Amended in Assembly May 4, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1389

Introduced by Assembly Member Patterson

(Principal coauthor: Assembly Member Grove)

(Coauthor: Assembly Member Chávez)

February 27, 2015

begin delete An act to add Section 1164.1 to the Labor Code, relating to employment. end delete begin insert An act to amend Sections 1154 and 1164 of, and to add Section 1164.1 to, the Labor Code, relating to employment. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 1389, as amended, Patterson. begin delete Agricultural Labor Relations Act: binding mediation. end delete begin insert Agricultural labor relations: unfair labor practices. end insert

begin insert

(1) Existing law establishes the right of agricultural employees to form, join, or assist labor organizations to engage in collective bargaining activities with agricultural employers regarding wages, working conditions, or other aspects of employment. Existing law prohibits a labor organization or its agents from engaging in specified unfair labor practices.

end insert begin insert

This bill would additionally prohibit a labor organization from abandoning or failing to represent a bargaining unit for 3 or more years. This bill would require the Agricultural Labor Relations Board to decertify a labor organization that violates this provision.

end insert begin insert

(2) Existing law specifies the time for filing a declaration by an agricultural employer or a certified labor organization representing agricultural employees that the parties have failed to reach a collective bargaining agreement, thus triggering mandatory mediation. Once triggered, the mediation under these provisions is immediately scheduled at a time and location reasonably accessible to the parties and proceeds for 30 days, with an additional 30-day extension upon the mutual agreement of the parties.

end insert begin insert

This bill would deem members of the bargaining unit to be parties for the purposes of the mediation.

end insert

Existing law establishes the conditions and time periods under which an agricultural employer, as defined, or a certified labor organization representing agricultural employees may file a declaration with the Agricultural Labor Relations Board stating that the parties have failed to reach a collective bargaining agreement, thus triggering a board order for mandatory mediation.

Existing law authorizes a party, within 60 days of the order by the Agricultural Labor Relations Board taking effect, to file an action to enforce the order. Existing law prohibits an order of the board from being stayed during the pendency of any appeal of the order 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 condition the effect and enforcement of an order resulting from the binding mediation on the order being approved by a majority of the members of the affected bargaining unit.

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 1154 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

1154.  

It shall be an unfair labor practice for a labor organization
or its agents to do any of the following:

(a) To restrain or coerce:

(1) Agricultural employees in the exercise of the rights
guaranteed in Section 1152. This paragraph shall not impair the
right of a labor organization to prescribe its own rules with respect
to the acquisition or retention of membership therein.

(2) An agricultural employer in the selection of his begin insert or her end insert
representatives for the purposes of collective bargaining or the
adjustment of grievances.

(b) To cause or attempt to cause an agricultural employer to
discriminate against an employee in violation of subdivision (c)
of Section 1153, or to discriminate against an employee with
respect to whom membership in such organization has been denied
or terminated for reasons other than failure to satisfy the
membership requirements specified in subdivision (c) of Section
1153.

(c) To refuse to bargain collectively in good faith with an
agricultural employer, provided it is the representative of his begin insert or
her end insert employees subject to the provisions of Chapter 5 (commencing
with Section 1156) of this part.

(d) To do either of the following: (i) To engage in, or to induce
or encourage any individual employed by any person to engage
in, a strike or a refusal in the course of his begin insert or her end insert employment to
use, manufacture, process, transport, or otherwise handle or work
on any goods, articles, materials, or commodities, or to perform
any services; or (ii) to threaten, coerce, or restrain any person;
where in either case (i) or (ii) an object thereof is any of the
following:

(1) Forcing or requiring any employer or self-employed person
to join any labor or employer organization or to enter into any
agreement which is prohibited by Section 1154.5.

(2) Forcing or requiring any person to cease using, selling,
transporting, or otherwise dealing in the products of any other
producer, processor, or manufacturer, or to cease doing business
with any other person, or forcing or requiring any other employer
to recognize or bargain with a labor organization as the
representative of his begin insert or her end insert employees unless such labor
organization has been certified as the representative of such
employees. Nothing contained in this paragraph shall be construed
to make unlawful, where not otherwise unlawful, any primary
strike or primary picketing.

(3) Forcing or requiring any employer to recognize or bargain
with a particular labor organization as the representative of his begin insert or
her end insert agricultural employees if another labor organization has been
certified as the representative of such employees under the
provisions of Chapter 5 (commencing with Section 1156) of this
part.

(4) Forcing or requiring any employer to assign particular work
to employees in a particular labor organization or in a particular
trade, craft, or class, unless such employer is failing to conform
to an order or certification of the board determining the bargaining
representative for employees performing such work.

Nothing contained in this subdivision (d) shall be construed to
prohibit publicity, including picketing for the purpose of truthfully
advising the public, including consumers, that a product or products
or ingredients thereof are produced by an agricultural employer
with whom the labor organization has a primary dispute and are
distributed by another employer, as long as such publicity does
not have an effect of inducing any individual employed by any
person other than the primary employer in the course of his begin insert or her end insert
employment to refuse to pick up, deliver, or transport any goods,
or not to perform any services at the establishment of the employer
engaged in such distribution, and as long as such publicity does
not have the effect of requesting the public to cease patronizing
begin delete such end delete begin insert the end insert other employer.

However, publicity which includes picketing and has the effect
of requesting the public to cease patronizing begin delete such end delete begin insert the end insert other
employer, shall be permitted only if the labor organization is
currently certified as the representative of the primary employer’s
employees.

Further, publicity other than picketing, but including peaceful
distribution of literature which has the effect of requesting the
public to cease patronizing begin delete such end delete begin insert the end insert other employer, shall be
permitted only if the labor organization has not lost an election for
the primary employer’s employees within the preceding 12-month
period, and no other labor organization is currently certified as the
representative of the primary employer’s employees.

Nothing contained in this subdivision (d) shall be construed to
prohibit publicity, including picketing, which may not be prohibited
under the United States Constitution or the California Constitution.

Nor shall anything in this subdivision (d) be construed to apply
or be applicable to any labor organization in its representation of
workers who are not agricultural employees. Any such labor
organization shall continue to be governed in its intrastate activities
for nonagricultural workers by Section 923 and applicable judicial
precedents.

(e) To require of employees covered by an agreement authorized
under subdivision (c) of Section 1153 the payment, as a condition
precedent to becoming a member of such organization, of a fee in
an amount which the board finds excessive or discriminatory under
all circumstances. In making such a finding, the board shall
consider, among other relevant factors, the practices and customs
of labor organizations in the agriculture industry and the wages
currently paid to the employees affected.

(f) To cause or attempt to cause an agricultural employer to pay
or deliver, or agree to pay or deliver, any money or other thing of
value, in the nature of an exaction, for services which are not
performed or not to be performed.

(g) To picket or cause to be picketed, or threaten to picket or
cause to be picketed, any employer where an object thereof is
either forcing or requiring an employer to recognize or bargain
with a labor organization as the representative of his begin insert or her end insert
employees, or forcing or requiring the employees of an employer
to accept or select begin delete such end delete begin insert the end insert labor organization as their
collective-bargaining representative, unless such labor organization
is currently certified as the representative of such employees, in
any of the following cases:

(1) Where the employer has lawfully recognized in accordance
with this part any other labor organization and a question
concerning representation may not appropriately be raised under
Section 1156.3.

(2) Where within the preceding 12 months a valid election under
Chapter 5 (commencing with Section 1156) of this part has been
conducted.

Nothing in this subdivision shall be construed to prohibit any
picketing or other publicity for the purpose of truthfully advising
the public (including consumers) that an employer does not employ
members of, or have a contract with, a labor organization, unless
an effect of such picketing is to induce any individual employed
by any other person in the course of his begin insert or her end insert employment, not
to pick up, deliver, or transport any goods or not to perform any
services.

Nothing in this subdivision (g) shall be construed to permit any
act which would otherwise be an unfair labor practice under this
section.

(h) To picket or cause to be picketed, or threaten to picket or
cause to be picketed, any employer where an object thereof is
either forcing or requiring an employer to recognize or bargain
with the labor organization as a representative of his begin insert or her end insert
employees unless such labor organization is currently certified as
the collective-bargaining representative of such employees.

begin insert

(i) To abandon or fail to represent the bargaining unit for a
period of three years or more. The board shall decertify a labor
organization that violates this subdivision.

end insert begin delete

(i)

end delete

begin insert (j) end insert  Nothing contained in this section shall be construed to make
unlawful a refusal by any person to enter upon the premises of any
agricultural employer, other than his begin insert or her end insert own employer, if the
employees of begin delete such end delete begin insert the end insert employer are engaged in a strike ratified or
approved by a representative of begin delete such end delete begin insert the end insert employees whom begin delete such end delete
begin insert the end insert employer is required to recognize under this part.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1164 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

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 an initial 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 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. begin insert Members of the bargaining unit shall be considered
parties for purposes of this subdivision and shall be entitled to
attend all meetings scheduled by the mediator. end insert

(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.

begin delete SECTION 1. end delete
begin insert SEC. 3. end insert   

Section 1164.1 is added to the Labor Code, to read:

1164.1.  

An order issued by the mediator, the board, or the court
that would impose the terms of binding mediation pursuant Section
1164 shall not take effect or be enforceable until it is approved by
a majority of the agricultural employees of the bargaining unit
affected by the order.