BILL NUMBER: SB 180 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 27, 2007
PASSED THE ASSEMBLY JULY 12, 2007
AMENDED IN ASSEMBLY JUNE 7, 2007
AMENDED IN SENATE MAY 17, 2007
AMENDED IN SENATE MAY 1, 2007
AMENDED IN SENATE APRIL 9, 2007
AMENDED IN SENATE MARCH 8, 2007
INTRODUCED BY Senator Migden
(Principal coauthor: Senator Romero)
(Coauthors: Senators Alquist, Calderon, Cedillo, Corbett, Correa,
Ducheny, Kehoe, Kuehl, Lowenthal, Negrete McLeod, Oropeza, Padilla,
Perata, Ridley-Thomas, Simitian, Steinberg, Torlakson, Vincent,
Wiggins, and Yee)
(Coauthors: Assembly Members Arambula, Bass, Beall, Berg,
Brownley, Caballero, Charles Calderon, Carter, Coto, Davis, De La
Torre, De?Leon, DeSaulnier, Dymally, Eng, Feuer, Hancock, Hayashi,
Hernandez, Huffman, Jones, Karnette, Krekorian, Laird, Leno, Levine,
Lieber, Lieu, Ma, Mendoza, Mullin, Nunez, Portantino, Price,
Richardson, Ruskin, Salas, Saldana, Solorio, Soto, Swanson, Torrico,
and Wolk)
FEBRUARY 5, 2007
An act to amend Sections 1151.6, 1156, 1156.2, 1156.3, 1156.4,
1157, 1160.3, and 1160.6 of, and to add Section 1156.35 to, the Labor
Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 180, Migden. Labor representatives: elections.
Existing law prohibits employers from engaging in unfair labor
practices, including interfering in the election by agricultural
employees of labor representatives to engage in collective bargaining
for the designated bargaining units. Existing law also provides
criminal and civil penalties for any employer or person who engages
in unfair labor practices as determined by the Agricultural Labor
Relations Board and the courts.
Existing law provides for a secret ballot election for employees
in agricultural bargaining units, as defined, to select labor
organizations to represent them for collective bargaining purposes.
This bill would permit agricultural employees, as an alternative
procedure, to select their labor representatives by submitting a
petition to the Labor Board accompanied by representation cards
signed by a majority of the bargaining unit. The board would be
required to conduct an immediate investigation to determine whether
to certify the labor organization as the exclusive bargaining
representative for the particular agricultural employees. Within 5
days after receiving a petition, the board would be required to make
a nonappealable administrative decision. If the board determined that
the representation cards meet specified criteria, then the labor
organization would be certified as the exclusive bargaining
representative. If the board determined that the representation cards
were deficient, it would notify the labor organization of the
deficiency and grant the labor organization 30 days to submit
additonal cards.
This bill would extend the existing prohibitions and penalties to
employers who engage in unfair labor practices with regard to a
majority signup election.
This bill would require the signatures on the representation
cards, used in majority signup elections, to be submitted under
penalty of perjury and that the Labor Board keep the information on
the cards confidential.
By expanding the definition of unfair labor practices for
infractions, and requiring that the representation cards be submitted
under penalty of perjury, this bill would create a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1151.6 of the Labor Code is amended to read:
1151.6. A person who willfully resists, prevents, impedes, or
interferes with any member of the board or any of its agents or
agencies in the performance of duties pursuant to this part is guilty
of a misdemeanor, and shall be punished by a fine of not more than
five thousand dollars ($5,000).
SEC. 2. Section 1156 of the Labor Code is amended to read:
1156. (a) A representative designated or selected by a secret
ballot pursuant to Section 1156.3, or by a majority signup election
pursuant to Section 1156.35, for the purposes of collective
bargaining by the majority of the agricultural employees in a
bargaining unit shall be the exclusive representative of all 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 opportunity to be present at the
adjustment.
SEC. 3. Section 1156.2 of the Labor Code is amended to read:
1156.2. A bargaining unit is all 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 secret ballot election or a majority signup election is
conducted.
SEC. 4. Section 1156.3 of the Labor Code is amended to read:
1156.3. (a) 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 any
individual or labor organization acting on behalf of those
agricultural employees, in accordance with any rules and regulations
prescribed by the board. 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 no valid election pursuant to this section has been
conducted among the agricultural employees of the employer named in
the petition within the 12 months immediately preceding the filing of
the petition.
(3) That no labor organization is currently certified as the
exclusive collective bargaining representative of the agricultural
employees of the employer named in the petition.
(4) That the petition is not barred by an existing collective
bargaining agreement.
(b) Upon receipt of a signed petition, as described in subdivision
(a), 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
secret ballot 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 secret ballot
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 secret ballot elections.
(c) The board shall make available at any election or alternative
selection process, held under this chapter either ballots or
representation cards, as appropriate, and all materials used to
select labor representatives printed in English and Spanish. The
board may also make available at the election or selection process
ballots or representation cards, as appropriate, and all other
election material 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. Every election ballot, except ballots in runoff elections
where 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."
(d) 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.
(e) (1) Within five days after an election, any person may file
with the board a signed petition asserting that allegations made in
the petition filed pursuant to subdivision (a) 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.
(2) Upon receipt of a petition under this subdivision, 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 any recommendations 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 any of the assertions made
in the petition filed pursuant to this subdivision are 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.
(f) If no petition is filed pursuant to subdivision (e) within
five days of the election, the board shall certify the election.
(g) The board shall decertify a labor organization if either of
the following occur:
(1) The Department of Fair Employment and Housing finds that the
labor organization engaged in discrimination on any 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.
(2) 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. 5. Section 1156.35 is added to the Labor Code, to read:
1156.35. (a) As an alternative procedure to the secret ballot
election process set forth in Section 1156.3, a labor organization
may be certified as the exclusive bargaining representative of a
bargaining unit through a majority signup election. A majority signup
election permits a bargaining unit to summarily select a labor
organization as its representative for collective bargaining purposes
without holding a representation election.
(b) A labor organization that wishes to represent a particular
bargaining unit, as defined in Section 1156.2, may be certified
through a majority signup election as that unit's bargaining
representative by submitting to the board a petition for majority
signup election. The petition must allege the following:
(1) That the number of agricultural employees currently employed
by the employer named in the petition for majority signup election,
as determined from the employer's payroll immediately preceding the
filing of the petition for majority signup election, is not less than
50 percent of the employer's peak agricultural employment for the
current calendar year.
(2) That no valid election has been conducted among the
agricultural employees of the employer named in the petition for
majority signup election within the 12 months preceding the filing of
the petition.
(3) That no labor organization is currently certified as the
exclusive collective bargaining representative of the agricultural
employees of the employer named in the petition for majority signup
election.
(4) That the petition is not barred by an existing collective
bargaining agreement.
(c) (1) The petition for majority signup election in subdivision
(b) must be accompanied by representation cards signed by more than
50 percent of the currently employed employees. For purposes of this
section, "currently employed employees" means those agricultural
employees of the employer who were employed at any time during the
employer's last payroll period that ended prior to the filing of the
petition for majority signup election.
(2) The representation cards must be titled "ALRB Representation
Cards for Certification of a Labor Organization."
(3) Each representation card must include the following:
(A) A statement that the employee signing it wishes to have a
specified labor organization as his or her collective bargaining
representative with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
(B) A statement that no promises or threats were made to obtain
the employee's signature on the card.
(C) An acknowledgment that by signing the card the employee is
manifesting a desire to be represented by a labor organization.
(D) An acknowledgment that the employee is aware of the toll-free
telephone number of the Agriculture Labor Relations Board, which is
available to complain about coercion or other unfair labor practices.
(E) Sufficient space for the following information: the name of
labor organization; the name of the agricultural employer; the
employee's name, address, and telephone number; the name of the
employee's foreman; the signature of the employee; the name, address,
telephone number, and the signature of the person witnessing that
the employee signed the card; and the date when the card was signed.
(F) The following statement, to be signed by the employee signing
the representation card: "I declare under penalty of perjury under
the laws of California that I am employed by the agricultural
employer that is named in this representation card."
(G) The following statement, to be signed by the person who
witnesses the employee signing the representation card: "I declare
under penalty of perjury under the laws of California that I
witnessed the signing of this representation card and that, to the
best of my knowledge, information, and belief, the employee who
signed this representation card was not intimidated, threatened or
coerced in any way and was not paid any money or other thing of value
in exchange for signing this representation card."
(4) The board shall maintain the confidentiality and secrecy of
the employee name on the representation card. The board shall give
the representation card the same confidentiality and secrecy as a
regular election ballot.
(5) Upon the request of a labor organization, the board shall
issue standardized representation cards for use with a petition for
majority signup election, in accordance with subdivision (c) of
Section 1156.3.
(6) A representation card is valid, for the purpose of supporting
a petition for majority signup election, if it contains the name of
the labor organization, the name of the employee, and the employee's
signature. A labor organization may fill out all of the information
contained in a representation card, except for the employee's
signature.
(7) A representation card remains valid for 12 months after it is
signed by an agricultural employee.
(d) A labor organization submitting a petition for a majority
signup election shall personally serve the petition on the employer
on the same day that the petition is filed with the board. Within 48
hours after the petition is served, the employer shall file with the
board its response to the petition. As part of the response, the
employer shall provide a complete and accurate list of the full
names, current street addresses, and job classifications of all
currently employed employees in the bargaining unit. The employer
shall organize the employees' names and addresses and other
information by crew or department and shall provide the list to the
board in hard copy and electronic format. Immediately upon receiving
the list, the board shall provide a hard copy and an electronic copy
to the labor organization that filed the majority signup election
petition.
(e) (1) Upon receipt of a petition for majority signup election,
the board shall immediately commence an investigation regarding the
validity of the petition and the accompanying representation cards.
Within five days of receipt of the petition, the board shall make an
administrative determination as to whether the requirements set forth
in subdivision (b) are met by the petition and whether the labor
organization submitting the petition has submitted the number of
representation cards required by paragraph (1) of subdivision (c). In
making this determination, the board shall compare the names on the
representation cards submitted by the labor organization to the names
on the list of currently employed employees provided by the
employer. The board shall ignore discrepancies between the employee's
name listed on the representation card and the employee's name on
the employer's list if the preponderance of the evidence, such as the
employee's address and the name of the employee's foreman, shows
that the employee who signed the card is the same person as the
employee on the employer's list.
(2) The board shall return those representation cards that it
finds invalid to the labor organization that filed the petition for
majority signup election, with an explanation as to why each
representation card was found to be invalid. To protect the
confidentiality of the names on the representation cards, the board's
determination of whether a particular card is valid shall be final
and not subject to appeal or review.
(3) If the board determines that the labor organization has
submitted the required number of representation cards and met the
requirements set forth in this section and in Section 1156.4, it
shall immediately certify the labor organization as the exclusive
bargaining representative of the employees in the bargaining unit. An
employer's duty to bargain with the labor organization commences
immediately after the labor organization is certified.
(4) If the board determines that the labor organization has not
submitted the requisite number of valid representation cards, or that
the representation cards fail to meet the requirements set forth in
this section or in Section 1156.4, the board shall notify the labor
organization of the deficiency and grant the labor organization 30
days from the date it is notified to submit additional representation
cards.
(f) (1) Within five days after the board certifies a labor
organization through a majority signup election, any person may file
with the board a petition objecting to the certification on one or
more of the following grounds:
(A) Allegations in the majority signup petition were false.
(B) The board improperly determined the geographical scope of the
bargaining unit.
(C) The majority signup election was conducted improperly.
(D) Improper conduct affected the results of the majority signup
election.
(2) Upon receipt of a petition objecting to certification, the
board shall conduct a hearing to rule on the petitioner's objections,
and shall mail a notice of the time and place of the hearing to the
petitioner and the labor organization whose certification is being
challenged. If the board finds at the hearing that any of the
allegations in the petition of the grounds set forth in paragraph (1)
are true, the board shall revoke the certification issued under
subdivision (e).
(3) The filing of a petition objecting to a majority signup
election certification shall not diminish the duty to bargain or
delay the running of the 180-day period set forth in subdivision (a)
of Section 1164.
(4) If the board finds, after a hearing, that an employer has
assisted, supported, created, or dominated a labor organization for
the purpose of filing a majority signup election petition, the board
shall order the employer to pay for all the costs and expenses
incurred by a labor organization challenging a majority signup
election.
(g) The board shall not permit the filing of an election petition
pursuant to Section 1156.3 once a majority signup petition is filed
until the board determinates whether the labor organization filing
the majority signup election petition should be certified.
(h) Once a labor organization has filed a majority signup election
petition, no other majority signup election petition shall be
considered by the board with the same agricultural employer until the
board determines whether the labor organization that filed the
pending majority signup election petition should be certified.
(i) For purposes of Section 1156.5, a majority signup election is
a valid election.
SEC. 6. 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 representation petition,
petition for majority signup election, or a petition to decertify as
timely filed unless the employer's payroll reflects 50 percent of the
peak agricultural employment for such 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. 7. Section 1157 of the Labor Code is amended to read:
1157. All agricultural employees of the employer whose names
appear on the payroll applicable to the payroll period immediately
preceding the filing of the petition for a representation election or
a majority signup election 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 any election, provided that the striker who has been permanently
replaced shall not be eligible to vote in any election conducted more
than 12 months after the commencement of the strike.
In the case of elections conducted within 18 months of the
effective date of this part which involve labor disputes 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 economic strikers who were 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 any striker who has not performed any services
for the employer during the 36-month period immediately preceding the
effective date of this part.
SEC. 8. 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 the unfair labor
practice and to take affirmative action, including reinstatement of
employees 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 providing any other
relief as would 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 employer has complied with
the order.
(c) If the board finds that an employer has willfully or
repeatedly committed 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
was designated as a representative under Section 1156, the board may,
in addition to any 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 any civil penalty
imposed based upon the impact of the unfair labor practice on the
charging party or on other persons seeking to exercise rights
guaranteed by this part, or on the public interest.
(d) If, 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 any 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 any
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 recommended order,
which shall be filed with the board, and, if no exceptions are 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.
(g) 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. 8. Section 1160.6 of the Labor Code is amended to read:
1160.6. (a) Whenever it is charged that (1) any employer has,
while the employees of that employer were seeking representation by a
labor organization or during the period after a labor organization
was recognized as a representative, discharged or otherwise
discriminated against an employee in violation of subdivision (c) of
Section 1153, threatened to discharge or to 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 paragraph (1), (2), or
(3) 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 paragraph (4)
of subdivision (d) of Section 1154.
SEC. 9. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be
incurred by a local agency or school district will be incurred
because this act creates a new crime or infraction, eliminates a
crime or infraction, or changes the penalty for a crime or
infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIII B of the California Constitution.