BILL NUMBER: SB 1474 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Steinberg
(Coauthor: Senator DeSaulnier)
(Coauthor: Assembly Member Monning)
FEBRUARY 19, 2010
An act to amend Sections 1151.6, 1156, 1156.2, 1156.3, 1156.4,
1157, 1160.3, and 1160.6 of, and to add Section 1156.35 to, the Labor
Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 1474, as introduced, Steinberg. Labor representatives:
elections.
Existing law prohibits employers from engaging in unfair labor
practices, including interfering in the election by agricultural
employees of labor representatives to engage in collective bargaining
for the designated bargaining units. Existing law also provides
criminal and civil penalties for any employer or person who engages
in unfair labor practices as determined by the Agricultural Labor
Relations Board and the courts.
Existing law provides for a secret ballot election for employees
in agricultural bargaining units, as defined, to select labor
organizations to represent them for collective bargaining purposes.
This bill would permit agricultural employees, as an alternative
procedure, to select their labor representatives by submitting a
petition to the board accompanied by representation cards signed by a
majority of the bargaining unit. The board would be required to
conduct an immediate investigation to determine whether to certify
the labor organization as the exclusive bargaining representative for
the particular agricultural employees. Within 5 days after receiving
a petition, the board would be required to make a nonappealable
administrative decision. If the board determined that the
representation cards meet specified criteria, then the labor
organization would be certified as the exclusive bargaining
representative. If the board determined that the representation cards
were deficient, it would notify the labor organization of the
deficiency and grant the labor organization 30 days to submit
additional cards.
This bill would extend the existing prohibitions and penalties to
employers who engage in unfair labor practices with regard to a
majority signup election.
This bill would require that the board keep the information on the
representation cards confidential.
By expanding the definition of unfair labor practices for
infractions, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1151.6 of the Labor Code is amended to read:
1151.6. Any A person who
shall willfully resist, prevent, impede
resists, prevents, impedes , or interfere
interferes with any member of the board or any
of its agents or agencies in the performance of duties pursuant to
this part shall be is guilty of a
misdemeanor, and shall be punished by a fine of not more than five
thousand dollars ($5,000) dollars .
SEC. 2. Section 1156 of the Labor Code is amended to read:
1156. Representatives (a)
A representative designated or selected by a secret
ballot pursuant to Section 1156.3, or by a majority signup
election pursuant to Section 1156.35, for the purposes of
collective bargaining by the majority of the agricultural employees
in the a bargaining unit shall be the
exclusive representatives representative
of all the agricultural employees in such
the unit for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment, or other
conditions of employment. Any
(b) An individual agricultural
employee or a group of agricultural employees shall have
has the right at any time to present grievances
to their agricultural employer and to have such
those grievances adjusted, without the intervention of the
bargaining representative, as long as the adjustment is not
inconsistent with the terms of a collective-bargaining
collective bargaining contract or agreement then
in effect, if the bargaining representative has been given
opportunity to be present at such the
adjustment.
SEC. 3. Section 1156.2 of the Labor Code is amended to read:
1156.2. The A bargaining unit
shall be is all the agricultural
employees of an employer. If the agricultural employees of
the an employer are employed in two or more
noncontiguous geographical areas, the board shall determine the
appropriate unit or units of agricultural employees in which a secret
ballot election or a majority signup election shall be
conducted.
SEC. 4. Section 1156.3 of the Labor Code is amended to read:
1156.3. (a) A petition that is either signed by, or accompanied
by authorization cards signed by, a majority of the currently
employed employees in the bargaining unit, may be filed by an
agricultural employee or group of agricultural employees, or any
individual or labor organization acting on behalf of those
agricultural employees, in accordance with any rules and regulations
prescribed by the board. The petition shall allege all of the
following:
(1) That the number of agricultural employees currently employed
by the employer named in the petition, as determined from the
employer's payroll immediately preceding the filing of the petition,
is not less than 50 percent of the employer's peak agricultural
employment for the current calendar year.
(2) That no valid election pursuant to this section has been
conducted among the agricultural employees of the employer named in
the petition within the 12 months immediately preceding the filing of
the petition.
(3) That no labor organization is currently certified as the
exclusive collective-bargaining collective
bargaining representative of the agricultural employees of the
employer named in the petition.
(4) That the petition is not barred by an existing
collective-bargaining collective bargaining
agreement.
(b) Upon receipt of a signed petition, as described in subdivision
(a), the board shall immediately investigate the petition. If the
board has reasonable cause to believe that a bona fide question of
representation exists, it shall direct a representation election by
secret ballot to be held, upon due notice to all interested parties
and within a maximum of seven days of the filing of the petition. If,
at the time the election petition is filed, a majority of the
employees in a bargaining unit are engaged in a strike, the board
shall, with all due diligence, attempt to hold a secret ballot
election within 48 hours of the filing of the petition. The holding
of elections under strike circumstances shall take precedence over
the holding of other secret ballot elections.
(c) The board shall make available , at any election
or alternative selection process held under this chapter
, either ballots or representation cards, as
appropriate, and all materials used to select labor representatives
printed in English and Spanish. The board may also make
available at the election or selection process ballots
or representation cards, as appropriate, and all other election
materials used to selec t labor representatives
printed in any other language as may be requested by an agricultural
labor organization or any agricultural employee eligible to vote
under this part. Every election ballot, except ballots in runoff
elections where the choice is between labor organizations, shall
provide the employee with the opportunity to vote against
representation by a labor organization by providing an appropriate
space designated "No Labor Organizations."
(d) Any other labor organization shall be qualified to appear on
the ballot if it presents authorization cards signed by at least 20
percent of the employees in the bargaining unit at least 24 hours
prior to the election.
(e) (1) Within five days after an election, any person may file
with the board a signed petition asserting that allegations made in
the petition filed pursuant to subdivision (a) were incorrect,
asserting that the board improperly determined the geographical scope
of the bargaining unit, or objecting to the conduct of the election
or conduct affecting the results of the election.
(2) Upon receipt of a petition under this subdivision, the board,
upon due notice, shall conduct a hearing to determine whether the
election shall be certified. This hearing may be conducted by an
officer or employee of a regional office of the board. The officer
may not make any recommendations with respect to the certification of
the election. The board may refuse to certify the election if it
finds, on the record of the hearing, that any of the assertions made
in the petition filed pursuant to this subdivision are correct, that
the election was not conducted properly, or that misconduct affecting
the results of the election occurred. The board shall certify the
election unless it determines that there are sufficient grounds to
refuse to do so.
(f) If no petition is filed pursuant to subdivision (e) within
five days of the election, the board shall certify the election.
(g) The board shall decertify a labor organization if either of
the following occur:
(1) The Department of Fair Employment and Housing finds that the
labor organization engaged in discrimination on any basis listed in
subdivision (a) of Section 12940 of the Government Code, as those
bases are defined in Sections 12926 and 12926.1 of the Government
Code, except as otherwise provided in Section 12940 of the Government
Code.
(2) The United States Equal Employment Opportunity Commission
finds, pursuant to Section 2000e-5 of Title 42 of the United States
Code, that the labor organization engaged in discrimination on the
basis of race, color, national origin, religion, sex, or any other
arbitrary or invidious classification in violation of Subchapter VI
of Chapter 21 of Title 42 of the United States Code during the period
of the labor organization's present certification.
SEC. 5. Section 1156.35 is added to the Labor Code, to read:
1156.35. (a) As an alternative procedure to the secret ballot
election process set forth in Section 1156.3, a labor organization
may be certified as the exclusive bargaining representative of a
bargaining unit through a majority signup election. A majority signup
election permits a bargaining unit to summarily select a labor
organization as its representative for collective bargaining purposes
without holding a representation election.
(b) A labor organization that wishes to represent a particular
bargaining unit, as defined in Section 1156.2, may be certified
through a majority signup election as that unit's bargaining
representative by submitting to the board a petition for majority
signup election. The petition must allege the following:
(1) That the number of agricultural employees currently employed
by the employer named in the petition for majority signup election,
as determined from the employer's payroll immediately preceding the
filing of the petition for majority signup election, is not less than
50 percent of the employer's peak agricultural employment for the
current calendar year.
(2) That no valid election has been conducted among the
agricultural employees of the employer named in the petition for
majority signup election within the 12 months preceding the filing of
the petition.
(3) That no labor organization is currently certified as the
exclusive collective bargaining representative of the agricultural
employees of the employer named in the petition for majority signup
election.
(4) That the petition is not barred by an existing collective
bargaining agreement.
(c) (1) The petition for majority signup election in subdivision
(b) must be accompanied by representation cards signed by more than
50 percent of the currently employed employees. For purposes of this
section, "currently employed employees" means those agricultural
employees of the employer who were employed at any time during the
employer's last payroll period that ended prior to the filing of the
petition for majority signup election.
(2) The representation cards must be titled "ALRB Representation
Cards for Certification of a Labor Organization."
(3) Each representation card must include the following:
(A) A statement that the employee signing it wishes to have a
specified labor organization 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 acknowledgment that by signing the card the employee is
manifesting a desire to be represented by a labor organization.
(D) An acknowledgment that the employee is aware of the toll-free
telephone number of the Agriculture Labor Relations Board, which is
available to complain about coercion or other unfair labor practices.
(E) Sufficient space for the following information: the name of
labor organization; the name of the agricultural employer; the
employee's name, address, and telephone number; the name of the
employee's foreman; the signature of the employee; the name, address,
telephone number, and the signature of the person witnessing that
the employee signed the card; and the date when the card was signed.
(4) The board shall maintain the confidentiality and secrecy of
the employee name on the representation card. The board shall give
the representation card the same confidentiality and secrecy as a
regular election ballot.
(5) Upon the request of a labor organization, the board shall
issue standardized representation cards for use with a petition for
majority signup election, in accordance with subdivision (c) of
Section 1156.3.
(6) A representation card is valid, for the purpose of supporting
a petition for majority signup election, if it contains the name of
the labor organization, the name of the employee, and the employee's
signature. A labor organization may fill out all of the information
contained in a representation card, except for the employee's
signature.
(7) A representation card remains valid for 12 months after it is
signed by an agricultural employee.
(d) A labor organization submitting a petition for a majority
signup election shall personally serve the petition on the employer
on the same day that the petition is filed with the board. Within 48
hours after the petition is served, the employer shall file with the
board its response to the petition. As part of the response, the
employer shall provide a complete and accurate list of the full
names, current street addresses, and job classifications of all
currently employed employees in the bargaining unit. The employer
shall organize the employees' names and addresses and other
information by crew or department and shall provide the list to the
board in hard copy and electronic format. Immediately upon receiving
the list, the board shall provide a hard copy and an electronic copy
to the labor organization that filed the majority signup election
petition.
(e) (1) Upon receipt of a petition for majority signup election,
the board shall immediately commence an investigation regarding the
validity of the petition and the accompanying representation cards.
Within five days of receipt of the petition, the board shall make an
administrative determination as to whether the requirements set forth
in subdivision (b) are met by the petition and whether the labor
organization submitting the petition has submitted the number of
representation cards required by paragraph (1) of subdivision (c). In
making this determination, the board shall compare the names on the
representation cards submitted by the labor organization to the names
on the list of currently employed employees provided by the
employer. The board shall ignore discrepancies between the employee's
name listed on the representation card and the employee's name on
the employer's list if the preponderance of the evidence, such as the
employee's address and the name of the employee's foreman, shows
that the employee who signed the card is the same person as the
employee on the employer's list.
(2) The board shall return those representation cards that it
finds invalid to the labor organization that filed the petition for
majority signup election, with an explanation as to why each
representation card was found to be invalid. To protect the
confidentiality of the names on the representation cards, the board's
determination of whether a particular card is valid shall be final
and not subject to appeal or review.
(3) If the board determines that the labor organization has
submitted the required number of representation cards and met the
requirements set forth in this section and in Section 1156.4, it
shall immediately certify the labor organization as the exclusive
bargaining representative of the employees in the bargaining unit. An
employer's duty to bargain with the labor organization commences
immediately after the labor organization is certified.
(4) If the board determines that the labor organization has not
submitted the requisite number of valid representation cards, or that
the representation cards fail to meet the requirements set forth in
this section or in Section 1156.4, the board shall notify the labor
organization of the deficiency and grant the labor organization 30
days from the date it is notified to submit additional representation
cards.
(f) (1) 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.
(2) 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 of the grounds set forth in paragraph (1)
are true, the board shall revoke the certification issued under
subdivision (e).
(3) The filing of a petition objecting to a majority signup
election certification shall not diminish the duty to bargain or
delay the running of the 180-day period set forth in subdivision (a)
of Section 1164.
(4) If the board finds, after a hearing, that an employer has
assisted, supported, created, or dominated a labor organization for
the purpose of filing a majority signup election petition, the board
shall order the employer to pay for all the costs and expenses
incurred by a labor organization challenging a majority signup
election.
(g) The board shall not permit the filing of an election petition
pursuant to Section 1156.3 once a majority signup petition is filed
until the board determinates whether the labor organization filing
the majority signup election petition should be certified.
(h) Once a labor organization has filed a majority signup election
petition, no other majority signup election petition shall be
considered by the board with the same agricultural employer until the
board determines whether the labor organization that filed the
pending majority signup election petition should be certified.
(i) For purposes of Section 1156.5, a majority signup election is
a valid election.
SEC. 6. Section 1156.4 of the Labor Code is amended to read:
1156.4. Recognizing that agriculture is a seasonal occupation for
a majority of agricultural employees, and wishing to provide the
fullest scope for employees' enjoyment of the rights included in this
part, the board shall not consider a representation petition ,
petition for majority signup election, or a petition to
decertify as timely filed unless the employer's payroll reflects 50
percent of the peak agricultural employment for such employer for the
current calendar year for the payroll period immediately preceding
the filing of the petition.
In this connection, the peak agricultural employment for the prior
season shall alone not be a basis for such
this determination, but rather the board shall estimate peak
employment on the basis of acreage and crop statistics ,
which shall be applied uniformly throughout the State of California
, and upon all other relevant data.
SEC. 7. Section 1157 of the Labor Code is amended to read:
1157. All agricultural employees of the employer whose names
appear on the payroll applicable to the payroll period immediately
preceding the filing of the petition of such an
for a representation election or a majority signup
election shall be eligible to vote. An economic striker shall be
eligible to vote under such regulations as the board shall
find finds are consistent with the purposes and
provisions of this part in any election, provided that the striker
who has been permanently replaced shall not be eligible to vote in
any election conducted more than 12 months after the commencement of
the strike.
In the case of elections conducted within 18 months of the
effective date of this part which involve labor disputes
which that commenced prior to such
the effective date, the board shall have the
jurisdiction to adopt fair, equitable, and appropriate eligibility
rules, which shall effectuate the policies of this part, with respect
to the eligibility of economic strikers who were paid for work
performed or for paid vacation during the payroll period immediately
preceding the expiration of a collective-bargaining
collective bargaining agreement or the
commencement of a strike ; , provided
, however, that in no event shall the board afford
eligibility to any such striker who has not
performed any services for the employer during the 36-month period
immediately preceding the effective date of this part.
SEC. 8. Section 1160.3 of the Labor Code is amended to read:
1160.3. (a) The testimony taken by
such a member, agent, or agency, or the board
in such a hearing shall be reduced to
writing and filed with the board. Thereafter, in its discretion, the
board, upon notice, may take further testimony or hear argument.
If,
(b) If, based upon the
preponderance of the testimony taken, the board shall be of
the opinion finds that any
a person named in the complaint has engaged in or is
engaging in any such unfair labor practice, the
board shall state its findings of fact and shall issue and cause to
be served on such the person an order
requiring such that person to cease and
desist from such the unfair labor
practice , and to take affirmative
action, including reinstatement of employees with or without backpay,
and making employees whole, when the board deems
such relief appropriate, for the loss of pay resulting from the
employer's refusal to bargain, and to provide such
providing any other relief as will
would effectuate the policies of this part. Where an order
directs reinstatement of an employee, backpay may be required of the
employer or labor organization, as the case may be, responsible for
the discrimination suffered by him the
employee . Such The order may
further require such the person
named in the complaint to make reports from time to time
showing the extent to which it the employer
has complied with the order. If,
(c) If the board finds that an employer has willfully or
repeatedly committed an unfair labor practice under subdivision (a)
or (c) of Section 1153 while employees of the employer were seeking
representation by a labor organization or after a labor organization
was designated as a representative under Section 1156, the board may,
in addition to any order permitted by this section, impose a civil
penalty of up to twenty thousand dollars ($20,000) for each
violation. The board shall determine the amount of any civil penalty
imposed based upon the impact of the unfair labor practice on the
charging party or on other persons seeking to exercise rights
guaranteed by this part, or on the public interest.
(d) If, upon the preponderance of
the testimony taken, the board shall be of the opinion
finds that the person named in the complaint has
not engaged in or is not engaging in any unfair labor practice, the
board shall state its findings of fact and shall issue an order
dismissing the complaint. No An order
of the board shall not require the reinstatement of any
individual as an employee who has been suspended or discharged, or
the payment to him or her of any backpay, if such
the individual was suspended or discharged for
cause. In case the evidence is presented before a member of the
board, or before an administrative law officer thereof, such
the member , or
such administrative law officer, as the case may be, shall
issue and cause to be served on the parties to the proceedings a
proposed report, together with a recommended order, which shall be
filed with the board, and, if no exceptions are filed within 20 days
after service thereof upon such the
parties, or within such a further
period as the board may authorize, such the
recommended order shall become the order of the board and
become effective as therein prescribed.
(e) Until the record in a case
shall have has been filed in a court, as
provided in this chapter, the board may, at any time upon reasonable
notice and in such manner as it shall deem proper, modify or set
aside, in whole or in part, any finding or order made or issued by
it.
SEC. 9. Section 1160.6 of the Labor Code is amended to read:
1160.6. (a) Whenever it is charged that
any (1) an employer has, while the employees
of that employer were seeking representation by a labor organization
or during the period after a labor organization was recognized as a
representative, discharged or otherwise discriminated against an
employee in violation of subdivision (c) of Section 1153, threatened
to discharge or to otherwise discriminate against an employee in
violation of subdivision (a) of Section 1153, or engaged in any other
unfair labor practice within the meaning of subdivision
(a) of Section 1153 that significantly interfered with, restrained,
or coerced employees in the exercise of the rights guaranteed in
Section 1152, or (2) a person has engaged in an unfair labor
practice within the meaning of paragraph (1), (2), or (3) of
subdivision (d), or of subdivision (g), of Section 1154, or of
Section 1155, the preliminary investigation of such
the charge shall be made forthwith and given
priority over all other cases except cases of like character in the
office where it is filed or to which it is referred. If,
(b) If, after such
the investigation, the officer or regional
attorney to whom the matter may be referred has reasonable cause to
believe such the charge is true and
that a complaint should issue, he or she shall, on behalf
of the board, petition the superior court in the county in which the
unfair labor practice in question has occurred, is alleged to have
occurred, or where the person alleged to have committed the unfair
labor practice resides or transacts business, for appropriate
injunctive relief pending the final adjudication of the board with
respect to the matter. The officer or regional attorney shall make
all reasonable efforts to advise the party against whom the
restraining order is sought of his or her intention to
seek such an order at least 24 hours
prior to doing so. In the event the officer or regional attorney has
been unable to advise such a party of
his or her intent at least 24 hours in advance, he or
she shall submit a declaration to the court under penalty of
perjury setting forth in detail the efforts he or she has
made. Upon the filing of any such a
petition, the superior court shall have jurisdiction to grant such
injunctive relief or temporary restraining order as it deems just and
proper. Upon the filing of any such a
petition, the board shall cause notice thereof to be served upon any
person involved in the charge , and such
that person, including the charging party, shall
be given an opportunity to appear by counsel and present any
relevant testimony. For the purposes of this section, the superior
court shall be deemed to have jurisdiction of a labor organization
either in the county in which such the
organization maintains its principal office, or in any county in
which its duly authorized officers
or agents are engaged in promoting or protecting the
interests of employee members. The service of legal process upon
such an officer or agent shall
constitute service upon the labor organization and make such
the organization a party to the suit. In
situations where such relief is appropriate, the procedure specified
herein shall apply to charges with respect to paragraph (4) of
subdivision (d) of Section 1154.
SEC. 10. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.