Amended in Assembly June 5, 2013

Amended in Senate April 25, 2013

Senate BillNo. 25

Introduced by Senator Steinberg

December 3, 2012

An act to amend Sectionsbegin delete 1140.4,end delete 1164, 1164.3, and 1164.11 of 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 employer, as defined, 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 under specified circumstances, including 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.

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

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.

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

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

begin delete
P2    1


Section 1140.4 of the Labor Code is amended to



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.

15(b) The term “agricultural employee” or “employee” shall mean
16one engaged in agriculture, as such term is defined in subdivision
17(a). However, nothing in this subdivision shall be construed to
18include any person other than those employees excluded from the
19coverage of the National Labor Relations Act, as amended, as
20agricultural employees, pursuant to Section 2(3) of the Labor
21Management Relations Act (Section 152(3), Title 29, United States
22Code), and Section 3(f) of the Fair Labor Standards Act (Section
23203(f), Title 29, United States Code).

24Further, nothing in this part shall apply, or be construed to apply,
25to any employee who performs work to be done at the site of the
P3    1construction, alteration, painting, or repair of a building, structure,
2or other work (as these terms have been construed under Section
38(e) of the Labor Management Relations Act, 29 U.S.C. Sec.
4158(e)) or logging or timber-clearing operations in initial
5preparation of land for farming, or who does land leveling or only
6land surveying for any of the above.

7As used in this subdivision, “land leveling” shall include only
8major land moving operations changing the contour of the land,
9but shall not include annual or seasonal tillage or preparation of
10land for cultivation.

11(c) The term “agricultural employer” shall be liberally construed
12to include any person acting directly or indirectly in the interest
13of an employer in relation to an agricultural employee, any
14individual grower, corporate grower, cooperative grower,
15harvesting association, hiring association, land management group,
16any association of persons or cooperatives engaged in agriculture,
17and shall include any person who owns or leases or manages land
18used for agricultural purposes, but shall exclude any person
19supplying agricultural workers to an employer, any farm labor
20 contractor as defined by Section 1682, and any person functioning
21in the capacity of a labor contractor. The employer engaging such
22labor contractor or person shall be deemed the employer for all
23purposes under this part.

24“Agricultural employer” shall also include a person, party, entity,
25or corporate form that directly or indirectly controls all or a part
26of an agricultural operation in any form, or a person, party, entity,
27or corporate form that purchases, assumes management of, or
28otherwise directly or indirectly controls all or a part of an
29agricultural operation in any form, where the previous or selling
30employer had an obligation to bargain under this act.

31(d) The term “person” shall mean one or more individuals,
32corporations, partnerships, limited liability companies, associations,
33legal representatives, trustees in bankruptcy, receivers, or any other
34legal entity, employer, or labor organization having an interest in
35the outcome of a proceeding under this part.

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

38(f) The term “labor organization” means any organization of
39any kind, or any agency or employee representation committee or
40plan, in which employees participate and which exists, in whole
P4    1or in part, for the purpose of dealing with employers concerning
2grievances, labor disputes, wages, rates of pay, hours of
3employment, or conditions of work for agricultural employees.

4(g) The term “unfair labor practice” means any unfair labor
5practice specified in Chapter 4 (commencing with Section 1153)
6of this part.

7(h) The term “labor dispute” includes any controversy
8concerning terms, tenure, or conditions of employment, or
9concerning the association or representation of persons in
10negotiating, fixing, maintaining, changing, or seeking to arrange
11terms or conditions of employment, regardless of whether the
12disputants stand in the proximate relation of employer and

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

15(j) The term “supervisor” means any individual having the
16authority, in the interest of the employer, to hire, transfer, suspend,
17lay off, recall, promote, discharge, assign, reward, or discipline
18other employees, or the responsibility to direct them, or to adjust
19their grievances, or effectively to recommend such action, if, in
20connection with the foregoing, the exercise of such authority is
21not of a merely routine or clerical nature, but requires the use of
22independent judgment.

end delete

begin deleteSEC. 2.end delete
24begin insertSECTION 1.end insert  

Section 1164 of the Labor Code is amended to



(a) An agricultural employer or a labor organization
27certified as the exclusive bargaining agent of a bargaining unit of
28agricultural employees may file with the board, at any time
29following (1) 90 days after a renewed demand to bargain by an
30agricultural employer or a labor organization certified prior to
31January 1, 2003, which meets the conditions specified in Section
321164.11, (2) 90 days after a request to bargain by an agricultural
33employer or a labor organization certified after January 1, 2003,
34(3) 60 days after the board has certified the labor organization
35pursuant to subdivision (f) of Section 1156.3, or (4) 60 days after
36the board has dismissed a decertification petition upon a finding
37that the employer has unlawfully initiated, supported, sponsored,
38or assisted in the filing of a decertification petition a declaration
39that the parties have failed to reach a collective bargaining
40agreement and a request that the board issue an order directing the
P5    1parties to mandatory mediation and conciliation of their issues.
2“Agricultural employer,” for purposes of this chapter, means an
3agricultural employer, as defined in subdivision (c) of Section
41140.4, who has employed or engaged 25 or more agricultural
5employees during any calendar week in the year preceding the
6filing of a declaration pursuant to this subdivision.

7(b) Upon receipt of a declaration pursuant to subdivision (a),
8the board shall immediately issue an order directing the parties to
9mandatory mediation and conciliation of their issues. The board
10shall request from the California State Mediation and Conciliation
11Service a list of nine mediators who have experience in labor
12mediation. The California State Mediation and Conciliation Service
13may include names chosen from its own mediators, or from a list
14of names supplied by the American Arbitration Association or the
15Federal Mediation Service. The parties shall select a mediator from
16the list within seven days of receipt of the list. If the parties cannot
17agree on a mediator, they shall strike names from the list until a
18mediator is chosen by process of elimination. If a party refuses to
19participate in selecting a mediator, the other party may choose a
20mediator from the list. The costs of mediation and conciliation
21shall be borne equally by the parties.

22(c) Upon appointment, the mediator shall immediately schedule
23meetings at a time and location reasonably accessible to the parties.
24Mediation shall proceed for a period of 30 days. Upon expiration
25of the 30-day period, if the parties do not resolve the issues to their
26mutual satisfaction, the mediator shall certify that the mediation
27process has been exhausted. Upon mutual agreement of the parties,
28the mediator may extend the mediation period for an additional
2930 days.

30(d) Within 21 days, the mediator shall file a report with the
31board that resolves all of the issues between the parties and
32establishes the final terms of a collective bargaining agreement,
33including all issues subject to mediation and all issues resolved by
34the parties prior to the certification of the exhaustion of the
35mediation process. With respect to any issues in dispute between
36the parties, the report shall include the basis for the mediator’s
37determination. The mediator’s determination shall be supported
38by the record.

P6    1(e) In resolving the issues in dispute, the mediator may consider
2those factors commonly considered in similar proceedings,

4(1) The stipulations of the parties.

5(2) The financial condition of the employer and its ability to
6meet the costs of the contract in those instances where the employer
7claims an inability to meet the union’s wage and benefit demands.

8(3) The corresponding wages, benefits, and terms and conditions
9of employment in other collective bargaining agreements covering
10similar agricultural operations with similar labor requirements.

11(4) The corresponding wages, benefits, and terms and conditions
12of employment prevailing in comparable firms or industries in
13geographical areas with similar economic conditions, taking into
14account the size of the employer, the skills, experience, and training
15required of the employees, and the difficulty and nature of the
16work performed.

17(5) The average consumer prices for goods and services
18according to the California Consumer Price Index, and the overall
19cost of living, in the area where the work is performed.


begin deleteSEC. 3.end delete
21begin insertSEC. 2.end insert  

Section 1164.3 of the Labor Code is amended to read:



(a) Either party, within seven days of the filing of the
23report by the mediator, may petition the board for review of the
24report. The petitioning party shall, in the petition, specify the
25particular provisions of the mediator’s report for which it is seeking
26review by the board and shall specify the specific grounds
27authorizing review by the board. The board, within 10 days of
28receipt of a petition, may accept for review those portions of the
29petition for which a prima facie case has been established that (1)
30a provision of the collective bargaining agreement set forth in the
31mediator’s report is unrelated to wages, hours, or other conditions
32of employment within the meaning of Section 1155.2, (2) a
33provision of the collective bargaining agreement set forth in the
34mediator’s report is based on clearly erroneous findings of material
35fact, or (3) a provision of the collective bargaining agreement set
36forth in the mediator’s report is arbitrary or capricious in light of
37the mediator’s findings of fact.

38(b) If it finds grounds exist to grant review within the meaning
39of subdivision (a), the board shall order the provisions of the report
40that are not the subject of the petition for review into effect as a
P7    1final order of the board. If the board does not accept a petition for
2review or no petition for review is filed, then the mediator’s report
3shall become a final order of the board.

4(c) The board shall issue a decision concerning the petition and
5if it determines that a provision of the collective bargaining
6agreement contained in the mediator’s report violates the provisions
7of subdivision (a), it shall, within 21 days, issue an order requiring
8the mediator to modify the terms of the collective bargaining
9agreement. The mediator shall meet with the parties for additional
10mediation for a period not to exceed 30 days. At the expiration of
11this mediation period, the mediator shall prepare a second report
12resolving any outstanding issues. The second report shall be filed
13with the board.

14(d) Either party, within seven days of the filing of the mediator’s
15second report, may petition the board for a review of the mediator’s
16second report pursuant to the procedures specified in subdivision
17(a). If no petition is filed, the mediator’s report shall take immediate
18effect as a final order of the board. If a petition is filed, the board
19shall issue an order confirming the mediator’s report and order it
20into immediate effect, unless it finds that the report is subject to
21review for any of the grounds specified in subdivision (a), in which
22case the board shall determine the issues and shall issue a final
23order of the board.

24(e) Either party, within seven days of the filing of the report by
25the mediator, may petition the board to set aside the report if a
26prima facie case is established that any of the following have
27occurred: (1) the mediator’s report was procured by corruption,
28fraud, or other undue means, (2) there was corruption in the
29mediator, or (3) the rights of the petitioning party were substantially
30prejudiced by the misconduct of the mediator. For the sole purpose
31of interpreting the terms of paragraphs (1), (2), and (3), case law
32that interprets similar terms used in Section 1286.2 of the Code of
33Civil Procedure shall apply. If the board finds that any of these
34grounds exist, the board shall within 10 days vacate the report of
35the mediator and shall order the selection and appointment of a
36new mediator, and an additional mediation period of 30 days,
37pursuant to Section 1164.

38(f) Within 60 days after the order of the board takes effect, even
39if a party seeks appellate review of the order of the board, either
40party or the board may file an action to enforce the order of the
P8    1board, in the superior court for the County of Sacramento or in the
2county where either party’s principal place of business is located.
3During the pendency of a petition for a writ of review by a party,
4the parties shall be required to implement the terms of the board’s
5order immediately upon issuance of the order. No final order of
6 the board shall be stayed during any review sought under this
7section, unless the court finds and states in its initial findings that
8(1) the appellant has demonstrated, by clear and convincing
9evidence, that he or she will be irreparably harmed by the
10implementation of the board’s order, and (2) the appellant has
11demonstrated, by clear and convincing evidence, a likelihood of
12success on appeal. For purposes of this section, the court deciding
13the stay shall provide written findings and analysis supporting the
14decision to grant a stay.


begin deleteSEC. 4.end delete
16begin insertSEC. 3.end insert  

Section 1164.11 of the Labor Code is amended to read:



A demand made pursuant to paragraph (1) of
18subdivision (a) of Section 1164 may be made only in cases which
19meet all of the following criteria: (a) the parties have failed to
20reach agreement for at least one year after the date on which the
21labor organization made its initial request to bargain, and (b) the
22employer has committed an unfair labor practice.