BILL ANALYSIS
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
789 (Steinberg)
Hearing Date: 4/20/2009 Amended: 4/14/2009
Consultant: Bob Franzoia Policy Vote: L&IR 4-2
_________________________________________________________________
____
BILL SUMMARY: SB 789 would permit agricultural employees, as an
alternative procedure, to select their labor representatives by
submitting a petition to the Agricultural Labor Relations Board
(ALRB) accompanied by representation cards signed by a majority
of the bargaining unit. This bill would also extend existing
prohibitions and penalties to employers who engage in unfair
labor practices with regard to a majority signup election.
_________________________________________________________________
____
Fiscal Impact (in thousands)
Major Provisions 2009-10 2010-11 2011-12 Fund
Alternative election Potentially significant reduction in
costs General
process compared to current process
Investigation of filings of Unknown new costs potentially
in the range General
unfair labor practices of $50 annually; likely decreasing in
future
years; unknown increase, if any, in
penalty
revenues
_________________________________________________________________
____
STAFF COMMENTS: This bill may meet the criteria for referral to
the Suspense File.
Under current law, the selection of representation by
agricultural employees requires that, after a petition has been
presented to the ALRB, the ALRB has seven days to investigate
and conduct an election. The ALRB assigns employees to monitor
voting locations and other activities in order to ensure an
impartial election process. Costs to the ALRB to conduct
elections under this process has ranged from approximately
$7,500 for a small (40 electors), one day election with a single
voting site to approximately $80,000 for a larger election (1430
electors) with multiple voting sites. For larger elections, the
ALRB has received assistance on a reimbursement basis from other
state and federal entities.
This bill would create a majority signup election whereby
agricultural employees would elect their labor representatives
by signing representation cards. Under a majority signup
election, labor representatives would deliver or mail the
representation cards to the ALRB for tabulation and comparison
against a list of current employees in the bargaining unit. If
more than 50 percent of the employees in the bargaining unit
sign representation cards, then the ALRB would certify the
election and recognize the labor representative.
Under this bill, the employer would have 48 hours after the
petition is served to file with the ALRB its response to a
petition. The ALRB would have 48 hours after a petition for
Page 2
SB 789 (Steinberg)
majority signup election if filed to determine whether the labor
organization submitted the number of representation cards
required. This bill prescribes what information must be
included on a representation card.
From 2000 to 2009, there have been approximately 50 petitions
for representation or decertification. In some years, there has
been as few as one petition or as many as 11 petitions. This
analysis assumes that if majority signup elections are
authorized, there would be an increase in both petition types
and there would be an initial increase in allegations of
misleading statements, forgery or fraud relating to
representation or decertification petitions. These allegations
would require investigation by the ALRB. There have been an
estimated 27 representation petitions during that period where
the petition failed, was withdrawn or dismissed. While it is
unlikely all of the same employers are conducting business now
in the manner they may have been conducting business up to as
much as nine years ago, it is anticipated that the ability to
conduct majority signup elections will result in a significant
increase in petitions in the next years.
The cost of an investigation will depend in part on the type of
allegation, the number of workers subject the petition and the
vote. For example, if there is an allegation that three
representation cards were forged and the vote was 1,200 to 100,
the time needed to investigate is much less than if there is an
allegation that three representation cards were forged and the
vote was 16 to 14. Staff estimates investigations will cost an
average of $5,000. If ten allegations are filed, and an
increase in allegations, and thus investigations, is likely to
occur in the first years that majority signup elections are
held, investigative costs could be up to $50,000 or more.
Investigating the allegations would result in new costs and
would not be an offset of savings that may result from the ALRB
conducting fewer elections under the current process. Overall,
however, this bill should result in a significant ongoing
reduction in costs associated with selecting representatives in
comparison to the current process which is far more complex and
labor intensive.
This bill is similar to SB 180 (Migden) 2007. That bill was
vetoed by the Governor with the following message:
Since I became Governor, I have made strengthening workplace
protections for agricultural workers one of my top priorities.
I have added labor law enforcement positions, reformed
farmworker housing law, and worked to adopt the first
regulations in the nation that ensure agricultural workers have
appropriate access to shade. These added protections are being
implemented under existing law without the changes proposed by
this bill to the historic Agricultural Labor Relations Act
(ALRA). The changes this bill would make to the ALRA are
unnecessary to continue our forward progress in ensuring a
better working environment for agricultural workers.
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 privately without fear of coercion
or manipulation by any
Page 3
SB 789 (Steinberg)
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.
However, I am directing my Labor and Workforce Development
Agency to work with the proponents of this bill to ensure that
all labor laws and regulations are being vigorously enforced,
and to make it absolutely clear to all concerned that my veto is
premised on an expectation that agricultural workers receive the
full protections of the law.
Additionally, SB 650 (Migden) 2007 was vetoed by the Governor
with the following message:
This bill is essentially identical to SB 180, which I also
vetoed. The concerns I expressed in vetoing that bill apply to
SB 650, as well, regardless of the insertion of a sunset clause
in this measure.
For the reasons stated in my veto of SB 180, I am returning this
bill without my signature.
This issue was also addressed by AB 2386 (Nunez) 2008. That
bill was vetoed, too, by the Governor with the following
message:
In 1975, the historical Agricultural Labor Relations Act (ALRA)
was passed by the California Legislator in order to "ensure
peace in the agricultural fields by guaranteeing justice for all
agricultural workers and stability in labor relations." The
ALRA allowed for a secret ballot election and provided
protections so that an agricultural worker could decide
privately without fear of retaliation or intimidation whether or
not to be represented by a union.
AB 2386 creates a new and unique process for how agricultural
workers choose or decline union representation. I am concerned
that aspects of AB 2386's novel process weaken workers' existing
privacy rights and protections under the ALRA. Specifically, I
am concerned that authorizing the union seeking to represent
workers to receive and distribute election ballots from the
Agricultural Labor Relations Board (board), complete information
on the ballot envelopes, and return the workers' ballots to the
board unnecessarily compromises the workers' right to privacy
protected by the existing secret ballot process.
However, as I indicated last year in my veto of SB 180, I remain
committed to ensuring that agricultural workers receive all
workplace protections that our labor laws afford. To that end,
I am calling for the creation of a dedicated funding source to
facilitate enhanced oversight and education in the agricultural
industry. I am directing my Labor and Workforce Development
Agency to work with the proponents of this bill and all
stakeholders to develop a proposal which will create such a
program in a fiscally responsible way, for the ultimate benefit
of both agricultural employees and employers.