BILL ANALYSIS
SB 1474
Page 1
SENATE THIRD READING
SB 1474 (Steinberg)
As Amended August 12, 2010
Majority vote
SENATE VOTE :22-11
LABOR & EMPLOYMENT 4-1 APPROPRIATIONS 12-5
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|Ayes:|Swanson, Furutani, |Ayes:|Fuentes, Bradford, |
| |Monning, Yamada | |Charles Calderon, Coto, |
| | | |Davis, |
| | | |De Leon, Gatto, Hall, |
| | | |Skinner, Solorio, |
| | | |Torlakson, Torrico |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Bill Berryhill |Nays:|Conway, Harkey, Miller, |
| | | |Nielsen, Norby |
| | | | |
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SUMMARY : Requires the Agricultural Labor Relations Board (ALRB)
to certify a labor organization for purposes of collective
bargaining if a representation election has been set aside for
employer misconduct, as specified. Specifically, this bill :
1)Authorizes the ALRB to refuse to certify an election if it
finds that the employer engaged in misconduct affecting the
right of employees to a free and uncoerced choice in a secret
ballot election.
2)Specifies that the ALRB shall not refuse to certify an
election based solely on a de minimis violation of the law.
3)Provides that, notwithstanding any other provision of law, if
an election has been set aside because of employer misconduct
that affected the outcome of the election, a labor
organization shall be certified as the exclusive bargaining
representative if it has already submitted valid authorization
cards signed by more than 50 percent of the employees.
4)In cases involving election objection petitions filed
regarding bargaining units with no current certified
bargaining representative, requires the ALRB to issue a final
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order on the matter within twelve months after the objection
petition is filed.
5)Declares the intent of the Legislature to provide the ALRB, in
addition to existing law and standards, with an alternative
basis to set aside an election and a remedy for misconduct
affecting the right of employees to a free and uncoerced
choice in a secret ballot election.
EXISTING LAW authorizes the ALRB to refuse to certify an
election if it finds that any of the assertions made in on
objection petition are correct, that the election was not
conducted properly, or that misconduct affecting the results of
the election occurred. Current law requires the ALRB to certify
an election unless it determines that there are sufficient
grounds to refuse to do so.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, this bill will result in unknown, probably minor net
costs to the ALRB.
COMMENTS : As introduced, this bill would have authorized
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. The sponsor of the
bill, the United Farm Workers (UFW), and other supports argued
that majority choice elections would allow California's farm
workers to truly and freely choose the best options for their
livelihood and that of their family. Opponents to the
introduced version of the bill argued that majority choice
elections are not a real election, is fundamentally
undemocratic, opens workers up to intimidation from unions in
their homes, and that they deprive farm workers of a proper
debate regarding the pros and cons of union representation.
However, this bill was recently amended to instead require the
ALRB to certify a labor organization for purposes of collective
bargaining if a representation election has been set aside for
employer misconduct, as specified.
Under federal labor law, the National Labor Relations Board
(NLRB) may issue "bargaining orders" as a remedy where an
employer has committed unfair labor practices which have made
the holding of a fair election unlikely or which have in fact
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undermined a union's majority and caused an election to be set
aside. This remedy is generally referred to as a "Gissel
bargaining order" after the federal case which reaffirmed the
authority of the NLRB to issue such orders. NLRB v. Gissel ,
(1969) 395 U.S. 575.
Following the enactment of the Agriculture Labor Relations Act
(ALRA) in 1975, it was an open question as to whether the ALRB
had similar authority as the NLRB to issue "bargaining orders"
as a remedy in certain cases.
This question was resolved in the affirmative by the California
Supreme Court in Harry Carian Sales v. ALRB, (1985) 39 Cal.3d
209. The court began by noting that the ALRA, like the NLRA,
neither expressly authorizes nor expressly prohibits the
issuance of bargaining orders. However, the court held that
such bargaining orders are in fact authorized under the ALRA,
stating, "[W]ere we to interpret the ALRA to prohibit the
issuance of bargaining orders, employers would be free to commit
egregious unfair labor practices as a means of avoiding union
organization, or defeating a union in an election, without fear
of significant sanction." Id . at 223-4.
The UFW contends that, despite this authority to issue
bargaining orders in cases of egregious employer misconduct, the
ALRB has not done so since the legal question was resolved by
the California Supreme Court in 1985.
UFW argues that currently there is no effective remedy in law to
enforce a farm worker's right to a secret ballot election free
from fear of coercion or manipulation. As evidence of this,
they point to a recent decision of the ALRB which stated the
following:
"In these circumstances, due to the lack of any
sanctions other than setting aside the election,
there is no method of removing the taint on
employee free choice created by the election
misconduct. As a result, the setting aside of the
election merely returns the situation to the
status quo before the election petition was filed,
but with the residual effect on free choice from
the misconduct. Obviously, this allows wrongdoers
to profit from their misconduct even if it results
in the setting aside of the election.
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Thus, we are forced to conclude that the election
objections process where, as here, the tally of
ballots indicates an ostensible "No Union"
victory, is all but a meaningless exercise in
terms of its affect on the rights of the parties
and the employees. Regrettably, the statute in its
present form does not provide the Board with
remedial authority through which it might address
this problem. Consequently, it is a problem that
may be addressed only by the Legislature."
Giumarra Vineyards Corp . (2006) 32 ALRB 5, at 5.
UFW argues that this bill creates parity so that if ALRB finds
employer wrongdoing, their victory would be taken away by
immediately certifying a labor organization. The bill ensures
the secret ballot election process is protected at all costs.
UFW concludes that the remedy provided in this bill would serve
to eliminate the ALRB's identified problem of employers
"profiting" from their misconduct even if that misconduct means
violating a farm worker's rights under a secret ballot election.
Opponents argue that the existing law has been well-served for
over 30 years and that the changes proposed by this bill are
unnecessary and unwarranted. Opponents also express concern
about the precedent this bill sets for other industries.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
FN: 0005874