shall provide a translator to allow the mediator to
communicate with an employee in the language spoken by the employee.
   1156.364.  (a) The board shall adopt a standard for conflict of
interest for a mediator selected pursuant to Section 1156.362. The
board shall have the authority to remove a mediator who violates the
conflict of interest standard.
   (b) The board shall have the authority to set aside a decision of
a mediator that is based on an error of law or a clearly erroneous
factual finding or an abuse of discretion and the decision of the
mediator affects the substantial rights of the parties.
   (c) The board shall vacate the mediator's decision and shall
immediately appoint an alternate mediator to proceed with the
mediated election if the board finds any of the following:
   (1) That the decision of the mediator was procured by corruption,
fraud, or other undue means.
   (2) That corruption was in the mediator.
   (3) That the rights of a party were substantially prejudiced by
the misconduct of the mediator.
   1156.365.  (a) The board shall promulgate a set of rules, titled
"Rules of Conduct for a Mediated Election," that shall do all of the
following:
   (1) Explain the mediated election process.
   (2) Explain the mediator's role in the process.
   (3) Explain the right of an agricultural employee to request a
mediated election ballot from the board or the labor organization.
   (4) Provide specific instructions regarding how an agricultural
employee can request a mediated election ballot from the board or the
labor organization.
   (5) Provide specific instructions regarding how an agricultural
employee can deliver or mail his or her ballot to the board,
including all of the following:
   (A) That only an agricultural employee is permitted to place and
seal a mediated election ballot in the envelope provided by the
board.
   (B) That a mediated election ballot may be mailed or delivered to
the board only in the envelope provided by the board.
   (C) That an agricultural employee has five days in which to
deliver or mail his or her ballot to the board from the date of the
filing of a petition for a mediated election, and that a ballot not
timely received shall be rejected.
   (D) That an agricultural employee may submit only one mediated
election ballot to the board once a petition for a mediated election
is filed for that employee's agricultural employer.
   (6) Explain that an agricultural employee may refuse to sign a
mediated election ballot.
   (7) Explain that an agricultural employee may contact a mediator
in confidence by the means described in subdivision (c) of Section
1156.363.
   (b) The board shall develop a simple, easily readable pamphlet
that contains the Rules of Conduct for distribution to agricultural
employees.
   (c) The board shall provide the Rules of Conduct to a labor
organization at the time the organization requests mediated election
ballots pursuant to subdivision (b) of Section 1156.360. The board
shall additionally provide the Rules of Conduct to agricultural
employees when the board notifies those employees of the filing of a
petition for a mediated election pursuant to Section 1156.351.
   (d) A labor organization shall provide the Rules of Conduct to an
agricultural employee at the time the organization provides the
employee with a mediated election ballot and accompanying envelope.
  SEC. 10.  The heading of Article 4 (commencing with Section 1156.4)
is added to Chapter 5 of Part 3.5 of Division 2 of the Labor Code,
to read:

      Article 4.  Miscellaneous Provisions


  SEC. 11.  Section 1156.4 of the Labor Code is amended to read:
   1156.4.  Recognizing that agriculture is a seasonal occupation for
a majority of agricultural employees, and wishing to provide the
fullest scope for employees' enjoyment of the rights included in this
part, the board shall not consider a petition for a ballot booth
election, a petition for mediated election, or a petition to
decertify as timely filed unless the employer's payroll reflects 50
percent of the peak agricultural employment for that employer for the
current calendar year for the payroll period immediately preceding
the filing of the petition. In this connection, the peak agricultural
employment for the prior season shall alone not be a basis for this
determination, but rather the board shall estimate peak employment on
the basis of acreage and crop statistics, which shall be applied
uniformly throughout the State of California, and upon all other
relevant data.
  SEC. 12.  Section 1156.7 of the Labor Code is amended to read:
   1156.7.  (a) A collective-bargaining agreement executed prior to
the effective date of this chapter shall not bar a petition for an
election.
   (b) A collective-bargaining agreement executed by an employer and
a labor organization certified as the exclusive bargaining
representative of the employer's employees pursuant to this chapter
shall be a bar to a petition for an election among the employees for
the term of the agreement, but this bar shall not exceed three years,
provided that both the following conditions are met:
   (1) The agreement is in writing and executed by all parties
thereto.
   (2) The agreement incorporates the substantive terms and
conditions of employment of the employees.
   (c) (1) Upon the filing with the board by an employee or group of
employees of a petition signed by 30 percent or more of the
agricultural employees in a bargaining unit represented by a
certified labor organization which is a party to a valid
collective-bargaining agreement, requesting that such labor
organization be decertified, the board shall conduct an election by
ballot booth pursuant to Article 2 (commencing with Section
1156.310), and shall certify the results to the labor organization
and employer.
   (2) A petition filed pursuant to paragraph (1) shall not be deemed
timely unless it is filed during the year preceding the expiration
of a collective-bargaining agreement which would otherwise bar the
holding of an election, and when the number of agricultural employees
is not less than 50 percent of the employer's peak agricultural
employment for the current calendar year.
   (d) Upon the filing with the board of a signed petition by an
agricultural employee or group of agricultural employees, or an
individual or labor organization acting on behalf of the employees,
accompanied by authorization cards signed by a majority of the
employees in an appropriate bargaining unit, the board shall
immediately investigate the petition and, if it has reasonable cause
to believe that a bona fide question of representation exists, it
shall direct an election by ballot booth pursuant to Article 2
(commencing with Section 1156.310). The board shall only take such
action if all of the following conditions are alleged in the
petition:
   (1) That the number of agricultural employees currently employed
by the employer named in the petition, as determined from the
employer's payroll immediately preceding the filing of the petition,
is not less than 50 percent of the employer's peak agricultural
employment for the current calendar year.
   (2) That a valid election pursuant to this part has not been
conducted among the agricultural employees of the employer named in
the petition within the 12 months immediately preceding the filing
thereof.
   (3) That a labor organization, certified for an appropriate unit,
has a collective-bargaining agreement with the employer which would
otherwise bar the holding of an election and that the agreement will
expire within the next 12 months.
  SEC. 13.  Section 1157 of the Labor Code is amended to read:
   1157.  (a) All agricultural employees of the employer whose names
appear on the payroll applicable to the payroll period immediately
preceding the filing of a petition for a ballot booth election, a
petition for mediated election, or a petition to decertify shall be
eligible to vote. An economic striker shall be eligible to vote under
such regulations as the board finds are consistent with the purposes
and provisions of this part in an election, provided that the
striker who has been permanently replaced shall not be eligible to
vote in an election conducted more than 12 months after the
commencement of the strike.
   (b) In the case of an election conducted within 18 months of the
effective date of this part that involves a labor dispute that
commenced prior to the effective date, the board shall have the
jurisdiction to adopt fair, equitable, and appropriate eligibility
rules, which shall effectuate the policies of this part, with respect
to the eligibility of an economic striker who was paid for work
performed or for paid vacation during the payroll period immediately
preceding the expiration of a collective-bargaining agreement or the
commencement of a strike, provided that in no event shall the board
afford eligibility to a striker who has not performed services for
the employer during the 36-month period immediately preceding the
effective date of this part.
  SEC. 14.  Section 1157.2 of the Labor Code is repealed.
  SEC. 15.  Section 1158 of the Labor Code is amended to read:
   1158.  Whenever an order of the board made pursuant to Section
1160.3 is based in whole or in part upon the facts certified
following an investigation pursuant to Sections 1156.310 to 1157,
inclusive, and there is a petition for review of the order, the
certification and the record of the investigation shall be included
in the transcript of the entire record required to be filed under
Section 1160.8 and thereupon the decree of the court enforcing,
modifying, or setting aside in whole or in part the order of the
board shall be made and entered upon the pleadings, testimony, and
proceedings set forth in the transcript.
  SEC. 16.  Section 1159.5 is added to the Labor Code, to read:
   1159.5.  The board shall decertify a labor organization if either
of the following occur:
   (a) The Department of Fair Employment and Housing finds that the
labor organization engaged in discrimination on a basis listed in
subdivision (a) of Section 12940 of the Government Code, as those
bases are defined in Sections 12926 and 12926.1 of the Government
Code, except as otherwise provided in Section 12940 of the Government
Code.
   (b) The United States Equal Employment Opportunity Commission
finds, pursuant to Section 2000e-5 of Title 42 of the United States
Code, that the labor organization engaged in discrimination on the
basis of race, color, national origin, religion, sex, or any other
arbitrary or invidious classification in violation of Subchapter VI
of Chapter 21 of Title 42 of the United States Code during the period
of the labor organization's present certification.
  SEC. 17.  Section 1160.3 of the Labor Code is amended to read:
   1160.3.  (a) The testimony taken by a member, agent, or agency, or
the board in a hearing shall be reduced to writing and filed with
the board. Thereafter, in its discretion, the board, upon notice, may
take further testimony or hear argument.
   (b) If, based upon the preponderance of the testimony taken, the
board finds that a person named in the complaint has engaged in or is
engaging in any unfair labor practice, the board shall state its
findings of fact and shall issue and cause to be served on the person
an order requiring that person to cease and desist from the unfair
labor practice; to take affirmative action, including reinstatement
of an employee with or without backpay, making employees whole, when
the board deems such relief appropriate, for the loss of pay
resulting from the employer's refusal to bargain; and to provide any
other relief as will effectuate the policies of this part. Where an
order directs reinstatement of an employee, backpay may be required
of the employer or labor organization, as the case may be,
responsible for the discrimination suffered by the employee. The
order may further require the person named in the complaint to make
reports from time to time showing the extent to which the person has
complied with the order.
   (c) If, based upon the preponderance of the testimony taken, the
board finds that an employer has willfully or repeatedly engaged in
an unfair labor practice under subdivision (a) or (c) of Section 1153
while employees of the employer were seeking representation by a
labor organization or after a labor organization has been designated
as a representative under Section 1156, the board may, in addition to
any other order permitted by this section, impose a civil penalty of
up to twenty thousand dollars ($20,000) for each violation. The
board shall determine the amount of the civil penalty imposed based
on the impact of the unfair labor practice on the affected employee,
on other persons seeking to exercise rights guaranteed under this
part, or on the public interest.
   (d) If, based upon the preponderance of the testimony taken, the
board finds that the person named in the complaint has not engaged in
or is not engaging in an unfair labor practice, the board shall
state its findings of fact and shall issue an order dismissing the
complaint. An order of the board shall not require the reinstatement
of an individual as an employee who has been suspended or discharged,
or the payment to him or her of any backpay, if the individual was
suspended or discharged for cause. In case the evidence is presented
before a member of the board, or before an administrative law officer
thereof, the member, or administrative law officer, as the case may
be, shall issue and cause to be served on the parties to the
proceedings a proposed report, together with a recommendation, which
shall be filed with the board, and, if an exception is not filed
within 20 days after service thereof upon the parties, or within a
further period as the board may authorize, the recommended order
shall become the order of the board and become effective as therein
prescribed.
   (e) Until the record in a case has been filed in a court, as
provided in this chapter, the board may, at any time upon reasonable
notice and in such manner as it shall deem proper, modify or set
aside, in whole or in part, any finding or order made or issued by
it.
  SEC. 18.  Section 1160.5 of the Labor Code is amended to read:
   1160.5.  Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of subparagraph (D) of
paragraph (2) of subdivision (d) of Section 1154, the board is
empowered and directed to hear and determine the dispute out of which
                                           the unfair labor practice
arose, unless within 10 days after notice that the charge has been
filed, the parties to the dispute submit to the board satisfactory
evidence that they have adjusted, or agreed upon methods for the
voluntary adjustment of the dispute. Upon compliance by the parties
to the dispute with the decision of the board or upon such voluntary
adjustment of the dispute, the charge shall be dismissed.
  SEC. 19.  Section 1160.6 of the Labor Code is amended to read:
   1160.6.  (a) Whenever it is charged that (1) an employer has,
while employees of that employer are seeking representation by a
labor organization or after a labor organization has been designated
as a representative under Section 1156, discharged or otherwise
discriminated against an employee in violation of subdivision (c) of
Section 1153, threatened to discharge or otherwise discriminate
against an employee in violation of subdivision (a) of Section 1153,
or engaged in any other unfair labor practice within the meaning of
subdivision (a) of Section 1153 that significantly interfered with,
restrained, or coerced employees in the exercise of the rights
guaranteed in Section 1152 or (2) any person has engaged in an unfair
labor practice within the meaning of subparagraph (A), (B), or (C)
of paragraph (2) of subdivision (d), or of subdivision (g), of
Section 1154, or of Section 1155, the preliminary investigation of
the charge shall be made forthwith and given priority over all other
cases except cases of like character in the office where it is filed
or to which it is referred.
   (b) If, after the investigation, the officer or regional attorney
to whom the matter may be referred has reasonable cause to believe
the charge is true and that a complaint should issue, he or she
shall, on behalf of the board, petition the superior court in the
county in which the unfair labor practice in question has occurred,
is alleged to have occurred, or where the person alleged to have
committed the unfair labor practice resides or transacts business,
for appropriate injunctive relief pending the final adjudication of
the board with respect to the matter. The officer or regional
attorney shall make all reasonable efforts to advise the party
against whom the restraining order is sought of his or her intention
to seek an order at least 24 hours prior to doing so. In the event
the officer or regional attorney has been unable to advise a party of
his or her intent at least 24 hours in advance, he or she shall
submit a declaration to the court under penalty of perjury setting
forth in detail the efforts he or she has made. Upon the filing of a
petition, the superior court shall have jurisdiction to grant such
injunctive relief or temporary restraining order as it deems just and
proper. Upon the filing of a petition, the board shall cause notice
thereof to be served upon any person involved in the charge, and that
person, including the charging party, shall be given an opportunity
to appear by counsel and present any relevant testimony. For the
purposes of this section, the superior court shall be deemed to have
jurisdiction of a labor organization either in the county in which
the organization maintains its principal office, or in any county in
which its duly authorized officers or agents are engaged in promoting
or protecting the interests of employee members. The service of
legal process upon an officer or agent shall constitute service upon
the labor organization and make the organization a party to the suit.
In situations where such relief is appropriate, the procedure
specified herein shall apply to charges with respect to subparagraph
(D) of paragraph (2) of subdivision (d) of Section 1154.
  SEC. 20.  Section 1161 of the Labor Code is amended to read:
   1161.  (a) The Agricultural Employee Relief Fund is hereby created
as a special fund in the State Treasury and is continuously
appropriated to the Agricultural Labor Relations Board for the
purposes specified in subdivision (c). The board shall act as a
trustee of all moneys deposited in the fund.
   (b) Monetary relief ordered by the board pursuant to this part to
be paid by an employer to an employee shall be collected by the board
on behalf of the employee. All monetary relief collected by the
board shall be remitted to the employee for whom the board collected
the money.
   (c) (1) Notwithstanding Section 1519 of the Code of Civil
Procedure, if the board has made a diligent effort to locate an
employee on whose behalf the board has collected monetary relief
pursuant to this part, and is unable to locate the employee or the
lawful representative of the employee for a period of two years after
the date the board collected the monetary relief, the board shall
deposit those moneys in the fund.
   (2) Moneys in the fund shall be used by the board to pay employees
the unpaid balance of monetary relief ordered by the board to be
paid by an employer to an employee. Prior to making payment from the
fund, the board first shall make a finding that, in an individual
case, the collection of the full amount of the monetary relief
ordered is not possible after reasonable efforts have been made to
collect the balance from the employer.
   (d) As used in this section, "fund" means the Agricultural
Employee Relief Fund.