Amended in Senate April 25, 2013

Senate Bill No. 25

Introduced by Senator Steinberg

December 3, 2012

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

LEGISLATIVE COUNSEL’S DIGEST

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

Existing law specifies the time for filing a declaration by an agricultural employer begin 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 filed begin insert under specified circumstances, including end 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 them begin delete or 180 days after an initial request to bargain end delete .

This bill would permit the filing of a declaration begin insert as described above end insert without having to meet the begin delete prior bargaining and time requirements and would end delete begin insert condition that the parties have not previously had a binding contract between them. The bill would also end 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.

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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.

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

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 1140.4 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

1140.4.  

As used in this part:

(a) The term “agriculture” includes farming in all its branches,
and, among other things, includes the cultivation and tillage of the
soil, dairying, the production, cultivation, growing, and harvesting
of any agricultural or horticultural commodities (including
commodities defined as agricultural commodities in Section
1141j(g) of Title 12 of the United States Code), the raising of
livestock, bees, furbearing animals, or poultry, and any practices
(including any forestry or lumbering operations) performed by a
farmer or on a farm as an incident to or in conjunction with such
farming operations, including preparation for market and delivery
to storage or to market or to carriers for transportation to market.

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

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

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

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

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

end insert

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

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

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

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

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

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

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

begin delete SECTION 1. end delete
begin insert SEC. 2. end insert   

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 begin insert renewed end insert demand to bargain by an
agricultural employer or a labor organization certified prior to
January 1, 2003, begin insert which meets the conditions specified in Section
1164.11, end insert (2) 90 days after begin delete an initial end delete begin insert a end insert 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. begin delete For purposes of this section, “agricultural employer”
also includes any person, party, entity, or employer that purchased
all or part of an employer business, where the selling employer
had an obligation to bargain under this chapter. end delete

(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.

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

Section 1164.3 of the Labor Code is amended to read:

1164.3.  

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

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

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

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

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

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

begin delete

SEC. 3.  

Section 1164.11 of the Labor Code is repealed.

end delete

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begin insert SEC. 4. end insert   

end insert

begin insert Section 1164.11 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

1164.11.  

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