BILL ANALYSIS
SB 789
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Date of Hearing: May 6, 2009
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
William W. Monning, Chair
SB 789 (Steinberg) - As Amended: April 14, 2009
SENATE VOTE : 23-14
SUBJECT : Agricultural labor representatives: elections.
SUMMARY : Authorizes agricultural employees to select collective
bargaining representation through a specified "majority signup
election" process, in addition to the existing representation
election process provided for under current law. Specifically,
this bill :
1 Provides that, as an alternative to the secret ballot election
process established under existing law, a labor organization
may be certified as the exclusive bargaining representative
through a "majority signup election."
2)Requires a labor organization that wishes to become the
exclusive bargaining representative through the "majority
signup election" process to submit a petition with the
Agricultural Labor Relations Board (ALRB), accompanied by
representation cards signed by more than 50% of the currently
employed employees.
3)Specifies that such a petition must allege the following:
a) That the number of agricultural employees currently
employed by the employer is not less than 50% of the
employer's peak agricultural employment for the current
calendar year;
b) That no valid election has been conducted within the
previous 12 months;
c) That no labor organization is currently certified as the
exclusive representative of the agricultural employees
named in the petition; and,
d) That the petition is not barred by an existing
collective bargaining agreement.
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4)Specifies the content of representation cards used and
requires ALRB, upon request of a labor organization, to issue
standardized representation cards for use with a petition for
"majority signup election."
5)Requires a labor organization submitting a petition for a
"majority signup election" to personally serve the petition on
the employer the same day that the petition is filed with
ALRB.
6)Requires the employer, within 48 hours after the petition is
served, to file with ALRB its response to the petition,
including a complete and accurate list of the full names,
current street addresses, and job classifications of all
employees in the bargaining unit.
7)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.
8)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.
9)States that an employer's duty to bargain with the labor
organization begins immediately after the labor organization
is certified.
10)Authorizes any person, within five days after ALRB certifies
a labor organization, to submit an objection to the
certification on one or more of the following grounds:
a) Allegations in the majority signup petition were
false;
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b) ALRB improperly determined the geographical scope of
the bargaining unit;
c) The "majority signup election" was conducted
improperly; or,
d) Improper conduct affected the results of the
"majority signup election."
11)Requires the ALRB to conduct a hearing upon an objection
petition and, if it determines that any of the above
allegations are true, to revoke the certification of the labor
organization.
12)Provides that if ALRB finds that an employer has willfully or
repeatedly committed specified unfair labor practices, it may
impose a civil penalty of up to $20,000 for each violation.
13)Adds specified unfair labor practice charges to the list of
charges to which ALRB must give priority over all other cases,
except cases of a similar character.
EXISTING LAW provides for a representation election process in
which a petition is submitted to ALRB signed by a majority of
agricultural employees in a bargaining unit, or accompanied by
cards signed by a majority of the employees in the unit. If
ALRB finds that the petition is accurate and meets specified
conditions, existing law requires it to conduct an election by
secret ballot within seven days of the filing of the petition.
FISCAL EFFECT : According to the Senate Committee on
Appropriations, the alternative election process will result in
a potentially significant reduction in costs compared to the
current process. However, the investigation of filings will
result in unknown new costs potentially in the range of $50,000
annually.
COMMENTS : This bill is sponsored by the United Farm Workers
(UFW), who argues that it will allow a majority of farm workers
to choose a representative union by either a secret ballot
election or a "majority signup" process, both to be controlled
an overseen by the ALRB.
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Brief Background on The Agricultural Labor Relations Act
Collective bargaining rights of private sector employees
generally fall under the exclusive purview of federal labor law
under the National Labor Relations Act (NLRA). However, Section
2(3) of the NLRA explicitly excludes "agricultural laborers"
from the protections of the federal law.
Therefore, in 1975, the California Legislature passed the
Agricultural Labor Relations Act (Act) guaranteeing certain
rights to California farm workers. The purpose of the Act is to
"ensure peace in the agricultural fields by guaranteeing justice
for all agricultural workers and stability in labor relations."
The Act states that it is the policy of the State of California
to encourage and protect the right of farm workers to act
together to help themselves, to engage in union organizational
activity and to select their own representatives for the purpose
of bargaining with their employer for a contract covering their
wages, hours, and working conditions. The Act prohibits
employers from interfering with these rights, protects the
rights of workers to be free from restraint or coercion by
unions or employers, and it prohibits unions from engaging in
certain types of strikes and picketing.
The agency established to implement the Act is the ALRB, which
functions in two primary manners. First, the ALRB determines
and implements, through secret ballot elections, the right of
agricultural employees to choose whether or not they wish to be
represented by a labor organization for the purpose of
collective bargaining with their employer. Second, the Act
gives authority to the ALRB to investigate, process and take to
trial employers or unions who engage in actions which the Act
describes as "unfair labor practices."
The most significant legislative change to the Act occurred in
2002 when Governor Davis signed two companion pieces of
legislation, SB 1156 and AB 2956. As a result of those bills,
effective January 1, 2003, the Act was amended to provide for
mandatory mediation in selected circumstances where the parties
have been unable to reach a collective bargaining agreement.
Under that process, the mediator attempts to help the union and
the employer reach agreement on a contract, but if that is not
successful, the mediator issues a report that contains the terms
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of a contract.
The mediation process applies only if the employer has employed
25 or more agricultural employees during any calendar week in
the year preceding the filing of the request for mediation. If
the union was certified after January 1, 2003, the mediation
process may be triggered where at least 180 days have elapsed
after the initial demand to bargain. If the union was certified
before January 1, 2003, the process may be triggered 90 days
after a renewed demand to bargain, and where the following
conditions are met: (1) the parties have failed to reach
agreement for at least one year after the union made its initial
demand to bargain; (2) the employer has committed an unfair
labor practice; and (3) the parties have not previously had a
binding contract between them.
Recent Legislative Oversight
In August 2006, the Senate Committee on Labor and Industrial
Relations and the Senate Judiciary Committee held a joint
informational hearing entitled, "Labor and Civil Rights of Farm
Workers."
The stated purpose of the hearing was to "begin examining the
effectiveness of the [Act's] current process and procedures for
employees to freely determine whether they want collective
bargaining representation and to explore what changes in the law
may be necessary to fulfill the State of California's policy in
this area."
At the hearing, J. Antonio Barbosa, Executive Secretary of the
ALRB, testified that from 1975 to 2006, the ALRB had processed
1,864 election petitions, held 1,280 elections, and issued
certifications (either way) in 1,071 cases. Between 2000 and
2007, the ALRB had issued 48 certifications, with 29 elections
resulting in a plurality for a particular union and 19 resulting
in a plurality for "no union."
During the hearing, members of UFW testified about the
challenges they face in participating in representation
elections due to allegations of employer intimidation and
coercion. In addition, Mr. Barbosa discussed the challenges of
conducting a representation election due to the ALRB's lack of
funding and staff. Finally, Kristin Martin, an attorney with
Davis, Cowell & Bowe, suggested "majority signup" as a way for
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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.
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," which would
authorize majority signup under the National Labor Relations Act
(NLRA). However, agricultural employees are currently excluded
from coverage under the NLRA.
ARGUMENTS IN SUPPORT :
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, AFL-CIO 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 Labor
Standards Act, and Federal Child Labor laws. Even today, farm
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workers are not covered by California's eight-hour day overtime
laws. They argue that farm workers deserve the rights afforded
by this bill.
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 states 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.
PRIOR LEGISLATION :
This bill is almost identical to SB 180 (Migden) from 2007. That
measure was vetoed by Governor Schwarzenegger, who stated the
following in his veto 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 laws, 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.
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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. 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."
SB 650 (Padilla) from 2007 was similar to SB 180, but also
contained a 2013 sunset date. That bill was similarly vetoed by
Governor Schwarzenegger.
AB 2386 (Nunez) from 2008 would have authorized agricultural
employees to select collective bargaining representation through
a new "mediated election" process. That measure was also vetoed
by Governor Schwarzenegger, who stated the following:
"In 1975, the historical Agricultural Labor Relations
Act (ALRA) was passed by the California Legislature 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
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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 the 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."
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
California Labor Federation, AFL-CIO
California Professional Firefighters
United Farm Workers (sponsor)
Opposition
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 Labor and Workforce Development Agency
California Manufacturers and Technology Association
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California Restaurant Association
California Retailers Association
Greater Fresno Area Chamber of Commerce
National Federation of Independent Business
National Right to Work Committee
Valley Industry and Commerce Association
Western Electrical Contractors Association - Independent
Electrical Contractors
Western Growers
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091