BILL NUMBER: AB 856 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 29, 2001
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, 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,
Section 19455 of the Business and Professions
Code, relating to horse racing.
LEGISLATIVE COUNSEL'S DIGEST
AB 856, as amended, Wesson. Horse racing.
Provisions adopted in the 2001 portion of the 2001-02 Regular
Session, which becomes effective January 1, 2002, direct the
California Horse Racing Board to oversee the conduct of a union and
multiemployer collective bargaining agent recognition procedure for
backstretch employees.
This bill would amend these provision by deleting a provision that
authorizes the board to contract with the Agricultural Labor
Relations Board and by adding specifics concerning the authority of
arbitrators used to resolve disputes between parties to the
collective bargaining agreements created under these provisions.
(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 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 committee 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)
SECTION 1. Section 19455 of the Business and Professions Code, as
added by Chapter 198 of the Statutes of 2001, is amended to read:
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 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, 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 (8).
(6) For the 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) "Multiemployer bargaining unit" means any bargaining unit
created and recognized pursuant to the terms of clause (iii) of
subparagraph (A) of paragraph (8).
(c)
(C) "Approved election unit" means any election unit created
and recognized pursuant to paragraph (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 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 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 employed by licensed trainers comprising the multiple
employer bargaining unit as of the date of the election shall be
the lesser of 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 employed by licensed trainers comprising
the multiple employer bargaining unit as of the date of the election
shall be the lesser of 50 employees or 10 percent of the
total employees subject to bargaining. The minimum number of
backstretch employees 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, each representative of a multiple
employer bargaining unit formed pursuant to this subdivision shall
notify the board and the 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, a trainer who has elected to join a multiple
employer bargaining unit may not thereafter elect to resign from the
unit 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 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 of
the order, 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 executive
director of the Board 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 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 (A) of paragraph (8), at
any time subsequent to the expiration of an agreement under paragraph
(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 (8),
and economic disputes arising in the context of multiemployer
bargaining pursuant to subparagraph (A) of paragraph (8), but
including disputes concerning the rights established in paragraphs
(1) and (2), upon complaint shall be adjudicated by 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 , who
shall hold a hearing within 72 hours of written notice to all the
parties , or both . The arbitrators
selected by the service or identified in collective bargaining
agreements shall be available to resolve the matter expeditiously.
The arbitrator selected by the executive director shall have the
authority to convene an immediate hearing and require the parties to
exercise all due diligence in promptly attending to the issue in
controversy. 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.
_____________________________________ All matter omitted in this
version of the bill appears in the bill as amended in the
Senate, July 11, 2001 (JR 11)
____________________________________