Amended in Senate April 25, 2013

Senate BillNo. 25

Introduced by Senator Steinberg

December 3, 2012

An act to amend Sectionsbegin delete 1164 andend deletebegin insert 1140.4, 1164,end insert 1164.3begin delete of, and to repeal Section 1164.11 ofend delete,begin insert and 1164.11 ofend insert the Labor Code, relating to employment.


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

Existing law specifies the time for filing a declaration by an agricultural employerbegin insert, as defined,end insert 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 filedbegin insert under specified circumstances, includingend insert 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 thembegin delete or 180 days after an initial request to bargainend delete.

This bill would permit the filing of a declarationbegin insert as described aboveend insert without having to meet thebegin delete prior bargaining and time requirements and wouldend deletebegin insert condition that the parties have not previously had a binding contract between them. The bill would alsoend insert 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.

begin delete

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.

end delete
begin delete

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

end delete

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

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

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 1140.4 of the end insertbegin insertLabor Codeend insertbegin insert is amended to
2read:end insert



As used in this part:

4(a) The term “agriculture” includes farming in all its branches,
5and, among other things, includes the cultivation and tillage of the
6soil, dairying, the production, cultivation, growing, and harvesting
7of any agricultural or horticultural commodities (including
8commodities defined as agricultural commodities in Section
91141j(g) of Title 12 of the United States Code), the raising of
10livestock, bees, furbearing animals, or poultry, and any practices
11(including any forestry or lumbering operations) performed by a
12farmer or on a farm as an incident to or in conjunction with such
13farming operations, including preparation for market and delivery
14to storage or to market or to carriers for transportation to market.

P3    1(b) The term “agricultural employee” or “employee” shall mean
2one engaged in agriculture, as such term is defined in subdivision
3(a). However, nothing in this subdivision shall be construed to
4include any person other than those employees excluded from the
5coverage of the National Labor Relations Act, as amended, as
6agricultural employees, pursuant to Section 2(3) of the Labor
7Management Relations Act (Section 152(3), Title 29, United States
8Code), and Section 3(f) of the Fair Labor Standards Act (Section
9203(f), Title 29, United States Code).

10Further, nothing in this part shall apply, or be construed to apply,
11to any employee who performs work to be done at the site of the
12construction, alteration, painting, or repair of a building, structure,
13or other work (as these terms have been construed under Section
148(e) of the Labor Management Relations Act, 29 U.S.C. Sec.
15158(e)) or logging or timber-clearing operations in initial
16preparation of land for farming, or who does land leveling or only
17land surveying for any of the above.

18As used in this subdivision, “land leveling” shall include only
19major land moving operations changing the contour of the land,
20but shall not include annual or seasonal tillage or preparation of
21land for cultivation.

22(c) The term “agricultural employer” shall be liberally construed
23to include any person acting directly or indirectly in the interest
24of an employer in relation to an agricultural employee, any
25individual grower, corporate grower, cooperative grower,
26harvesting association, hiring association, land management group,
27any association of persons or cooperatives engaged in agriculture,
28and shall include any person who owns or leases or manages land
29used for agricultural purposes, but shall exclude any person
30supplying agricultural workers to an employer, any farm labor
31 contractor as defined by Section 1682, and any person functioning
32in the capacity of a labor contractor. The employer engaging such
33labor contractor or person shall be deemed the employer for all
34purposes under this part.begin insert

35“Agricultural employer” shall also include a person, party,
36entity, or corporate form that directly or indirectly controls all or
37a part of an agricultural operation in any form, or a person, party,
38entity, or corporate form that purchases, assumes management
39of, or otherwise directly or indirectly controls all or a part of an
P4    1agricultural operation in any form, where the previous or selling
2employer had an obligation to bargain under this act.

end insert

3(d) The term “person” shall mean one or more individuals,
4corporations, partnerships, limited liability companies, associations,
5legal representatives, trustees in bankruptcy, receivers, or any other
6legal entity, employer, or labor organization having an interest in
7the outcome of a proceeding under this part.

8(e) The term “representatives” includes any individual or labor

10(f) The term “labor organization” means any organization of
11any kind, or any agency or employee representation committee or
12plan, in which employees participate and which exists, in whole
13or in part, for the purpose of dealing with employers concerning
14grievances, labor disputes, wages, rates of pay, hours of
15employment, or conditions of work for agricultural employees.

16(g) The term “unfair labor practice” means any unfair labor
17practice specified in Chapter 4 (commencing with Section 1153)
18of this part.

19(h) The term “labor dispute” includes any controversy
20concerning terms, tenure, or conditions of employment, or
21concerning the association or representation of persons in
22negotiating, fixing, maintaining, changing, or seeking to arrange
23terms or conditions of employment, regardless of whether the
24disputants stand in the proximate relation of employer and

26(i) The term “board” means Agricultural Labor Relations Board.

27(j) The term “supervisor” means any individual having the
28authority, in the interest of the employer, to hire, transfer, suspend,
29lay off, recall, promote, discharge, assign, reward, or discipline
30other employees, or the responsibility to direct them, or to adjust
31their grievances, or effectively to recommend such action, if, in
32connection with the foregoing, the exercise of such authority is
33not of a merely routine or clerical nature, but requires the use of
34independent judgment.


begin deleteSECTION 1.end delete
36begin insert SEC. 2.end insert  

Section 1164 of the Labor Code is amended to read:



(a) An agricultural employer or a labor organization
38certified as the exclusive bargaining agent of a bargaining unit of
39agricultural employees may file with the board, at any time
40following (1) 90 days after abegin insert renewedend insert demand to bargain by an
P5    1agricultural employer or a labor organization certified prior to
2January 1, 2003,begin insert which meets the conditions specified in Section
31164.11, end insert
(2) 90 days afterbegin delete an initialend deletebegin insert aend insert request to bargain by an
4agricultural employer or a labor organization certified after January
51, 2003, (3) 60 days after the board has certified the labor
6organization pursuant to subdivision (f) of Section 1156.3, or (4)
760 days after the board has dismissed a decertification petition
8upon a finding that the employer has unlawfully initiated,
9supported, sponsored, or assisted in the filing of a decertification
10petition a declaration that the parties have failed to reach a
11collective bargaining agreement and a request that the board issue
12an order directing the parties to mandatory mediation and
13conciliation of their issues. “Agricultural employer,” for purposes
14of this chapter, means an agricultural employer, as defined in
15subdivision (c) of Section 1140.4, who has employed or engaged
1625 or more agricultural employees during any calendar week in
17the year preceding the filing of a declaration pursuant to this
18subdivision.begin delete For purposes of this section, “agricultural employer”
19also includes any person, party, entity, or employer that purchased
20all or part of an employer business, where the selling employer
21had an obligation to bargain under this chapter.end delete

22(b) Upon receipt of a declaration pursuant to subdivision (a),
23the board shall immediately issue an order directing the parties to
24mandatory mediation and conciliation of their issues. The board
25shall request from the California State Mediation and Conciliation
26Service a list of nine mediators who have experience in labor
27mediation. The California State Mediation and Conciliation Service
28may include names chosen from its own mediators, or from a list
29of names supplied by the American Arbitration Association or the
30Federal Mediation Service. The parties shall select a mediator from
31the list within seven days of receipt of the list. If the parties cannot
32agree on a mediator, they shall strike names from the list until a
33mediator is chosen by process of elimination. If a party refuses to
34participate in selecting a mediator, the other party may choose a
35mediator from the list. The costs of mediation and conciliation
36shall be borne equally by the parties.

37(c) Upon appointment, the mediator shall immediately schedule
38meetings at a time and location reasonably accessible to the parties.
39Mediation shall proceed for a period of 30 days. Upon expiration
40of the 30-day period, if the parties do not resolve the issues to their
P6    1mutual satisfaction, the mediator shall certify that the mediation
2process has been exhausted. Upon mutual agreement of the parties,
3the mediator may extend the mediation period for an additional
430 days.

5(d) Within 21 days, the mediator shall file a report with the
6board that resolves all of the issues between the parties and
7establishes the final terms of a collective bargaining agreement,
8including all issues subject to mediation and all issues resolved by
9the parties prior to the certification of the exhaustion of the
10mediation process. With respect to any issues in dispute between
11the parties, the report shall include the basis for the mediator’s
12determination. The mediator’s determination shall be supported
13by the record.

14(e) In resolving the issues in dispute, the mediator may consider
15those factors commonly considered in similar proceedings,

17(1) The stipulations of the parties.

18(2) The financial condition of the employer and its ability to
19meet the costs of the contract in those instances where the employer
20claims an inability to meet the union’s wage and benefit demands.

21(3) The corresponding wages, benefits, and terms and conditions
22of employment in other collective bargaining agreements covering
23similar agricultural operations with similar labor requirements.

24(4) The corresponding wages, benefits, and terms and conditions
25of employment prevailing in comparable firms or industries in
26geographical areas with similar economic conditions, taking into
27account the size of the employer, the skills, experience, and training
28required of the employees, and the difficulty and nature of the
29work performed.

30(5) The average consumer prices for goods and services
31according to the California Consumer Price Index, and the overall
32cost of living, in the area where the work is performed.


begin deleteSEC. 2.end delete
34begin insert SEC. 3.end insert  

Section 1164.3 of the Labor Code is amended to read:



(a) Either party, within seven days of the filing of the
36report by the mediator, may petition the board for review of the
37report. The petitioning party shall, in the petition, specify the
38particular provisions of the mediator’s report for which it is seeking
39review by the board and shall specify the specific grounds
40authorizing review by the board. The board, within 10 days of
P7    1receipt of a petition, may accept for review those portions of the
2petition for which a prima facie case has been established that (1)
3a provision of the collective bargaining agreement set forth in the
4mediator’s report is unrelated to wages, hours, or other conditions
5of employment within the meaning of Section 1155.2, (2) a
6provision of the collective bargaining agreement set forth in the
7mediator’s report is based on clearly erroneous findings of material
8fact, or (3) a provision of the collective bargaining agreement set
9forth in the mediator’s report is arbitrary or capricious in light of
10the mediator’s findings of fact.

11(b) If it finds grounds exist to grant review within the meaning
12of subdivision (a), the board shall order the provisions of the report
13that are not the subject of the petition for review into effect as a
14final order of the board. If the board does not accept a petition for
15review or no petition for review is filed, then the mediator’s report
16shall become a final order of the board.

17(c) The board shall issue a decision concerning the petition and
18if it determines that a provision of the collective bargaining
19agreement contained in the mediator’s report violates the provisions
20of subdivision (a), it shall, within 21 days, issue an order requiring
21the mediator to modify the terms of the collective bargaining
22agreement. The mediator shall meet with the parties for additional
23mediation for a period not to exceed 30 days. At the expiration of
24this mediation period, the mediator shall prepare a second report
25resolving any outstanding issues. The second report shall be filed
26with the board.

27(d) Either party, within seven days of the filing of the mediator’s
28second report, may petition the board for a review of the mediator’s
29second report pursuant to the procedures specified in subdivision
30(a). If no petition is filed, the mediator’s report shall take immediate
31effect as a final order of the board. If a petition is filed, the board
32shall issue an order confirming the mediator’s report and order it
33into immediate effect, unless it finds that the report is subject to
34review for any of the grounds specified in subdivision (a), in which
35case the board shall determine the issues and shall issue a final
36order of the board.

37(e) Either party, within seven days of the filing of the report by
38the mediator, may petition the board to set aside the report if a
39prima facie case is established that any of the following have
40occurred: (1) the mediator’s report was procured by corruption,
P8    1fraud, or other undue means, (2) there was corruption in the
2mediator, or (3) the rights of the petitioning party were substantially
3prejudiced by the misconduct of the mediator. For the sole purpose
4of interpreting the terms of paragraphs (1), (2), and (3), case law
5that interprets similar terms used in Section 1286.2 of the Code of
6Civil Procedure shall apply. If the board finds that any of these
7grounds exist, the board shall within 10 days vacate the report of
8the mediator and shall order the selection and appointment of a
9new mediator, and an additional mediation period of 30 days,
10pursuant to Section 1164.

11(f) Within 60 days after the order of the board takes effect, even
12if a party seeks appellate review of the order of the board, either
13party or the board may file an action to enforce the order of the
14board, in the superior court for the County of Sacramento or in the
15county where either party’s principal place of business is located.
16During the pendency of a petition for a writ of review by a party,
17the parties shall be required to implement the terms of the board’s
18order immediately upon issuance of the order. No final order of
19 the board shall be stayed during any review sought under this
20section, unless the court finds and states in its initial findings that
21(1) the appellant has demonstrated, by clear and convincing
22evidence, that he or she will be irreparably harmed by the
23implementation of the board’s order, and (2) the appellant has
24demonstrated, by clear and convincing evidence, a likelihood of
25success on appeal. For purposes of this section, the court deciding
26the stay shall provide written findings and analysis supporting the
27decision to grant a stay.

begin delete28

SEC. 3.  

Section 1164.11 of the Labor Code is repealed.

end delete
29begin insert

begin insert SEC. 4.end insert  

end insert

begin insertSection 1164.11 of the end insertbegin insertLabor Codeend insertbegin insert is amended to
30read:end insert



A demand made pursuant to paragraph (1) of
32subdivision (a) of Section 1164 may be made only in cases which
33meet all of the following criteria: (a) the parties have failed to
34reach agreement for at least one year after the date on which the
35labor organization made its initial request to bargain,begin insert andend insert (b) the
36employer has committed an unfair laborbegin delete practice, and (c) the parties
37have not previously had a binding contract between them.end delete
begin insert practice.end insert