BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 561|
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THIRD READING
Bill No: AB 561
Author: Campos (D)
Amended: 8/31/15 in Senate
Vote: 21
SENATE LABOR & IND. REL. COMMITTEE: 4-1, 7/13/15
AYES: Mendoza, Jackson, Leno, Mitchell
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/27/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
ASSEMBLY FLOOR: 42-30, 6/2/15 - See last page for vote
SUBJECT: Agricultural labor relations
SOURCE: United Farm Workers
DIGEST: This bill creates an expedited process from the
enforcement of monetary penalties ordered by the Agricultural
Labor Relations Board (ALRB) and also requires 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:
1)Provides for a secret ballot election process for agricultural
workers where a petition has been submitted, as specified,
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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)
2)Requires that if the ALRB rules that any person has engaged in
or is engaging in any such unfair labor practice, the Board
must issue order requiring such person to cease and desist
from such unfair labor practice and to take affirmative
action. Affirmative action may include:
a) Reinstatement of employees with or without backpay;
b) Making employees whole, when the board deems such relief
appropriate, for the loss of pay resulting from the
employer's refusal to bargain; and
c) Such other relief as will effectuate the policies of
this part.
(Labor Code §1160.3)
3)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:
1)Provides that within one year of an order of the ALRB finding
liability for a makewhole award, back pay calculation, or
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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
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 to post a bond if he or she petitions for
a writ of review or otherwise appeals or seeks to overturn or
stay any order of the ALRB involving make-whole, backpay, or
other monetary awards to workers. The bond must be 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.
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.
Background
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.
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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
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.
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FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee, the ALRB
indicates that it would incur annual General Fund costs of $2
million to implement the provisions of this bill. A 2015-16
augmentation to ALRB's budget could potentially be used to
perform some of this bill's workload.
SUPPORT: (Verified8/28/15)
United Farm Workers (source)
California Rural Legal Assistance Foundation
OPPOSITION: (Verified8/28/15)
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
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Western United Dairymen
ARGUMENTS IN SUPPORT: 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.
ARGUMENTS IN OPPOSITION: 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, upon which the Agricultural Labor Relations Act
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.
ASSEMBLY FLOOR: 42-30, 6/2/15
AYES: Bloom, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu,
Chu, Cooley, Eggman, Frazier, Cristina Garcia, Eduardo Garcia,
Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger
Hernández, Holden, Jones-Sawyer, Lopez, Low, McCarty, Medina,
Mullin, O'Donnell, Quirk, Rendon, Ridley-Thomas, Rodriguez,
Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams,
Atkins
NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang,
Dababneh, Dahle, Dodd, Beth Gaines, Gallagher, Grove, Harper,
Jones, Kim, Lackey, Levine, Linder, Maienschein, Mathis,
Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth,
Wagner, Waldron, Wilk, Wood
NO VOTE RECORDED: Alejo, Bonilla, Chávez, Cooper, Daly, Irwin,
Nazarian, Perea
Prepared by:Gideon L. Baum / L. & I.R. / (916) 651-1556
8/31/15 16:00:31
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