BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 126|
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UNFINISHED BUSINESS
Bill No: SB 126
Author: Steinberg (D), et al.
Amended: 9/2/11
Vote: 21
PRIOR VOTES NOT RELEVANT
ASSEMBLY FLOOR : 50-28, 09/08/11 - See last page for vote
SUBJECT : Agricultural labor relations
SOURCE : Author
DIGEST : This bill makes a number of changes to the
Agricultural Labor Relations Act. Specifically, this bill
provides that if the Agricultural Labor Relations Board
(ALRB) sets aside an election because of employer
misconduct that (in addition to affecting the outcome of an
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. Imposes time
limits to certain ALRB proceedings as specified. Shortens
the time under current law for a request for mandatory
mediation from 180 days to 90 days after an initial request
to bargain. Provides that a party may also request
mandatory mediation in the specified circumstances.
Provides that the mandatory mediation proceedings of
current law shall not be stayed on the grounds that a
specified petition for review of an ALRB order related to
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unfair labor practice charges have been filed. Expands
existing law related to judicial injunctions to provide
that the court shall also consider the indirect effect upon
protected rights of all agricultural employees of the
employer in determining whether temporary relief is just
and proper. Provides that when the alleged unfair labor
practice is such that, by its nature, it would interfere
with employee free choice, 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. Provides that temporary relief or
restraining orders shall not be stayed pending appeal.
Assembly Amendments delete the prior version of the bill
dealing with the California Transportation Commission
guidelines, and insert language that deals with
agricultural employee labor relations.
ANALYSIS : Existing law provides for a representation
election process in which a petition is submitted to the
ALRB signed by a majority of agricultural employees in a
bargaining unit, or accompanied by cards signed by a
majority of the employees in the unit. If the ALRB finds
that the petition is accurate and meets specified
conditions, existing law requires it to conduct an election
by secret ballot within seven days of the filing of the
petition.
This bill makes a number of changes to the Agricultural
Labor Relations Act. Specifically, this bill:
1. Provides that if the Agricultural Labor Relations Board
(ALRB) sets aside an election because of employer
misconduct that (in addition to affecting the outcome of
an 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.
2. Imposes the following time limits to certain ALRB
proceedings as follows:
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A. Within 21 days of the filing of election
objections or the submission of evidence in support
of challenges to ballots, the ALRB shall evaluate
the election objections or challenged ballots and
issue a decision determining which, if any, must be
set for hearing.
B. The hearing shall be scheduled to commence
within 28 days of the date of the ALRB's decision
to set a hearing..
C. The investigative hearing examiner shall issue a
recommended decision within 60 days of the close of
the hearing. This time period may be extended by
30 days upon mutual agreement of the parties.
D. Within 45 days of the receipt of any exceptions
to the decision of the investigative hearing
examiner, the ALRB shall issue a decision.
E. The ALRB is authorized to grant extensions to
these time limits upon a showing of good cause or
by stipulation of all affected parties.
3. Shortens the time under current law for a request for
mandatory mediation from 180 days to 90 days after an
initial request to bargain.
4. Provides that a party may also request mandatory
mediation in the following circumstances:
A. Sixty days after the labor organization has been
certified, as specified.
B. Sixty days after the ALRB 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.
5. Provides that the mandatory mediation proceedings of
current law shall not be stayed on the grounds that a
specified petition for review of an ALRB order related
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to unfair labor practice charges have been filed.
6. Expands existing law related to judicial injunctions to
provide that the court shall also consider the indirect
effect upon protected rights of all agricultural
employees of the employer in determining whether
temporary relief is just and proper.
7. Provides that when the alleged unfair labor practice is
such that, by its nature, it would interfere with
employee free choice, 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.
8. Provides that temporary relief or restraining orders
shall not be stayed pending appeal.
Comments
Collective bargaining rights of private sector employees
generally fall under the exclusive purview of federal labor
law under the National Labor Relations Act (NLRA).
However, Section 2(3) of the NLRA explicitly excludes
"agricultural laborers" from the protections of the federal
law.
Therefore, in 1975, the California Legislature passed the
Agricultural Labor Relations Act (Act) guaranteeing certain
rights to California farm workers. The purpose of the Act
is to "ensure peace in the agricultural fields by
guaranteeing justice for all agricultural workers and
stability in labor relations."
The Act states that it is the policy of the State of
California to encourage and protect the right of farm
workers to act together to help themselves, to engage in
union organizational activity and to select their own
representatives for the purpose of bargaining with their
employer for a contract covering their wages, hours, and
working conditions. The Act prohibits employers from
interfering with these rights, protects the rights of
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workers to be free from restraint or coercion by unions or
employers, and it prohibits unions from engaging in certain
types of strikes and picketing.
The agency established to implement the Act is the ALRB,
which functions in two primary manners. First, the ALRB
determines and implements, through secret ballot elections,
the right of agricultural employees to choose whether or
not they wish to be represented by a labor organization for
the purpose of collective bargaining with their employer.
Second, the Act gives authority to the ALRB to investigate,
process and take to trial employers or unions who engage in
actions which the Act describes as "unfair labor
practices."
The most significant legislative change to the Act occurred
in 2002 when Governor Davis signed two companion pieces of
legislation, SB 1156 and AB 2956. As a result of those
bills, effective January 1, 2003, the Act was amended to
provide for mandatory mediation in selected circumstances
where the parties have been unable to reach a collective
bargaining agreement. Under that process, the mediator
attempts to help the union and the employer reach agreement
on a contract, but if that is not successful, the mediator
issues a report that contains the terms of a contract.
The mediation process applies only if the employer has
employed 25 or more agricultural employees during any
calendar week in the year preceding the filing of the
request for mediation. If the union was certified after
January 1, 2003, the mediation process may be triggered
where at least 180 days have elapsed after the initial
demand to bargain. If the union was certified before
January 1, 2003, the process may be triggered 90 days after
a renewed demand to bargain, and where the following
conditions are met: (1) the parties have failed to reach
agreement for at least one year after the union made its
initial demand to bargain; (2) the employer has committed
an unfair labor practice; and (3) the parties have not
previously had a binding contract between them.
Critics of the current process have stated that farm
workers are an unusually vulnerable workforce demographic
in California. Many farm workers are undocumented workers
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and have few rights due to recent court decisions. In
addition, many farm workers work in isolated areas, making
inspections for labor regulations difficult. Critics 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 that prevent fair elections from
taking place.
This criticism has led to numerous legislative proposals in
recent years, the most prominent of which proposed to
create an alternative procedure to the secret ballot
election - the majority signup election - which would allow
employees of a bargaining unit to select their
representative for collective bargaining by submitting a
petition showing that a majority of employees favor union
representation. Several such bills have passed the
Legislature but been vetoed in recent years, the most
recent of which was SB 104 (Steinberg) which was vetoed by
Governor Brown earlier this session.
In addition, SB 1474 (Steinberg) of 2010 would have
required the ALRB to certify a labor organization for
purposes of collective bargaining if a representation
election has been set aside for employer misconduct, as
specified. These are generally referred to as "bargaining
orders." This bill contains language that is similar, but
not identical, to SB 1474. SB 1474 was vetoed by Governor
Schwarzenegger.
The approach this bill seeks to codify was first expounded
in 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
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California Supreme Court found in Carian Sales that the
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 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.
This bill seeks to address this problem by requiring the
ALRB to issue bargaining orders if an employer is found to
have coerced an election outcome, compelling the employer
to negotiate with the labor organization aggrieved by the
election misconduct.
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In addition, this bill proposes a number of additional
changes and modifications to the election and unfair labor
practice procedures under the Act, including timeframes for
the ALRB to act promptly on certain matters.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 9/8/11)
California Labor Federation, AFL-CIO
United Farm Workers
ARGUMENTS IN SUPPORT : The United Farm Workers (UFW)
argues that this bill provides a remedy for when employers
illegally intimidate workers, which impacts ALRB election
results, and it helps to speed up the ALRB process when
employer wrongdoing is found.
UFW states that this bill recognizes that currently there
is no remedy in law to enforce a farm worker's right to an
election free from fear of coercion or manipulation. In
one of the most recent decisions regarding employer
election misconduct, the ALRB highlighted the fact that
current law does not permit the ALRB to order any remedy to
address employer election misconduct. In fact, the Board
noted that the law in its current state allows employers to
"profit" by violating the law. Unfortunately, 35 years
after enactment of the Act, the law continues to fail for
the thousands of farm workers in the state. UFW contends
that the remedy in SB this would serve to eliminate the
ALRB's identified problem of employers "profiting" from
violating a farm worker's right.
ASSEMBLY FLOOR : 50-28, 09/08/11
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Cedillo,
Chesbro, Davis, Dickinson, Eng, Feuer, Fong, Fuentes,
Furutani, Gatto, Gordon, Hall, Hayashi, Roger Hernández,
Hill, Hueso, Huffman, Lara, Bonnie Lowenthal, Ma,
Mendoza, Mitchell, Monning, Pan, Perea, V. Manuel Pérez,
Portantino, Skinner, Solorio, Swanson, Torres,
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Wieckowski, Williams, Yamada, John A. Pérez
NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Fletcher, Beth Gaines, Garrick, Grove, Hagman, Halderman,
Harkey, Huber, Jeffries, Jones, Knight, Logue, Mansoor,
Miller, Morrell, Nestande, Nielsen, Norby, Olsen, Silva,
Smyth, Valadao, Wagner
NO VOTE RECORDED: Galgiani, Gorell
PQ:do 9/9/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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