BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Mark DeSaulnier, Chair
Date of Hearing: August 18, 2010 2009-2010 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: SB 1474
Author: Steinberg and Wright
Version: August 12, 2010
SUBJECT
Labor representatives: elections.
KEY ISSUE
Should the Legislature empower the Agricultural Labor Relations
Board (ALRB) to require an employer to bargain with a labor
organization if that employer is guilty of coercive conduct
during a secret ballot election for union representation?
PURPOSE
To require the Agricultural Labor Relations Board (ALRB) to
issue a bargaining order compelling an employer to negotiate
with a labor organization if the employer engaged in misconduct
which prevented a free and uncoerced secret ballot election for
labor representation.
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:
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 + one of the votes cast shall win the election.
Run-offs, if necessary, must take place;
Existing law provides two forums for challenging the outcome of
a secret ballot election:
1) Within 5 days of a secret ballot election,
individuals may petition the ALRB asserting, among other
things, that the petition filed for a representation
election was incorrect or objecting to the conduct of the
election or conduct affecting the results of the
election;
2) Within 6 months of an incident, someone requests
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that the general counsel of the ALRB investigate
employers, employees, and/or interested parties of
engaging in unfair labor practices, including activities
that improperly interfered with the conduct of a secret
ballot election.
Existing law requires the ALRB to conduct a hearing upon receipt
of a petition alleging an improper election. The board may
refuse to certify the election if it finds that any of the
assertions in the petition are correct or that misconduct
affected the results of the election. The ALRB must certify the
election unless it determines that there are sufficient grounds
to refuse to do so.
Existing law empowers, but does not require , the general counsel
of the ALRB to investigate claims of unfair labor practices or
take those charges to a hearing. If, after a hearing, the ALRB
finds unfair labor practices 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.
Existing case law also allows the ALRB to issue a "bargaining
order", which impels the employer to negotiate with a labor
organization, when an employer prevents a free and fair secret
ballot election from occurring through unfair labor practices.
This bill would also declare the intent of the Legislature to
provide the Agricultural Labor Relations Board (ALRB) with an
alternative basis to set aside an election and a remedy for
misconduct affecting the right of employees to a free and
uncoerced election.
This bill would also:
1) State that the Agricultural Labor Relations Board (ALRB)
may refuse to certify an election if a petition asserts,
and the Board finds that an employer is engaged in
misconduct affecting the right of employees to a free and
uncoerced choice in a secret ballot election.
2) Require that if an election has been set aside due to
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Senate Committee on Labor and Industrial Relations
employer misconduct that affected the outcome of the
election, a labor organization must be certified as the
exclusive bargaining representative if that labor
organization has already presented valid, signed
authorization cards for more than 50 percent of the
bargaining unit.
3) State that the ALRB can not refuse to certify an
election based solely on a de minimus violation of the law.
4) Require that the ALRB file a final order within one year
if the petition questioning the propriety of the election
involves unrepresented workers.
COMMENTS
1. Need for this bill?
SB 1474 was originally heard by this Committee on April 19th,
2010. As originally heard by this committee, SB 1474 would
have provided for an alternative election process, known as
the "majority sign-up election" for farm workers to elect for
a labor organization to represent them for the purposes of
collectively bargaining with their employer. As heard, the
Committee passed SB 1474 on 4-2 vote.
Since that time, the measure has been substantially
re-written. Rather than creating an alternative election
process, SB 1474 focuses on remedies for when an employer
engages in coercion in the secret ballot election, preventing
employees from having a legally-required fair election. Most
notably, SB 1474 does this by:
1) Explicitly listing employer misconduct as grounds to
challenge an election; and
2) Requiring that if an election has been set aside due to
employer misconduct that affected the outcome of the
election, a labor organization must be certified as the
exclusive bargaining representative if that labor
organization has already presented valid, signed
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authorization cards for more than 50 percent of the
bargaining unit.
The approach SB 1474 seeks to codify was first expounded in
two precedent-setting court cases addressing unfair labor
practices: National Labor Relations Board (NLRB) v. Gissel,
(1969) 395 U.S. 575 and Harry Carian Sales v. Agricultural
Labor Relations Board, (1985) 39 Cal. 3d 209.
In Gissel, the U.S. Supreme Court ruled that if it was found
that the employer engaged in "practices?to undermine majority
strength and impede the election process", the National Labor
Relations Board (NLRB) could issue a "bargaining order", or
require the employer to bargain with a labor representative if
"there is also a showing that at one point the union had a
majority". In 1985, the California Supreme Court found in
Carian Sales that the Agricultural Labor Relations Board
(ALRB) could also issue "bargaining orders" as discussed in
Gissel.
Despite this, the ALRB has not utilized this authority since
the Carian Sales decision. Moreover, this authority can only
be used for unfair labor practices hearings - not hearings on
election outcomes. The ALRB discussed this in a 2006 decision
on an election outcome challenge:
"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.
Thus, we are forced to conclude that the
election objections process where, as here, the
tally of ballots indicates an ostensible "No
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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.
SB 1474 seeks to address this problem by requiring the board
with the ability to issue bargaining orders in an employer is
found to have coerced an election outcome, compelling the
employer to negotiate with the labor organization aggrieved by
the election misconduct, if a majority of employees have shown
they support the labor organization through signing
representation cards.
2. Proponent Arguments :
Proponents argue that California's labor law enforcement in
the agricultural economy is inadequate, particularly for wage
and hour law violations, making the need for union
representation more necessary. However, proponents believe
that it is far more difficult for farm workers to elect for a
labor representative, as they are a uniquely vulnerable
population- farm workers may face immigration consequences,
most farm workers do not speak English, and many are working
to support extended families that could not survive without
the farm workers' income. Proponents believe that SB 1474
would be an important and simple step forward in protecting
the ability of farm workers to organize by requiring that if
employer misconduct prevents a fair election, the ALRB can set
the election aside and look to establish the intent of the
workers through representation cards. Proponents also note
this could serve as a necessary deterrent for employers
inclined towards engaging in prohibited harassment.
3. Opponent Arguments :
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Opponents argue that SB 1474 as currently written would
undermine the existing labor law secret ballot provisions by
require the Agricultural Labor Relations Board (ALRB) to
certify a union where an election is set aside due to employer
misconduct, even if that misconduct did not affect the
election's outcome or constitute an unfair labor practice.
Opponents also believe that the authorization cards submitted
by a union to trigger an election do not always show that a
majority of employees supported the union. Opponents contend
that employees may sign authorization cards for other reasons,
such as to merely call for an election, to stop a union
organizer from continuing to pester them for their cards, or
because they were tricked by misrepresentation as to the
consequence of signing cards. Opponents believe that a secret
ballot election is the only to determine the true preferences
of employees, even in the wake of employer misconduct.
4. Prior Legislation :
SB 789 of 2009 was nearly identical to the introduced version
of this bill, and was vetoed by Governor Schwarzenegger. His
veto message read, in part:
SB 789 sets in place a "majority signup
election" process for agricultural
employees to select union representation.
This process fundamentally alters an
employee's right to a secret ballot
election that allows the employee to
choose, in the privacy of the voting booth
without coercion or manipulation, whether
or not to be represented?. I cannot support
this alteration of the secret ballot
process.
AB 2386 (Nunez) of 2008 would have authorized agricultural
employees to select collective bargaining representation
through a new "mediated election" process. This bill was
vetoed by Governor Schwarzenegger.
SB 180 (Migden) of 2007 was almost identical to the introduced
version of SB 1474. That legislation was vetoed by Governor
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Schwarzenegger.
SUPPORT
United Farm Workers (UFW) (Sponsor)
Association of California State Supervisors (ACSS)
California Labor Federation
California Nurses Association/National Nurses Organizing
Committee
California Rural Legal Assistance Foundation
California School Employees Association (CSEA)
California State University Employees Union (CSUEU)
CSEA Retirees, Inc.
National Lawyers Guild Labor & Employment Committee
United Nurses Associations of California/Union of Health Care
Professionals
OPPOSITION
Agricultural Council of California
Alliance of Western Milk Producers
Allied Grape Growers
California Association of Wheat Growers
California Association of Winegrape Growers
California Bean Shippers Association
California Chamber of Commerce
California Citrus Mutual
California Farm Bureau Federation
California Grain & Feed Association
California Grape and Tree Fruit League
California Pear Growers Association
California Seed Association
California State Floral Association
California Warehouse Association
California Women for Agriculture
Family Winemakers of California
Grower-Shipper Association of Central California
Grower-Shipper Vegetable Association of
Santa Barbara and San Luis Obispo Counties
Nisei Farmers League
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Pacific Coast Renderers Association
Pacific Egg & Poultry Association
Ventura County Agricultural Association
Western Growers
Western United Dairymen
Wine Institute
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Senate Committee on Labor and Industrial Relations