BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 561 Hearing Date: July 13,
2015
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|Author: |Campos |
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|Version: |April 14, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Gideon Baum |
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Subject: Agricultural labor relations.
KEY ISSUE
Should the Legislature create an expedited process from the
enforcement of monetary penalties ordered by the Agricultural
Labor Relations Board (ALRB)?
Should the Legislature require agricultural employers to post a
bond if they wish to appeal a final order in the amount equal to
the economic value of the monetary penalties?
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 if the Agricultural Labor Relations
Board (ALRB) rules that any person has engaged in or is engaging
in any such unfair labor practice, the board must issue order
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requiring such person to cease and desist from such unfair labor
practice and to take affirmative action. Affirmative action may
include:
1) Reinstatement of employees with or without backpay;
2) Making employees whole, when the board deems such relief
appropriate, for the loss of pay resulting from the
employer's refusal to bargain; and
3) Such other relief as will effectuate the policies of
this part.
(Labor Code §1160.3)
Existing law provides for a mandatory mediation process for
negotiating a collective bargaining agreement between an
agricultural employer and a certified labor organization 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.
The mandatory mediation process only applies to agricultural
employers of 25 or more employees.
(Labor Code §1164 & §1164.3)
This Bill would :
1)Provides that within one year of an order of the ALRB finding
liability for a makewhole award, back pay calculation, or
other monetary award to employees, the ALRB and general
counsel shall process any compliance decision concerning the
award to final board order.
2)Provides that, if the ALRB finds liability as discussed above
but requires a compliance proceeding to determine monetary
damages, then the ALRB order must be processed as a final
board order within one year of the date when a board order
concerning liability becomes final because no appeal was
sought or the date when a reviewing court dismisses an
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employer's appeal or decides in favor of the board concerning
the employer's liability.
3)Provides that, if the if an employer's liability and
compliance proceedings are consolidated, the ALRB must act
reasonably and without delay in reaching a final decision
concerning the liability and amounts owed to workers.
4)Requires an employer who petitions for a writ of review or
otherwise appeals or seeks to overturn or stay any order of
the ALRB to post a bond, in the amount of the entire economic
value of the order as determined by the ALRB, to ensure that
employees receive the benefits of the order if the employer
does not prevail. The ALRB shall reasonably determine the
entire economic value of the order based on submissions from
the parties.
5)Requires that the bond discussed above must be an appeal bond
issued by a licensed surety or a cash deposit with the ALRB in
the amount of the order, decision, or award. The bond must be
on the condition that, if any judgment is entered against the
employer, the employer shall pay the amount owed pursuant to
the judgment, and if the appeal is withdrawn or dismissed
without entry of judgment, the employer shall pay the amount
owed pursuant to the order, decision, or award of the board
unless the parties have executed a settlement agreement for
payment of some other amount.
6)Requires that, for an ALRB order regarding mandatory mediation
and conciliation procedures, the ALRB must fix the bond amount
by reasonably determining the entire economic value of the
terms, conditions, and benefits of the ordered collective
bargaining agreement based upon submissions from the parties
and a recommended finding from the assigned mediator in the
case.
COMMENTS
1. Need for this bill?
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Both the author and sponsor point to the Ace Tomato Co. union
election and subsequent cases as the inspiration for this
bill. In 1989, a majority of workers voted to be represented
by United Farm Workers (UFW). After legal proceedings, the
ALRB certified the UFW as the bargaining representative of the
workers in 1992. The employer refused to negotiate with UFW,
leading to the ALRB ordering that Ace Tomato Co. pay makewhole
penalties to its employees.
However, it wasn't until 2013 that UFW and Ace Tomato Co. were
able to reach a partial settlement on the monetary penalties
due to workers. In 2010, the Executive Secretary of ALRB
explained why the case remained unresolved:
The payroll and other records needed to determine what
employees earned during the makewhole period are no longer
available. Their unavailability resulted initially from the
legally unsupported position of employers' counsel that no
makewhole relief was owing and his resultant refusal to
produce those records in 1995 when this case was originally
released for compliance. Given the passage of years since the
inception of this case, the current unavailability of the
payroll records is not surprising. Fault for this state of
affairs lies with the parties, for not fully producing
employee records or other relevant information; with the
regional office, for not using all legal means available to it
to procure the necessary records and achieve final
adjudication; and with the Board, which is ultimately
responsible for enforcing its own orders. ALRB Administrative
Order 2010-04, Pg. 4. (Emphasis added)
In short, the ALRB acknowledged that both the regional offices
and the Board itself allowed for significant time to pass,
leading to the destruction of documents necessary to enforce
the order.
AB 561 seeks to prevent a similar situation by requiring that
process monetary penalties within one year if there is no
compliance proceeding, one year or at the cessation of appeals
if there is a compliance hearing, or reasonably and without
delay by the ALRB if the liability and compliance proceedings
are combined.
AB 561 also requires employers to file a bond in order to
appeal an order of the ALRB, echoing the bond requirements for
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employers who appeal unpaid wage rulings. The author and
sponsor believe that requiring the filing of a bond will
ensure that aggrieved agricultural receive owed back wages and
benefits should the employer lose his or her appeal.
2. Proponent Arguments :
Proponents argue that that AB 561 will create an expedited
process that will help aggrieved farmworkers recover the back
pay and benefits that they are owed. Proponents cite the case
of Ace Tomato Co., where a union election occurred more than
25 years ago and makewhole payments have yet to be made.
Proponents believe that, by creating an expedited process and
requiring bonding that will pay the worker in the event of
employer insolvency, AB 561 will ensure that workers receive
the back pay and benefits that is their rightful due.
3. Opponent Arguments :
Opponents argue that AB 561 limits the due process rights of
employers. Specifically, employers argue that the bonding
requirements could deter employers from appealing adverse
decisions. Moreover, employers also note that the bonding
provisions are a departure from the National Labor Relations
Act (NLRA), upon which the Agricultural Labor Relations Act
(ALRA) is based. Finally, opponents note that the Ace Tomato
Co. case is extreme exception and argue that the case should
not be used alone as a justification to change the law.
4. Prior Legislation :
SB 126 (Steinberg), Chapter 697, Statutes of 2011, empowers
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.
SUPPORT
United Farm Workers (Sponsor)
California Rural Legal Assistance Foundation
OPPOSITION
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Agricultural Council of California
Association of California Egg Farmers
California Chamber of Commerce
California Association of Nurseries and Garden Centers
California Association of Wheat Growers
California Association of Wine Grape Growers
California Bean Shippers Association
California Cotton Ginners Association
California Cotton Growers Association
California Farm Bureau Federation
California Fresh Fruit Association
California Grain and Feed Association
California Seed Association
California Pear Growers Association
Family Winemakers of California
Neisei Farmers League
Pacific Egg and Poultry Association
Ventura County Agricultural Association
Western Agricultural Processors Association
Western Growers Association
Western United Dairymen
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