Bill Text: CA AB1389 | 2015-2016 | Regular Session | Amended
Bill Title: Agricultural labor relations: unfair labor practices.
Spectrum: Partisan Bill (Republican 3-0)
Status: (Failed) 2016-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB1389 Detail]
Download: California-2015-AB1389-Amended.html
BILL NUMBER: AB 1389 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 4, 2015
INTRODUCED BY Assembly Member Patterson
(Principal coauthor: Assembly Member Grove)
(Coauthor: Assembly Member Chávez)
FEBRUARY 27, 2015
An act to add Section 1164.1 to the Labor Code, relating
to employment. An act to amend Sections 1154 and 1164
of, and to add Section 1164.1 to, the Labor Code, relating to
employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1389, as amended, Patterson. Agricultural Labor
Relations Act: binding mediation. Agricultural labor
relations: unfair labor practices.
(1) Existing law establishes the right of agricultural employees
to form, join, or assist labor organizations to engage in collective
bargaining activities with agricultural employers regarding wages,
working conditions, or other aspects of employment. Existing law
prohibits a labor organization or its agents from engaging in
specified unfair labor practices.
This bill would additionally prohibit a labor organization from
abandoning or failing to represent a bargaining unit for 3 or more
years. This bill would require the Agricultural Labor Relations Board
to decertify a labor organization that violates this provision.
(2) Existing law specifies the time for filing a declaration by an
agricultural employer or a certified labor organization representing
agricultural employees that the parties have failed to reach a
collective bargaining agreement, thus triggering mandatory mediation.
Once triggered, the mediation under these provisions is immediately
scheduled at a time and location reasonably accessible to the parties
and proceeds for 30 days, with an additional 30-day extension upon
the mutual agreement of the parties.
This bill would deem members of the bargaining unit to be parties
for the purposes of the mediation.
Existing law establishes the conditions and time periods under
which an agricultural employer, as defined, or a certified labor
organization representing agricultural employees may file a
declaration with the Agricultural Labor Relations Board stating that
the parties have failed to reach a collective bargaining agreement,
thus triggering a board order for mandatory mediation.
Existing law authorizes a party, within 60 days of the order by
the Agricultural Labor Relations Board taking effect, to file an
action to enforce the order. Existing law prohibits an order of the
board from being stayed during the pendency of any appeal of the
order unless the appellant demonstrates that he or she is likely to
prevail on the merits and that he or she will be irreparably harmed
by implementation of the board's order.
This bill would condition the effect and enforcement of an order
resulting from the binding mediation on the order being approved by a
majority of the members of the affected bargaining unit.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1154 of the Labor
Code is amended to read:
1154. It shall be an unfair labor practice for a labor
organization or its agents to do any of the following:
(a) To restrain or coerce:
(1) Agricultural employees in the exercise of the rights
guaranteed in Section 1152. This paragraph shall not impair the right
of a labor organization to prescribe its own rules with respect to
the acquisition or retention of membership therein.
(2) An agricultural employer in the selection of his or her
representatives for the purposes of collective bargaining or
the adjustment of grievances.
(b) To cause or attempt to cause an agricultural employer to
discriminate against an employee in violation of subdivision (c) of
Section 1153, or to discriminate against an employee with respect to
whom membership in such organization has been denied or terminated
for reasons other than failure to satisfy the membership requirements
specified in subdivision (c) of Section 1153.
(c) To refuse to bargain collectively in good faith with an
agricultural employer, provided it is the representative of his
or her employees subject to the provisions of Chapter 5
(commencing with Section 1156) of this part.
(d) To do either of the following: (i) To engage in, or to induce
or encourage any individual employed by any person to engage in, a
strike or a refusal in the course of his or her employment
to use, manufacture, process, transport, or otherwise handle or work
on any goods, articles, materials, or commodities, or to perform any
services; or (ii) to threaten, coerce, or restrain any person; where
in either case (i) or (ii) an object thereof is any of the
following:
(1) Forcing or requiring any employer or self-employed person to
join any labor or employer organization or to enter into any
agreement which is prohibited by Section 1154.5.
(2) Forcing or requiring any person to cease using, selling,
transporting, or otherwise dealing in the products of any other
producer, processor, or manufacturer, or to cease doing business with
any other person, or forcing or requiring any other employer to
recognize or bargain with a labor organization as the representative
of his or her employees unless such labor organization has
been certified as the representative of such employees. Nothing
contained in this paragraph shall be construed to make unlawful,
where not otherwise unlawful, any primary strike or primary
picketing.
(3) Forcing or requiring any employer to recognize or bargain with
a particular labor organization as the representative of his or
her agricultural employees if another labor organization has
been certified as the representative of such employees under the
provisions of Chapter 5 (commencing with Section 1156) of this part.
(4) Forcing or requiring any employer to assign particular work to
employees in a particular labor organization or in a particular
trade, craft, or class, unless such employer is failing to conform to
an order or certification of the board determining the bargaining
representative for employees performing such work.
Nothing contained in this subdivision (d) shall be construed to
prohibit publicity, including picketing for the purpose of truthfully
advising the public, including consumers, that a product or products
or ingredients thereof are produced by an agricultural employer with
whom the labor organization has a primary dispute and are
distributed by another employer, as long as such publicity does not
have an effect of inducing any individual employed by any person
other than the primary employer in the course of his or her
employment to refuse to pick up, deliver, or transport any
goods, or not to perform any services at the establishment of the
employer engaged in such distribution, and as long as such publicity
does not have the effect of requesting the public to cease
patronizing such the other employer.
However, publicity which includes picketing and has the effect of
requesting the public to cease patronizing such
the other employer, shall be permitted only if the labor
organization is currently certified as the representative of the
primary employer's employees.
Further, publicity other than picketing, but including peaceful
distribution of literature which has the effect of requesting the
public to cease patronizing such the
other employer, shall be permitted only if the labor organization has
not lost an election for the primary employer's employees within the
preceding 12-month period, and no other labor organization is
currently certified as the representative of the primary employer's
employees.
Nothing contained in this subdivision (d) shall be construed to
prohibit publicity, including picketing, which may not be prohibited
under the United States Constitution or the California Constitution.
Nor shall anything in this subdivision (d) be construed to apply
or be applicable to any labor organization in its representation of
workers who are not agricultural employees. Any such labor
organization shall continue to be governed in its intrastate
activities for nonagricultural workers by Section 923 and applicable
judicial precedents.
(e) To require of employees covered by an agreement authorized
under subdivision (c) of Section 1153 the payment, as a condition
precedent to becoming a member of such organization, of a fee in an
amount which the board finds excessive or discriminatory under all
circumstances. In making such a finding, the board shall consider,
among other relevant factors, the practices and customs of labor
organizations in the agriculture industry and the wages currently
paid to the employees affected.
(f) To cause or attempt to cause an agricultural employer to pay
or deliver, or agree to pay or deliver, any money or other thing of
value, in the nature of an exaction, for services which are not
performed or not to be performed.
(g) To picket or cause to be picketed, or threaten to picket or
cause to be picketed, any employer where an object thereof is either
forcing or requiring an employer to recognize or bargain with a labor
organization as the representative of his or her
employees, or forcing or requiring the employees of an employer to
accept or select such the labor
organization as their collective-bargaining representative, unless
such labor organization is currently certified as the representative
of such employees, in any of the following cases:
(1) Where the employer has lawfully recognized in accordance with
this part any other labor organization and a question concerning
representation may not appropriately be raised under Section 1156.3.
(2) Where within the preceding 12 months a valid election under
Chapter 5 (commencing with Section 1156) of this part has been
conducted.
Nothing in this subdivision shall be construed to prohibit any
picketing or other publicity for the purpose of truthfully advising
the public (including consumers) that an employer does not employ
members of, or have a contract with, a labor organization, unless an
effect of such picketing is to induce any individual employed by any
other person in the course of his or her employment, not
to pick up, deliver, or transport any goods or not to perform any
services.
Nothing in this subdivision (g) shall be construed to permit any
act which would otherwise be an unfair labor practice under this
section.
(h) To picket or cause to be picketed, or threaten to picket or
cause to be picketed, any employer where an object thereof is either
forcing or requiring an employer to recognize or bargain with the
labor organization as a representative of his or her
employees unless such labor organization is currently certified as
the collective-bargaining representative of such employees.
(i) To abandon or fail to represent the bargaining unit for a
period of three years or more. The board shall decertify a labor
organization that violates this subdivision.
(i)
(j) Nothing contained in this section shall be
construed to make unlawful a refusal by any person to enter upon the
premises of any agricultural employer, other than his or her
own employer, if the employees of such
the employer are engaged in a strike ratified or approved by a
representative of such the employees
whom such the employer is required to
recognize under this part.
SEC. 2. Section 1164 of the Labor Code
is amended to read:
1164. (a) An agricultural employer or a labor organization
certified as the exclusive bargaining agent of a bargaining unit of
agricultural employees may file with the board, at any time following
(1) 90 days after a renewed demand to bargain by an agricultural
employer or a labor organization certified prior to January 1, 2003,
which meets the conditions specified in Section 1164.11, (2) 90 days
after an initial request to bargain by an agricultural employer or a
labor organization certified after January 1, 2003, (3) 60 days after
the board has certified the labor organization pursuant to
subdivision (f) of Section 1156.3, or (4) 60 days after the board 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 a declaration that the
parties have failed to reach a collective bargaining agreement and a
request that the board issue an order directing the parties to
mandatory mediation and conciliation of their issues. "Agricultural
employer," for purposes of this chapter, means an agricultural
employer, as defined in subdivision (c) of Section 1140.4, who has
employed or engaged 25 or more agricultural employees during any
calendar week in the year preceding the filing of a declaration
pursuant to this subdivision.
(b) Upon receipt of a declaration pursuant to subdivision (a), the
board shall immediately issue an order directing the parties to
mandatory mediation and conciliation of their issues. The board shall
request from the California State Mediation and Conciliation Service
a list of nine mediators who have experience in labor mediation. The
California State Mediation and Conciliation Service may include
names chosen from its own mediators, or from a list of names supplied
by the American Arbitration Association or the Federal Mediation
Service. The parties shall select a mediator from the list within
seven days of receipt of the list. If the parties cannot agree on a
mediator, they shall strike names from the list until a mediator is
chosen by process of elimination. If a party refuses to participate
in selecting a mediator, the other party may choose a mediator from
the list. The costs of mediation and conciliation shall be borne
equally by the parties.
(c) Upon appointment, the mediator shall immediately schedule
meetings at a time and location reasonably accessible to the parties.
Mediation shall proceed for a period of 30 days. Upon expiration of
the 30-day period, if the parties do not resolve the issues to their
mutual satisfaction, the mediator shall certify that the mediation
process has been exhausted. Upon mutual agreement of the parties, the
mediator may extend the mediation period for an additional 30 days.
Members of the bargaining unit shall be considered parties for
purposes of this subdivision and shall be entitled to attend all
meetings scheduled by the mediator.
(d) Within 21 days, the mediator shall file a report with the
board that resolves all of the issues between the parties and
establishes the final terms of a collective bargaining agreement,
including all issues subject to mediation and all issues resolved by
the parties prior to the certification of the exhaustion of the
mediation process. With respect to any issues in dispute between the
parties, the report shall include the basis for the mediator's
determination. The mediator's determination shall be supported by the
record.
(e) In resolving the issues in dispute, the mediator may consider
those factors commonly considered in similar proceedings, including:
(1) The stipulations of the parties.
(2) The financial condition of the employer and its ability to
meet the costs of the contract in those instances where the employer
claims an inability to meet the union's wage and benefit demands.
(3) The corresponding wages, benefits, and terms and conditions of
employment in other collective bargaining agreements covering
similar agricultural operations with similar labor requirements.
(4) The corresponding wages, benefits, and terms and conditions of
employment prevailing in comparable firms or industries in
geographical areas with similar economic conditions, taking into
account the size of the employer, the skills, experience, and
training required of the employees, and the difficulty and nature of
the work performed.
(5) The average consumer prices for goods and services according
to the California Consumer Price Index, and the overall cost of
living, in the area where the work is performed.
SECTION 1. SEC. 3. Section 1164.1 is
added to the Labor Code, to read:
1164.1. An order issued by the mediator, the board, or the court
that would impose the terms of binding mediation pursuant Section
1164 shall not take effect or be enforceable until it is approved by
a majority of the agricultural employees of the bargaining unit
affected by the order.
