BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: March 13, 2013 2013-2014 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: SB 25
Author: Steinberg
As Introduced/Amended: December 3, 2012
SUBJECT
Agricultural labor relations: contract dispute resolution.
KEY ISSUE
Should the Legislature remove the limitations on which
collective bargaining negotiations between labor organizations
and agricultural employers qualify for mandatory mediation, as
well as provide that the mandatory mediation must be implemented
while appealed?
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.
(Labor Code §§1140 to 1166.3)
Existing law requires that the Agricultural Labor Relations
Board (ALRB) follow applicable precedents of the National Labor
Relations Act. (Labor Code §1148)
Existing law provides for a mandatory mediation process for
negotiating a collective bargaining agreement between an
agricultural employer and a certified labor organization any
time after:
1) 90 days after a renewed demand to bargain by a labor
organization or agricultural employer certified before
January 1, 2003;
2) 90 days after an initial demand to bargain by a labor
organization or agricultural employer certified before
January 1, 2003; or
3) 60 days after the Agricultural Labor Relations Board
(ALRB) certified a labor organization, or rejects a
decertification election, due to employer misconduct.
The mandatory mediation process only applies to agricultural
employers of 25 or more employees.
(Labor Code §1164)
Existing law provides that within 60 days of the Agricultural
Labor Relations Board (ALRB) issues a final order on the
mediation, either the agricultural employer, the labor
organization, or the ALRB may file an action to enforce the
mediation agreement in superior court. No stay on a final order
of the ALRB can be issued unless the court finds all of the
following conditions are met :
1) The appellant has demonstrated that he or she will be
irreparably harmed by the implementation of the board's
order, and
2) The appellant has demonstrated a likelihood of success
on appeal.
(Labor Code §1164.3)
Existing law provides the above-discussed mandatory mediation
process can occur only if all of the following conditions are
met :
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;
b) The employer has committed an unfair labor practice, and
c) The parties have not previously had a binding contract
between them.
(Labor Code §1164.11)
Hearing Date: March 13, 2013 SB 25
Consultant: Gideon L. Baum Page 2
Senate Committee on Labor and Industrial Relations
This bill would strike the above conditions, allowing for a
mandatory mediation process upon the tolling of the timelines,
irrespective of bargaining history.
This bill would also strike the requirement that, for collective
bargaining negotiations certified before January 1, 2003, the
mandatory mediation process would only start for a renewed
demand to bargain.
This bill would also extend the mandatory mediation provisions
to a successor agricultural employer who purchases all or part
of an agricultural employer who had an obligation to bargain.
This bill would also provide that an agricultural employer or
labor organization may file an order to enforce a mandatory
mediation order from the ALRB even if a party seeks appellate
review of the decision.
This bill also requires that the ALRB's order must be
implemented while an ALRB review is pending.
This bill also provides that a court may only issue a stay if:
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.
3) The court deciding the stay shall provide written
findings and analysis supporting the decision to grant a
stay.
COMMENTS
1. What is the Mandatory Mediation Process?
The mandatory mediation process was created by two bills, SB
1156 (Burton) and AB 2596 (Wesson) in 2002. While the
provisions of the mediation process have undergone some minor
tweaks, the mediation process provided under existing law
remains largely unchanged. Principally, the limitations on
Hearing Date: March 13, 2013 SB 25
Consultant: Gideon L. Baum Page 3
Senate Committee on Labor and Industrial Relations
when an agricultural employer or a labor organization can ask
for the mandatory mediation process remain the same.
They are:
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;
b) The employer has committed an unfair labor practice, and
c) The parties have not previously had a binding contract
between them.
Assuming the above-requirements are met and the
above-discussed timelines are past, a request for mandatory
mediation triggers a specific process. The Agricultural Labor
Relations Board (ALRB) must immediately issue an order
directing both parties to meditation and asks the California
State Mediation and Conciliation Service for a list of nine
mediators who have experience in labor mediation. Both
parties select a mediator from the list; if they cannot agree,
they strike names from the list until a mediator is selected
by the process of elimination. The costs of the mediation
process are borne equally by both parties.
Upon appointment, the mediator schedules a 30 day period for
mediation, which can be extended if necessary. If issues are
outstanding after the 30 day period, the mediation process is
considered exhausted. Within 21 days, the mediator issues the
final terms of a collective bargaining agreement, including
issues in dispute by the parties. If the mediator decides
issues in dispute, the mediator must explain the basis for his
or her ruling. Within 7 days of the ruling, either party may
appeal a mediator's decision to the ALRB. The ALRB may only
review the mediators decision if:
1) The mediator's decision goes beyond wages, hours, and
working conditions of employment;
2) The mediator's decision is based on clearly erroneous
findings of material fact; or
3) The mediator's report is arbitrary or capricious.
Hearing Date: March 13, 2013 SB 25
Consultant: Gideon L. Baum Page 4
Senate Committee on Labor and Industrial Relations
If neither of the above conditions exists, the mediator's
report becomes the final order of the ALRB. If one or more of
the above conditions exists, then the mediator mediates the
process again. If, after issuing a new decision, a party
believes that the mediator is corrupt, then a new mediator
would be called in. Finally, either party could ask for a
stay from a court. A stay would be granted if the court
believed that the mediator's decision would cause irreparable
economic harm and the appeal had a strong chance for success.
2. Need for the Bill?
SB 25 seeks to address two principal criticisms of the
existing mediation process: the limited number of negotiations
that qualify for the process and the length of time for the
mediation to become binding. On the first criticism,
proponents argue that, after a labor election result is
certified and a labor representative is elected, the relations
between an agricultural employer and a labor organization
remain tense. Having a mandatory and binding mediation
process that allows for a neutral third party to oversee the
negotiations and ensure that a collective bargaining agreement
is completed. SB 25 addresses this issue by removing the
existing limitations on who can avail themselves of the
mandatory mediation process.
The second criticism that SB 25 seeks to address is the length
of time it takes for a mediation decision to become binding.
While the process between the mediator and the ALRB is
straightforward, a court can stay the mediation indefinitely
without explaining the reasoning or without an evidentiary
process that establishes that a party would suffer irreparable
harm. Additionally, parties are not following the terms of
the mediation while the appeal is pending. SB 25 addresses
this issue by requiring that the court may only stay a
mediator's decision with clear and convincing evidence, and
that the court must provide written findings explaining their
reasons for staying the mediator's decision. Additionally, SB
25 requires the parties to follow the mediation decision while
Hearing Date: March 13, 2013 SB 25
Consultant: Gideon L. Baum Page 5
Senate Committee on Labor and Industrial Relations
the appeal is pending.
3. Highland Ranch/San Clemente Ranch, Ltd. and the Successorship
Doctrine:
Under Labor Code Section 1148, the Agricultural Labor
Relations Board must follow any applicable precedents of the
National Labor Relations Board (NLRB) precedent. The U.S.
Supreme Court issued a landmark decision in John Wiley & Sons,
Inc. v. Livingston, 376 U.S. 543 (1964), which found that the
arbitration provisions of a collective bargaining agreement
survive a merger. This created what is frequently referred to
as the "successorship doctrine" in NLRB precedents. This
doctrine, however, has frequently been revisited by the NLRB
under different administrations.
The Agricultural Labor Relations Board (ALRB) utilized the
successorship doctrine in Highland Ranch/San Clemente Ranch,
Ltd. (1979) 5 ALRB No. 54. The use of this doctrine was
upheld by the California Supreme Court in 1981. However, the
courts have noted that the use of this doctrine is complex in
the agricultural setting due to complex ownership and
employment operations (Michael Hat Farming Co. v. Agricultural
Labor Relations Bd. (1992) 4 Cal. App. 4th 1037). SB 25 would
codify the successorship doctrine.
4. Proponent Arguments :
Proponents argue that SB 25 addresses several deficiencies
with the Agricultural Labor Relations Act, which prevent
employees from realizing the full benefits of a collective
bargaining agreement. Proponents argue that SB 25 addresses
the issue of employers refusing to negotiate a new collective
bargaining agreement after the initial agreement expires by
allowing for mandatory mediation to resolve the dispute.
Proponents argue that some employers have used restructuring
as a way to nullify union elections, which SB 25 resolves by
creating a successor doctrine similar to what is found in the
National Labor Relations Act. Proponents also note that this
bill limits the mediation provisions to employers of 25 or
Hearing Date: March 13, 2013 SB 25
Consultant: Gideon L. Baum Page 6
Senate Committee on Labor and Industrial Relations
more employees and both parties can select the mediator.
5. Opponent Arguments :
Opponents argue that SB 25 would present significant
challenges for agricultural employers. Opponents argue that
SB 25 allows a union that was certified prior to January 1,
2003 to request binding arbitration with an agricultural
employer, even if no attempt was made by the union to
negotiate an initial contract. Opponents also note that SB 25
would bind successor employers, which the opponents argue
could require an employer to negotiate a union contract due to
actions of a prior grower or owner years prior. Finally,
opponents argue that this will require negotiations years
after an initial certification, which could create the
situation that the newly unionized employees never voted for
the union.
6. Prior Legislation :
SB 126 (Steinberg), Chapter 697, Statutes of 2011, reforms 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.
SUPPORT
United Farm Workers (Sponsor)
American Federation of State, County and Municipal Employees,
AFL-CIO
California Labor Federation, AFL-CIO
California Rural Legal Assistance Foundation (CRLAF)
OPPOSITION
Agricultural Council of California
California Association of Nurseries and Garden Centers
Hearing Date: March 13, 2013 SB 25
Consultant: Gideon L. Baum Page 7
Senate Committee on Labor and Industrial Relations
California Association of Wheat Growers
California Bean Shippers Association
California Cattlemen's Association
California Chamber of Commerce
California Citrus Mutual
California Cotton Ginners Association
California Cotton Growers Association
California Dairies, Inc.
California Farm Bureau Federation
California Grain and feed Association
California Grape & Tree Fruit League
California Pear Growers Association
California Seed Association
California State Floral Association
California Tomato Growers Association
Far West Equipment Dealers Association
Neisi Farmers League
Ventura County Agricultural Association
Western Agricultural Processors Association
Western Growers Association
Hearing Date: March 13, 2013 SB 25
Consultant: Gideon L. Baum Page 8
Senate Committee on Labor and Industrial Relations