BILL ANALYSIS �
SB 104
Page 1
Date of Hearing: April 6, 2011
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
SB 104 (Steinberg) - As Introduced: January 12, 2011
SENATE VOTE : 24-14
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)Creates an alternative procedure to the secret ballot election
- the majority signup election - which would allow employees
of a bargaining unit to select their representative for
collective bargaining by submitting a petition that alleges
the following:
a) That the number of agricultural employees currently
employed by the employer is not less than 50 percent 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.
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.
3)Specifies the content of representation cards used and
requires the Agricultural Labor Relations Board (ALRB), upon
request of a labor organization, to issue standardized
representation cards for use with a petition for "majority
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signup election."
4)Requires the ALRB to keep the information on the cards
confidential.
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 the
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 all employees in the
bargaining unit.
7)Requires the ALRB to assess a fine of up to $10,000 for each
day an employer fails to provide a complete and timely
response.
8)Requires the ALRB, upon receipt of a petition for "majority
signup election," to immediately commence an investigation.
Within five days of receipt of the petition, the 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.
9)Specifies that if the 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 the 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.
10)States that an employer's duty to bargain with the labor
organization begins immediately after the labor organization
is certified.
11)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:
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a) Allegations in the majority signup petition were
false;
b) The 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."
12)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.
13)Provides that if the 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.
14)Adds specified unfair labor practice charges to the list of
charges to which the 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 the 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
the 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 $120,000
the first year, likely decreasing in future years.
COMMENTS : This bill is sponsored by the United Farm Workers
(UFW), who argues that it will allow a majority of farm workers
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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.
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.
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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
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.
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
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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
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.
ARGUMENTS IN SUPPORT :
Proponents note that farm workers are an unusually vulnerable
workforce demographic in California. Many farm workers are
undocumented workers and have few rights due to recent court
decisions. Proponents also state that many farm workers work in
isolated areas, making inspections for labor regulations
difficult. Proponents argue that these conditions present a
strong need for collective bargaining and a union presence, but
this has been blocked by employers through coercion, anti-union
pamphlets, and captive audience meetings that prevent fair
elections from taking place. Proponents believe that majority
choice elections will allow California's farm workers to truly
and freely choose the best options for their livelihood and
their families' livelihood.
ARGUMENTS IN OPPOSITION :
Opponents argue that existing law gives labor organizations many
rights, including the ability for labor organizations to enter a
farmer's property, and that existing remedies available to the
ALRB are sufficient. They also feel that majority choice
elections are not real elections, are fundamentally
undemocratic, open 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.
Opponents also state that the provisions for increased civil
penalties are excessive, possibly unconstitutional, and an undue
burden on business.
PRIOR LEGISLATION :
This bill is similar to the introduced version of SB 1474
(Steinberg) from 2010. However, SB 1474 was subsequently
amended to require the ALRB to certify a labor organization for
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purposes of collective bargaining if a representation election
has been set aside for employer misconduct, as specified. SB
1474 was vetoed by Governor Schwarzenegger, who stated the
following in his veto message:
"Currently, the ALRB has the authority to set aside an
election, based on objections by either the employer or the
labor organization, and order a rerun election if a new
election would further the purpose of the Agricultural
Labor Relations Act.
The provisions of SB 1474 represent a serious departure
from existing law. The provisions of this bill tip the
scale in favor of the union by only allowing the ALRB to
consider any misconduct, which is not defined, by the
employer when making the determination to set aside the
election, but does not take into consideration the
possibility that the employer may have similar allegations
of election misconduct by the labor organization. This
remedy should only be allowed in cases where the ALRB finds
the possibility of erasing the effects of past unfair labor
practices and of ensuring a fair election is slight, and
that employee sentiment once expressed through cards would,
on balance, be better protected by a bargaining order.
Finally, in order for me to sign a bill that alters the
secret ballot election, the provisions governing a
certification election should also govern a decertification
election. Overturning and reversing secret ballot election
results should not be taken lightly and may be appropriate
in only the most egregious cases."
This bill is almost identical to SB 789 (Steinberg) from 2009,
which 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."
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This bill is also similar 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.
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:
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"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
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
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American Federation of State, County and Municipal Employees
California Employment Lawyers Association
California Federation of Teachers
California Labor Federation, AFL-CIO
California Nurses Association
California Rural Legal Assistance Foundation
California Teamsters Public Affairs Council
International Alliance of Theatrical State Employees Local 80
International Longshore & Warehouse Union Ship Clerks'
Association, Local 34
International United Automobile, Aerospace & Agricultural
Implement Workers of America
National Nurses Organizing Committee
Northern California District Council International Longshore &
Warehouse Union
Southern California District Council of Laborers
Teamsters Local 166
Teamsters Local 399
Teamsters Local 481
Teamsters Local 70
Teamsters Local 911
United Farm Workers (sponsor)
United Food & Commercial Workers Union Local No. 324
United Food & Commercial Workers Western States Council
United Nurses Association of California/Union of Healthcare
Professionals
Opposition
Agricultural Council of California
Associated Builders and Contractors of California
California Association of Wine Grape Growers
California Chamber of Commerce
California Farm Bureau Federation
California Grocers Association
California Hotel & Lodging Association
California Independent Grocers Association
California Manufacturers & Technology Association
California Newspaper Publishers Association
California Restaurant Association
California Retailers Association
Greater San Fernando Valley Chamber of Commerce
National Right to Work Committee
Palm Desert Chamber of Commerce
Pleasanton Chamber of Commerce
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Redondo Beach Chamber of Commerce
San Jose Silicon Valley Chamber of Commerce
Valley Industry and Commerce Association
Western Growers Association
Wine Institute
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091