BILL ANALYSIS Ó SB 25 Page 1 Date of Hearing: June 12, 2013 ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT Roger Hernández, Chair SB 25 (Steinberg) - As Amended: June 5, 2013 SENATE VOTE : 23-10 SUBJECT : Agricultural labor relations: contract dispute resolution. SUMMARY : Makes various changes to the mandatory mediation procedures of the Agricultural Labor Relations Act (ALRA). Specifically, this bill : 1)Deletes the requirement of existing law that, for labor organizations certified after January 1, 2003, the mandatory mediation process would only apply for an initial request to bargain. 2)Provides that an agricultural employer or labor organization may file an order to enforce a mandatory mediation order from the Agricultural Labor Relations Board (ALRB) even if a party seeks appellate review of the decision. 3)Requires the parties to implement the terms of the ALRB's order while a petition for a writ of review is pending. 4)Provides that a court may only issue a stay of an ALRB order unless it finds and states in its initial findings that: a) The appellant has demonstrated by clear and convincing evidence that he or she will be irreparably harmed by implementation of the order; and b) The appellant has demonstrated by clear and convincing evidence a likelihood of success on appeal. 5)Provides that a court granting a stay of an ALRB order shall provide written findings and analysis supporting the decision. 6)Deletes the limitation that a demand to bargain under the mandatory mediation process for labor organizations certified prior to January 1, 2013 can only occur if the parties have not previously had a binding contract between them. SB 25 Page 2 FISCAL EFFECT : Unknown COMMENTS : This bill, sponsored by the United Farm Workers (UFW) proposes to make a series of changes to the mandatory mediation process that was added to the ALRA in 2002. Brief Background on the Mandatory Mediation Process The mandatory mediation process was enacted by two bills, SB 1156 (Burton) and AB 2596 (Wesson) of 2002. While the provisions of the mediation process have undergone some changes, 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: 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, 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 or her ruling. Within seven days of the ruling, either party may appeal a mediator's decision to the ALRB. The ALRB may only SB 25 Page 3 review the mediators decision if: 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 may 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. Stated Need for the Bill 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 allows for a neutral third party to oversee the negotiations and ensures 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 required to follow 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 SB 25 Page 4 the court must provide written findings explaining their reasons for staying the mediator's decision. Additionally, this bill requires the parties to follow the mediation decision while the appeal is pending. ARGUMENTS IN SUPPORT : The UFW states the following in support of this measure: "[This bill] honors the results of secret ballot elections by allowing for binding mediation to resolve collective bargaining disputes for the duration of the union's certification following a secret ballot election. Adopted into law 2002, the original binding mediation law for first contracts has worked. Decades-long legal maneuvering and delay has been replaced by collective bargaining agreements covering thousands of California farm workers. Those contracts have raised wages, halted arbitrary and inhumane treatment, and stopped sexual harassment. However, as first contracts expire some employers are refusing to negotiate new ones. D'Arrigo Farms delayed signing a first contract for 32 years following a secret ballot election won by farm workers. The company has refused to enter into a new contract since 2010? ?[This bill] also addresses an enforcement loophole in the 2002 law that has been identified by the ALRB. In some specific cases, the ALRB is unable to enforce a mediator's decision or to implement new wages. This past summer, a mediator imposed a first contract at Ace Tomato - a farm where farm workers first voted for the union in 1989. This first contract gave workers wage increases, workplace protections, and the ability to resolve disputes through grievance and arbitration procedures. Yet, even after two decades of legal maneuvers by Ace, when workers requested that the ALRB enforce the contract that Ace was refusing to implement, the ALRB concluded that it does not have the power to enforce the contract. As the ALRB wrote: '?there is no legal mechanism through which the Board can seek to enforce its decision at this time. A statutory amendment is needed to afford that authority SB 25 Page 5 to the Board where, as here, it is warranted.' As a result, despite a binding agreement ordered in July 2012, Ace Tomato has still not implemented the terms of the agreement and ALRB order, and workers continue to work with no contract." ARGUMENTS IN OPPOSITION : Opponents contend that this bill expands mandatory mediation under the ALRA to all future contract negotiations, and allows for mediator-created collective bargaining agreements. They argue that this will disenfranchise agricultural workers by unionizing workers, years or even decades after a union abandoned negotiations. Opponents argue that this bill will impose union membership on these workers along with the obligation to support the union financially regardless of whether those workers chose union representation. COMMITTEE STAFF COMMENT : As introduced, this bill also contained language to address successor liability of agricultural employers. Specifically, the bill proposed to define agricultural employer to include "a person, party, entity, or corporate form that purchases, assumes management of, or otherwise directly or indirectly controls all or a part of an agricultural operation in any form, where the previous or selling employer had an obligation to bargain under" the ALRA. However, with the most recent set of amendments to this bill, that language has been removed from the proposed measure. REGISTERED SUPPORT / OPPOSITION : Support American Federation of State, County and Municipal Employees California Conference Board of the Amalgamated Transit Union California Conference of Machinists California Labor Federation, AFL-CIO California Professional Firefighters SB 25 Page 6 California School Employees Association California Teamsters Public Affairs Council Engineers and Scientists of California International Longshore & Warehouse Union Monterey Bay Central Labor Council North Bay Labor Council Professional & Technical Engineers, Local 21 San Francisco Labor Council San Mateo Labor Council State Building and Construction Trades Council Teamsters Union, Local 890 UNITE HERE! United Farm Workers of America (sponsor) United Food and Commercial Workers Union, Western States Council Utility Workers Union of America, Local 132 Opposition Agricultural Council of California Allied Grape Growers American Pistachio Growers California Association of Cattlemen California Association of Nurseries and Garden Centers California Association of Wheat Growers California Association of Wine Grape Growers California Bean Shippers Association California Cattelmen'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 & Treefruit League California Peach Growers Association California Pear Growers Association California Seed Association California State Floral Association California Tomato Growers Association Family Winemakers of California Far West Equipment Dealers Association Friant Water Authority Nisei Farmers League Palm Desert Area Chamber of Commerce SB 25 Page 7 Raisin Bargaining Association San Gabriel Valley Regional Chamber Simi Valley Chamber of Commerce Southwest California Legislative Council Ventura County Agricultural Processors Association Western Agricultural Processors Association Western Growers Association Western United Dairymen Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091