BILL ANALYSIS                                                                                                                                                                                                    



                                                                            



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                                    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  
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          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  

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                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

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           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:


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          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  

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          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

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          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  

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          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

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