BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 789|
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THIRD READING
Bill No: SB 789
Author: Steinberg (D)
Amended: As introduced
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMM : 4-2, 4/1/09
AYES: DeSaulnier, Ducheny, Leno, Yee
NOES: Wyland, Cogdill
SENATE APPROPRIATIONS COMMITTEE : 7-3, 4/20/09
AYES: Kehoe, Corbett, DeSaulnier, Hancock, Leno, Wolk, Yee
NOES: Cox, Denham, Walters
NO VOTE RECORDED: Oropeza, Runner, Wyland
SUBJECT : Labor representatives: elections
SOURCE : United Farm Workers
DIGEST : This bill creates a new election process for
agricultural workers to select their representatives for
collective bargaining. This bill extends existing
prohibitions and penalties to employers engaged in unfair
labor practices, with regard to a majority signup 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:
CONTINUED
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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 plus one of the votes
cast shall win the election. Run-offs, if necessary, must
take place.
2.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.
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3.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.
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.
2. 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.
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3. 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 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.
4. Requires the ALRB to keep the information on the cards
confidential.
5. 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.
6. 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.
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7. 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
cards.
8. States that an employer's duty to bargain with the labor
organization begins immediately after a labor
organization is certified.
9. 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
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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.
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
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."
According to the Public Employment Relations Board,
workplaces in the following categories may currently be
organized through a majority signup election such as that
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set forth in this bill:
1. Public and charter school employees, under the state's
Educational Employment Relations Act.
2. Higher education employees, under the state's Higher
Education Employment Relations Act.
3. Local public employees, under the state's
Meyer-Milias-Brown Act.
4. Trial court employees, under the state's Trial Court
Employment Relations Act.
5. Supervisory employees in the L.A. County Metropolitan
Transit Agency.
Prior Legislation
SB 180 (Migden) was introduced in 2007 and in its final
form was almost identical to SB 789. 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 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.
AB 2386 (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 was also vetoed by
Governor Schwarzenegger.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 4/21/09)
United Farm Workers (source)
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American Federation of State, County and Municipal
Employees, AFL-CIO
California Labor Federation
California Professional Firefighters
OPPOSITION : (Verified 4/21/09)
American Council of Engineering Companies
Associated General Contractors
California Association of Winegrape Growers
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
ARGUMENTS IN SUPPORT : According to the author's office,
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.
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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 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 SB 789.
ARGUMENTS IN OPPOSITION : 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.
AGB:nl 4/22/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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