BILL ANALYSIS �
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: March 9, 2011 2009-2010 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: SB 104
Author: Steinberg
Version: As Introduced January 12, 2011
SUBJECT
Labor representatives: elections.
KEY ISSUE
Should the State of California establish an alternative election
procedure by which agricultural employees could decide whether
to select a particular labor organization to represent them for
collective bargaining purposes?
PURPOSE
To give agricultural employees an alternative electoral method
for choosing their collective bargaining representative, the
majority signup election.
ANALYSIS
Existing law provides for a secret ballot election process for
agricultural workers where a petition has been submitted, as
specified, asking for the opportunity for workers to decide
whether to select a particular union as their collective
bargaining representative. Specifically, the law:
1.Allows for the filing of a petition that is signed by a
majority of the current employees in a collective bargaining
unit, or accompanied with cards signed by a majority of the
current employees in a collective bargaining unit, with the
Agricultural Labor Relations Board (ALRB) to seek
representatives to collectively bargain for the employees in
the bargaining unit. The petition must allege the following:
a) That the number of employees of the employer named in
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 has not been conducted among the
agricultural employees of the employer named in the
petition within 12 months immediately preceding the filing
of the petition.
c) That no labor organization is currently certified as the
exclusive collective bargaining representatives for the
employees of the employer named in the petition.
d) That the petition is not barred by an existing
collective bargaining agreement.
Upon receiving the signed petition, the ALRB must investigate
the petition immediately. If the ALRB finds that the petition
is accurate, then it must hold an election by secret ballot
within seven days of the filing of the petition. The ALRB
must print ballots that list the labor organization or
organizations that seek to represent the employees, as well as
a "no labor organizations" voting option. Whoever receives 50
percent + one of the votes cast shall win the election.
Run-offs, if necessary, must take place.
1.Defines a number of activities of employers, employees, and/or
interested parties as improper interference with the election
process - generally known as unfair labor practices.
2.Allows the ALRB hold hearings to decide if any unfair labor
practices took place, and if it finds such actions took place,
the ALRB must issue a cease and desist order and also take
affirmative action, which can include reinstatement with or
without back pay, and making an employee whole, where
appropriate, for loss of pay.
This bill:
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1.Creates an alternative procedure to the secret ballot election
- the majority signup election - which would allow employees
of a collective bargaining unit to select their representative
for collective bargaining by submitting a petition that
alleges the following:
a) That the number of employees currently employed by the
employer named in 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 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 no labor organization is currently certified as the
exclusive collective-bargaining representatives of the
employees of the employer named in the petition.
d) That the petition is not barred by an existing
collective bargaining agreement.
1.Requires that the petition must be accompanied with
representation cards signed by more than 50 percent of the
currently employed employees in the bargaining unit. These
cards must be issued by the ALRB upon the request of a labor
organization, and the regional boards are required to maintain
a record of the labor organizations that request the issuance
of cards and make such records available to any person.
2.The representation cards must include sufficient space for the
name of the labor organization, the name of the agricultural
employer, the employee's name, address and phone number, the
name of the employee's foreperson, the employee's crew number,
the signature of the person witnessing the employee that
signed the card, and the date that the card was signed.
3.Provides that a representative card is considered valid if the
card includes the name of the labor organization, the
employee's name, and the employee's signature, and that a
labor organization may fill out all of the information on the
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representation card, except the signature.
4.Requires the ALRB to keep the information on the cards
confidential.
5.Requires that the labor representative submitting the petition
must also personally serve the employer with the petition the
same day the ALRB receives it. The employer then has 48 hours
to respond to the petition and personally serve the labor
organization with the petition the same day the ALRB receives
it.
6.The employer response must include a complete and accurate
list of all of the employees in the bargaining unit. For each
day that the employer fails to provide a completely and timely
response, the ALRB must access a fine of up to $10,000.
7.Requires ALRB, upon receipt of a petition for "majority signup
election," to immediately commence an investigation. Within
five days of receipt of the petition, ALRB shall make an
administrative determination whether the petition requirements
have been met and the labor organization has submitted the
requisite number of representation cards by comparing the
names on the cards to the names on the list submitted by the
employer.
8.Specifies that if ALRB determines that the labor organization
has submitted the requisite number of representation cards and
met other requirements, it shall immediately certify the labor
organization as the exclusive bargaining representative. If
ALRB determines that the labor organization has not
submitted the requisite number of cards, it shall grant the
labor organization 30 days to submit additional representation
cards.
9.States that an employer's duty to bargain with the labor
organization begins immediately after a labor organization is
certified.
10. Provides that 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
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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.
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 are true,
the board shall revoke the certification.
10. Prohibits the ALRB from considering a majority signup
election petition for the same employer until the board
determines if the petition should be certified unless the
second petition alleges the first petition was filed because
of the employer's unlawful involvement with the labor
organization that filed the first petition. If the ALRB finds
that the labor organization that filed the first petition did
so with unlawful employer involvement, that labor organization
is prohibited from filing any further petitions for a year and
the second petition will be considered.
11. Extends existing prohibitions and penalties to employers
who engage in unfair labor practices.
12. Provides that if the ALRB finds willful or repeated
actions by the employer to interfere, restrain, or coerce
agricultural employees in their right to self-organize and
collectively bargain, or if an employer is found to be
discriminating against a member of a labor organization in
hiring or tenure of employment, or to encourage or discourage
membership in any labor organization, the ALRB may impose a
civil penalty against that employer for $20,000 for each
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violation.
This bill adds to this requirement that, should there be any
charges of discrimination or threats to discharge an employee
for belonging to or seeking to belong to a labor organization,
or any charges of an employer trying to interfere, restrain,
or coerce agricultural employees in their right to
self-organize and collectively bargain, the ALRB must give
those charges priority of all other cases, except cases of
similar character.
COMMENTS
1. Need for this bill?
In August of 2006, the Senate Labor Committee and the Senate
Judiciary Committee held a joint informational hearing
entitled "Labor and Civil Rights of Farm Workers". Members of
the United Farm Workers testified on the challenges of
participating in labor representative elections due to
anti-union flyers distributed by employers, as well as
intimidation and coercion. Antonio Barbosa, head of the ALRB,
also discussed the challenges of conducting an election due to
the board's lack of funding and staff. Kristin Martin, an
attorney with Davis, Cowell & Bowe, suggested majority-choice
elections as a way for employees to select their labor
representative without the conflict between employers and
labor organizations, and without the costs associated with
staffing and conducting a traditional union election.
2. How many labor representative elections have been held?
According to testimony in 2006 joint legislative hearing from
Antonio Barbosa of the ALRB, from 1975 to 2006, the board has
held 1,280 elections and issued certifications as either a
union win or union loss in 1,071 cases. Between 2000 and
2007, the ALRB has issued 48 certifications, with 29 elections
resulting in a plurality for a particular union and 19
resulting in a plurality for "no union". This includes the
UFW and several other agricultural labor organizations. In a
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2001 labor hearing, UFW reported that of the 428 companies
where elections had taken place, only 185 signed union
contracts.
3. Harry Carian Sales v. Agricultural Labor Relations Board:
The opponents of SB 104 mention the ability of the ALRB to set
aside an election and impose a bargaining order when it finds
egregious employer misconduct impacted a representation
election. This is due to two precedent-setting court cases
addressing unfair labor practices: National Labor Relations
Board (NLRB) v. Gissel, (1969) 395 U.S. 575 and Harry Carian
Sales v. Agricultural Labor Relations Board, (1985) 39 Cal. 3d
209.
In Gissel, the U.S. Supreme Court ruled that if it was found
that the employer engaged in "practices?to undermine majority
strength and impede the election process", the National Labor
Relations Board (NLRB) could issue a "bargaining order", or
require the employer to bargain with a labor representative if
"there is also a showing that at one point the union had a
majority". In 1985, the California Supreme Court found in
Carian Sales that the Agricultural Labor Relations Board
(ALRB) could also issue "bargaining orders" as discussed in
Gissel.
Despite this, the ALRB has not utilized this authority since
the Carian Sales decision. Moreover, this authority can only
be used for unfair labor practices hearings - not hearings on
election outcomes. The ALRB discussed this in a 2006 decision
on an election outcome challenge:
"In these circumstances, due to the lack of any
sanctions other than setting aside the election,
there is no method of removing the taint on
employee free choice created by the election
misconduct. As a result, the setting aside of
the election merely returns the situation to the
status quo before the election petition was
filed, but with the residual effect on free
choice from the misconduct. Obviously, this
allows wrongdoers to profit from their
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misconduct even if it results in the setting
aside of the election.
Thus, we are forced to conclude that the
election objections process where, as here, the
tally of ballots indicates an ostensible "No
Union" victory, is all but a meaningless
exercise in terms of its affect on the rights of
the parties and the employees. Regrettably, the
statute in its present form does not provide the
Board with remedial authority through which it
might address this problem. Consequently, it is
a problem that may be addressed only by the
Legislature."
Giumarra Vineyards Corp., (2006) 32 ALRB 5, at
5.
4. Proponent Arguments :
Proponents note that farm workers are an unusually vulnerable
workforce demographic in California. Many farm workers are
undocumented workers and have few rights due to recent court
decisions. Proponents also state that many farm workers work
in isolated areas, making inspections for labor regulations
difficult. Proponents argue that these conditions present a
strong need for collective bargaining and a union presence,
but this has been blocked by employers through coercion,
anti-union pamphlets, and captive audience meetings prevent
fair elections from taking place. Proponents believe that
majority choice elections will allow California's farm workers
to truly and freely choose the best options for their
livelihood and their families' livelihood.
5. Opponent Arguments :
Opponents argue that existing law gives labor organizations
many rights, including the ability for labor organizations to
enter a farmer's property, and that existing remedies
available to the ALRB are sufficient. They also feel that
majority choice elections are not a real election, is
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fundamentally undemocratic, opens workers up to intimidation
from unions in their homes, and that they deprive farm workers
of a proper debate on the pros and cons of unionization.
Opponents also state that the provisions for increased civil
penalties are excessive, possibly unconstitutional, and an
undue burden on businesses.
6. Prior Legislation :
SB 1474 of 2010, as introduced, was very similar to this bill.
It was significantly amended in the Assembly to address
situations where agricultural employers engaged in willful
misconduct in labor representation elections. SB 1474 was
vetoed by Governor Schwarzenegger.
SB 789 of 2009 was very similar to this bill, and was vetoed
by Governor Schwarzenegger. His veto message read, in part:
SB 789 sets in place a "majority signup
election" process for agricultural
employees to select union representation.
This process fundamentally alters an
employee's right to a secret ballot
election that allows the employee to
choose, in the privacy of the voting booth
without coercion or manipulation, whether
or not to be represented?. I cannot support
this alteration of the secret ballot
process.
AB 2386 (Nunez) of 2008 would have authorized agricultural
employees to select collective bargaining representation
through a new "mediated election" process. This bill was
vetoed by Governor Schwarzenegger.
SB 180 (Migden) of 2007 was almost identical to SB 789. That
legislation was vetoed by Governor Schwarzenegger.
SUPPORT
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American Federation of State, County and Municipal Employees,
AFL-CIO
Brotherhood of Teamsters Local Union No. 70
California Employment Lawyers Association
California Federation of Teachers
California Labor Federation
California Nurses Association
California Rural Legal Assistance Foundation
California Teamsters Local 911
California Teamsters Public Affairs Council
International Longshore & Warehouse Union Ship Clerks'
Association, Local 34
International Union, United Automobile, Aerospace & Agricultural
Implement Workers of America (UAW)
National Nurses Organizing Committee
Northern California District Council International Longshore &
Warehouse Union
Southern California District Council of Laborers
Teamsters Local No. 481
Teamsters, Chauffeurs, Warehousemen & Helpers Local Union 399
Teamsters, Chauffeurs, Warehousemen, Industrial & Allied Workers
of America Local Union No. 166
The International Alliance of Theatrical State Employees Local
80
United Farm Workers (UFW) (Sponsors)
United Food & Commercial Workers Union Local No. 324
United Food & Commercial Workers Western States Council
United Nurses Association of California/Union of Healthcare
Professionals
OPPOSITION
Agricultural Council of California
Associated Builders and Contractors of California
California Association of Wine Grape Growers
California Chamber of Commerce
California Farm Bureau Federation
California Grocers Association
California Hotel & Lodging Association
California Independent Grocers Association
California Manufacturers & Technology Association
California Newspaper Publishers Association
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California Restaurant Association
California Retailers Association
Greater San Fernando Valley Chamber of Commerce
National Right to Work Committee
Palm Desert Chamber of Commerce
Pleasanton Chamber of Commerce
Redondo Beach Chamber of Commerce
San Jose Silicon Valley Chamber of Commerce
Valley Industry and Commerce Association
Western Growers Association
Wine Institute
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