BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  SB 25
                                                                  Page  1

          Date of Hearing:   June 26, 2013

                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
                               Roger HernŠndez, Chair
                    SB 25 (Steinberg) - As Amended:  June 19, 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)Specifies that a party, in filing its request for mediation,  
            must declare that it has made itself available to meet and  
            bargain with the other party, at reasonable times and places  
            during the applicable period.

          3)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.

          4)Requires the parties to implement the terms of the ALRB's  
            order while a petition for a writ of review is pending.

          5)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.

          6)Provides that a court granting a stay of an ALRB order shall  
            provide written findings and analysis supporting the decision.








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          7)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.

           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  








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          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  
          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.




           SPECIFIC PROVISIONS OF THE BILL  :

           Changes to When the Mandatory Mediation is Available

           Existing law places certain restriction on when mandatory  
          mediation is available to parties under the ALRA, depending on  
          whether the labor organization was certified before or after  
          2003.

          For situations in which the labor organization was certified  
          before January 1, 2003, existing law states that a request for  
          mediation may be made 90 days after a renewed demand to bargain.  
           In addition, existing law provides that such a demand for  
          mediation may be made when the following criteria are met: (1)  








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          the parties have failed to reach agreement for at least one year  
          after the date on which the labor organization made its initial  
          demand to bargain; (2) the employer has committed an unfair  
          labor practice; and (3)  the parties have not previously had a  
          binding contract between them  .

          This bill eliminates the limitation that a demand for mediation  
          may only be made where the parties have not previously had a  
          binding contract between them.  Therefore, for labor  
          organizations certified before 2003, this bill provides that  
          mediation may be utilized even if the parties previously had a  
          contract.

          For labor organizations certified after January 1, 2003,  
          existing law provides that a demand for mediation may be made 90  
          days after an  initial  request to bargain.  This essentially  
          limits the mediation process to first contracts.

          This bill eliminates the limitation on the mediation process for  
           initial  requests to bargain, thereby making the mediation  
          process available for subsequent contracts (such as when an  
          initial contract has expired).

           Recent Amendment to the Bill  

          At the previous hearing on this bill, opponents expressed  
          concern that with these changes, the mediation process would be  
          the de facto course of action by labor organizations, and that  
          there would no longer be a need for a labor organization to  
          attempt to bargain on their own before resorting to the  
          mediation process.

          In response, the author has amended this bill to specify that a  
          request for mediation may only be made where the labor  
          organization demonstrates that it "  has made itself available to  
          meet and bargain with the other party, at reasonable times and  
          places  " during the applicable period prior to requesting  
          mediation.

           Changes to Allow ALRB to File and Action to Enforce a Mediation  
          Order  

          This bill specifies that  even if a party seeks appellate review  
          of an order of the ALRB  , either party or the ALRB may file an  
          action to enforce the order of the ALRB in the superior court  








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          for the County of Sacramento or in the county where either  
          party's principal place of business is located.



           Changes to Require Implementation of the Mediator's Order During  
          an Appeal 

          Under existing law, within 30 days after the ALRB has issued an  
          order affirming a mediator's order, either party may petition  
          for a writ of review in the court of appeal or the California  
          Supreme Court.

          This bill provides that during such a petition for a writ of  
          review,  the parties shall be required to implement the terms of  
          the ALRB's order.  

           Changes to Standards for Granting a Stay During Court Review  

          Under existing law, no order of the ALRB shall be stayed during  
          an appeal unless the court finds that (1) the appellant will be  
          irreparably harmed by the implementation of the order, and (2)  
          the appellant has a likelihood of success on appeal.

          This bill provides that a court may only issue a stay of an ALRB  
          order unless it finds and states in its initial findings that:

                 The appellant has demonstrated  by clear and convincing  
               evidence  that he or she will be irreparably harmed by  
               implementation of the order; and

                 The appellant has demonstrated  by clear and convincing  
               evidence  a likelihood of success on appeal.

          This bill also provides that a court granting a stay of an ALRB  
          order shall provide written findings and analysis supporting the  
          decision.

           Author's 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  








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          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  
          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  








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               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  
                    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, by expanding the application of the  
          mediation process to include all future collective bargaining  
          agreement negotiations, this bill replaces negotiations between  
          labor and management in agriculture by continuously repeating  
          third-party intervention in setting the terms and conditions of  
          employment.  They contend that this negates any possibility of  
          fostering labor and management cooperation in future  
          negotiations by providing incentive for one party to simply hold  
          on its positions until mediation can be commenced in the  
          relatively short time periods provided for.

          In addition, opponents claim that this bill would continuously  
          take away the important right of agricultural employees to have  
          the opportunity to review and vote on whether to ratify  
          negotiated collective bargaining agreements.  They note that  
          this past year has included several situations in which a  
          certification of a labor organization had been left dormant by  








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          the labor organization for years or even decades, only to be  
          utilized to apply the mediation provisions to obtain collective  
          bargaining agreements without allowing employees any opportunity  
          to decide whether they wished to be represented by the labor  
          organization that had forgotten them for decades, or to ratify  
          any collective bargaining agreement that might be ultimately  
          imposed upon them.  Opponents conclude that this bill prevents  
          employees from ever having an opportunity to decide their own  
          fate due to the limitations on when election can be conducted  
          under the ALRA.

           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 June 5 set of amendments to this bill, that  
          language has been removed from the proposed measure.

          This bill will be referred to Assembly Judiciary Committee upon  
          passage out of this Committee.

           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 Chiropractic Association
          California Labor Federation, AFL-CIO
          California Professional Firefighters
          California School Employees Association
          California Teamsters Public Affairs Council
          Engineers and Scientists of California
          International Longshore & Warehouse Union
          Numerous Individuals
          Monterey Bay Central Labor Council
          North Bay Labor Council








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          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
          Agricultural Personnel Management Association
          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
          Raisin Bargaining Association
          San Gabriel Valley Regional Chamber
          Simi Valley Chamber of Commerce








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          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