BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 25
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          Date of Hearing:  July 2, 2013

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
                    SB 25 (Steinberg) - As Amended: June 19, 2013

           SENATE VOTE  :  23-10
           
          SUBJECT  :  Agricultural labor relations: contract dispute  
          resolution

           KEY ISSUE  :  Should the Legislature ENLARGE THE OPPORTUNTIES FOR  
          MEDIATION IN collective bargaining negotiations between labor  
          organizations and agricultural employers and ensure that  
          appropriate orders are effective unless or until there is good  
          cause to block or reject them?

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.

                                      SYNOPSIS

          This bill provides better access to the existing dispute  
          resolution process regarding contracts between agricultural  
          employers and labor organizations, and expands enforcement of  
          orders entered pursuant to that process unless there is good  
          cause to block or reject such orders.  The bill seeks to address  
          two principal criticisms of the existing mediation process: the  
          limited number of negotiations that qualify, and the length of  
          time for decisions to become binding.  Opponents representing  
          agricultural employers contend that by expanding the application  
          of the mediation process the 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 and 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. 

           SUMMARY  :  Revises access to and enforcement of mandatory  
          mediation procedures of the Agricultural Labor Relations Act  
          (ALRA).  Specifically,  this bill  :









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          1)Deletes the requirement of existing law that, for labor  
            organizations certified after January 1, 2003, the mandatory  
            mediation process applies only for an initial request to  
            bargain, and specifies that in filing its request for  
            mediation a party 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.

          2)Deletes the limitation that a demand to bargain under the  
            mandatory mediation process for labor organizations certified  
            prior to January 1, 2013 can occur only if the parties have  
            not previously had a binding contract between them.

          3)Provides that an agricultural employer or labor organization  
            may file 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 issue a stay of an ALRB order if it  
            finds and states 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.

           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.  (Labor Code Sections 1140 to 1166.3.)

          2)Requires that the Agricultural Labor Relations Board (ALRB)  
            follow applicable precedents of the National Labor Relations  
            Act.  (Labor Code Section 1148.)









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          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.  (Id.)

          4)Provides that within 60 days of 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 or she will be  
               irreparably harmed by the implementation of the board's  
               order, and 
             b)   The appellant has demonstrated a likelihood of success  
               on appeal.  (Labor Code Section 1164.3.)
           
           5)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  

             c)   The parties have not previously had a binding contract  
               between them.  (Labor Code Section 1164.11.)

           COMMENTS  :  The author explains the need for the bill as follows:

               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  








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               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 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.

          In support of the bill the UFW adds:

               "[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?








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               [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."

           Background on the Mandatory Mediation Process.   Existing law  
          provides a mandatory dispute resolution process regarding  
          agricultural labor contracts.  Upon a request for mandatory  
          mediation, the ALRB issues 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  








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          may appeal a mediator's decision to the ALRB.  The ALRB may  
          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. 

          Absent one of these circumstances, the mediator's report becomes  
          the final order of the ALRB.  If one or more of the above  
          conditions exists, the mediation process is re-commenced.  If,  
          after issuing a new decision, a party believes that the mediator  
          is corrupt, a new mediator can be called in.  Finally, either  
          party may ask for a stay from a court.  A stay may be granted if  
          the court believes that the mediator's decision would cause  
          irreparable economic harm and the appeal had a strong chance for  
          success.

           New Opportunities For Mediation.   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)  
          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.









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          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).

          In response to opposition concerns that the mediation process  
          would become the de facto course of action by labor  
          organizations without an attempt to bargain, the author has  
          amended this bill to specify that a request for mediation may be  
          made only 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 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  








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            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.

           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  
          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.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          United Farm Workers of America (sponsor)
          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








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          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
          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 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 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 & 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








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          Palm Desert Area Chamber of Commerce
          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  :   Kevin G. Baker / JUD. / (916) 319-2334