BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 25| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 25 Author: Steinberg (D) Amended: 4/25/13 Vote: 21 SENATE LABOR & INDUSTRIAL RELATIONS COMMITTEE : 3-1, 3/13/13 AYES: Lieu, Leno, Lara NOES: Wyland NO VOTE RECORDED: Padilla SUBJECT : Agricultural labor relations: contract dispute resolution SOURCE : United Farm Workers DIGEST : This bill removes the limitations on which collective bargaining negotiations between labor organizations and agricultural employers qualify for mandatory mediation, as well as provides that the mandatory mediation must be implemented while appealed. Senate Floor Amendments of 4/25/13 (1) strike the current definition of successor and instead broaden the definition of agricultural employer and successor employer to include any person, party, entity or corporate form that directly or indirectly controls, manages, or purchases all or part of an agricultural employer where the agricultural employer had an obligation to bargain, and (2) limit mandatory mediation proceedings to situations where the employer and labor organization had failed to reach an agreement for a year or more CONTINUED SB 25 Page 2 and the employer committed an unfair labor practice. ANALYSIS : Existing law: 1. Provides for a secret ballot election process for agricultural workers where a petition has been submitted, as specified, asking for the opportunity for workers to decide whether to select a particular union as their collective bargaining representative. 2. Requires that the Agricultural Labor Relations Board (ALRB) follow applicable precedents of the National Labor Relations Act. 3. Provides for a mandatory mediation process for negotiating a collective bargaining agreement between an agricultural employer and a certified labor organization any time after: A. 90 days after a renewed demand to bargain by a labor organization or agricultural employer certified before January 1, 2003; B. 90 days after an initial demand to bargain by a labor organization or agricultural employer certified before January 1, 2003; or C. 60 days after the ALRB certified a labor organization, or rejects a decertification election, due to employer misconduct. 4. Specifies that the mandatory mediation process only applies to agricultural employers of 25 or more employees. 5. Provides that within 60 days after the ALRB issues a final order on the mediation, either the agricultural employer, the labor organization, or the ALRB may file an action to enforce the mediation agreement in superior court. No stay on a final order of the ALRB can be issued unless the court finds all of the following conditions are met: A. The appellant has demonstrated that he/she will be irreparably harmed by the implementation of the ALRB's CONTINUED SB 25 Page 3 order, and B. The appellant has demonstrated a likelihood of success on appeal. 6. Provides the above-discussed mandatory mediation process can occur only if all of the following conditions are met: 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; B. The employer has committed an unfair labor practice, and This bill: 1. Broadens the definition of agricultural employer and limits binding mediations to situations where the employer has committed an unfair labor practice and the request to negotiate occurred at least one year ago. 2. Provides that an agricultural employer or labor organization may file an order to enforce a mandatory mediation order from the ALRB even if a party seeks appellate review of the decision. 3. Requires that the ALRB's order must be implemented while an ALRB review is pending. 4. Provides that a court may only issue a stay if: A. The appellant has demonstrated by clear and convincing evidence that he/she will be irreparably harmed by the implementation of the ALRB's order, and B. The appellant has demonstrated by clear and convincing evidence a likelihood of success on appeal. 5. Requires the court deciding the stay shall provide written findings and analysis supporting the decision to grant a stay. Background CONTINUED SB 25 Page 4 The mandatory mediation process . The mandatory mediation process was created by two bills, SB 1156 (Burton, Chapter 1145, Statutes of 2002) and AB 2596 (Wesson, Chapter 1146, Statutes of 2002). While the provisions of the mediation process have undergone some minor tweaks, the mediation process provided under existing law remains largely unchanged. Principally, the limitations on when an agricultural employer or a labor organization can ask for the mandatory mediation process remain the same. They are: 1. 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; 2. The employer has committed an unfair labor practice, and 3. The parties have not previously had a binding contract between them. Assuming the above-requirements are met and the above-discussed timelines are past, a request for mandatory mediation triggers a specific process. The ALRB must immediately issue an order directing both parties to meditation and asks the California State Mediation and Conciliation Service for a list of nine mediators who have experience in labor mediation. Both parties select a mediator from the list; if they cannot agree, they strike names from the list until a mediator is selected by the process of elimination. The costs of the mediation process are borne equally by both parties. Upon appointment, the mediator schedules a 30 day period for mediation, which can be extended if necessary. If issues are outstanding after the 30 day period, the mediation process is considered exhausted. Within 21 days, the mediator issues the final terms of a collective bargaining agreement, including issues in dispute by the parties. If the mediator decides issues in dispute, the mediator must explain the basis for his/her ruling. Within seven days of the ruling, either party may appeal a mediator's decision to the ALRB. The ALRB may only review the mediators decision if: CONTINUED SB 25 Page 5 1.The mediator's decision goes beyond wages, hours, and working conditions of employment; 2.The mediator's decision is based on clearly erroneous findings of material fact; or 3.The mediator's report is arbitrary or capricious. If none of the above conditions exists, the mediator's report becomes the final order of the ALRB. If one or more of the above conditions exists, then the mediator mediates the process again. If, after issuing a new decision, a party believes that the mediator is corrupt, then a new mediator would be called in. Finally, either party could ask for a stay from a court. A stay would be granted if the court believed that the mediator's decision would cause irreparable economic harm and the appeal had a strong chance for success. According to the Senate Labor and Industrial Relations Committee analysis, this bill seeks to address two principal criticisms of the existing mediation process: the limited number of negotiations that qualify for the process and the length of time for the mediation to become binding. On the first criticism, proponents argue that, after a labor election result is certified and a labor representative is elected, the relations between an agricultural employer and a labor organization remain tense. Having a mandatory and binding mediation process that allows for a neutral third party to oversee the negotiations and ensure that a collective bargaining agreement is completed. This bill addresses this issue by removing the existing limitations on who can avail themselves of the mandatory mediation process. The second criticism that this bill seeks to address is the length of time it takes for a mediation decision to become binding. While the process between the mediator and the ALRB is straightforward, a court can stay the mediation indefinitely without explaining the reasoning or without an evidentiary process that establishes that a party would suffer irreparable harm. Additionally, parties are not following the terms of the mediation while the appeal is pending. This bill addresses this issue by requiring that the court may only stay a mediator's decision with clear and convincing evidence, and that the court must provide written findings explaining their reasons for CONTINUED SB 25 Page 6 staying the mediator's decision. Additionally, this bill requires the parties to follow the mediation decision while the appeal is pending. Highland Ranch/San Clemente Ranch, Ltd. and the successorship doctrine . Under Labor Code Section 1148, the ALRB must follow any applicable precedents of the National Labor Relations Board (NLRB) precedent. The United States Supreme Court issued a landmark decision in John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964), which found that the arbitration provisions of a collective bargaining agreement survive a merger. This created what is frequently referred to as the "successorship doctrine" in NLRB precedents. This doctrine, however, has frequently been revisited by the NLRB under different administrations. The ALRB utilized the successorship doctrine in Highland Ranch/San Clemente Ranch, Ltd. (1979) 5 ALRB No. 54. The use of this doctrine was upheld by the California Supreme Court in 1981. However, the courts have noted that the use of this doctrine is complex in the agricultural setting due to complex ownership and employment operations (Michael Hat Farming Co. v. Agricultural Labor Relations Bd. (1992) 4 Cal. App. 4th 1037). This bill codifies the successorship doctrine. Prior legislation . SB 126 (Steinberg, Chapter 697, Statutes of 2011) reformed the Agricultural Labor Relations Act to provide explicit authority to the ALRB for bargaining orders, to provide explicit timelines for election challenges and to strengthen mandatory mediation requirements. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 4/29/13) United Farm Workers (source) AFSCME, AFL-CIO California Labor Federation, AFL-CIO California Rural Legal Assistance Foundation California School Employees Association California Teamster Public Affairs Council Monterey Bay Central Labor Council, AFL-CIO North Bay Labor Council, AFL-CIO CONTINUED SB 25 Page 7 San Francisco Labor Council San Mateo County Central Labor Council Teamsters Union Local 890 OPPOSITION : (Verified 4/29/13) Agricultural Council of California California Association of Nurseries and Garden Centers California Association of Wheat Growers California Association of Winegrape Growers California Bean Shippers Association California Cattlemen's Association California Chamber of Commerce California Citrus Mutual California Cotton Ginners Association California Cotton Growers Association California Dairies, Inc. California Farm Bureau Federation California Grain and Feed Association California Grape and Tree Fruit League California Pear Growers Association California Seed Association California State Floral Association California Tomato Growers Association Far West Equipment Dealers Association Friant Water Authority Neisi Farmers League Southwest California Legislative Council Ventura County Agricultural Association Western Agricultural Processors Association Western Growers Association ARGUMENTS IN SUPPORT : Proponents argue that this bill addresses several deficiencies with the Agricultural Labor Relations Act, which prevent employees from realizing the full benefits of a collective bargaining agreement. Proponents argue that this bill addresses the issue of employers refusing to negotiate a new collective bargaining agreement after the initial agreement expires by allowing for mandatory mediation to resolve the dispute. Proponents argue that some employers have used restructuring as a way to nullify union elections, which this bill resolves by creating a successor doctrine similar to what is found in the National Labor Relations Act. Proponents also note that this bill limits the mediation provisions to CONTINUED SB 25 Page 8 employers of 25 or more employees and both parties can select the mediator. ARGUMENTS IN OPPOSITION : Opponents argue that this bill presents significant challenges for agricultural employers. Opponents argue that this bill allows a union that was certified prior to January 1, 2003 to request binding arbitration with an agricultural employer, even if no attempt was made by the union to negotiate an initial contract. Opponents also note that this bill binds successor employers, which the opponents argue could require an employer to negotiate a union contract due to actions of a prior grower or owner years prior. Finally, opponents argue that this will require negotiations years after an initial certification, which could create the situation that the newly unionized employees never voted for the union. PQ:k 4/30/13 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED