Bill Text: CA SB126 | 2011-2012 | Regular Session | Chaptered
Bill Title: Agricultural labor relations.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2011-10-09 - Chaptered by Secretary of State. Chapter 697, Statutes of 2011. [SB126 Detail]
Download: California-2011-SB126-Chaptered.html
BILL NUMBER: SB 126 CHAPTERED
BILL TEXT
CHAPTER 697
FILED WITH SECRETARY OF STATE OCTOBER 9, 2011
APPROVED BY GOVERNOR OCTOBER 9, 2011
PASSED THE SENATE SEPTEMBER 9, 2011
PASSED THE ASSEMBLY SEPTEMBER 8, 2011
AMENDED IN ASSEMBLY SEPTEMBER 2, 2011
INTRODUCED BY Senator Steinberg
(Principal coauthor: Assembly Member Alejo)
JANUARY 27, 2011
An act to amend Sections 1156.3, 1158, 1160.4, and 1164 of the
Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 126, Steinberg. Agricultural labor relations.
Existing law prohibits employers from engaging in unfair labor
practices, including interfering in the election by agricultural
employees of labor representatives to engage in collective bargaining
for the designated bargaining units.
Existing law provides that, within 5 days after the
above-described election, any person may file with the Agricultural
Labor Relations Board a signed petition that, among other things,
objects to the conduct of the election or conduct affecting the
results of the election. Upon receipt of the petition, existing law
requires the board to conduct a hearing to determine whether the
election shall be certified. Existing law permits the board to refuse
to certify the election if it finds, among other things, that
misconduct affecting the results of the election occurred.
Existing law also provides for elections to decertify a labor
organization, as specified.
This bill would provide that if the board refuses to certify an
election regarding certification of a labor organization because of
employer misconduct that, in addition to affecting the results of the
election, would render slight the chances of a new election
reflecting the free and fair choice of employees, the labor union
shall be certified as the exclusive bargaining representative for the
bargaining unit.
This bill would specify, with regard to the above-described
elections regarding certification or decertification, time limits
pertaining to the scheduling of hearings on election objections and
challenges to ballots and the issuance of decisions by the board with
respect to those objections and challenges.
Under existing law, whenever it is charged that a person has
engaged in or is engaging in certain unfair labor practices, the
board has the power to issue and cause to be served upon the person a
complaint stating the charges and containing a notice of hearing, as
specified, not less than 5 days after the serving of the complaint.
Under existing law, the board has the power, upon issuance of the
above-described complaint, to petition the superior court in any
county wherein the unfair labor practice in question is alleged to
have occurred, or wherein the person resides or transacts business,
for appropriate temporary relief or a restraining order. Existing law
grants the court jurisdiction to grant that relief.
This bill would specify what the court is to consider in
determining whether temporary relief or a restraining order is just
and proper. This bill would provide that when the alleged unfair
labor practice is such that, by its nature, it would interfere with
the free choice of employees to choose or not choose an exclusive
bargaining representative, 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. This
bill would provide that the order shall remain in effect until an
election has been held or for 30 days, whichever occurs first. This
bill would provide that the temporary relief or restraining order
shall not be stayed pending appeal.
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.
Under existing law, the declaration may be filed 90 days after a
renewed demand to bargain where the parties have failed to reach
agreement for at least one year, the employer committed an unfair
labor practice, and the parties have not previously had a binding
contract between them or 180 days after an initial request to
bargain.
This bill would, instead, provide that the declaration may be
filed 90 days after a renewed demand to bargain, as specified above,
90 days after an initial request to bargain, 60 days after the board
has certified the labor organization because of employer misconduct
and a finding that would render slight the chances of a new election
reflecting the free and fair choice of employees, or 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.
Existing law provides that if, upon the preponderance of the
testimony taken, the board is of the opinion that any person named in
the above-described complaint has engaged in or is engaging in any
unfair labor practice, the board is required to state its findings of
fact and issue and cause to be served on the person an order
requiring the person to cease and desist from the unfair labor
practice. Existing law specifies how certification and the record of
investigation are to be handled whenever the cease and desist order
is based in whole or in part upon the facts certified following an
investigation pertaining to elections of bargaining unit
representatives, and there is a petition for review of the order.
This bill would provide that the filing of the above-described
petition for review of the order shall not be grounds for a stay of
proceedings pertaining to mandatory mediation.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1156.3 of the Labor Code is amended to read:
1156.3. (a) A petition that is either signed by, or accompanied
by authorization cards signed by, a majority of the currently
employed employees in the bargaining unit may be filed by an
agricultural employee or group of agricultural employees, or any
individual or labor organization acting on behalf of those
agricultural employees, in accordance with any rules and regulations
prescribed by the board. The petition shall allege all of the
following:
(1) That the number of agricultural employees currently employed
by the employer named in the petition, as determined from the
employer's payroll immediately preceding the filing of the petition,
is not less than 50 percent of the employer's peak agricultural
employment for the current calendar year.
(2) That no valid election pursuant to this section has been
conducted among the agricultural employees of the employer named in
the petition within the 12 months immediately preceding the filing of
the petition.
(3) That no labor organization is currently certified as the
exclusive collective bargaining representative of the agricultural
employees of the employer named in the petition.
(4) That the petition is not barred by an existing collective
bargaining agreement.
(b) Upon receipt of a signed petition, as described in subdivision
(a), the board shall immediately investigate the petition. If the
board has reasonable cause to believe that a bona fide question of
representation exists, it shall direct a representation election by
secret ballot to be held, upon due notice to all interested parties
and within a maximum of seven days of the filing of the petition. If,
at the time the election petition is filed, a majority of the
employees in a bargaining unit are engaged in a strike, the board
shall, with all due diligence, attempt to hold a secret ballot
election within 48 hours of the filing of the petition. The holding
of elections under strike circumstances shall take precedence over
the holding of other secret ballot elections.
(c) The board shall make available at any election held under this
chapter ballots printed in English and Spanish. The board may also
make available at the election ballots printed in any other language
as may be requested by an agricultural labor organization or any
agricultural employee eligible to vote under this part. Every
election ballot, except ballots in runoff elections where the choice
is between labor organizations, shall provide the employee with the
opportunity to vote against representation by a labor organization by
providing an appropriate space designated "No Labor Organizations."
(d) Any other labor organization shall be qualified to appear on
the ballot if it presents authorization cards signed by at least 20
percent of the employees in the bargaining unit at least 24 hours
prior to the election.
(e) (1) Within five days after an election, any person may file
with the board a signed petition asserting that allegations made in
the petition filed pursuant to subdivision (a) were incorrect,
asserting that the board improperly determined the geographical scope
of the bargaining unit, or objecting to the conduct of the election
or conduct affecting the results of the election.
(2) Upon receipt of a petition under this subdivision, the board,
upon due notice, shall conduct a hearing to determine whether the
election shall be certified. This hearing may be conducted by an
officer or employee of a regional office of the board. The officer
may not make any recommendations with respect to the certification of
the election. The board may refuse to certify the election if it
finds, on the record of the hearing, that any of the assertions made
in the petition filed pursuant to this subdivision are correct, that
the election was not conducted properly, or that misconduct affecting
the results of the election occurred. The board shall certify the
election unless it determines that there are sufficient grounds to
refuse to do so.
(f) Notwithstanding any other provision of law, if the board
refuses to certify an election because of employer misconduct that,
in addition to affecting the results of the 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.
(g) If no petition is filed pursuant to subdivision (e) within
five days of the election, the board shall certify the election.
(h) The board shall decertify a labor organization if either of
the following occur:
(1) The Department of Fair Employment and Housing finds that the
labor organization engaged in discrimination on any basis listed in
subdivision (a) of Section 12940 of the Government Code, as those
bases are defined in Sections 12926 and 12926.1 of the Government
Code, except as otherwise provided in Section 12940 of the Government
Code.
(2) The United States Equal Employment Opportunity Commission
finds, pursuant to Section 2000e-5 of Title 42 of the United States
Code, that the labor organization engaged in discrimination on the
basis of race, color, national origin, religion, sex, or any other
arbitrary or invidious classification in violation of Subchapter VI
of Chapter 21 of Title 42 of the United States Code during the period
of the labor organization's present certification.
(i) (1) With regard to elections held pursuant to this section or
Section 1156.7, the following time limits apply for action by the
board, and agents acting pursuant to authority delegated by the
board:
(A) (i) The board shall, within 21 days of the filing of election
objections or the submittal of evidence in support of challenges to
ballots, evaluate the election objections or challenged ballots and
issue a decision determining which, if any, must be set for hearing.
(ii) The hearing on election objections or challenged ballots set
pursuant to clause (i) shall be scheduled to commence within 28 days
of the date of the board's decision to set a hearing.
(B) The investigative hearing examiner (IHE) appointed pursuant to
Section 1145 shall issue a recommended decision within 60 days of
the close of the hearing on the matters described in subparagraph
(A). Upon mutual agreement of the parties, the IHE may extend the
time period to issue a recommended decision by 30 days.
(C) The board shall issue a decision regarding the election
objections or challenged ballots within 45 days of receipt of any
exceptions to the decision of the IHE.
(2) The board may consolidate a challenged ballot hearing with a
hearing on objections to an election.
(3) The board may grant extensions on the time limits specified in
this subdivision upon a showing of good cause or by stipulation of
all affected parties.
SEC. 2. Section 1158 of the Labor Code is amended to read:
1158. Whenever an order of the board made pursuant to Section
1160.3 is based in whole or in part upon the facts certified
following an investigation pursuant to Sections 1156.3 to 1157.2,
inclusive, and there is a petition for review of the order, the
certification and the record of the investigation shall be included
in the transcript of the entire record required to be filed under
Section 1160.8 and thereupon the decree of the court enforcing,
modifying, or setting aside in whole or in part the order of the
board shall be made and entered upon the pleadings, testimony, and
proceedings set forth in the transcript. The filing of a petition for
review described in this section shall not be grounds for a stay of
proceedings conducted pursuant to Chapter 6.5 (commencing with
Section 1164).
SEC. 3. Section 1160.4 of the Labor Code is amended to read:
1160.4. (a) The board may, upon finding reasonable cause to
believe that any person has engaged in or is engaging in an unfair
labor practice, petition the superior court in any county wherein the
unfair labor practice in question is alleged to have occurred, or
wherein the person resides or transacts business, for appropriate
temporary relief or restraining order. Upon the filing of the
petition, the board shall cause notice thereof to be served upon the
person, and thereupon the court shall have jurisdiction to grant to
the board such temporary relief or restraining order as the court
deems just and proper.
(b) (1) In addition to any harm resulting directly from an adverse
employment action or other allegedly unlawful action, the court
shall consider the indirect effect upon protected rights of all
agricultural employees of the employer in determining whether
temporary relief or a restraining order is just and proper.
(2) When the alleged unfair labor practice is such that, by its
nature, it would interfere with the free choice of employees to
choose or not choose an exclusive bargaining representative,
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.
Thereafter, a preliminary injunction may issue if it is shown to be
just and proper.
(c) Notwithstanding Section 916 of the Code of Civil Procedure,
temporary relief or restraining orders granted pursuant to this
section shall not be stayed pending appeal.
SEC. 4. 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.
(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.
