BILL NUMBER: AB 856 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 2, 2001
AMENDED IN ASSEMBLY APRIL 30, 2001
INTRODUCED BY Assembly Member Wesson
FEBRUARY 22, 2001
An act to amend Sections 19461, 19481.5, and 19556 of, to add
Sections 19461.5, 19526, 19613.8, and 19641.2 to, and to add Article
2.5 (commencing with Section 19455) to Chapter 4 of Division 8 of,
the Business and Professions Code, relating to horse racing.
LEGISLATIVE COUNSEL'S DIGEST
AB 856, as amended, Wesson. Horse racing.
(1) Existing law authorizes wagering on the result of live and
simulcast horse races, subject to the regulation and oversight of the
California Horse Racing Board, and requires the licensure of various
persons and entities associated with this industry. Existing law
also imposes specified requirements on the operation of race tracks,
backstretch facilities, and stabling and vanning services, and
establishes pension funds and welfare funds for the benefit of
backstretch personnel and horsemen.
This bill would state findings and declarations of the Legislature
regarding the employment rights of racetrack backstretch employees,
and direct the California Horse Racing Board to oversee the conduct
of a union and multiemployer collective bargaining agent recognition
procedure subject to specified conditions and procedures, provide for
resultant labor agreements to be binding on the parties, and
establish reasonable rules to regulate the time, place, and manner of
representational meetings within the racetrack enclosure. This bill
would also authorize individual trainers to opt out of the
multiemployer bargaining process, subject to specified conditions,
and require each trainer to keep accurate payroll records for all of
his or her employees, subject to audit by the Labor Commissioner as
specified, containing specified information and signed
declarations made under penalty of perjury, which would be
available for inspection by, or furnished to, the employee, his or
her authorized representative, the board, the administrators of
specified pension and health and welfare funds, or the Division of
Labor Standards Enforcement of the Department of Industrial
Relations. By requiring these declarations to be made under
penalty of perjury, this bill would create a crime and thereby
impose a state-mandated local program.
(2) Existing law provides that every license granted under the
Horse Racing Law is subject to suspension or revocation in any case
where the board has reason to believe that any condition regarding
the license has not been complied with, or that any provision of law
or any rule or regulation of the board affecting it has been broken
or violated.
This bill would expand this suspension and revocation authority to
expressly include violations of the Labor Code and regulations
adopted thereunder. This bill would also provide that upon a finding
by the Labor Commissioner that a violation of any provision of the
Labor Code under his or her jurisdiction has been committed by a
person licensed under the Horse Racing Law, that upon expiration of
the applicable period for appeal he or she shall notify the board of
that finding.
(3) Existing law provides that no license to conduct a horse
racing meeting shall be issued unless the track has been inspected
and approved by the board as to specified racetrack safety standards
within 30 days prior to the date of application.
This bill would additionally provide that the board shall, within
120 days of the effective date of this act, adopt emergency
regulations, as specified, to establish employee housing standards at
licensed racetracks, which shall be replaced by final, permanent
regulations with 18 months thereafter, which racing associations
shall be in compliance with by January 1, 2004, and as of that date
would require the board, in conjunction with the Department of
Housing and Community Development or a local housing authority in
that jurisdiction, to annually inspect the living conditions of
backstretch employee housing and submit these findings to the board.
The bill would provide that no license to conduct a horse racing
meeting shall be issued to a racing association unless the board has
inspected the housing conditions that exist on that track's
backstretch and determined them to be in compliance with these
standards.
(4) Existing law requires each licensed racing association to
designate a certain number of racing days to be conducted as charity
days for the purpose of the distribution of the net proceeds
therefrom to beneficiaries, and requires that at least 20% of the
distributions therefrom to be made to charities associated with the
horse racing industry.
This bill would increase this distribution requirement to 50%.
This bill would also specify that an existing specified backstretch
employee welfare fund shall be a health and welfare trust fund
administered without prejudice for the benefit of every eligible
person, that the fund and benefits shall be administered in
accordance with specified standards established in federal law,
subject to oversight and regulation of the board, and that the
welfare fund board be expanded, by March 1, 2002, to include 2
additional groom and stable employee licenses, also would be replaced
by designees of a labor union with 60 days of that union having been
chosen as the exclusive collective bargaining agent of a statewide
majority of backstretch workers.
(5) Existing law provides that racing associations and fairs shall
pay, from the portion deducted for purses, an amount equal to 1% of
that portion for a pension plan for backstretch personnel to be
administered by the respective trainers' organizations.
This bill would provide that within 60 days of a union having been
chosen as the exclusive collective bargaining agent for a statewide
majority of backstretch workers, the respective organization of
horsemen or trainers shall submit a pension plan for backstretch
personnel to the board. This bill would require that the plan be
administered by a joint labor-management committee , made up of
equal representatives of trainers and labor union representatives,
consistent with specified provisions of federal law.
(6) This bill would provide that its provisions are severable as
specified.
(7) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Article 2.5 (commencing with Section 19455) is added to
Chapter 4 of Division 8 of the Business and Professions Code, to
read:
Article 2.5. Backstretch Worker Labor Relations
19455. (a) The Legislature finds and declares that Section 923 of
the Labor Code recognizes that it is necessary that the individual
worker have full freedom of association, self-organization, and
designation of representatives of his or her own choosing, to
negotiate the terms and conditions of his or her employment, and that
he or she shall be free from the interference, restraint, or
coercion of employers of labor, or their agents, in the designation
of such representatives or in self-organization or in other concerted
activities for the purpose of collective bargaining.
(b) The Legislature finds that the National Labor Relations Board
has formally declined to assert jurisdiction over horse racing
because of extensive state control over the industry, the dominant
pattern of sporadic short-term employment which poses problems for
the effective enforcement of the National Labor Relations Act, and a
unique and special relationship that has developed between the states
and the industry.
(c) It is the intent of the Legislature to establish an orderly
procedure for backstretch employees to exercise their statutory
rights to organize a labor union, in order to reduce the prospect of
any strikes, disruptions, or economic action that would interfere
with the operation of horse racing meetings in California.
(d) Except as provided in subdivision (e), the board shall oversee
the conduct of a union recognition procedure for backstretch
employees under the following conditions:
(1) Employees shall have the right to join, or refuse to join, a
labor organization for purposes of collective bargaining and mutual
aid and protection. Existing state-recognized organizations of
trainers or horsemen established pursuant to the Horse Racing Law
shall not use funds derived or distributed from parimutuel wagering
pursuant to state law to advocate or advance any position with
respect to unionization of employees. Individual trainers and
horsemen, and their agents, shall not coerce or threaten any employee
of any trainer or horseman in the context of an effort to
obtain or revoke an employee authorization card with respect to
selection by any backstretch employee of any labor union or
collective bargaining agent because of the exercise of
rights pursuant to this article . No employee shall be
discharged or discriminated against for expressing any opinion
concerning the selection of a labor union or collective bargaining
agent for employees under this article. No trainer or horseman,
or group of trainers or horsemen, shall dominate or interfere with
the formation or administration of any labor organization established
under this article nor contribute financial or other support to it.
(2) The labor union and its representatives shall not coerce or
threaten any employee of any trainer or horseman in the
context of an effort to obtain or revoke authorization cards. The
union and its representatives shall not interfere with the work of
any employee, but shall have reasonable access to backstretch workers
within the enclosure during working and nonworking hours, as
determined by the board.
(3) Notwithstanding any other provision of law, within 30 days of
a request, the board shall provide the labor union with a list of all
backstretch workers including the type of license they hold, their
employer, the location at which they are employed, and their address
and telephone number. The board may require of any licensee
information in the licensee's possession necessary to comply with
this requirement. The labor union shall use this list solely for the
purposes of this article. The board may impose an appropriate
penalty for any other use.
(4) because of the exercise of rights pursuant to
this article.
(3) Notwithstanding any other provision of law, within 30 days of
a request by a bona fide labor organization representing workers in
the horse racing industry in California, accompanied by a petition of
125 licensed backstretch workers, the board shall provide the bona
fide labor organization with a list of all backstretch workers
including the type of licenses they hold, their employer, the
location at which they are employed, and their address and telephone
number. The board may require of any trainer licensee information in
the licensee's possession necessary to comply with this requirement.
The labor union shall use this list solely for the purposes of this
article, and maintain it in a manner, as the board may require, to
preserve the integrity of horse racing. The board may impose an
appropriate penalty for any other use.
(4) Every licensed trainer who employs backstretch employees shall
file with the board, not later than February 1, 2002, and, with
seven days of the commencement of each race meeting thereafter, a
complete and accurate list of the names of its backstretch workers.
In addition, every trainer shall file with the board a complete,
accurate, and updated list within seven days of any changes which
occur to the most recently filed list. The lists described in this
section, together with any updates thereto, shall be provided within
72 hours after receipt by the board, to any bona fide labor
organization which has requested copies thereof. Any such request
need only be made one time and the board shall thereafter be required
to provide these lists and any updates thereto in accordance with
the provisions of this section so long as a bona fide labor
organization seeks to represent licensed backstretch workers.
(5) The labor union may request
obtain board recognition as the exclusive bargaining agent for
employees in any bargaining unit or of any employer, subject
to the provisions and procedures described in paragraph (5). The
Executive Director of the Board, or a disinterested neutral party
selected by the Executive Director, shall have the authority to
investigate and determine the validity of employee authorization
cards submitted pursuant to this section, and shall conduct a review
of cards submitted by a union in support of its claim to represent
the majority of employees of an individual employer or the majority
of employees within a bargaining unit approved by the board pursuant
to paragraph (5). In the case of thoroughbred racing, a labor union
may request recognition as the exclusive bargaining agent for
backstretch employees by racetrack or by geographical zone, as
defined in Section 19530.5; in the case of harness and quarter horse
racing, a labor union may request recognition as the exclusive
bargaining agent for backstretch employees by racetrack; in the case
of fairs, a labor union may request recognition as the exclusive
bargaining agent for backstretch employees by geographical zone, by
fair, or by groups of fairs. "Appropriate bargaining unit" includes
any community of interest of backstretch workers, including, but not
limited to, geographic, occupational, and type of horse racing.
"Backstretch employee" means a groom or stable employee licensed by
the board pursuant to subdivision (c) of Section 1481 of Division 4
of Title 4 of the California Code of Regulations.
(5) The board, by regulation, shall establish procedures for the
recognition of collective bargaining representatives for both
backstretch workers and the employers of those workers. In all
matters pertaining to the rights established pursuant to this
article, the board, upon the complaint of a party, shall have the
authority to fashion an appropriate remedy, including the issuance of
a make-whole remedy in the event of persistent failure of a party to
bargain in good faith. Nothing in this section shall prohibit the
board from requiring the parties to any dispute to submit the issue
to binding arbitration pursuant to paragraph (8). In addition, the
board may contract with state mediation and conciliation services for
all appropriate purposes, including operations related to the
conduct of recognition procedures and elections.
(A) of employers pursuant to the provisions and
procedures described in paragraph (7).
(6) For purposes of this article:
(A) "Backstretch employee" or "backstretch worker" means a person
licensed by the board pursuant to subdivision (c) of Section 1481 of
Division 4 of Title 4 of the California Code of Regulations.
(B) "Appropriate bargaining unit" means any bargaining unit
created and recognized pursuant to the terms of clause (iii) of
subparagraph (A) of paragraph (6).
(C) "Approved election unit" means any election unit created and
recognized pursuant to paragraph (6).
(7) There are four election units created and recognized pursuant
to this section, as follows:
(A) Backstretch employees working for trainers of thoroughbred
horses stabled at licensed racetracks, including fairs and approved
auxiliary training facilities in the combined central and southern
zones.
(B) Backstretch employees working for trainers of thoroughbred
horses stabled at licensed racetracks, including fairs and approved
auxiliary training facilities in the northern zone.
(C) Backstretch employees working for trainers of quarter horses
stabled at licensed racetracks and approved auxiliary training
facilities in the combined central and southern zones.
(D) Backstretch employees working for trainers of harness horses
stabled at licensed racetracks, including fairs and approved
auxiliary training facilities in the northern zone.
The board shall use the California State Mediation and
Conciliation Service for all appropriate purposes of this act,
including operations related to the conduct of recognition procedures
and elections.
(8) (A) With respect to backstretch workers, a labor
organization seeking recognition as the collective bargaining agent
for these workers shall collect signed cards indicating individual
worker's intent to be represented by that organization for collective
bargaining purposes and submit those cards to the board
California State Mediation and Conciliation Service
for review and validation by the executive director. A
labor union is free to define the characteristics of a potential
collective bargaining unit subject to approval by the board pursuant
to paragraph (4). Upon submission, review, and validation of cards
indicating that a majority of employees within a defined unit wish to
be represented by that union, the board shall recognize that union
. When the labor organization is in receipt of cards
signed by workers equaling at least 30 percent of the employees in an
election unit described in paragraph (4), the California State
Mediation and Conciliation Service shall conduct a secret ballot
election with respect to the election unit as soon as is practicable
thereafter, but in no event more than 30 calendar days after
validation by the service of the cards.
Those backstretch employees entitled to vote in the election shall
be those who appear on the licensed trainer's most recent list
described in paragraph (3). However, each employer may update his or
her list not more than 72 hours prior to the election. If it is
determined by the stewards pursuant to the provisions in paragraph
(11), that the employer filed an inaccurate or erroneous updated list
with a willful intention to manipulate the results of an election,
and that the inaccuracy or error may have affected the outcome of the
election, the stewards shall decree that the employer lost the
election, regardless of the actual outcome thereof, and the stewards
shall issue an order to the trainer to negotiate with the union.
(i) Any election shall be conducted by the California State
Mediation and Conciliation Service under rules established by the
service consistent with standard practice. The rules shall be
established no more than 60 days after the effective date of this
section, shall be made available to the bona fide labor union and
employers of backstretch employees, and shall be exempt from the
Administrative Procedure Act. The rules shall provide for a secret
ballot system for the conduct of the election pursuant to which
ballots cast by backstretch employees of individual employers shall
be cast by insertion into envelopes appropriately identified with
respect to each employer. The envelopes shall be collected and
tabulated in secret by the service, subject to observation by one
representative designated by the bona fide labor organization and one
representative designated by the organization representing trainers
pursuant to subdivision (a) of Section 19613.2. Upon completion of
the tabulation, the service shall issue a report certifying those
employers, the majority of whose employees who participated in the
election voted in favor of representation by the union. Those
employers so certified shall be required to bargain with the labor
union pursuant to this subdivision. All other employers shall not be
required to negotiate with the union and there shall not be another
election with respect to those employers for at least one year from
the date of the prior election. The service shall not make public
the numerical tabulation of votes by employer.
(ii) Protests over challenged ballots shall be resolved by the
service in a consolidated hearing commencing no later than three
business days after the election.
(iii) Within 45 days of the certification of the results of the
election by the service to the board, those trainers who are required
to bargain pursuant to this subparagraph may form multiple employer
bargaining units in accordance with the provisions of this
subdivision. Further, the organization representing trainers
pursuant to subdivision (a) of Section 19613.2 shall conduct a
meeting regarding the formulation of multiple employer bargaining
units within five days of the certification of the results of the
election. For licensed trainers described in subparagraph (A) of
paragraph (7), the minimum number of backstretch employees who must
be employed by the licensed trainer comprising the multiple employer
bargaining unit as of the date of the election shall be 100 employees
or 10 percent of the total employees subject to bargaining. For
licensed trainers described in subparagraphs (B), (C), and (D) of
paragraph (7), the minimum number of backstretch employees who must
be employed by the licensed trainers comprising the multiple employer
bargaining unit as of the date of the election shall be 50 employees
or 10 percent of the total employees subject to bargaining. The
minimum number of backstretch employees necessary to be employed by
licensed trainers in order to qualify as a multiple employer
bargaining unit pursuant to this subdivision may, with the consent of
the recognized labor union, be reduced. On or before the 45th day
following the certification of the results of the election, a
representative of the multiple employer bargaining units formed
pursuant to this subdivision shall notify the board and the
recognized bargaining units, in writing, that a unit has been formed,
disclose the names of the licensed trainers which comprise the unit,
and indicate the number and names of the backstretch employees which
are employed by the licensed trainers comprising the unit. Except to
join another multiple employer bargaining unit, without the consent
of the bona fide labor organization, the trainer who has elected to
join a multiple employer bargaining unit may not thereafter elect to
resign from the unit until at least 30 days prior to the date of the
expiration of the collective bargaining agreement resulting from the
negotiations. The employees of a licensed trainer who has resigned
from a multiple employer bargaining unit and has not joined another
unit, shall not be entitled to petition to decertify the union for a
period of one year from the date of the expiration of the collective
bargaining agreement which resulted from the negotiation between the
union and the multiple employer bargaining unit of which he or she
was formerly a member and which was in effect at the time of the
trainer's resignation.
Upon completion and certification of the election results the
union shall be recognized as the exclusive collective
bargaining agent for those workers whose employers are required
to bargain , and the executive director of the board shall
issue an order to affected employers to begin good faith
negotiations for approval of employment agreements pursuant to the
procedures described in subparagraphs (B) and (C). Employee
authorization cards collected for purposes of this paragraph shall
be deposited with the board and shall remain valid for one year
starting on the date that the submitting labor organization is
granted permission by the board to begin organizing activities in a
given location, facility, region, or unit. After the expiration of
this period, no further organizing efforts may be conducted with
respect to that location, facility, region, or unit for a period of
one year. Employee authorization cards may be revoked by the
employee at any time prior to final certification of the union as his
or her exclusive collective bargaining agent with respect to his or
her employer.
(B) Upon the recognition of a union as the exclusive collective
bargaining agent for a given unit of backstretch workers, the
Executive Director of the board shall identify the trainers and
horsemen employing those workers, provide this information to the
union, and may conduct an election among those employers for the
selection of a designated agent or agents to represent the interests
of participating employers in a multiemployer employment agreement
with the union. Each voting employer shall be allotted one vote per
employee within the collective bargaining unit, and the agent or
agents receiving the largest plurality of votes shall be designated
by the board as representing the participating employers. The agent
or agents negotiating on behalf of the participating employers are
expressly authorized to organize collective bargaining committees,
approved by the board, that reflect the differences and circumstances
of individual trainers, and are free to negotiate terms that provide
varying wages and conditions of employment based on the economic
circumstances of individual trainers. Any employer may opt out of
these multiemployer bargaining procedures subject to the provisions
of subparagraph (C).
(C) set forth in this section.
(B) If an individual employer of backstretch workers
declines to be represented in the multiemployer collective bargaining
procedure described in subparagraph (B), and a majority of
that particular employer's workers within the identified unit had
submitted valid cards indicating their intent to be represented by
the union clause (iii), , the board shall
certify the union as the collective bargaining agent of those workers
and shall issue an order to begin good faith negotiations for
employment agreements on an individual employer basis. If
less than a majority of the opting-out employer's workers within the
identified unit had submitted valid cards indicating their intent to
be represented by the union, that employer shall not be subject to a
bargaining order issued by the board, but may voluntarily agree to
negotiate collectively with the union if it so desires, and an
organizing union may continue to seek and submit employee
authorization cards on an individual employer basis for purposes of
recognition and mandatory negotiation under this subparagraph until
the expiration of the one year period identified in subparagraph (A).
The board may provide mediation and conciliation services
upon request of the parties at any time. If an employer is required
under this subparagraph to collectively bargain with the union, and
the parties do not reach an agreement within 90 days, the board shall
require the parties to participate in mandatory mediation and
conciliation services for a period of 30 days. If no agreement
results from this mediation, either or both parties may declare an
impasse. Upon a party's declaration of an impasse, the Executive
Director of the Board shall appoint an arbitrator from a
panel of preselected professional arbitrators with expertise in labor
negotiations in the manner described in paragraph
(11) to determine the issues and issue a final and binding
order establishing the terms of a collective bargaining agreement.
The cost of this arbitration shall be shared equally by the
union and employer.
(6)
(9) No labor agreement under this article shall apply to any
trainer or horseman with respect to employment associated with fair
meetings prior to January 1, 2003. After this date, employees shall
be added by accretion into an existing contract where applicable.
This section shall not apply to employers whose trainers,
backstretch workers, or both, normally reside and work outside of
California and who are engaged in racing in this state for a limited
period of time not exceeding 90 racing days in any calendar year.
For racing meetings conducted in the central and
southern zones during the first three months of any calendar year and
for fair racing meetings, this section shall not apply to trainer,
backstretch workers, or both, who normally reside and work outside of
California and who are engaged in racing in this state for a limited
period of time, not exceeding 90 racing days in any calendar year.
For all other race meeting conducted during any calendar year, this
section shall not apply to trainers, backstretch workers, or both who
normally reside and work outside of California and without are
engaged in racing in this state for a limited period of time, not
exceeding 50 racing days in any calendar year.
(7) At
(10) Except as provided in subparagraph (C) of paragraph (5), at
any time subsequent to the expiration of an agreement under
paragraph (5), when the agreement is not in effect, the board may
recognize a majority interest, obtained during this period in the
same manner as union recognition of employees, within a multiple
employer bargaining unit who no longer desire to be
represented by the union, and withdraw the recognition granted
pursuant to this section from that union. An employer may inform his
or her employees that a process for decertification exists and
direct them to the board for information. However any card,
signature, vote, or other indicator obtained for this purpose by
means of coercion or threat or with the assistance or inducement of
any employer shall be invalid.
(8)
(11) Disputes, other than disputes concerning the operation
and application of ongoing contracts, disputes subject to binding
interest arbitration pursuant to subparagraph (C)
(B) of paragraph (5), and economic disputes arising in the
context of multiemployer bargaining pursuant to subparagraph
(B) (A) of paragraph (5), but including
disputes concerning the rights established in paragraphs (1) and
(2), upon complaint shall be adjudicated by the board , and
and the stewards. The stewards shall have the
authority to order any remedy, including reinstatement of employment,
injunctive relief, damages, and attorney's fees. The board is
authorized to contract with the Agricultural Labor Relations Board
for the services of investigators or counsel to investigate, make
findings of fact, and issue recommendations to the stewards with
respect to disputes and any alleged unfair labor practices. An
investigation and adjudication by the stewards shall be concluded as
expeditiously as possible, consistent with applicable standards of
due process. In addition, the board may require the parties to
submit the issue to binding arbitration subject to judicial review
in the same manner as decisions of the board. Disputes subject to
this paragraph include
disputes involving any backstretch employee or group of employees,
and any trainer or group of trainers. Upon submission of a
complaint to binding arbitration, the board shall select an
arbitrator who is mutually accepted by the affected parties, with
hearing to be held within 72 hours of written notice to the parties.
If the parties are unable to reach agreement prior to the
commencement of arbitration, the board shall provide the parties with
a list of qualified arbitrators, from which the parties shall
alternately strike an equal number of names until one remains, who
shall be the selected arbitrator. The selected arbitrator shall have
the authority to order any remedy, including injunctive relief,
damages, and attorney's fees. Either party may bring an action in
state court to compel a party to go to arbitration or to enforce the
decision of the arbitrator, and the board may take administrative
action as necessary to ensure this paragraph is complied with. The
board may delegate all or part of its authority under this paragraph
to the executive director.
(12) Upon submission of a complaint to binding arbitration under
any provision of this article, the executive director of the board
shall select an arbitrator from a panel of professional arbitrators
with expertise in labor negotiations selected by the California State
Mediation and Conciliation Service, who shall hold a hearing within
72 hours of written notice to all the parties. In all matters
pertaining to the rights established by this article, an arbitrator
shall have the authority to fashion an appropriate remedy, including
reinstatement of employment, injunctive relief, damages, and attorney'
s fees, and issuance of a make-whole remedy in the event of a
persistent failure of a party to bargain in good faith. The board
may take any administrative action within its authority to ensure
compliance with decisions of arbitrators authorized by this section.
Either party may also bring an action in state court to compel a
party to go into arbitration or to enforce the decision of an
arbitrator. Costs of arbitration shall be shared equally by
the parties, and any party shall be entitled to recover any
reasonable fees or costs incurred in securing compliance with or
enforcement of an award or order of the arbitrator.
(e) Nothing in this section shall prevent a labor union and an
individual trainer, or any group of trainers, from entering into a
mutually acceptable agreement, which may substitute for the
requirements of subdivision (d), for union organizing of employees of
the horsemen or trainers. Nothing in this article shall be
interpreted to require representative parties in negotiation to
enter into any labor agreement, as long as each party is negotiating
in a good faith effort to reach an agreement.
19455.2. (a) The board shall provide for labor agreements under
this article to be binding upon every applicable licensee.
(b) No horseman or trainer who has a separate agreement with the
exclusive representative labor union shall be required to be a party
to a multiemployer collective bargaining agreement.
19455.4. The board may establish reasonable rules to regulate the
time, place, and manner for representatives of labor unions to meet
backstretch workers within the enclosure during working and
nonworking hours. Those rules shall provide that the union and
its representatives shall not interfere with the work of any
employee, but shall have reasonable access to backstretch employees
within the enclosure during working hours and nonworking hours, as
determined by the board. With the approval of the board, these
regulations may be superceded by collective bargaining agreements
between horsemen's organizations or trainers' organizations and labor
organizations.
SEC. 2. Section 19461 of the Business and Professions Code is
amended to read:
19461. Every license granted under this chapter is subject to
suspension or revocation by the board in any case where the board has
reason to believe that any condition regarding it has not been
complied with, or that any law, including the Labor Code and the
regulations adopted thereunder, or any rule or regulation of the
board affecting it has been broken or violated.
All proceedings to revoke a license shall be conducted in
accordance with Chapter 5 of Part 1 of Division 3 of Title 2 of the
Government Code.
SEC. 3. Section 19461.5 is added to the Business and Professions
Code, to read:
19461.5. Upon a finding by the Labor Commissioner that a
violation of any provision of the Labor Code, within the jurisdiction
of the Labor Commissioner, has been committed by a person licensed
pursuant to this chapter in the course of such licensed activity, the
Labor Commissioner shall, upon expiration of the applicable period
for appeal, notify the board of that finding.
SEC. 4. Section 19481.5 of the Business and Professions Code is
amended to read:
19481.5. (a) Notwithstanding any other provision of law, no
license shall be issued to conduct a horse racing meeting upon a
track unless the track has been inspected by the board within 30 days
prior to the date of application for a license and the track has
been approved by the board as conforming to the racetrack safety
standards set forth in subdivision (a) of Section 19481.
(b) The board shall, within 120 days of the effective date of this
subdivision, adopt emergency regulations in accordance with the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code) to
establish standards governing the employee housing provided to
backstretch personnel at licensed racetracks. These regulations
shall be deemed to be an emergency and necessary for the immediate
preservation of the public peace, health and safety, or general
welfare, shall be commensurate with the housing standards established
in the Employee Housing Act (commencing with Section 17000 of
Division 13 of the Health and Safety Code), and shall consider the
following:
(1) The health and safety of the human and equine population and
the necessity for humans and horses to live in close proximity.
(2) The housing needs of state or county facilities with live
racing meeting of no more than 43 days in duration that do not
operate as year-round training facilities. The board shall
specifically consider the different needs of these facilities
compared to permanent facilities or other state and county facilities
that function on a year-round basis, including state and county fair
facilities that operate as a year-round training facilities where
horses are stabled and workers live.
(3) Compliance of facilities with racing meetings of 19 days or
less to this subdivision shall be contingent on funding in the
2002-03 Budget Act.
These emergency regulations shall be submitted to the Office of
Administrative Law for filing with the Secretary of State and
publication in the California Code of Regulations and shall be
replaced by final, permanent regulations within 18 months of their
adoption. Every racing association shall be in compliance with these
housing standards by January 1, 2004.
(c) Commencing January 1, 2004, the board, in conjunction
with with assistance from the California
Department of Housing and Community Development or a local housing
authority for the jurisdiction in which the race track is located,
shall annually inspect the living conditions of backstretch employee
housing to ensure compliance with the housing standards established
by the board, the findings or results of which shall be submitted to
the board. No license shall be issued to a racing association to
conduct a horse race meeting unless the board has inspected the
housing conditions that exist on the race track's backstretch and
determined the living conditions to be in compliance with the
standards established by the board in subdivision (b).
(d) The board may assess a reasonable fee upon racing associations
to defray the costs associated with the inspections provided for in
subdivision (c).
SEC. 5. Section 19526 is added to the Business and Professions
Code, to read:
19526. (a) Each trainer shall keep accurate payroll records,
showing the name, address, social security number, work
classification, straight time and overtime hours worked each day and
week, paid to each of his or her employees. Each payroll
record shall contain both of the following signed declarations by the
trainer, which shall be made under penalty of perjury:
(1) That the information contained in the payroll record is true
and correct.
(2) That the employer has complied with the requirements of Labor
Code and applicable wage orders of the Industrial Welfare Commission.
(b) The payroll records enumerated under subdivision (a) shall
be certified and shall be available for inspection
at all reasonable hours at the principal office of the trainer on
the following basis:
(1) A certified copy of an employee's payroll
record shall be made available for inspection or furnished to the
employee or his or her authorized representative upon request.
(2) A certified copy of all payroll records
enumerated in subdivision (a) shall be made available for inspection
or furnished upon request to the board and the Division of Labor
Standards Enforcement of the Department of Industrial Relations.
(3) On or before January 31 of each year, each trainer shall
provide copies of federal W-2 and 1099 tax forms for his or her
backstretch employees for the previous calendar year to the
administrator of the pension fund for backstretch employees.
(c) The certified payroll records described in
this section shall be on forms provided by the Division of Labor
Standards Enforcement or shall contain the same information as the
forms provided by the division.
(d) A trainer shall file a certified copy of
make the records enumerated in subdivision (a)
available to an employee or his or her authorized
representative within 10 days after receipt of a written request.
(e) The trainer shall inform the board of the location of the
records enumerated under subdivision (a), including the street
address, city and county, and shall, within five working days,
provide a notice of a change of location and address.
(f) In addition to any other penalty imposed by law, any trainer
who fails to provide access to the records enumerated in subdivision
(a) to the board, the employee or his or her authorized
representative, the administrator of the pension or welfare funds, or
to the Division of Labor Standards enforcement as required by law
shall be subject to suspension of his or her license.
(g) Except for trainers covered by an operative collective
bargaining agreement pursuant to Section 19613.7, the board
shall may require, as a condition of issuing or
renewing a trainer's license, that the trainer annually
submit a certified declaration that they
have maintained true and correct payroll records and have complied
with the requirements of the Labor Code and applicable wage orders of
the Industrial Welfare Commission.
(h) The Labor Commissioner shall establish and maintain a program
to audit the certified payroll records of trainers
who are not parties to a collective bargaining agreement entered
pursuant to Article 2.5 (commencing with Section 19455) and who
operate in California for 90 or more racing days in a calendar year,
in a manner to ensure that every subject licensee is audited at least
once prior to January 1, 2006 , and as necessary thereafter
to ensure that at least 15 percent of subject trainers are audited
each year as part of an ongoing program . This
subdivision shall not apply to trainers who have been audited prior
to January 1, 2002, provided that audit was not a result of a formal
complaint . Evidence of substantial noncompliance with the
Labor Code and applicable wage orders of the Industrial Welfare
Commission shall be referred by the board to the Labor Commissioner.
SEC. 6. Section 19556 of the Business and Professions Code is
amended to read:
19556. (a) The distribution shall be made by the distributing
agent to beneficiaries qualified under this article. For the
purposes of this article, a beneficiary shall be all of the
following:
(1) A nonprofit corporation or organization entitled by law to
receive a distribution made by a distributing agent.
(2) Exempt or entitled to an exemption from taxes measured by
income imposed by this state and the United States.
(3) Engaged in charitable, benevolent, civic, religious,
educational, or veterans' work similar to that of agencies recognized
by an organized community chest in the State of California, except
that the funds so distributed may be used by the beneficiary for
capital expenditures.
(4) Approved by the board.
(b) At least 50 percent of the distribution shall be made to
charities associated with the horse racing industry. No beneficiary
otherwise qualified under this section to receive charity day net
proceeds shall be excluded on the basis that the beneficiary provides
charitable benefits to persons connected with the care, training,
and running of racehorses, except that type of beneficiary shall make
an accounting to the board within one calendar year of the date of
receipt of any distribution.
SEC. 7. Section 19613.8 is added to the Business and Professions
Code, to read:
19613.8. Within 60 days of a statewide majority of backstretch
workers having chosen to be represented by an exclusive collective
bargaining agent pursuant to Article 2.5 (commencing with Section
19455) or any other law, the respective organization of horsemen, or
in the case of the thoroughbred industry the organization of
trainers, shall submit a plan to the board for the administration of
the pension program by a joint labor-management committee made
up of equal representatives of trainers and labor union
representatives , consistent with the standards established by
Section 302 of the Taft-Hartley Act (29 U.S.C. Sec. 5186).
Notwithstanding Section 19613, upon approval by the board, a joint
labor-management committee shall administer the pension program.
SEC. 8. Section 19641.2 is added to the Business and Professions
Code, to read:
19641.2. (a) The nonprofit foundation authorized to receive funds
pursuant to Section 19641 shall use those funds to administer a
health and welfare trust fund without prejudice and for the benefit
of every eligible person. The welfare fund and benefits
shall be administered consistent with the standards established by
the federal Employee Retirement Income Security Act of 1974 (29
U.S.C. Sec. 1001 and following) subject to the oversight and
regulation of the board. officers and directors of the
health and welfare trust fund shall have a fiduciary responsibility
to manage the fund for the benefit of the beneficiaries.
(b) Every employer of backstretch workers shall, upon request,
submit or provide access to the administrator of the welfare program
for backstretch workers any employment records necessary for prompt
payment of benefits and proper administration of the program.
(c) On or before March 1, 2002, the welfare fund board
shall be expanded to include two additional holders of groom or
stable employee licenses who are currently employed in these
occupations at a California horse racing facility. Within 60 days of
a statewide majority of backstretch workers having chosen to be
represented by an exclusive bargaining agent pursuant to Article 2.5
(commencing with Section 19455) or any other law, that agent shall
designate two representatives to replace the board members appointed
pursuant to this subdivision. At least one member of
the health and welfare fund board shall be a member without financial
interest in the horse racing industry appointed from a list of
nominees submitted jointly by the California State Council of the
Service Employees International Union, the Jockey's Guild, and the
California Teamsters Public Affairs Council.
(d) Nothing in this section is intended to affect the status of
the welfare fund as a charity under Section 501(c)(3) of the federal
Internal Revenue Code or it compliance with the Charitable Purposes
Act (Article 7 (commencing with Section 12580) of Chapter 6 of Part 2
of Division 3 of Title 2 of the Government Code).
SEC. 9. The provisions of this act are severable. If any
provision of this act or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
SEC. 10. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.