BILL ANALYSIS Ó
SB 25
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Date of Hearing: June 12, 2013
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
SB 25 (Steinberg) - As Amended: June 5, 2013
SENATE VOTE : 23-10
SUBJECT : Agricultural labor relations: contract dispute
resolution.
SUMMARY : Makes various changes to the mandatory mediation
procedures of the Agricultural Labor Relations Act (ALRA).
Specifically, this bill :
1)Deletes the requirement of existing law that, for labor
organizations certified after January 1, 2003, the mandatory
mediation process would only apply for an initial request to
bargain.
2)Provides that an agricultural employer or labor organization
may file an order to enforce a mandatory mediation order from
the Agricultural Labor Relations Board (ALRB) even if a party
seeks appellate review of the decision.
3)Requires the parties to implement the terms of the ALRB's
order while a petition for a writ of review is pending.
4)Provides that a court may only issue a stay of an ALRB order
unless it finds and states in its initial findings that:
a) The appellant has demonstrated by clear and convincing
evidence that he or she will be irreparably harmed by
implementation of the order; and
b) The appellant has demonstrated by clear and convincing
evidence a likelihood of success on appeal.
5)Provides that a court granting a stay of an ALRB order shall
provide written findings and analysis supporting the decision.
6)Deletes the limitation that a demand to bargain under the
mandatory mediation process for labor organizations certified
prior to January 1, 2013 can only occur if the parties have
not previously had a binding contract between them.
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FISCAL EFFECT : Unknown
COMMENTS : This bill, sponsored by the United Farm Workers
(UFW) proposes to make a series of changes to the mandatory
mediation process that was added to the ALRA in 2002.
Brief Background on the Mandatory Mediation Process
The mandatory mediation process was enacted by two bills, SB
1156 (Burton) and AB 2596 (Wesson) of 2002. While the
provisions of the mediation process have undergone some changes,
the mediation process provided under existing law remains
largely unchanged. Principally, the limitations on when an
agricultural employer or a labor organization can ask for the
mandatory mediation process remain the same:
1)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;
2)The employer has committed an unfair labor practice, and
3) The parties have not previously had a binding contract
between them.
Assuming the above requirements are met, a request for mandatory
mediation triggers a specific process. The 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 seven days of the ruling, either party
may appeal a mediator's decision to the ALRB. The ALRB may only
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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.
If none 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 may 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.
Stated Need for the Bill
This bill 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 allows for a
neutral third party to oversee the negotiations and ensures that
a collective bargaining agreement is completed. This bill
addresses this issue by removing the existing limitations on who
can avail themselves of the mandatory mediation process.
The second criticism that this bill 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 required to follow the
terms of the mediation while the appeal is pending. This bill
addresses this issue by requiring that the court may only stay a
mediator's decision with clear and convincing evidence, and that
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the court must provide written findings explaining their reasons
for staying the mediator's decision. Additionally, this bill
requires the parties to follow the mediation decision while the
appeal is pending.
ARGUMENTS IN SUPPORT :
The UFW states the following in support of this measure:
"[This bill] honors the results of secret ballot elections
by allowing for binding mediation to resolve collective
bargaining disputes for the duration of the union's
certification following a secret ballot election.
Adopted into law 2002, the original binding mediation law
for first contracts has worked. Decades-long legal
maneuvering and delay has been replaced by collective
bargaining agreements covering thousands of California farm
workers. Those contracts have raised wages, halted
arbitrary and inhumane treatment, and stopped sexual
harassment.
However, as first contracts expire some employers are
refusing to negotiate new ones. D'Arrigo Farms delayed
signing a first contract for 32 years following a secret
ballot election won by farm workers. The company has
refused to enter into a new contract since 2010?
?[This bill] also addresses an enforcement loophole in the
2002 law that has been identified by the ALRB. In some
specific cases, the ALRB is unable to enforce a mediator's
decision or to implement new wages. This past summer, a
mediator imposed a first contract at Ace Tomato - a farm
where farm workers first voted for the union in 1989. This
first contract gave workers wage increases, workplace
protections, and the ability to resolve disputes through
grievance and arbitration procedures. Yet, even after two
decades of legal maneuvers by Ace, when workers requested
that the ALRB enforce the contract that Ace was refusing to
implement, the ALRB concluded that it does not have the
power to enforce the contract. As the ALRB wrote:
'?there is no legal mechanism through which the Board
can seek to enforce its decision at this time. A
statutory amendment is needed to afford that authority
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to the Board where, as here, it is warranted.'
As a result, despite a binding agreement ordered in July
2012, Ace Tomato has still not implemented the terms of the
agreement and ALRB order, and workers continue to work with
no contract."
ARGUMENTS IN OPPOSITION :
Opponents contend that this bill expands mandatory mediation
under the ALRA to all future contract negotiations, and allows
for mediator-created collective bargaining agreements. They
argue that this will disenfranchise agricultural workers by
unionizing workers, years or even decades after a union
abandoned negotiations. Opponents argue that this bill will
impose union membership on these workers along with the
obligation to support the union financially regardless of
whether those workers chose union representation.
COMMITTEE STAFF COMMENT :
As introduced, this bill also contained language to address
successor liability of agricultural employers. Specifically,
the bill proposed to define agricultural employer to include "a
person, party, entity, or corporate form that purchases, assumes
management of, or otherwise directly or indirectly controls all
or a part of an agricultural operation in any form, where the
previous or selling employer had an obligation to bargain under"
the ALRA.
However, with the most recent set of amendments to this bill,
that language has been removed from the proposed measure.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Labor Federation, AFL-CIO
California Professional Firefighters
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California School Employees Association
California Teamsters Public Affairs Council
Engineers and Scientists of California
International Longshore & Warehouse Union
Monterey Bay Central Labor Council
North Bay Labor Council
Professional & Technical Engineers, Local 21
San Francisco Labor Council
San Mateo Labor Council
State Building and Construction Trades Council
Teamsters Union, Local 890
UNITE HERE!
United Farm Workers of America (sponsor)
United Food and Commercial Workers Union, Western States Council
Utility Workers Union of America, Local 132
Opposition
Agricultural Council of California
Allied Grape Growers
American Pistachio Growers
California Association of Cattlemen
California Association of Nurseries and Garden Centers
California Association of Wheat Growers
California Association of Wine Grape Growers
California Bean Shippers Association
California Cattelmen'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 & Treefruit League
California Peach Growers Association
California Pear Growers Association
California Seed Association
California State Floral Association
California Tomato Growers Association
Family Winemakers of California
Far West Equipment Dealers Association
Friant Water Authority
Nisei Farmers League
Palm Desert Area Chamber of Commerce
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Raisin Bargaining Association
San Gabriel Valley Regional Chamber
Simi Valley Chamber of Commerce
Southwest California Legislative Council
Ventura County Agricultural Processors Association
Western Agricultural Processors Association
Western Growers Association
Western United Dairymen
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091