BILL ANALYSIS �
SB 126
Page 1
Date of Hearing: September 6, 2011
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
SB 126 (Steinberg) - As Amended: September 2, 2011
SENATE VOTE : (vote not relevant)
SUBJECT : Agricultural employee labor relations.
SUMMARY : Makes a number of changes to the Agricultural Labor
Relations Act.
Specifically, this bill :
1)Provides that if the Agricultural Labor Relations Board (ALRB)
sets aside an election because of employer misconduct that (in
addition to affecting the outcome of an election) would render
slight the chances of a new election reflecting the free and
fair choice of employees, the labor organization shall be
certified as the exclusive bargaining representative for the
bargaining unit.
2)Imposes the following time limits to certain ALRB proceedings
as follows:
a) Within 21 days of the filing of election objections or
the submission of evidence in support of challenges to
ballots, the ALRB shall evaluate the election objections or
challenged ballots and issue a decision determining which,
if any, must be set for hearing.
b) The hearing shall be scheduled to commence within 28
days of the date of the ALRB's decision to set a hearing..
c) The investigative hearing examiner shall issue a
recommended decision within 60 days of the close of the
hearing. This time period may be extended by 30 days upon
mutual agreement of the parties.
d) Within 45 days of the receipt of any exceptions to the
decision of the investigative hearing examiner, the ALRB
shall issue a decision.
e) The ALRB is authorized to grant extensions to these time
limits upon a showing of good cause or by stipulation of
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all affected parties.
3)Shortens the time under current law for a request for
mandatory mediation from 180 days to 90 days after an initial
request to bargain.
4)Provides that a party may also request mandatory mediation in
the following circumstances:
a) Sixty days after the labor organization has been
certified, as specified.
b) Sixty days after the ALRB has dismissed a
decertification petition upon a finding that the employer
has unlawfully initiated, supported, sponsored or assisted
in the filing of a decertification petition.
5)Provides that the mandatory mediation proceedings of current
law shall not be stayed on the grounds that a specified
petition for review of an ALRB order related to unfair labor
practice charges have been filed.
6)Expands existing law related to judicial injunctions to
provide that the court shall also consider the indirect effect
upon protected rights of all agricultural employees of the
employer in determining whether temporary relief is just and
proper.
7)Provides that when the alleged unfair labor practice is such
that, by its nature, it would interfere with employee free
choice, appropriate temporary relief or a restraining order
shall issue on a showing that reasonable cause exists to
believe that the unfair labor practice has occurred. The
order shall remain in effect until an election has been held
or for 30 days, whichever occurs first.
8)Provides that temporary relief or restraining orders shall not
be stayed pending appeal.
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
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secret ballot within seven days of the filing of the petition.
FISCAL EFFECT : Unknown
COMMENTS : 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
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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.
Critics of the current process have stated 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. In addition, many farm workers
work in isolated areas, making inspections for labor regulations
difficult. Critics 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.
This criticism has led to numerous legislative proposals in
recent years, the most prominent of which proposed to create 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 showing that a majority of
employees favor union representation. Several such bills have
passed the Legislature but been vetoed in recent years, the most
recent of which was SB 104 (Steinberg) which was vetoed by
Governor Brown earlier this session.
In addition, SB 1474 (Steinberg) of 2010 would have required 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. These are generally referred
to as "bargaining orders." This bill contains language that is
similar, but not identical, to SB 1474. SB 1474 was vetoed by
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Governor Schwarzenegger.
The approach this bill 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 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
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addressed only by the Legislature."
Giumarra Vineyards Corp., (2006) 32 ALRB 5, at 5.
This bill seeks to address this problem by requiring the ALRB to
issue bargaining orders if an employer is found to have coerced
an election outcome, compelling the employer to negotiate with
the labor organization aggrieved by the election misconduct.
In addition, this bill proposes a number of additional changes
and modifications to the election and unfair labor practice
procedures under the Act, including timeframes for the ALRB to
act promptly on certain matters.
ARGUMENTS IN SUPPORT :
The United Farm Workers (UFW) argues that this bill provides a
remedy for when employers illegally intimidate workers, which
impacts ALRB election results, and it helps to speed up the ALRB
process when employer wrongdoing is found.
UFW states that this bill recognizes that currently there is no
remedy in law to enforce a farm worker's right to an election
free from fear of coercion or manipulation. In one of the most
recent decisions regarding employer election misconduct, the
ALRB highlighted the fact that current law does not permit the
ALRB to order any remedy to address employer election
misconduct. In fact, the Board noted that the law in its
current state allows employers to "profit" by violating the law.
Unfortunately, 35 years after enactment of the Act, the law
continues to fail for the thousands of farm workers in the
state. UFW contends that the remedy in SB this would serve to
eliminate the ALRB's identified problem of employers "profiting"
from violating a farm worker's right.
Finally, UFW states that this bill gives the ALRB authority to
seek court orders to protect the rights of agricultural
employees, applies time limits on the acts of the ALRB for
hearings and filings, and provides changes to procedures for
using the existing mediation process.
ARGUMENTS OF ORGANIZATIONS WITH "SIGNIFICANT CONCERNS" :
A coalition of agricultural groups raises "significant concerns"
with this measure for a number of reasons. The coalition
expresses two primary substantive concerns with the bill.
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First, they are concerned that the provision of the bill
authorizing "bargaining orders" is vague in that "employer
misconduct" is not defined as to either its pervasiveness or the
egregiousness of an act. The coalition believes a modifier that
prevents a union from seeking this extraordinary remedy in cases
of de minimus employer misconduct is necessary and desirable.
Second, the coalition contends that this same provision lacks
adequate due process before imposing the extraordinary remedy of
certification of a union without a secret ballot election. They
contend that under this bill, in such representational
proceedings, the ALRB is allowed to use unsubstantiated hearsay
and the employer is denied the right to petition the appellate
court to overturn the ALRB's decision. The coalition believes
language should be added to "?afford both the employer and the
labor organization an opportunity to be heard, either by filing
briefs with the Board on an expedited basis or by directing the
executive secretary to set and conduct an investigative hearing
to take additional evidence on issues as the Board may direct."
The coalition further suggests language to provide the employer
an opportunity to petition the appellate court for review of the
ALRB's certification order on an expedited timeline, within 15
days from the date of certification.
In addition, the coalition raises lesser concerns with some of
the other provisions of the bill. Finally, the coalition states
that the process by which this bill is being revised in the last
week of the legislative session has given them little time to
communicate with their members and receive their input. This
is essential to ensure that what is being proposed will actually
work in practice and result in the fair treatment of all persons
subject to the Act.
REGISTERED SUPPORT / OPPOSITION :
Support
California Labor Federation, AFL-CIO
United Farm Workers
"Significant Concerns"
Agricultural Council of California
Alliance of Western Milk Producers
American Pistachio Growers
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California Association of Nurseries and Garden Centers
California Association of Winegrape Growers
California Bean Shippers Association
California Citrus Mutual
California Cotton Growers Association
California Farm Bureau Federation
California Grain and Feed Association
California Grape and Tree Fruit League
California Pear Growers Association
California Poultry Federation
California Seed Association
California State Floral Association
California Tomato Growers Association
California Warehouse Association
Grower-Shipper Association of Central California
Nisei Farmers League
Pacific Egg and Poultry Association
Ventura County Agriculture Association
Western Agricultural Processors Association
Western Growers Association
Wine Institute
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091