BILL NUMBER: AB 856 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 11, 2001
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
and 19481.5 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 racetracks,
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 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.
(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 that shall include any representatives
designated by the bargaining agent .
(6) This bill would provide that its provisions are severable as
specified.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: 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 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 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 within 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 and submitted a petition containing the names of 125
backstretch workers pursuant to paragraph (3) . 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 obtain board recognition as the exclusive
bargaining agent for employees of employers pursuant to the
provisions and procedures described in paragraph (7)
(8) .
(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"
"Multiemployer bargaining unit" means any bargaining unit
created and recognized pursuant to the terms of clause (iii) of
subparagraph (A) of paragraph (6) (8) .
(C) "Approved election unit" means any election unit created and
recognized pursuant to paragraph (6) (7)
.
(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 California State
Mediation and Conciliation Service for review and validation. 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 employees
employed by licensed trainers 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 each representative of the
a multiple employer bargaining units
unit formed pursuant to this subdivision shall notify the
board and the recognized bargaining units
exclusive collective bargaining agent , 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 a 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 except within a 30-day period 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 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 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. 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 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.
(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.
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, trainers 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.
(10) Except as provided in subparagraph (C)
(A) of paragraph (5) (8) , at
any time subsequent to the expiration of an agreement under
paragraph (5) (8) , 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.
(11) Disputes, other than disputes concerning the operation and
application of ongoing contracts, disputes subject to binding
interest arbitration pursuant to subparagraph (B) of paragraph
(5) (8) , and economic disputes arising
in the context of multiemployer bargaining pursuant to subparagraph
(A) of paragraph (5) (8) , but
including disputes concerning the rights established in paragraphs
(1) and (2), upon complaint shall be adjudicated by the
board 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.
(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 or from a panel identified
in collective bargaining agreements between labor organizations and
employers in the horse racing industry in California, or both ,
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 with this subdivision ,
even if they operate as a year-round training facility, 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, with assistance from
the California Department of Housing and Community Development or a
local housing authority for the jurisdiction in which the racetrack
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 racetrack'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.
(b) The payroll records enumerated under subdivision (a) shall be
available for inspection at all reasonable hours at the principal
office of the trainer on the following basis:
(1) A 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 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 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 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 may
require, as a condition of issuing or renewing a trainer's license,
that the trainer submit a 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 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 . 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.
and so long as a majority continues to be represented
by the agent, that agent shall designate two representatives to
replace two of the members if the CHBPA Pension Administrative
Committee and the plan document shall be amended to provide for this
representation.
SEC. 8.
SEC. 7. 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 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) 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.
SEC. 8. 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.