as amended, Steinberg. Agricultural labor relations:
begin delete contractend delete 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.end delete
This 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 the applicable period. 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.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:
Section 1164 of the Labor Code is amended to
(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 petition, a declaration
16that the parties have failed to reach a collective bargaining
17agreement 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, and a request that the board issue an order
P3 1directing the parties to mandatory mediation and conciliation of
2their issues. “Agricultural employer,” for purposes of this chapter,
3means an agricultural employer, as defined in subdivision (c) of
4Section 1140.4, who has employed or engaged 25 or more
5agricultural employees during any calendar week in the year
6preceding the filing 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
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.
P4 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
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.
Section 1164.3 of the Labor Code is amended to
(a) Either party, within seven days of the filing of the
24report by the mediator, may petition the board for review of the
25report. The petitioning party shall, in the petition, specify the
26particular provisions of the mediator’s report for which it is seeking
27review by the board and shall specify the specific grounds
28authorizing review by the board. The board, within 10 days of
29receipt of a petition, may accept for review those portions of the
30petition for which a prima facie case has been established that (1)
31a provision of the collective bargaining agreement set forth in the
32mediator’s report is unrelated to wages, hours, or other conditions
33of employment within the meaning of Section 1155.2, (2) a
34provision of the collective bargaining agreement set forth in the
35mediator’s report is based on clearly erroneous findings of material
36fact, or (3) a provision of the collective bargaining agreement set
37forth in the mediator’s report is arbitrary or capricious in light of
38the mediator’s findings of fact.
39(b) If it finds grounds exist to grant review within the meaning
40of subdivision (a), the board shall order the provisions of the report
P5 1that are not the subject of the petition for review into effect as a
2final order of the board. If the board does not accept a petition for
3review or no petition for review is filed, then the mediator’s report
4shall become a final order of the board.
5(c) The board shall issue a decision concerning the petition and
6if it determines that a provision of the collective bargaining
7agreement contained in the mediator’s report violates the provisions
8of subdivision (a), it shall, within 21 days, issue an order requiring
9the mediator to modify the terms of the collective bargaining
10agreement. The mediator shall meet with the parties for additional
11mediation for a period not to exceed 30 days. At the expiration of
12this mediation period, the mediator shall prepare a second report
13resolving any outstanding issues. The second report shall be filed
14with the board.
15(d) Either party, within seven days of the filing of the mediator’s
16second report, may petition the board for a review of the mediator’s
17second report pursuant to the procedures specified in subdivision
18(a). If no petition is filed, the mediator’s report shall take immediate
19effect as a final order of the board. If a petition is filed, the board
20shall issue an order confirming the mediator’s report and order it
21into immediate effect, unless it finds that the report is subject to
22review for any of the grounds specified in subdivision (a), in which
23case the board shall determine the issues and shall issue a final
24order of the board.
25(e) Either party, within seven days of the filing of the report by
26the mediator, may petition the board to set aside the report if a
27prima facie case is established that any of the following have
28occurred: (1) the mediator’s report was procured by corruption,
29fraud, or other undue means, (2) there was corruption in the
30mediator, or (3) the rights of the petitioning party were substantially
31prejudiced by the misconduct of the mediator. For the sole purpose
32of interpreting the terms of paragraphs (1), (2), and (3), case law
33that interprets similar terms used in Section 1286.2 of the Code of
34Civil Procedure shall apply. If the board finds that any of these
35grounds exist, the board shall within 10 days vacate the report of
36the mediator and shall order the selection and appointment of a
37new mediator, and an additional mediation period of 30 days,
38pursuant to Section 1164.
39(f) Within 60 days after the order of the board takes effect, even
40if a party seeks appellate review of the order of the board, either
P6 1party or the board may file an action to enforce the order of the
2board, in the superior court for the County of Sacramento or in the
3county where either party’s principal place of business is located.
4During the pendency of a petition for a writ of review by a party,
5the parties shall be required to implement the terms of the board’s
6order immediately upon issuance of the order. No final order of
7 the board shall be stayed during any review sought under this
8section, unless the court finds and states in its initial findings that
9(1) the appellant has demonstrated, by clear and convincing
10evidence, that he or she will be irreparably harmed by the
11implementation of the board’s order, and (2) the appellant has
12demonstrated, by clear and convincing evidence, a likelihood of
13success on appeal. For purposes of this section, the court deciding
14the stay shall provide written findings and analysis supporting the
15decision to grant a stay.
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.