Amended in Assembly August 21, 2014

Amended in Assembly June 19, 2013

Amended in Assembly June 5, 2013

Amended in Senate April 25, 2013

Senate Bill No. 25

Introduced by Senator Steinberg

December 3, 2012

An act to amend begin delete Sections 1164, 1164.3, end delete begin delete and 1164.11 end delete begin insert Section 1164.3 end insert of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

SB 25, as amended, Steinberg. Agricultural labor relations: begin delete contract end delete dispute resolution.

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Existing law specifies the time for filing a declaration by an agricultural employer, as defined, 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 under specified circumstances, including 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.

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This bill would require the agricultural employer or labor organization filing the declaration to additionally declare that it has made itself available to meet and bargain with the other party at reasonable times and places during the applicable period. This bill would permit the filing of a declaration as described above without having to meet the condition that the parties have not previously had a binding contract between them.

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Existing law provides that within 60 days of a decision by the Agricultural Labor Relations Board taking effect, a party may file an action to enforce the order, using specified procedures. Existing law provides that during the pendency of any appeal of the board’s order, the order may not be stayed unless the appellant demonstrates that he or she is likely to prevail on the merits and that he or she will be irreparably harmed by implementation of the board’s order.

This bill would provide that an action to enforce the order of the board may be filed within 60 days whether or not the other party is seeking judicial review of the order. The bill would also increase the evidentiary threshold for the court to grant a stay of the board’s order and require the court to make written findings supporting any order granting a stay of the order during the pendency of the appeal.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

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SECTION 1.  

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, (2) 90 days after a 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 that the agricultural employer or labor organization
has made itself available to meet and bargain with the other party
at reasonable times and places during the 90-day or 60-day
applicable period, 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.

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begin insert SECTION 1. end insert   

Section 1164.3 of the Labor Code is amended to
read:

1164.3.  

(a) Either party, within seven days of the filing of the
report by the mediator, may petition the board for review of the
report. The petitioning party shall, in the petition, specify the
particular provisions of the mediator’s report for which it is seeking
review by the board and shall specify the specific grounds
authorizing review by the board. The board, within 10 days of
receipt of a petition, may accept for review those portions of the
petition for which a prima facie case has been established that (1)
a provision of the collective bargaining agreement set forth in the
mediator’s report is unrelated to wages, hours, or other conditions
of employment within the meaning of Section 1155.2, (2) a
provision of the collective bargaining agreement set forth in the
mediator’s report is based on clearly erroneous findings of material
fact, or (3) a provision of the collective bargaining agreement set
forth in the mediator’s report is arbitrary or capricious in light of
the mediator’s findings of fact.

(b) If it finds grounds exist to grant review within the meaning
of subdivision (a), the board shall order the provisions of the report
that are not the subject of the petition for review into effect as a
final order of the board. If the board does not accept a petition for
review or no petition for review is filed, then the mediator’s report
shall become a final order of the board.

(c) The board shall issue a decision concerning the petition and
if it determines that a provision of the collective bargaining
agreement contained in the mediator’s report violates the provisions
of subdivision (a), it shall, within 21 days, issue an order requiring
the mediator to modify the terms of the collective bargaining
agreement. The mediator shall meet with the parties for additional
mediation for a period not to exceed 30 days. At the expiration of
this mediation period, the mediator shall prepare a second report
resolving any outstanding issues. The second report shall be filed
with the board.

(d) Either party, within seven days of the filing of the mediator’s
second report, may petition the board for a review of the mediator’s
second report pursuant to the procedures specified in subdivision
(a). If no petition is filed, the mediator’s report shall take immediate
effect as a final order of the board. If a petition is filed, the board
shall issue an order confirming the mediator’s report and order it
into immediate effect, unless it finds that the report is subject to
review for any of the grounds specified in subdivision (a), in which
case the board shall determine the issues and shall issue a final
order of the board.

(e) Either party, within seven days of the filing of the report by
the mediator, may petition the board to set aside the report if a
prima facie case is established that any of the following have
occurred: (1) the mediator’s report was procured by corruption,
fraud, or other undue means, (2) there was corruption in the
mediator, or (3) the rights of the petitioning party were substantially
prejudiced by the misconduct of the mediator. For the sole purpose
of interpreting the terms of paragraphs (1), (2), and (3), case law
that interprets similar terms used in Section 1286.2 of the Code of
Civil Procedure shall apply. If the board finds that any of these
grounds exist, the board shall within 10 days vacate the report of
the mediator and shall order the selection and appointment of a
new mediator, and an additional mediation period of 30 days,
pursuant to Section 1164.

(f) Within 60 days after the order of the board takes effect, even
if a party seeks appellate review of the order of the board, either
party or the board may file an action to enforce the order of the
board, in the superior court for the County of Sacramento or in the
county where either party’s principal place of business is located.
During the pendency of a petition for a writ of review by a party,
the parties shall be required to implement the terms of the board’s
order immediately upon issuance of the order. No final order of
the board shall be stayed during any review sought under this
section, unless the court finds and states in its initial findings that
(1) the appellant has demonstrated, by clear and convincing
evidence, that he or she will be irreparably harmed by the
implementation of the board’s order, and (2) the appellant has
demonstrated, by clear and convincing evidence, a likelihood of
success on appeal. For purposes of this section, the court deciding
the stay shall provide written findings and analysis supporting the
decision to grant a stay.

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SEC. 3.  

Section 1164.11 of the Labor Code is amended to read:

1164.11.  

A demand made pursuant to paragraph (1) of
subdivision (a) of Section 1164 may be made only in cases which
meet all of the following criteria: (a) the parties have failed to
reach agreement for at least one year after the date on which the
labor organization made its initial request to bargain, and (b) the
employer has committed an unfair labor practice.

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