BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Mark DeSaulnier, Chair
Date of Hearing: April 1, 2009 2009-2010 Regular
Session
Consultant: Rodger Dillon Fiscal:Yes
Urgency: No
Bill No: SB 789
Author: Steinberg
Version: As proposed to be amended
SUBJECT
Labor representatives: elections
KEY ISSUE
Should the State of California establish an alternative,
card-check procedure by which agricultural employees could
decide whether to select a particular labor organization to
represent them for collective bargaining purposes?
PURPOSE
To give agricultural employees an alternative method for
choosing their collective bargaining representative - the
majority signup election - that is less complicated and faster
than the existing secret ballot election.
ANALYSIS
Existing law provides for a secret ballot election process for
agricultural workers where a petition has been submitted, as
specified, asking for the opportunity for workers to decide
whether to select a particular union as their collective
bargaining representative. Specifically, the law:
1.Allows for the filing of a petition that is signed by a
majority of the current employees in a collective bargaining
unit, or accompanied with cards signed by a majority of the
current employees in a collective bargaining unit, with the
Agricultural Labor Relations Board (ALRB) to seek
representatives to collectively bargain for the employees in
the bargaining unit. The petition must allege the following:
a) That the number of employees of the employer named in
the petition is not less than 50 percent of the employer's
peak agricultural employment for the current calendar year.
b) That a valid election has not been conducted among the
agricultural employees of the employer named in the
petition within 12 months immediately preceding the filing
of the petition.
c) That no labor organization is currently certified as the
exclusive collective bargaining representatives for the
employees of the employer named in the petition.
d) That the petition is not barred by an existing
collective bargaining agreement.
Upon receiving the signed petition, the ALRB must investigate
the petition immediately. If the ALRB finds that the petition
is accurate, then it must hold an election by secret ballot
within seven days of the filing of the petition. The ALRB
must print ballots that list the labor organization or
organizations that seek to represent the employees, as well as
a "no labor organizations" voting option. Whoever receives 50
percent + one of the votes cast shall win the election.
Run-offs, if necessary, must take place.
1.Defines a number of activities of employers, employees, and/or
interested parties as improper interference with the election
process - generally known as unfair labor practices.
2.Allows the ALRB hold hearings to decide if any unfair labor
practices took place, and if it finds such actions took place,
the ALRB must issue a cease and desist order and also take
affirmative action, which can include reinstatement with or
without back pay, and making an employee whole, where
appropriate, for loss of pay.
Hearing Date: April 1, 2009 SB 789
Consultant: Rodger Dillon Page 2
Senate Committee on Labor and Industrial Relations
This bill :
1.Creates an alternative procedure to the secret ballot election
- the majority signup election - which would allow employees
of a collective bargaining unit to select their representative
for collective bargaining by submitting a petition that
alleges the following:
a) That the number of employees currently employed by the
employer named in the petition is not less than 50 percent
of the employer's peak agricultural employment for the
current calendar year.
b) That a valid election has not been conducted among the
agricultural employees of the employer named in the
petition within the 12 months immediately preceding the
filing of the petition.
c) That no labor organization is currently certified as the
exclusive collective-bargaining representatives of the
employees of the employer named in the petition.
d) That the petition is not barred by an existing
collective bargaining agreement.
1.Requires that the petition must be accompanied with
representation cards signed by more than 50 percent of the
currently employed employees in the bargaining unit. These
cards must be issued by the ALRB upon the request of a labor
organization. The representation cards must include
sufficient space for the name of the labor organization, the
name of the agricultural employer, the employee's name,
address and phone number, the name of the employee's foreman,
the signature of the person witnessing the employee that
signed the card, and the date that the card was signed.
2.Provides that a representative card is considered valid if the
card includes the name of the labor organization, the
employee's name, and the employee's signature. The
representative card must also include:
a) A statement that the employee signing the card wishes to
Hearing Date: April 1, 2009 SB 789
Consultant: Rodger Dillon Page 3
Senate Committee on Labor and Industrial Relations
have a specified labor representative as his or her
collective-bargaining representative with respect to rates
of pay, wages, hours of employment, and other conditions of
employment.
b) A statement that no promises or threats were made to
obtain the employee's signature on the card.
c) An acknowledgement that by signing the card the employee
is manifesting a desire to be represented by a labor
organization.
d) An acknowledgement that the employee is aware of the
Agriculture Labor Relations Board's toll-free number, which
is available for complaints about coercion or other
unfair labor practices.
1.Requires the ALRB to keep the information on the cards
confidential.
2.Requires that the labor representative submitting the petition
must also personally serve the employer with the petition the
same day the ALRB receives it. The employer then has 48 hours
to give the ALRB a complete and accurate list of all of the
employees in the bargaining unit.
3.Requires ALRB, upon receipt of a petition for "majority signup
election," to immediately commence an investigation. Within
five days of receipt of the petition, ALRB shall make an
administrative determination whether the petition requirements
have been met and the labor organization has submitted the
requisite number of representation cards by comparing the
names on the cards to the names on the list submitted by the
employer.
4.Specifies that if ALRB determines that the labor organization
has submitted the requisite number of representation cards and
met other requirements, it shall immediately certify the labor
organization as the exclusive bargaining representative. If
ALRB determines that the labor organization has not
submitted the requisite number of cards, it shall grant the
labor organization 30 days to submit additional representation
Hearing Date: April 1, 2009 SB 789
Consultant: Rodger Dillon Page 4
Senate Committee on Labor and Industrial Relations
cards.
5.States that an employer's duty to bargain with the labor
organization begins immediately after a labor organization is
certified.
6.Provides that within five days after the board certifies a
labor organization through a majority signup election, any
person may file with the board a petition objecting to the
certification on one or more of the following grounds:
a) Allegations in the majority signup petition were false;
b) The board improperly determined the geographical scope
of the bargaining unit;
c) The majority signup election was conducted improperly;
d) Improper conduct affected the results of the majority
signup election.
Upon receipt of a petition objecting to certification, the
board shall conduct a hearing to rule on the petitioner's
objections, and shall mail a notice of the time and place of
the hearing to the petitioner and the labor organization whose
certification is being challenged. If the board finds at the
hearing that any of the allegations in the petition are true,
the board shall revoke the certification.
10. Extends existing prohibitions and penalties to employers
who engage in unfair labor practices.
11. Provides that if the ALRB finds willful or repeated
actions by the employer to interfere, restrain, or coerce
agricultural employees in their right to self organize and
collectively bargain, or if an employer is found to be
discriminating against a member of a labor organization in
hiring or tenure of employment, or to encourage or discourage
membership in any labor organization, the ALRB may impose a
civil penalty against that employer for $20,000 for each
violation.
Hearing Date: April 1, 2009 SB 789
Consultant: Rodger Dillon Page 5
Senate Committee on Labor and Industrial Relations
This bill adds to this requirement that, should there be any
charges of discrimination or threats to discharge an employee
for belonging to or seeking to belong to a labor organization,
or any charges of an employer trying to interfere, restrain,
or coerce agricultural employees in their right to self
organize and collectively bargain, the ALRB must give those
charges priority of all other cases, except cases of similar
character.
COMMENTS
1.Need for this bill?
In August of 2006, the Senate Labor Committee and the Senate
Judiciary Committee held a joint informational hearing
entitled "Labor and Civil Rights of Farm Workers". Members of
the United Farm Workers testified on the challenges of
participating in labor representative elections due to
anti-union flyers distributed by employers, as well as
intimidation and coercion. Antonio Barbosa, head of the ALRB,
also discussed the challenges of conducting an election due to
the board's lack of funding and staff. Kristin Martin, an
attorney with Davis, Cowell & Bowe, suggested majority-choice
elections as a way for employees to select
their labor representative without the conflict between
employers and labor organizations,
and without the costs associated with staffing and conducting
a traditional union election. Legislation was later
introduced in the California Legislature to attempt to
implement this latter suggestion. At the federal level,
similar complaints and problems with the secret ballot
election process have led to the introduction of legislation
known as "The Employee Free Choice Act."
2.Card-check Procedure Already in Effect on Many Public Sector
Worksites.
According to the Public Employment Relations Board, workplaces
in the following categories may currently be organized through
a majority signup election such as that set forth in SB789.
Hearing Date: April 1, 2009 SB 789
Consultant: Rodger Dillon Page 6
Senate Committee on Labor and Industrial Relations
Public and charter school employees, under the state's
Educational Employment Relations Act (EERA);
Higher education employees, under the state's Higher
Education Employment Relations Act (HEERA);
Local public employees, under the state's
Meyer-Milias-Brown Act (MMB);
Trial court employees, under the state's Trial Court
Employment Relations Act;
Supervisory employees in the L.A. County Metropolitan
Transit Agency.
1.Proponent Arguments :
The author's office notes that farm workers are an unusually
vulnerable workforce demographic in California. The author
also states that many farm workers work in isolated areas,
making inspections for labor regulations difficult. The
author argues that these conditions present a strong need for
collective bargaining and a union presence. There is
overwhelming evidence, of workers being prohibited from
engaging in the collective bargaining process due to
organizing efforts being blocked by employers through
coercion, anti-union pamphlets, and captive audience meetings
prevent fair elections from taking place. The California
Labor Federation states that the statistics on employer
interference in union organizing campaigns, as detailed in a
report by Cornell University scholar Kate Bronfenbrenner, are
alarming: Ninety-two percent of private-sector employers
require employees to attend closed-door meetings to hear
anti-union propaganda. Seventy-five percent of employers hire
outside consultants to run anti-union campaigns. Half of
employers threaten to shut down if employees join a union. In
25 percent of organizing campaigns, private-sector employers
illegally fire workers because they want to form a union.
The author believes that majority choice elections will allow
California's farm workers to choose the best options for
having a fair say as it relates to their working conditions.
Finally, the United Farm Workers point out that Farm workers
have been singled out for decades: excluded from the National
Labor Relations Act, the Federal Insecticide Act, the Fair
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Senate Committee on Labor and Industrial Relations
Labor Standards Act, and Federal Child Labor laws. Even today,
farm workers are not covered by California's overtime laws.
Farm workers deserve the rights afforded by SB789.
2.Opponent Arguments :
The National Right to Work Committee (NRWC) states that card
check is Big Labor's latest scheme to organize workers without
even giving them the protection of a secret ballot vote free
from union coercion. Card check recognition is a
fundamentally flawed process due in large part to its lack of
confidentiality among workers, opponents argue. Further,
unlike a secret ballot process where workers retain their
ability to choose, under card check union officials often use
lies, coercion, and intimidation tactics to pressure workers
to sign union authorization cards. NRWC cites two articles
from the Las Vegas Review-Journal that relate stories of
employees who were threatened if they refused to support the
union effort. The California Chamber of Commerce notes that
labor unions in California are experiencing a decline in
membership. Bolstering their numbers should occur because
workers see a need, not by adulterating the election process.
They reject attempts to undermine the secret ballot process in
California in any way as this sends the wrong message to new
or growing businesses that could create jobs for California
citizens.
3.Prior Legislation :
SB180 (Migden) was introduced in 2007 and in its final form
was almost identical to SB789. That legislation was vetoed by
Governor Schwarzenegger. The governor's veto stated, in part:
By setting in place a 'card-check' organizing process,
SB 180 significantly changes the protections afforded
to all of California's agricultural workers under the
ALRA. This 'card-check' process fundamentally alters
an employee's right to a secret ballot election that
currently affords them the opportunity to cast a ballot
Hearing Date: April 1, 2009 SB 789
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Senate Committee on Labor and Industrial Relations
privately without fear of coercion or manipulation by
any interested parties. This bill also limits the
opportunity for employees to hear and consider other
viewpoints on unionization. For these reasons, I am
returning SB 180 without my signature.
AB2386 (Nunez) was introduced in 2008. This legislation would
have authorized agricultural employees to select collective
bargaining representation through a new "mediated election"
process. This bill, too, was vetoed by Governor
Schwarzenegger.
SUPPORT
United Farm Workers (sponsor)
California Labor Federation
OPPOSITION
Associated General Contractors
California Business Properties Association
California Chamber of Commerce
California Farm Bureau Federation
California Framing Contractors Association
California Grocers Association
California Hospital Association
California Hotel & Lodging Association
California Independent Grocers Association
California Restaurant Association
California Retailers Association
National Federation of Independent Business
National Right to Work Committee
Western Electrical Contractors Association-Independent
Electrical Contractors
Western Growers
* * *
Hearing Date: April 1, 2009 SB 789
Consultant: Rodger Dillon Page 9
Senate Committee on Labor and Industrial Relations