Senate BillNo. 25


Introduced by Senator Steinberg

December 3, 2012


An act to amend Sections 1164 and 1164.3 of, and to repeal Section 1164.11 of, the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

SB 25, as introduced, Steinberg. Agricultural labor relations: contract dispute resolution.

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 permit the filing of a declaration without having to meet the prior bargaining and time requirements and would expand the definition of an agricultural employer to include subsequent purchasers of an agricultural employer’s business where the original employer had an obligation to bargain with its workers.

Existing law provides that within 60 days of a decision by the Agricultural Labor Relations Board taking effect, a party may file an action to enforce the order, using specified procedures. Existing law provides that during the pendency of any appeal of the board’s order, the order may not be stayed 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 provide that an action to enforce the order of the board may be filed within 60 days whether or not the other party is seeking judicial review of the order. The bill would also increase the evidentiary threshold for the court to grant a stay of the board’s order and require the court to make written findings supporting any order granting a stay of the order during the pendency of the appeal.

Existing law requires that before a specified declaration and request can be filed by an agricultural employer or by the bargaining agent of agricultural employees, specified criteria must be met, including, demonstrating that the parties have been unable to reach an agreement for one year after the initial request to bargain was made.

This bill would repeal the criteria required before a declaration could be filed.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 1164 of the Labor Code is amended to
2read:

3

1164.  

(a) An agricultural employer or a labor organization
4certified as the exclusive bargaining agent of a bargaining unit of
5agricultural employees may file with the board, at any time
6following (1) 90 days after abegin delete renewedend delete demand to bargain by an
7agricultural employer or a labor organization certified prior to
8January 1, 2003,begin delete which meets the conditions specified in Section end delete
9begin delete1164.11,end delete (2) 90 days after an initial request to bargain by an
10agricultural employer or a labor organization certified after January
111, 2003, (3) 60 days after the board has certified the labor
12organization pursuant to subdivision (f) of Section 1156.3, or (4)
1360 days after the board has dismissed a decertification petition
14upon a finding that the employer has unlawfully initiated,
15supported, sponsored, or assisted in the filing of a decertification
16petition a declaration that the parties have failed to reach a
17collective bargaining agreement and a request that the board issue
18an order directing the parties to mandatory mediation and
19conciliation of their issues. “Agricultural employer,” for purposes
20of this chapter, means an agricultural employer, as defined in
21subdivision (c) of Section 1140.4, who has employed or engaged
2225 or more agricultural employees during any calendar week in
P3    1the year preceding the filing of a declaration pursuant to this
2subdivision.begin insert For purposes of this section, “agricultural employer” end insert
3begin insertalso includes any person, party, entity, or employer that purchased end insert
4begin insertall or part of an employer business, where the selling employer end insert
5begin inserthad an obligation to bargain under this chapter.end insert

6(b) Upon receipt of a declaration pursuant to subdivision (a),
7the board shall immediately issue an order directing the parties to
8mandatory mediation and conciliation of their issues. The board
9shall request from the California State Mediation and Conciliation
10Service a list of nine mediators who have experience in labor
11mediation. The California State Mediation and Conciliation Service
12may include names chosen from its own mediators, or from a list
13of names supplied by the American Arbitration Association or the
14Federal Mediation Service. The parties shall select a mediator from
15the list within seven days of receipt of the list. If the parties cannot
16agree on a mediator, they shall strike names from the list until a
17mediator is chosen by process of elimination. If a party refuses to
18participate in selecting a mediator, the other party may choose a
19mediator from the list. The costs of mediation and conciliation
20shall be borne equally by the parties.

21(c) Upon appointment, the mediator shall immediately schedule
22meetings at a time and location reasonably accessible to the parties.
23Mediation shall proceed for a period of 30 days. Upon expiration
24of the 30-day period, if the parties do not resolve the issues to their
25 mutual satisfaction, the mediator shall certify that the mediation
26process has been exhausted. Upon mutual agreement of the parties,
27the mediator may extend the mediation period for an additional
2830 days.

29(d) Within 21 days, the mediator shall file a report with the
30board that resolves all of the issues between the parties and
31establishes the final terms of a collective bargaining agreement,
32including all issues subject to mediation and all issues resolved by
33the parties prior to the certification of the exhaustion of the
34mediation process. With respect to any issues in dispute between
35the parties, the report shall include the basis for the mediator’s
36determination. The mediator’s determination shall be supported
37by the record.

38(e) In resolving the issues in dispute, the mediator may consider
39those factors commonly considered in similar proceedings,
40including:

P4    1(1) The stipulations of the parties.

2(2) The financial condition of the employer and its ability to
3meet the costs of the contract in those instances where the employer
4claims an inability to meet the union’s wage and benefit demands.

5(3) The corresponding wages, benefits, and terms and conditions
6of employment in other collective bargaining agreements covering
7similar agricultural operations with similar labor requirements.

8(4) The corresponding wages, benefits, and terms and conditions
9of employment prevailing in comparable firms or industries in
10geographical areas with similar economic conditions, taking into
11account the size of the employer, the skills, experience, and training
12required of the employees, and the difficulty and nature of the
13work performed.

14(5) The average consumer prices for goods and services
15according to the California Consumer Price Index, and the overall
16cost of living, in the area where the work is performed.

17

SEC. 2.  

Section 1164.3 of the Labor Code is amended to read:

18

1164.3.  

(a) Either party, within seven days of the filing of the
19report by the mediator, may petition the board for review of the
20report. The petitioning party shall, in the petition, specify the
21particular provisions of the mediator’s report for which it is seeking
22review by the board and shall specify the specific grounds
23authorizing review by the board. The board, within 10 days of
24receipt of a petition, may accept for review those portions of the
25petition for which a prima facie case has been established that (1)
26a provision of the collective bargaining agreement set forth in the
27mediator’s report is unrelated to wages, hours, or other conditions
28of employment within the meaning of Section 1155.2, (2) a
29provision of the collective bargaining agreement set forth in the
30mediator’s report is based on clearly erroneous findings of material
31fact, or (3) a provision of the collective bargaining agreement set
32forth in the mediator’s report is arbitrary or capricious in light of
33the mediator’s findings of fact.

34(b) If it finds grounds exist to grant review within the meaning
35of subdivision (a), the board shall order the provisions of the report
36that are not the subject of the petition for review into effect as a
37final order of the board. If the board does not accept a petition for
38review or no petition for review is filed, then the mediator’s report
39shall become a final order of the board.

P5    1(c) The board shall issue a decision concerning the petition and
2if it determines that a provision of the collective bargaining
3agreement contained in the mediator’s report violates the provisions
4of subdivision (a), it shall, within 21 days, issue an order requiring
5the mediator to modify the terms of the collective bargaining
6agreement. The mediator shall meet with the parties for additional
7mediation for a period not to exceed 30 days. At the expiration of
8this mediation period, the mediator shall prepare a second report
9resolving any outstanding issues. The second report shall be filed
10with the board.

11(d) Either party, within seven days of the filing of the mediator’s
12second report, may petition the board for a review of the mediator’s
13second report pursuant to the procedures specified in subdivision
14(a). If no petition is filed, the mediator’s report shall take immediate
15effect as a final order of the board. If a petition is filed, the board
16shall issue an order confirming the mediator’s report and order it
17into immediate effect, unless it finds that the report is subject to
18review for any of the grounds specified in subdivision (a), in which
19case the board shall determine the issues and shall issue a final
20order of the board.

21(e) Either party, within seven days of the filing of the report by
22the mediator, may petition the board to set aside the report if a
23prima facie case is established that any of the following have
24occurred: (1) the mediator’s report was procured by corruption,
25fraud, or other undue means, (2) there was corruption in the
26mediator, or (3) the rights of the petitioning party were substantially
27prejudiced by the misconduct of the mediator. For the sole purpose
28of interpreting the terms of paragraphs (1), (2), and (3), case law
29that interprets similar terms used in Section 1286.2 of the Code of
30Civil Procedure shall apply. If the board finds that any of these
31grounds exist, the board shall within 10 days vacate the report of
32the mediator and shall order the selection and appointment of a
33new mediator, and an additional mediation period of 30 days,
34pursuant to Section 1164.

35(f) Within 60 days after the order of the board takes effect,begin insert even end insert
36begin insertif a party seeks appellate review of the order of the board,end insert either
37party or the board may file an action to enforce the order of the
38board, in the superior court for the County of Sacramento or in the
39county where either party’s principal place of business is located.
40begin insert During the pendency of a petition for a writ of review by a party, end insert
P6    1begin insertthe parties shall be required to implement the terms of the board’s end insert
2begin insertorder immediately upon issuance of the order.end insert No final order of
3the board shall be stayed during anybegin delete appealend deletebegin insert review soughtend insert under
4this section, unless the court findsbegin insert and states in its initial findingsend insert
5 that (1) the appellantbegin insert has demonstrated, by clear and convincing end insert
6begin insertevidence, that he or sheend insert will be irreparably harmed by the
7implementation of the board’s order, and (2) the appellant has
8demonstratedbegin insert, by clear and convincing evidence,end insert a likelihood of
9success on appeal.begin insert For purposes of this section, the court deciding end insert
10begin insertthe stay shall provide written findings and analysis supporting the end insert
11begin insertdecision to grant a stay.end insert

12

SEC. 3.  

Section 1164.11 of the Labor Code is repealed.

begin delete
13

1164.11.  

A demand made pursuant to paragraph (1) of
14subdivision (a) of Section 1164 may be made only in cases which
15meet all of the following criteria: (a) the parties have failed to
16reach agreement for at least one year after the date on which the
17labor organization made its initial request to bargain, (b) the
18employer has committed an unfair labor practice, and (c) the parties
19have not previously had a binding contract between them.

end delete


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