BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: September 9, 2011 2011-2012 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: SB 126
Author: Steinberg
Version: As Amended September 2, 2011
SUBJECT
Agricultural labor relations.
KEY ISSUE
Should the Legislature empower the Agricultural Labor Relations
Board (ALRB) to require an employer to bargain with a labor
organization if that employer is guilty of significant
misconduct during a secret ballot election for union
representation?
PURPOSE
To reform the Agricultural Labor Relations Act to provide
explicit authority to the ALRB for bargaining orders, to provide
explicit timelines for election challenges and to strengthen
mandatory mediation requirements.
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.
Hearing Date: September 9, 2011 SB 126
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Senate Committee on Labor and Industrial Relations
3.Provides a process where an agricultural employer or a labor
organization may file with the board, at any time following
180 days after an initial request to bargain, 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.
This bill would:
1) Requires that if the Agricultural Labor Relations Board
(ALRB) certify the labor organization as the exclusive
representative for the bargaining unit if the Board sets
aside an election due to employer misconduct that impacted
the outcome of an election and would render slight the
chances of a new election reflecting the free and fair
choice of employees;
2) Impose the following time limits to certain ALRB
proceedings as follows:
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
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Senate Committee on Labor and Industrial Relations
these time limits upon a showing of good cause or by
stipulation of all affected parties.
1) Shorten the time under current law for a request for
mandatory mediation from 180 days to 90 days after an
initial request to bargain.
2) Provide 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.
1) Provide 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
unfair labor practice charges have been filed.
2) Expand 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.
3) Provide 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.
4) Provide that temporary relief or restraining orders
shall not be stayed pending appeal.
Hearing Date: September 9, 2011 SB 126
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Senate Committee on Labor and Industrial Relations
COMMENTS
1. Need for this bill?
SB 104 (Steinberg) was heard by this Committee on January
12th, 2011. That bill would have provided for an alternative
election process, known as the majority sign-up election, for
farm workers to elect for a labor organization to represent
them for the purposes of collectively bargaining with their
employer. On June 28th of this year, Governor Brown vetoed SB
104. In his veto message, the Governor stated that "Before
restructuring California's carefully crafted agricultural
labor law, it is only right that the legislature consider
legal provisions that more faithfully track its original
framework. The process should include all those who are
affected by the ALRA."
SB 126 (Steinberg) seeks to address the Governor's concerns
with the majority sign-up election process. Rather than
creating an alternative election process, SB 126 focuses on
remedies for the existing secret ballot election process.
Most notably, SB 126 does this by:
1) Requiring the ALRB to certify a labor organization in
the event of gross employer misconduct that prevents future
fair elections;
2) Specifying binding time lines for challenging election
results for all parties;
3) Strengthen mandatory mediation requirements;
4) Provide that courts must consider the impact of judicial
stays on the ability of agricultural employees to receive a
fair and just election, as well as to provide that judicial
stays may not be used as a shield to avoid temporary relief
or skirt restraining orders.
2. A Brief History of Bargaining Orders:
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Senate Committee on Labor and Industrial Relations
The approach SB 126 seeks to codify with mandatory union
certification in the face of gross employer misconduct 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 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
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
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Senate Committee on Labor and Industrial Relations
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.
3. Proponent Arguments :
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 126 this would
serve to eliminate the ALRB's identified problem of employers
"profiting" from violating a farm worker's right. Finally, UFW
states that this bill gives the ALRB authority to seek court
orders to protect the rights of agricultural employees,
applies time limits on the acts of the ALRB for hearings and
filings, and provides changes to procedures for using the
existing mediation process.
4. Concerns from Agricultural Employers :
A coalition of agricultural groups raises "significant
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Senate Committee on Labor and Industrial Relations
concerns" with this measure for a number of reasons. The
coalition expresses two primary substantive concerns with the
bill.
First, they are concerned that the provision of the bill
authorizing "bargaining orders" is vague in that "employer
misconduct" is not defined as to either its pervasiveness or
the egregiousness of an act. The coalition believes a
modifier that prevents a union from seeking this extraordinary
remedy in cases of de minimus employer misconduct is necessary
and desirable.
Second, the coalition contends that this same provision lacks
adequate due process before imposing the extraordinary remedy
of certification of a union without a secret ballot election.
They contend that under this bill, in such representational
proceedings, the ALRB is allowed to use unsubstantiated
hearsay and the employer is denied the right to petition the
appellate court to overturn the ALRB's decision. The
coalition believes language should be added to "afford both
the employer and the labor organization an opportunity to be
heard, either by filing briefs with the Board on an expedited
basis or by directing the executive secretary to set and
conduct an investigative hearing to take additional evidence
on issues as the Board may direct."
The coalition further suggests language to provide the
employer an opportunity to petition the appellate court for
review of the ALRB's certification order on an expedited
timeline, within 15 days from the date of certification.
In addition, the coalition raises lesser concerns with some of
the other provisions of the bill. Finally, the coalition
states that the process by which this bill is being revised in
the last week of the legislative session has given them little
time to communicate with their members and receive their
input. This is essential to ensure that what is being
proposed will actually work in practice and result in the fair
treatment of all persons subject to the Act.
5. Prior Legislation :
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Senate Committee on Labor and Industrial Relations
SB 104 of 2011 was discussed above. It was vetoed by Governor
Brown.
SB 1474 of 2010, as amended August 12, 2010, was similar to
this bill. SB 1474 was vetoed by Governor Schwarzenegger.
SB 789 of 2009 was very similar to SB 104, 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
United Farm Workers (Sponsor)
California Labor Federation, AFL-CIO
SIGNIFICANT CONCERNS
Agricultural Council of California
Alliance of Western Milk Producers
American Pistachio Growers
California Association of Nurseries and Garden Centers
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Senate Committee on Labor and Industrial Relations
California Association of Winegrape Growers
California Bean Shippers Association
California Citrus Mutual
California Cotton Growers Association
California Farm Bureau Federation
California Grain and Feed Association
California Grape and Tree Fruit League
California Pear Growers Association
California Poultry Federation
California Seed Association
California State Floral Association
California Tomato Growers Association
California Warehouse Association
Grower-Shipper Association of Central California
Nisei Farmers League
Pacific Egg and Poultry Association
Ventura County Agriculture Association
Western Agricultural Processors Association
Western Growers Association
Wine Institute
OPPOSITION
None on file.
Hearing Date: September 9, 2011 SB 126
Consultant: Gideon L. Baum Page 10
Senate Committee on Labor and Industrial Relations