BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                    AB 1389


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          Date of Hearing:  May 6, 2015


                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT


                               Roger Hernández, Chair


          AB 1389  
          (Patterson) - As Amended May 4, 2015


          SUBJECT:  Agricultural Labor Relations Act


          SUMMARY:  Makes a number of changes to the Agricultural Labor  
          Relations Act (ALRA), including changes to provisions of  
          existing law related to mandatory mediation.  Specifically, this  
          bill:


          1)Provides that it is an unfair labor practice for a labor  
            organization or its agents to "abandon or fail to represent"  
            the bargaining unit for a period of three years or more.


          2)Requires the Agricultural Labor Relations Board (ALRB) to  
            decertify a labor organization that violates this provision.


          3)Provides that members of the bargaining unit shall be  
            considered parties for purposes of existing law related to  
            mandatory mediation and shall be entitled to attend all  
            meetings scheduled by the mediator.


          4)Provides that an order issued by the mediator, the ALRB, or  
            the court that would impose the terms of binding mediation  











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            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.


          5)Makes other technical changes.


          FISCAL EFFECT:  Unknown


          COMMENTS:  This bill is sponsored by the author and raises  
          several issues that have been the subject of a recent dispute  
          between the United Farm Workers (UFW) and Gerawan Farming, Inc.   
          According to the author, this bill is necessary because this  
          recent case illustrates that the current process under the law  
          is "broken."


          BRIEF BACKGROUND ON THE AGRICULTURAL LABOR RELATIONS ACT


          Collective bargaining rights of private sector employees  
          generally fall under the exclusive purview of federal labor law  
          under the National Labor Relations Act (NLRA).  However, Section  
          2(3) of the NLRA explicitly excludes "agricultural laborers"  
          from the protections of the federal law.


          Therefore, in 1975, the California Legislature passed the ALRA  
          guaranteeing certain rights to California farm workers.  The  
          purpose of the ALRA is to "ensure peace in the agricultural  
          fields by guaranteeing justice for all agricultural workers and  
          stability in labor relations."


          The ALRA states that it is the policy of the State of California  
          to encourage and protect the right of farm workers to act  
          together to help themselves, to engage in union organizational  











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          activity and to select their own representatives for the purpose  
          of bargaining with their employer for a contract covering their  
          wages, hours, and working conditions.  


          The ALRA prohibits employers from interfering with these rights,  
          protects the rights of workers to be free from restraint or  
          coercion by unions or employers, and it prohibits unions from  
          engaging in certain types of strikes and picketing. 


          The agency established to implement the ALRA is the Agricultural  
          Labor Relations Board (ALRB), which functions in two primary  
          manners.  First, the ALRB determines and implements, through  
          secret ballot elections, the right of agricultural employees to  
          choose whether or not they wish to be represented by a labor  
          organization for the purpose of collective bargaining with their  
          employer.  Second, the ALRA gives authority to the ALRB to  
          investigate, process and take to trial employers or unions who  
          engage in actions which the Act describes as "unfair labor  
          practices."


          BACKGROUND ON THE AGRICULTURAL LABOR RELATIONS BOARD



          The ALRB's authority is divided between a Board composed of five  
          members and a General Counsel, all of whom are appointed by the  
          Governor and subject to confirmation by the Senate.  Together,  
          they are responsible for the prevention of those practices which  
          the Act declares to be impediments to the free exercise of  
          employee rights.  When a charge is filed, the General Counsel  
          conducts an investigation to determine whether an unfair labor  
          practice has been committed.  If he or she believes that there  
          has been a violation, he or she issues a complaint.  The Board  
          provides for a hearing to determine whether a respondent has  
          committed the unfair labor practice alleged in the complaint.












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          Under the statute, the Board may delegate, and in practice has  
          delegated, its authority to hear such cases to Administrative  
          Law Judges (ALJs) who take evidence and make initial  
          recommendations in the form of written decisions with respect to  
          issues of fact or law raised by the parties.  Any party may  
          appeal any of the findings, conclusions or recommendations of  
          the ALJ to the Board, which then reviews the record and issues  
          its own decision and order in the case.  Parties dissatisfied  
          with the Board's order may petition for review in the Court of  
          Appeal.  Attorneys for the Board defend the decisions rendered  
          by the Board.  If review is not sought or is denied, the Board  
          may seek enforcement of its order in superior court.


          When a final remedial order requires that parties be made whole  
          for unfair labor practices committed against them, the Board has  
          followed the practice of the National Labor Relations Board  
          (NLRB) in holding supplemental proceedings to determine the  
          amount of liability.  These hearings, called compliance  
          hearings, are also typically held before ALJs who write  
          recommended decisions for review by the Board.  Once again,  
          parties dissatisfied with the decision and order issued by the  
          Board upon review of the ALJ's decision may petition for review  
          of the Board's decision in the Court of Appeal.  If the court  
          denies the petition for review or orders the Board's order in a  
          compliance case enforced, the Board may seek enforcement in  
          superior court.

          In addition to the Board's authority to issue decisions in  
          unfair labor practice cases, the Board, through personnel in  
          various regional offices, is responsible for conducting  
          elections to determine whether a majority of the employees of an  
          agricultural employer wishes to be represented by a labor  
          organization or, if the employees are already so represented, to  
          determine whether they wish to continue to be represented by  
          that labor organization, a rival labor organization or no labor  
          organization at all.  Chapter 5 of the ALRA empowers the Board  
          to direct an election provided that Board investigation reveals  











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          the existence of a bona fide question concerning such  
          representation.  Because of the seasonal nature of agriculture  
          and the relatively short periods of peak employment, the Act  
          provides for a speedy election process, mandating that elections  
          be held within seven days from the date an election petition is  
          filed, and within 48 hours after a petition has been filed in  
          the case of a strike.  Any party believing that an election  
          ought not to have been conducted, or that misconduct occurred  
          which tended to affect the outcome of the election, or that the  
          election was otherwise not fairly conducted, may file objections  
          to the election.  The objections are reviewed by the Board's  
          Executive Secretary, who determines whether they establish a  
          prima facie case that the election should not have been held or  
          that the conduct complained of affected its outcome.  If such a  
          prima facie case is found, a hearing is held before an  
          Administrative Law Judge acting in the capacity of an  
          Investigative Hearing Examiner to determine whether the Board  
          should refuse to certify the election as a valid expression of  
          the will of the employees.  The Investigative Hearing Examiner's  
          conclusions may be appealed to the Board. Except in very limited  
          circumstances, court review of any decision of the Board in  
          representation matters may be had only in connection with an  
          order in an unfair labor practice case which is based upon the  
          Board's certification.


          


          BRIEF BACKGROUND ON MANDATORY MEDIATION UNDER THE ALRA


          


          The most significant legislative change to the ALRA occurred in  
          2002 when Governor Davis signed two companion pieces of  
          legislation, SB 1156 and AB 2956.  As a result of those bills,  
          effective January 1, 2003, the ALRA was amended to provide for  











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          mandatory mediation in selected circumstances where the parties  
          have been unable to reach a collective bargaining agreement.   
          Under that process, the mediator attempts to help the union and  
          the employer reach agreement on a contract, but if that is not  
          successful, the mediator issues a report that contains the terms  
          of a contract. 





          The mediation process applies only if the employer has employed  
          25 or more agricultural employees during any calendar week in  
          the year preceding the filing of the request for mediation. If  
          the union was certified after January 1, 2003, the mediation  
          process may be triggered where at least 180 days have elapsed  
          after the initial demand to bargain.  If the union was certified  
          before January 1, 2003, the process may be triggered 90 days  
          after a renewed demand to bargain, and where the following  
          conditions are met: (1) the parties have failed to reach  
          agreement for at least one year after the union made its initial  
          demand to bargain; (2) the employer has committed an unfair  
          labor practice; and (3) the parties have not previously had a  
          binding contract between them.


          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












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          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  
          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 petition for a writ of review in the  











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          court of appeal or the California Supreme Court.  The law  
          provides that review by the court shall not extend further that  
          to determine whether any of the following occurred:

          1)The ALRB acted without, or in excess of, its powers or  
            jurisdiction.

          2)The ALRB has not proceeded in the manner required by law.

          3)The order or decision of the ALRB was procured by fraud or was  
            an abuse of discretion.

          4)The order or decision of the ALRB violates any right of the  
            petitioner under the state or federal constitutions.

          BRIEF BACKGROUND ON THE DISPUTE BETWEEN UFW AND GERAWAN FARMING,  
          INC.





          As discussed above, this bill raises several issues that have  
          been the subject of a recent dispute between the United Farm  
          Workers (UFW) and Gerawan Farming, Inc.  This dispute has been  
          complex and contentious, but a very brief summary is as follows.





          After a contentious organizing drive and election, the ALRB  
          certified the UFW as the collective bargaining representative of  
          the Gerawan employees in July 1992.
















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          What happened next is a matter of dispute between the parties.





          According to Gerawan, "More than two years later, the UFW  
          responds to Gerawan by sending a boilerplate proposal without  
          any economic proposal.  A brief meeting is held during which  
          Gerawan requests a proposal that would be relevant to Gerawan's  
          operations and include economic provisions.  The UFW agrees to  
          do so, but never does."<1>





          Gerawan states that after only one bargaining session in 1994,  
          "the UFW disappeared, abandoning workers for nearly two decades.  
           It did not seek to renew its certification as required by law,  
          nor did the union make an effort to contact Gerawan or to  
          represent the workers.  The UFW took no access to communicate  
          with our workers.  The UFW did not collect dues or fees from our  
          workers.  It filed no grievance or complaint against Gerawan  
          during this 20-year absence."<2>


          


          UFW states<3> that during the summer and fall of 1994, it worked  
          with the elected negotiating committee composed of Gerawan  
          ---------------------------


          <1>  
          http://www.prima.com/summary-of-history/pdfs/Summary_of_History_A 
          pril-9-2015-2.pdf
          <2> http://www.prima.com/learn-the-facts.php
          <3>  
          http://www.ufw.org/_board.php?mode=view&b_code=gerawan_news&b_no= 
          15311&page=2&field=&key=&n=22








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          workers and consulted with the workers on developing a  
          comprehensive bargaining proposal that was submitted to the  
          company in November 1994.  According to UFW, in a meeting with  
          the company in early 1995, "Gerawan signals it will never sign a  
          contract acceptable to UFW.  That ends the session.  No more  
          meetings are held."<4>





          From 1995 to 2002, UFW states that "Gerawan workers and UFW  
          continue working to improve their working conditions, all while  
          the ALRB stops enforcing the law."<5>  Between 2001 and 2002,  
          UFW states that it "works with farm workers from across the  
          state, including Gerawan workers, for development and passage of  
          [the] Mandatory Mediation law.  Farm workers from across the  
          state, including Gerawan workers, march on the state capitol,  
          urging the Governor to sign the bill into law."<6>





          According to the UFW, in May 2004, at the request of the Gerawan  
          workers, it launched a new campaign to re-organize the Gerawan  
          workers and opened a union office in the Fresno County town of  
          Reedley to aim in that effort.<7>





          According to the UFW, in October 2012, it sent a request for  
          negotiations to the company.  Despite numerous bargaining  
          ---------------------------


          <4> Id.
          <5> Id.
          <6> Id.
          <7> Id.








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          sessions between January and July or 2013, UFW states that the  
          company refused to agree to a collective bargaining agreement  
          with the union and the worker-led negotiating committee.   
          Therefore, the UFW filed a request for mandatory mediation on  
          March 29, 2013.<8>





          The mediator issued a report (contract) to the ALRB in September  
          2013.  In October 2013, the ALRB ordered the mediator's report  
          back to him to address a number of issues.  The contract was  
          finalized by the ALRB in November 2013, but according to the UFW  
          has not been implemented by the company.<9>


          The company, on the other hand, states that it challenged the  
          contract in court, which was denied but is now on appeal to the  
          Court of Appeal for the Fifth District.<10>  "We and our  
          employees are challenging that so-called contract in court?The  
          "contract" imposed on Gerawan and its employees is subject to  
          review now before the 5th District of Appeal."<11>





          A number of complaints have been issued by the ALRB, making  
          various allegations against the company in this case.  In  
          addition, numerous legal challenges have been filed related to  
          ---------------------------


          <8> Id.
          <9> Id.
          <10>  
          http://www.prima.com/summary-of-history/pdfs/Summary_of_History_A 
          pril-9-2015-2.pdf
          <11>  
          http://www.prima.com/summary-of-history/pdfs/There_Is_No_Contract 
          _Setting_the_Record_Straight_4-12-15.pdf








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          the use of the mandatory mediation process and the conduct of  
          the parties and the ALRB in this case, including the challenges  
          described above, many of which are still pending before the ALRB  
          and the courts.  These include legal challenges to the  
          constitutionality of the mandatory mediation statute and  
          individual civil rights claims.  





          In addition, two decertification petitions were filed seeking to  
          decertify UFW as the collective bargaining representative.  The  
          first petition was dismissed by the ALRB regional director in  
          September 2013.  A second petition was filed in October 2013,  
          which was also dismissed by the regional director.  However, in  
          November 2013, the ALRB vacated the regional director's  
          dismissal and ordered an election to be held.





          A decertification election was held in November of 2013.   
          However, the election results were impounded by the ALRB pending  
          investigation of unfair labor practice charges and election  
          challenges.  That matter is still still pending, with hearings  
          having been completed in March 2015.  According to an update  
          provided by the ALRB to committee staff:





            "The consolidated election objection/ULP hearing in Gerawan  
            Farming, Inc., Case No. 2013-RD-003-VIS, ran from September  
            29, 2014 to March 12, 2015, 105 hearing days. The post-hearing  
            briefs are currently due May 15, 2015 assuming no further  
            extensions of time to file the briefs are presented. One  











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            request by the General Counsel was  received and granted.


            Once the post-hearing briefs are received, the assigned judge  
            has 30 days to issue his decision (Title 8, California Code of  
            Regulations, section 20279). In this case, however, the  
            hearing was extraordinarily long (105 days), involved the  
            testimony of 130 witnesses, and includes in excess of 20,000  
            pages of transcripts. While we cannot say with any certitude  
            when the ALJ decision will issue, it appears reasonable to  
            assume that the ALJ may take between 60-90 days for his  
            decision. Once his decision issues, the parties will have the  
            right to file exceptions to his decision (normally 20 days but  
            possibly longer here) and reply briefs (normally 10 days but  
            possibly longer here).


            Again, due to the length of the proceeding and the complexity  
            of the issues that may be presented, it also appears  
            reasonable that the Board may take between 30-60 days to issue  
            its decision. To be sure, these are all approximations and the  
            length of time for the decisions will depend on issues  
            presented to the judge and ultimately to the Board. 


            The Board is making this its highest priority and is striving  
            to issue the decision at its earliest opportunity."


          SPECIFIC CHANGES PROPOSED BY THIS BILL





          This bill proposes to make three general changes to the existing  
          law.  Each of these proposed changes will be addressed in turn.













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          Unfair Labor Practice and Decertification for "Abandonment"





          Existing law under the ALRA defines a number of "unfair labor  
          practices" of conduct by employers or labor organizations.





          This bill would provide that it is an unfair labor practice for  
          a labor organization or its agents to "abandon or fail to  
          represent" the bargaining unit for a period of three years or  
          more.  The bill does not currently define the term "abandon or  
          fail to represent."  In addition, this bill requires the ALRB to  
          decertify a labor organization that violates this provision.





          Party Status and Participation in Mandatory Mediation Process





          As discussed above, effective January 1, 2003, the ALRA was  
          amended to provide for mandatory mediation in selected  
          circumstances where the parties have been unable to reach a  
          collective bargaining agreement.  Under that process, the  
          mediator attempts to help the union and the employer reach  
          agreement on a contract, but if that is not successful, the  











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          mediator issues a report that contains the terms of a contract.





          This bill would amend the law to provide that members of the  
          bargaining unit shall be considered parties for purposes of  
          existing law and shall be entitled to attend all meetings  
          scheduled by the mediator.





          These issues have been the subject of matters before the ALRB in  
          recent years, arising specifically in the context of the dispute  
          between the UFW and Gerawan Farming, Inc. 





          First, with respect to employee participation as "parties" for  
          purposes of the mandatory mediation process, in July 2013 an  
          individual Gerawan employee filed a petition seeking to  
          intervene as a party in the mandatory mediation proceedings.   
          The ALRB dismissed the petition.  The ALRB's case summary<12>  
          states the following:





            "The Board dismissed Garcia's petition for intervention. The  
            statutes and regulations governing MMC provided no mechanism  

            --------------------------


          <12> ALRB case summaries each state that they are "furnished for  
          information only and is not an official statement of the case or  
          of the ALRB." 








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            for third party intervention. The issue of whether an  
            individual employee could intervene in MMC proceedings was one  
            of first impression. While the Board found that it may look to  
            authorities governing intervention in other contexts for  
            guidance, because MMC is quasi-legislative rather than  
            quasi-judicial in nature, it would follow those authorities  
            only insofar as they were consistent with the purpose and  
            structure of MMC. 





            The Board noted that in representation and unfair labor  
            practice cases under the ALRA and National Labor Relations Act  
            (the "NLRA"), the ALRB and National Labor Relations Board (the  
            "NLRB") generally declined to permit intervention by  
            individual employees.  With respect to Board Regulation 20130,  
            the Board found that Garcia did not meet the definition of a  
            "party" under that regulation and, in any event, the  
            regulation was definitional in nature and did not purport to  
            set forth rules for intervention.  The Board also found that,  
            even if it were to apply the CCP § 387 standard, intervention  
            would not be appropriate.  Garcia did not have a special  
            interest in the outcome of the MMC proceedings that  
            differentiated him from any other bargaining unit member.   
            Even if he did have "an interest" in the case, granting  
            intervention is discretionary and Garcia's interest was  
            represented by the UFW, which was certified as bargaining  
            representative and owed a duty of fair representation to  
            Garcia and his fellow employees.  Intervention would also be  
            inconsistent with the structure and functioning of MMC.  The  
            statutes and regulations governing MMC consistently refer to  
            "the parties" as the relevant actors in the process. If any  
            employee could intervene in MMC, the process could become  
            unworkable and it would be inconsistent with the union's  














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            status as bargaining representative."<13>





          Second, regarding participation in mandatory mediation  
          proceedings, the same petition filed above raised issues  
          regarding whether the petitioner and other employees, as well as  
          members of the public, had a First Amendment right of access to  
          mandatory mediation proceedings between Gerawan and the UFW.   
          The ALRB's case summary describes the decision as follows:





            "The Board held that there was no right of access under the  
            First Amendment of the United States Constitution. Applying  
            the "experience and logic" test from the U.S. Supreme Court's  
            decision in Press-Enterprise Co. v. Superior Court of  
            California (1986) 478 U.S. 1, the Board held that MMC  
            proceedings are more like labor contract negotiations and that  
            there is no tradition of labor negotiations being open to the  
            public, nor did public access play a significant positive role  
            in the functioning of MMC or any type of labor contract  
            negotiation. The Board held that there was no right of public  
            access under Article I, Section 3 (b) of the California  
            Constitution because Article I, Section 3(b) had little impact  
            on the construction of the Bagley-Keene Open Meeting Act,  
            which applies to meetings of state bodies. MMC proceedings are  
            not meetings of state bodies."<14>



          ---------------------------


          <13> Gerawan Farming, Inc. (United Farm Workers of America), 39  
          ALRB No. 11 (July 2013).
          <14> Gerawan Farming, Inc. (United Farm Workers of America), 39  
          ALRB No. 13 (August 2013).








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          Ratification of Mediated Terms





          As discussed above, under existing law the mediator attempts to  
          help the union and the employer reach agreement on a contract,  
          but if that is not successful, the mediator issues a report that  
          contains the terms of a contract.





          This bill provides that an order issued by the mediator, the  
          ALRB, or the court that would impose the terms of binding  
          mediation 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.  In other words, this  
          bill would require a mediator's contract to be ratified by a  
          majority of the employees in the bargaining unit.





          





          ARGUMENTS IN SUPPORT:














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          The author states the following in support of this bill:





            "Existing law currently allows unlimited time for the  
            [mandatory mediation] process to be initiated-allowing labor  
            organizations who had abandoned workers for decades to  
            initiate a forced contract with or without worker approval  
            years after a certification of representation had been won.


            Existing law does not provide the opportunity for worker's  
            themselves to participate and provide input throughout the  
            [mandatory mediation] process, nor the opportunity to ratify  
            the terms of their contract. The opportunity to approve or  
            disapprove with the terms of a contract is common practice for  
            collective bargaining agreements that are negotiated by labor  
            organizations in other industries, as a labor organization has  
            the duty of fair representation of their workers.


            The [mandatory mediation] process is unique to only the  
            agricultural industry and has been used nine times in  
            California.  In other sectors, employees and employers must  
            negotiate a contract that is mutually agreeable to both  
            parties. Only within the agriculture sector in California can  
            a government entity force a contract on a group of employees  
            through the use of the [mandatory mediation] process. This  
            unprecedented amount of government power over workers is not  
            shared by workers in other sectors.


            In practice, the mandatory mediation and conciliation process  
            does a disservice to the very people that a collective  
            bargaining agreement is sought to help- the day to day  











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            laborers of the agriculture industry. It allows an unelected  
            Board to create and enforce provisions of a contact that  
            working people may not want or could further the financial  
            burdens or actually worsen workplace conditions. Furthermore,  
            it actually undermines that very definition of a collective  
            bargaining agreement by there being no actual agreement  
            between the parties-it is a forced resolution.  


            In at least one of the three open cases pending resolution  
            before the ALRB, there is a breakdown of trust between the  
            workers and the union representatives. Under the rights and  
            provisions laid out in the Agricultural Labor Relations Act,  
            employees at Gerawan Farming, Inc. held an election to  
            decertify from their union, yet the results of the election  
            are not being released by the ALRB. Existing law that allows a  
            labor organization to initiate a [mandatory mediation] process  
            after decades of abandonment is unfair to the workers, many of  
            whom were not present when the original certification election  
            was held over twenty years ago.


            For the laborers at Gerawan and other farms, the voice of the  
            worker is not represented during the [mandatory mediation]  
            process. It is crucial that the workers have the opportunity  
            to vote up or down a government-created contract between the  
            employer and the union."


          A coalition of agricultural employers supports this bill,  
          arguing that it makes a number of common sense changes to the  
          ALRA and reflects lessons that have been learned from recent  
          cases involving the mandatory mediation process.





          Finally, numerous individuals have submitted form letters that  











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          state, among other things, that "[b]rave farm workers throughout  
          California continue to be on the losing end of an unfair and  
          unjust process that allows labor contracts to be forced upon  
          them without their involvement or approval.  Without the right  
          tools, workers will continue to be cast aside by the very agency  
          that claims to protect them."





          ARGUMENTS IN OPPOSITION





          UFW opposes this bill, arguing that it would conflict with and  
          undermine the ALRA, decades of ALRB precedent and California  
          court decisions, as well as subject farm workers to further  
          intimidation and abuse from employers by requiring further delay  
          on the outcome of a secret ballot state-certified election.





          Specifically, UFW states the following:





            "Before binding mediation became law, farm workers waited  
            years while negotiations for union contracts dragged on  
            without hope of progress.  Of the 428 companies where farm  
            workers voted for the UFW in secret ballot elections since  
            1975, only 185 have signed union contracts.












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            Enforcement in the '80s and '90s by the ALRB to bring  
            employers to the bargaining table was almost non-existent and  
            even the California Supreme Court found that bad faith  
            bargaining became the rule rather than the exception.  And,  
            there continues to be no evidence of a union's lack of good  
            faith to bargain following an election where farm workers  
            voted to be represented by a union.





            [This bill] destroys any progress made in getting employers to  
            the table.  The National Labor Relations Act and state and  
            federal law do not impose ratification requirements on  
            collective bargaining contracts for any other group of  
            workers.  In fact, case law clearly holds that:





               "[t]he Act imposes no obligation upon a bargaining agent to  
               obtain employee ratification of a contract it negotiates on  
               their behalf."  North Country Motors, Ltd. (1964) 146 NLRB  
               671, 674; see also, Teamsters v. NLRB (D.C. Cir. 1978) 587  
               F.2d 1176, 1182 ("The Labor Act does not require a union to  
               accord its rank-and-file members the right to ratify a  
               collective bargaining contract which it has negotiated.").   
               Ratification is an internal union matter, which is not  
               subject to interference by an employer or outside parties.   
               Martin J. Barry Co. (1979) 241 NLRB 1011, 1013.  In fact,  
               the ratification requirements that [this employer] asks  
               this Court to impose on the [mandatory mediation] statute  
               would diminish the "statutory rights" the Legislature "has  











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               bestowed on union as exclusive bargaining representatives  
               both in the negotiation of labor contracts and in the  
               governance of [their] internal affairs?"   
               Beatrice/Hunt-Wesson, Inc. (1991) 302 NLRB 224, 226.





            [This bill] conflicts with Labor Code section 1160.2 which  
            limits the statute of limitations to conduct occurring within  
            six months of the filing of the charge: "No complaint shall  
            issue based upon any unfair labor practice occurring more than  
            six months prior to the filing of the charge with the board?"  
            Lab. Code § 1160.2.





            [This bill] conflicts with decades of ALRB precedent and  
            California court decisions affirming that the only way for a  
            union to be decertified is through a secret ballot election.   
            See, e.g., Adamek & Dessert, Inc. v. ALRB (1986) 178 Cal. App.  
            3d 970 ("under the ALRA, once a union is certified as the  
            bargaining representative for a company's employees, the  
            company has a duty to bargain with the union until the union  
            is decertified through a second election.")  In fact, the ALRB  
            and courts have clearly decided that employers may not play  
            any part in deciding whether a union continues to represent  
            employees or not.  See F&P Growers Assn. v. ALRB (1985) 168  
            Cal. App. 3d 667, 672 ('"the Legislature's purpose in enacting  
            the ALRA was to limit the employer's influence in determining  
            whether or not it shall bargain with a particular union;"  
            purpose of ALRA is "to provide employees, and not employers, a  
            method for changing unions" through secret ballot elections).














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            Finally, this bill undermines principles rooted in our  
            Democracy and in traditional labor law that a union acts in a  
            representative capacity and is authorized by its election  
            victory to represent the individual members of the bargaining  
            unit."


          


          REGISTERED SUPPORT / OPPOSITION:




          Support


          African American Farmers of California


          Agricultural Council of California


          Allied Grape Growers


          Association of California Egg Farmers


          California Association of Winegrape Growers


          California Bean Shippers Association


          California Chamber of Commerce











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          California Citrus Mutual


          California Farm Bureau Federation 


          California Fresh Fruit Association


          California Grain and Feed Association 


          California Pear Growers Association


          California Seed Association


          California Wheat Growers Association


          California Women for Agriculture


          Family Winemakers of California


          Grower Shipper Association of Central California


          Grower Shipper Association of Santa Barbara and San Luis Obispo  
          Counties


          National Federation of Independent Business 













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          National Hmong American Farmers


          Nisei Farmers League


          187 Individuals


          Pacific Egg and Poultry Association 


          Ventura County Agricultural Association


          Western Growers Association 


          Western United Dairymen







          Opposition


          California Labor Federation, AFL-CIO


          California Rural Legal Assistance Foundation


          United Farm Workers of America














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          Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091