BILL NUMBER: SB 126 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY SEPTEMBER 2, 2011
INTRODUCED BY Senator Steinberg
( Principal coauthor: Assembly Member
Alejo )
JANUARY 27, 2011
An act to add Section 14521.5 to the Government
amend Sections 1156.3, 1158, 1160.4, and 1164 of the Labor
Code, relating to transportation
employment .
LEGISLATIVE COUNSEL'S DIGEST
SB 126, as amended, Steinberg. California Transportation
Commission: guidelines. Agricultural labor relations.
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 provides that, within 5 days after the
above-described election, any person may file with the Agricultural
Labor Relations Board a signed petition that, among other things,
objects to the conduct of the election or conduct affecting the
results of the election. Upon receipt of the petition, existing law
requires the board to conduct a hearing to determine whether the
election shall be certified. Existing law permits the board to refuse
to certify the election if it finds, among other things, that
misconduct affecting the results of the election occurred.
Existing law also provides for elections to decertify a labor
organization, as specified.
This bill would provide that if the board refuses to certify an
election regarding certification of a labor organization because of
employer misconduct that, in addition to affecting the results of the
election, would render slight the chances of a new election
reflecting the free and fair choice of employees, the labor union
shall be certified as the exclusive bargaining representative for the
bargaining unit.
This bill would specify, with regard to the above-described
elections regarding certification or decertification, time limits
pertaining to the scheduling of hearings on election objections and
challenges to ballots and the issuance of decisions by the board with
respect to those objections and challenges.
Under existing law, whenever it is charged that a person has
engaged in or is engaging in certain unfair labor practices, the
board has the power to issue and cause to be served upon the person a
complaint stating the charges and containing a notice of hearing, as
specified, not less than 5 days after the serving of the complaint.
Under existing law, the board has the power, upon issuance of the
above-described complaint, to petition the superior court in any
county wherein the unfair labor practice in question is alleged to
have occurred, or wherein the person resides or transacts business,
for appropriate temporary relief or a restraining order. Existing law
grants the court jurisdiction to grant that relief.
This bill would specify what the court is to consider in
determining whether temporary relief or a restraining order is just
and proper. This bill would provide that when the alleged unfair
labor practice is such that, by its nature, it would interfere with
the free choice of employees to choose or not choose an exclusive
bargaining representative, appropriate temporary relief or a
restraining order shall issue on a showing that reasonable cause
exists to believe that the unfair labor practice has occurred. This
bill would provide that the order shall remain in effect until an
election has been held or for 30 days, whichever occurs first. This
bill would provide that the temporary relief or restraining order
shall not be stayed pending appeal.
Existing law specifies the time for filing a declaration by an
agricultural employer or a certified labor organization representing
agricultural employees that the parties have failed to reach a
collective bargaining agreement, thus triggering mandatory mediation.
Under existing law, the declaration may be filed 90 days after a
renewed demand to bargain where the parties have failed to reach
agreement for at least one year, the employer committed an unfair
labor practice, and the parties have not previously had a binding
contract between them or 180 days after an initial request to
bargain.
This bill would, instead, provide that the declaration may be
filed 90 days after a renewed demand to bargain, as specified above,
90 days after an initial request to bargain, 60 days after the board
has certified the labor organization because of employer misconduct
and a finding that would render slight the chances of a new election
reflecting the free and fair choice of employees, or 60 days after
the board has dismissed a decertification petition upon a finding
that the employer has unlawfully initiated, supported, sponsored, or
assisted in the filing of a decertification petition.
Existing law provides that if, upon the preponderance of the
testimony taken, the board is of the opinion that any person named in
the above-described complaint has engaged in or is engaging in any
unfair labor practice, the board is required to state its findings of
fact and issue and cause to be served on the person an order
requiring the person to cease and desist from the unfair labor
practice. Existing law specifies how certification and the record of
investigation are to be handled whenever the cease and desist order
is based in whole or in part upon the facts certified following an
investigation pertaining to elections of bargaining unit
representatives, and there is a petition for review of the order.
This bill would provide that the filing of the above-described
petition for review of the order shall not be grounds for a stay of
proceedings pertaining to mandatory mediation.
Existing law generally provides for programming and allocation of
state and federal funds available for transportation capital
improvement projects by the California Transportation Commission,
pursuant to various requirements. Existing law authorizes the
commission, in certain cases, to adopt guidelines relative to its
programming and allocation policies and procedures.
Existing law, the Administrative Procedure Act, generally governs
the procedure for the adoption, amendment, or repeal of regulations
by state agencies and for the review of those regulatory actions by
the Office of Administrative Law. Existing law, in certain instances,
exempts state agencies from these requirements.
This bill would establish specified procedures that the commission
would be required to utilize when it adopts guidelines, except as
specified, and would exempt the adoption of those guidelines from the
requirements of the Administrative Procedure Act.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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 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 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 held under this
chapter ballots printed in English and Spanish. The board may also
make available at the election ballots 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) Notwithstanding any other provision of law, if the board
refuses to certify an election because of employer misconduct that,
in addition to affecting the results of the election, would render
slight the chances of a new election reflecting the free and fair
choice of employees, the labor organization shall be certified as the
exclusive bargaining representative for the bargaining unit.
(f)
(g) If no petition is filed pursuant to subdivision (e)
within five days of the election, the board shall certify the
election.
(h) 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.
(i) (1) With regard to elections held pursuant to this section or
Section 1156.7, the following time limits apply for action by the
board, and agents acting pursuant to authority delegated by the
board:
(A) (i) The board shall, within 21 days of the filing of election
objections or the submittal of evidence in support of challenges to
ballots, evaluate the election objections or challenged ballots and
issue a decision determining which, if any, must be set for hearing.
(ii) The hearing on election objections or challenged ballots set
pursuant to clause (i) shall be scheduled to commence within 28 days
of the date of the board's decision to set a hearing.
(B) The investigative hearing examiner (IHE) appointed pursuant to
Section 1145 shall issue a recommended decision within 60 days of
the close of the hearing on the matters described in subparagraph
(A). Upon mutual agreement of the parties, the IHE may extend the
time period to issue a recommended decision by 30 days.
(C) The board shall issue a decision regarding the election
objections or challenged ballots within 45 days of receipt of any
exceptions to the decision of the IHE.
(2) The board may consolidate a challenged ballot hearing with a
hearing on objections to an election.
(3) The board may grant extensions on the time limits specified in
this subdivision upon a showing of good cause or by stipulation of
all affected parties.
SEC. 2. 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 1156.3 to 1157.2
, inclusive, and there is a petition for review of
such the order, such the
certification and the record of such
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
such the transcript. The filing of a
petition for review described in this section shall not be grounds
for a stay of proceedings conducted pursuant to Chapter 6.5
(commencing with Section 1164).
SEC. 3. Section 1160.4 of the Labor
Code is amended to read:
1160.4. (a) The board shall have
power may , upon issuance of a
complaint as provided in Section 1160.2 charging
finding reasonable cause to believe that any person has engaged
in or is engaging in an unfair labor practice, to
petition the superior court in any county wherein the unfair labor
practice in question is alleged to have occurred, or wherein
such the person resides or transacts business,
for appropriate temporary relief or restraining order. Upon the
filing of any such the petition, the
board shall cause notice thereof to be served upon such
the person, and thereupon the court shall have
jurisdiction to grant to the board such temporary relief or
restraining order as the court deems just and proper.
(b) (1) In addition to any harm resulting directly from an adverse
employment action or other allegedly unlawful action, the court
shall consider the indirect effect upon protected rights of all
agricultural employees of the employer in determining whether
temporary relief or a restraining order is just and proper.
(2) When the alleged unfair labor practice is such that, by its
nature, it would interfere with the free choice of employees to
choose or not choose an exclusive bargaining representative,
appropriate temporary relief or a restraining order shall issue on a
showing that reasonable cause exists to believe that the unfair labor
practice has occurred. The order shall remain in effect until an
election has been held or for 30 days, whichever occurs first.
Thereafter, a preliminary injunction may issue if it is shown to be
just and proper.
(c) Notwithstanding Section 916 of the Code of Civil Procedure,
temporary relief or restraining orders granted pursuant to this
section shall not be stayed pending appeal.
SEC. 4. Section 1164 of the Labor Code
is amended to read:
1164. (a) An agricultural employer or a labor organization
certified as the exclusive bargaining agent of a bargaining unit of
agricultural employees may file with the board, at any time following
(1) 90 days after a renewed demand to bargain by an agricultural
employer or a labor organization certified prior to January 1, 2003,
which meets the conditions specified in Section 1164.11 or
, (2) 180 90 days
after an initial request to bargain by an agricultural employer or a
labor organization certified after January 1, 2003, (3) 60 days
after the board has certified the labor organization pursuant to
subdivision (f) of Section 1156.3, or (4) 60 days after the board has
dismissed a decertification petition upon a finding that the
employer has unlawfully initiated, supported, sponsored, or assisted
in the filing of a decertification petition a declaration that
the parties have failed to reach a collective bargaining agreement
and a request that the board issue an order directing the parties to
mandatory mediation and conciliation of their issues. "Agricultural
employer," for purposes of this chapter, means an agricultural
employer, as defined in subdivision (c) of Section 1140.4, who has
employed or engaged 25 or more agricultural employees during any
calendar week in the year preceding the filing of a declaration
pursuant to this subdivision.
(b) Upon receipt of a declaration pursuant to subdivision (a), the
board shall immediately issue an order directing the parties to
mandatory mediation and conciliation of their issues. The board shall
request from the California State Mediation and Conciliation Service
a list of nine mediators who have experience in labor mediation. The
California State Mediation and Conciliation 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
Service. The parties shall select a mediator from the list within
seven days of receipt of the list. If the parties cannot agree on a
mediator, they shall strike names from the list until a mediator is
chosen by process of elimination. If a party refuses to participate
in selecting a mediator, the other party may choose a mediator from
the list. The costs of mediation and conciliation shall be borne
equally by the parties.
(c) Upon appointment, the mediator shall immediately schedule
meetings at a time and location reasonably accessible to the parties.
Mediation shall proceed for a period of 30 days. Upon expiration of
the 30-day period, if the parties do not resolve the issues to their
mutual satisfaction, the mediator shall certify that the mediation
process has been exhausted. Upon mutual agreement of the parties, the
mediator may extend the mediation period for an additional 30 days.
(d) Within 21 days, the mediator shall file a report with the
board that resolves all of the issues between the parties and
establishes the final terms of a collective bargaining agreement,
including all issues subject to mediation and all issues resolved by
the parties prior to the certification of the exhaustion of the
mediation process. With respect to any issues in dispute between the
parties, the report shall include the basis for the mediator's
determination. The mediator's determination shall be supported by the
record.
(e) In resolving the issues in dispute, the mediator may consider
those factors commonly considered in similar proceedings, including:
(1) The stipulations of the parties.
(2) The financial condition of the employer and its ability to
meet the costs of the contract in those instances where the employer
claims an inability to meet the union's wage and benefit demands.
(3) The corresponding wages, benefits, and terms and conditions of
employment in other collective bargaining agreements covering
similar agricultural operations with similar labor requirements.
(4) The corresponding wages, benefits, and terms and conditions of
employment prevailing in comparable firms or industries in
geographical areas with similar economic conditions, taking into
account the size of the employer, the skills, experience, and
training required of the employees, and the difficulty and nature of
the work performed.
(5) The average consumer prices for goods and services according
to the California Consumer Price Index, and the overall cost of
living, in the area where the work is performed.
SECTION 1. The Legislature finds and declares
all of the following:
(a) From time to time, the Legislature has authorized the
California Transportation Commission to adopt guidelines for the
development and administration of statutorily created transportation
programs.
(b) Examples of the legislative authorization described in
subdivision (a) include, but are not limited to, the authority for
guidelines for the administration of transportation programs funded
by the Highway Safety, Traffic Reduction, Air Quality, and Port
Security Bond Act of 2006 (Chapter 12.49 (commencing with Section
8879.20) of Division 1 of Title 2 of the Government Code), including
the Corridor Mobility Improvement Account (CMIA) and the
Highway-Railroad Crossing Safety Account.
(c) In 2009, the commission also adopted program guidelines for
the implementation of the public-private partnership authority the
Legislature granted to the Department of Transportation (Caltrans)
and to regional transportation planning agencies pursuant to Section
143 of the Streets and Highways Code.
(d) The Legislature has exempted program guidelines adopted by the
commission from the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code) so that the commission may adopt guidelines
quickly and may amend adopted guidelines in response to quickly
changing circumstances.
(e) On some occasions, the commission's process for adopting
program guidelines has lacked transparency and has not provided the
public with ample opportunity to fully review and comment on proposed
guidelines.
(f) To ensure the commission's process for the adoption of program
guidelines is understandable, predictable, and transparent, and to
ensure the commission's process provides ample opportunity for public
review and comment on proposed guidelines, it is necessary to place
into statute a process for the adoption of program guidelines by the
commission.
SEC. 2. Section 14521.5 is added to the
Government Code, to read:
14521.5. (a) Notwithstanding any other law, the adoption of
guidelines by the commission shall be exempt from the rulemaking
provisions of the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1). Except for the State
Transportation Improvement Program (STIP) guidelines adopted pursuant
to Sections 14526, 14527, and 14529, on or after January 1, 2012,
the commission shall adopt guidelines using the procedures
established pursuant to this section.
(b) The commission's legal counsel shall review the proposed
guidelines for matters such as necessity, authority, clarity,
consistency, reference, and nonduplication, and recommend any
proposed action to the commissioners. For purposes of this section,
"necessity," "authority," "clarity," "consistency," "reference," and
"nonduplication" shall each have the same meaning as defined in
Section 11349. The commission's legal counsel's recommendations and
communications to the commission concerning the results of the review
shall be subject to the attorney-client privilege, unless otherwise
waived. The commission's executive director shall cause the
recommendations and communications to be distributed to all
commissioners.
(c) Program or policy guidelines shall first be presented at a
commission meeting for purposes of receiving public comment. At least
45 days prior to the meeting, the proposed or draft guideline shall
be sent to any person who has requested notices of the meetings of
the commission and shall be available to the public in electronic
format. The proposed or draft guideline shall include notice of the
right of the public to comment orally on the proposed or draft
guideline during the public meeting or to comment in writing at any
time prior to the meeting or within seven business days following the
meeting, at which time the written comment period shall be closed.
(d) Following the close of the written comment period, the
commission staff shall review all written and oral comments and shall
prepare a summary of the objections and recommendations made in
those comments and an explanation of how the proposed guideline is
proposed to be changed to accommodate the objections or
recommendations, or the reason or reasons for proposing no change.
(e) The staff recommendations and summary described in subdivision
(d) shall be made publicly available at least 15 days prior to a
subsequent regular meeting of the commission. At that subsequent
public meeting, the commission shall consider the staff
recommendations and any additional public comment made at the meeting
prior to voting on the adoption of the proposed guideline. A program
or policy guideline adopted by the commission shall be adopted by an
affirmative vote of a majority of the commission membership.
(f) The commission shall maintain a guideline adoption file
containing the public notice, public comments, and minutes of the
public meeting, including the action taken by the commission, and a
letter from the commission's legal counsel confirming that he or she
reviewed the proposed guidelines for compliance with the standards
set forth in subdivision (b).
(g) The guideline adoption file shall contain a summary of each
objection or recommendation made and an explanation of how the
proposed guideline was changed to accommodate each objection or
recommendation, or the reason or reasons for making no change.
(h) The commission shall include in its annual report to the
Legislature, required pursuant to Section 14535, a summary of its
activities related to the adoption of program or policy guidelines
during the previous calendar year, including, but not limited to, a
summary of the proposed guidelines considered by the commission, a
description of the actions taken by the commission, and the votes of
the commission on matters it considered.