Amended in Assembly June 19, 2013

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 Sections 1164, 1164.3, and 1164.11 of 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, 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.

Thisbegin insert bill would require the agricultural employer or labor organization filing the declaration to additionally declare that it has made itself available to meet and bargain with the other party at reasonable times and places during theend insertbegin insert applicable period. end insertbegin insertThisend insert 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.

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:

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 a renewed demand to bargain by an
7agricultural employer or a labor organization certified prior to
8January 1, 2003, which meets the conditions specified in Section
91164.11, (2) 90 days after a request to bargain by an agricultural
10employer or a labor organization certified after January 1, 2003,
11(3) 60 days after the board has certified the labor organization
12pursuant to subdivision (f) of Section 1156.3, or (4) 60 days after
13the board has dismissed a decertification petition upon a finding
14that the employer has unlawfully initiated, supported, sponsored,
15or assisted in the filing of a decertification petitionbegin insert,end insert a declaration
16that the parties have failed to reach a collective bargaining
17agreementbegin insert and that the agricultural employer or labor organization
18has made itself available to meet and bargain with the other party
19at reasonable times and places during the 90-day or 60-day
20applicable period,end insert
and a request that the board issue an order
21directing the parties to mandatory mediation and conciliation of
22their issues. “Agricultural employer,” for purposes of this chapter,
P3    1means an agricultural employer, as defined in subdivision (c) of
2Section 1140.4, who has employed or engaged 25 or more
3agricultural employees during any calendar week in the year
4preceding the filing of a declaration pursuant to this subdivision.

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

20(c) Upon appointment, the mediator shall immediately schedule
21meetings at a time and location reasonably accessible to the parties.
22Mediation shall proceed for a period of 30 days. Upon expiration
23of the 30-day period, if the parties do not resolve the issues to their
24mutual satisfaction, the mediator shall certify that the mediation
25process has been exhausted. Upon mutual agreement of the parties,
26the mediator may extend the mediation period for an additional
2730 days.

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

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

40(1) The stipulations of the parties.

P4    1(2) The financial condition of the employer and its ability to
2meet the costs of the contract in those instances where the employer
3claims an inability to meet the union’s wage and benefit demands.

4(3) The corresponding wages, benefits, and terms and conditions
5of employment in other collective bargaining agreements covering
6similar agricultural operations with similar labor requirements.

7(4) The corresponding wages, benefits, and terms and conditions
8of employment prevailing in comparable firms or industries in
9geographical areas with similar economic conditions, taking into
10account the size of the employer, the skills, experience, and training
11required of the employees, and the difficulty and nature of the
12work performed.

13(5) The average consumer prices for goods and services
14according to the California Consumer Price Index, and the overall
15cost of living, in the area where the work is performed.

16

SEC. 2.  

Section 1164.3 of the Labor Code is amended to read:

17

1164.3.  

(a) Either party, within seven days of the filing of the
18report by the mediator, may petition the board for review of the
19report. The petitioning party shall, in the petition, specify the
20particular provisions of the mediator’s report for which it is seeking
21review by the board and shall specify the specific grounds
22authorizing review by the board. The board, within 10 days of
23receipt of a petition, may accept for review those portions of the
24petition for which a prima facie case has been established that (1)
25a provision of the collective bargaining agreement set forth in the
26mediator’s report is unrelated to wages, hours, or other conditions
27of employment within the meaning of Section 1155.2, (2) a
28provision of the collective bargaining agreement set forth in the
29mediator’s report is based on clearly erroneous findings of material
30fact, or (3) a provision of the collective bargaining agreement set
31forth in the mediator’s report is arbitrary or capricious in light of
32the mediator’s findings of fact.

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

39(c) The board shall issue a decision concerning the petition and
40if it determines that a provision of the collective bargaining
P5    1agreement contained in the mediator’s report violates the provisions
2of subdivision (a), it shall, within 21 days, issue an order requiring
3the mediator to modify the terms of the collective bargaining
4agreement. The mediator shall meet with the parties for additional
5mediation for a period not to exceed 30 days. At the expiration of
6this mediation period, the mediator shall prepare a second report
7resolving any outstanding issues. The second report shall be filed
8with the board.

9(d) Either party, within seven days of the filing of the mediator’s
10second report, may petition the board for a review of the mediator’s
11second report pursuant to the procedures specified in subdivision
12(a). If no petition is filed, the mediator’s report shall take immediate
13effect as a final order of the board. If a petition is filed, the board
14shall issue an order confirming the mediator’s report and order it
15into immediate effect, unless it finds that the report is subject to
16review for any of the grounds specified in subdivision (a), in which
17case the board shall determine the issues and shall issue a final
18order of the board.

19(e) Either party, within seven days of the filing of the report by
20the mediator, may petition the board to set aside the report if a
21prima facie case is established that any of the following have
22occurred: (1) the mediator’s report was procured by corruption,
23fraud, or other undue means, (2) there was corruption in the
24mediator, or (3) the rights of the petitioning party were substantially
25prejudiced by the misconduct of the mediator. For the sole purpose
26of interpreting the terms of paragraphs (1), (2), and (3), case law
27that interprets similar terms used in Section 1286.2 of the Code of
28Civil Procedure shall apply. If the board finds that any of these
29grounds exist, the board shall within 10 days vacate the report of
30the mediator and shall order the selection and appointment of a
31new mediator, and an additional mediation period of 30 days,
32pursuant to Section 1164.

33(f) Within 60 days after the order of the board takes effect, even
34if a party seeks appellate review of the order of the board, either
35party or the board may file an action to enforce the order of the
36board, in the superior court for the County of Sacramento or in the
37county where either party’s principal place of business is located.
38During the pendency of a petition for a writ of review by a party,
39the parties shall be required to implement the terms of the board’s
40order immediately upon issuance of the order. No final order of
P6    1 the board shall be stayed during any review sought under this
2section, unless the court finds and states in its initial findings that
3(1) the appellant has demonstrated, by clear and convincing
4evidence, that he or she will be irreparably harmed by the
5implementation of the board’s order, and (2) the appellant has
6demonstrated, by clear and convincing evidence, a likelihood of
7success on appeal. For purposes of this section, the court deciding
8the stay shall provide written findings and analysis supporting the
9decision to grant a stay.

10

SEC. 3.  

Section 1164.11 of the Labor Code is amended to read:

11

1164.11.  

A demand made pursuant to paragraph (1) of
12subdivision (a) of Section 1164 may be made only in cases which
13meet all of the following criteria: (a) the parties have failed to
14reach agreement for at least one year after the date on which the
15labor organization made its initial request to bargain, and (b) the
16employer has committed an unfair labor practice.



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