BILL ANALYSIS Ó
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