Bill Text: CA SB25 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Agricultural labor relations: dispute resolution.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Vetoed) 2014-09-28 - In Senate. Consideration of Governor's veto pending. [SB25 Detail]

Download: California-2013-SB25-Amended.html

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BILL NUMBER: SB 25	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JUNE 5, 2013
	AMENDED IN SENATE  APRIL 25, 2013

INTRODUCED BY   Senator Steinberg

                        DECEMBER 3, 2012

   An act to amend Sections  1140.4,  1164, 1164.3,
and 1164.11 of the Labor Code, relating to employment.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 25, as amended, Steinberg. Agricultural labor relations:
contract dispute resolution.
   Existing law specifies the time for filing a declaration by an
agricultural employer, as defined, or a certified labor organization
representing agricultural employees that the parties have failed to
reach a collective bargaining agreement, thus triggering mandatory
mediation. Under existing law, the declaration may be filed under
specified circumstances, including 90 days after a renewed demand to
bargain where the parties have failed to reach agreement for at least
one year, the employer committed an unfair labor practice, and the
parties have not previously had a binding contract between them.
   This bill would permit the filing of a declaration as described
above without having to meet the condition that the parties have not
previously had a binding contract between them.  The bill
would also expand the definition of an agricultural employer to
include subsequent purchasers of an agricultural employer's business
where the original employer had an obligation to bargain with its
workers. 
   Existing law provides that within 60 days of a decision by the
Agricultural Labor Relations Board taking effect, a party may file an
action to enforce the order, using specified procedures. Existing
law provides that during the pendency of any appeal of the board's
order, the order may not be stayed unless the appellant demonstrates
that he or she is likely to prevail on the merits and that he or she
will be irreparably harmed by implementation of the board's order.
   This bill would provide that an action to enforce the order of the
board may be filed within 60 days whether or not the other party is
seeking judicial review of the order. The bill would also increase
the evidentiary threshold for the court to grant a stay of the board'
s order and require the court to make written findings supporting any
order granting a stay of the order during the pendency of the
appeal.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
   
  SECTION 1.    Section 1140.4 of the Labor Code is
amended to read:
   1140.4.  As used in this part:
   (a) The term "agriculture" includes farming in all its branches,
and, among other things, includes the cultivation and tillage of the
soil, dairying, the production, cultivation, growing, and harvesting
of any agricultural or horticultural commodities (including
commodities defined as agricultural commodities in Section 1141j(g)
of Title 12 of the United States Code), the raising of livestock,
bees, furbearing animals, or poultry, and any practices (including
any forestry or lumbering operations) performed by a farmer or on a
farm as an incident to or in conjunction with such farming
operations, including preparation for market and delivery to storage
or to market or to carriers for transportation to market.
   (b) The term "agricultural employee" or "employee" shall mean one
engaged in agriculture, as such term is defined in subdivision (a).
However, nothing in this subdivision shall be construed to include
any person other than those employees excluded from the coverage of
the National Labor Relations Act, as amended, as agricultural
employees, pursuant to Section 2(3) of the Labor Management Relations
Act (Section 152(3), Title 29, United States Code), and Section 3(f)
of the Fair Labor Standards Act (Section 203(f), Title 29, United
States Code).
   Further, nothing in this part shall apply, or be construed to
apply, to any employee who performs work to be done at the site of
the construction, alteration, painting, or repair of a building,
structure, or other work (as these terms have been construed under
Section 8(e) of the Labor Management Relations Act, 29 U.S.C. Sec.
158(e)) or logging or timber-clearing operations in initial
preparation of land for farming, or who does land leveling or only
land surveying for any of the above.
   As used in this subdivision, "land leveling" shall include only
major land moving operations changing the contour of the land, but
shall not include annual or seasonal tillage or preparation of land
for cultivation.
   (c) The term "agricultural employer" shall be liberally construed
to include any person acting directly or indirectly in the interest
of an employer in relation to an agricultural employee, any
individual grower, corporate grower, cooperative grower, harvesting
association, hiring association, land management group, any
association of persons or cooperatives engaged in agriculture, and
shall include any person who owns or leases or manages land used for
agricultural purposes, but shall exclude any person supplying
agricultural workers to an employer, any farm labor contractor as
defined by Section 1682, and any person functioning in the capacity
of a labor contractor. The employer engaging such labor contractor or
person shall be deemed the employer for all purposes under this
part.
   "Agricultural employer" shall also include a person, party,
entity, or corporate form that directly or indirectly controls all or
a part of an agricultural operation in any form, or 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 this act.
   (d) The term "person" shall mean one or more individuals,
corporations, partnerships, limited liability companies,
associations, legal representatives, trustees in bankruptcy,
receivers, or any other legal entity, employer, or labor organization
having an interest in the outcome of a proceeding under this part.
   (e) The term "representatives" includes any individual or labor
organization.
   (f) The term "labor organization" means any organization of any
kind, or any agency or employee representation committee or plan, in
which employees participate and which exists, in whole or in part,
for the purpose of dealing with employers concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or
conditions of work for agricultural employees.
   (g) The term "unfair labor practice" means any unfair labor
practice specified in Chapter 4 (commencing with Section 1153) of
this part.
   (h) The term "labor dispute" includes any controversy concerning
terms, tenure, or conditions of employment, or concerning the
association or representation of persons in negotiating, fixing,
maintaining, changing, or seeking to arrange terms or conditions of
employment, regardless of whether the disputants stand in the
proximate relation of employer and employee.
   (i) The term "board" means Agricultural Labor Relations Board.
   (j) The term "supervisor" means any individual having the
authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or the responsibility to direct them, or
to adjust their grievances, or effectively to recommend such action,
if, in connection with the foregoing, the exercise of such authority
is not of a merely routine or clerical nature, but requires the use
of independent judgment. 
   SEC. 2.   SECTION 1.   Section 1164 of
the Labor Code is amended to read:
   1164.  (a) An agricultural employer or a labor organization
certified as the exclusive bargaining agent of a bargaining unit of
agricultural employees may file with the board, at any time following
(1) 90 days after a renewed demand to bargain by an agricultural
employer or a labor organization certified prior to January 1, 2003,
which meets the conditions specified in Section 1164.11, (2) 90 days
after a request to bargain by an agricultural employer or a labor
organization certified after January 1, 2003, (3) 60 days after the
board has certified the labor organization pursuant to subdivision
(f) of Section 1156.3, or (4) 60 days after the board has dismissed a
decertification petition upon a finding that the employer has
unlawfully initiated, supported, sponsored, or assisted in the filing
of a decertification petition a declaration that the parties have
failed to reach a collective bargaining agreement and a request that
the board issue an order directing the parties to mandatory mediation
and conciliation of their issues. "Agricultural employer," for
purposes of this chapter, means an agricultural employer, as defined
in subdivision (c) of Section 1140.4, who has employed or engaged 25
or more agricultural employees during any calendar week in the year
preceding the filing of a declaration pursuant to this subdivision.
   (b) Upon receipt of a declaration pursuant to subdivision (a), the
board shall immediately issue an order directing the parties to
mandatory mediation and conciliation of their issues. The board shall
request from the California State Mediation and Conciliation Service
a list of nine mediators who have experience in labor mediation. The
California State Mediation and Conciliation Service may include
names chosen from its own mediators, or from a list of names supplied
by the American Arbitration Association or the Federal Mediation
Service. The parties shall select a mediator from the list within
seven days of receipt of the list. If the parties cannot agree on a
mediator, they shall strike names from the list until a mediator is
chosen by process of elimination. If a party refuses to participate
in selecting a mediator, the other party may choose a mediator from
the list. The costs of mediation and conciliation shall be borne
equally by the parties.
   (c) Upon appointment, the mediator shall immediately schedule
meetings at a time and location reasonably accessible to the parties.
Mediation shall proceed for a period of 30 days. Upon expiration of
the 30-day period, if the parties do not resolve the issues to their
mutual satisfaction, the mediator shall certify that the mediation
process has been exhausted. Upon mutual agreement of the parties, the
mediator may extend the mediation period for an additional 30 days.
   (d) Within 21 days, the mediator shall file a report with the
board that resolves all of the issues between the parties and
establishes the final terms of a collective bargaining agreement,
including all issues subject to mediation and all issues resolved by
the parties prior to the certification of the exhaustion of the
mediation process. With respect to any issues in dispute between the
parties, the report shall include the basis for the mediator's
determination. The mediator's determination shall be supported by the
record.
   (e) In resolving the issues in dispute, the mediator may consider
those factors commonly considered in similar proceedings, including:
   (1) The stipulations of the parties.
   (2) The financial condition of the employer and its ability to
meet the costs of the contract in those instances where the employer
claims an inability to meet the union's wage and benefit demands.
   (3) The corresponding wages, benefits, and terms and conditions of
employment in other collective bargaining agreements covering
similar agricultural operations with similar labor requirements.
   (4) The corresponding wages, benefits, and terms and conditions of
employment prevailing in comparable firms or industries in
geographical areas with similar economic conditions, taking into
account the size of the employer, the skills, experience, and
training required of the employees, and the difficulty and nature of
the work performed.
   (5) The average consumer prices for goods and services according
to the California Consumer Price Index, and the overall cost of
living, in the area where the work is performed.
   SEC. 3.   SEC. 2.   Section 1164.3 of
the Labor Code is amended to read:
   1164.3.  (a) Either party, within seven days of the filing of the
report by the mediator, may petition the board for review of the
report. The petitioning party shall, in the petition, specify the
particular provisions of the mediator's report for which it is
seeking review by the board and shall specify the specific grounds
authorizing review by the board. The board, within 10 days of receipt
of a petition, may accept for review those portions of the petition
for which a prima facie case has been established that (1) a
provision of the collective bargaining agreement set forth in the
mediator's report is unrelated to wages, hours, or other conditions
of employment within the meaning of Section 1155.2, (2) a provision
of the collective bargaining agreement set forth in the mediator's
report is based on clearly erroneous findings of material fact, or
(3) a provision of the collective bargaining agreement set forth in
the mediator's report is arbitrary or capricious in light of the
mediator's findings of fact.
   (b) If it finds grounds exist to grant review within the meaning
of subdivision (a), the board shall order the provisions of the
report that are not the subject of the petition for review into
effect as a final order of the board. If the board does not accept a
petition for review or no petition for review is filed, then the
mediator's report shall become a final order of the board.
   (c) The board shall issue a decision concerning the petition and
if it determines that a provision of the collective bargaining
agreement contained in the mediator's report violates the provisions
of subdivision (a), it shall, within 21 days, issue an order
requiring the mediator to modify the terms of the collective
bargaining agreement. The mediator shall meet with the parties for
additional mediation for a period not to exceed 30 days. At the
expiration of this mediation period, the mediator shall prepare a
second report resolving any outstanding issues. The second report
shall be filed with the board.
   (d) Either party, within seven days of the filing of the mediator'
s second report, may petition the board for a review of the mediator'
s second report pursuant to the procedures specified in subdivision
(a). If no petition is filed, the mediator's report shall take
immediate effect as a final order of the board. If a petition is
filed, the board shall issue an order confirming the mediator's
report and order it into immediate effect, unless it finds that the
report is subject to review for any of the grounds specified in
subdivision (a), in which case the board shall determine the issues
and shall issue a final order of the board.
   (e) Either party, within seven days of the filing of the report by
the mediator, may petition the board to set aside the report if a
prima facie case is established that any of the following have
occurred: (1) the mediator's report was procured by corruption,
fraud, or other undue means, (2) there was corruption in the
mediator, or (3) the rights of the petitioning party were
substantially prejudiced by the misconduct of the mediator. For the
sole purpose of interpreting the terms of paragraphs (1), (2), and
(3), case law that interprets similar terms used in Section 1286.2 of
the Code of Civil Procedure shall apply. If the board finds that any
of these grounds exist, the board shall within 10 days vacate the
report of the mediator and shall order the selection and appointment
of a new mediator, and an additional mediation period of 30 days,
pursuant to Section 1164.
   (f) Within 60 days after the order of the board takes effect, even
if a party seeks appellate review of the order of the board, either
party or the board may file an action to enforce the order of the
board, in the superior court for the County of Sacramento or in the
county where either party's principal place of business is located.
During the pendency of a petition for a writ of review by a party,
the parties shall be required to implement the terms of the board's
order immediately upon issuance of the order. No final order of the
board shall be stayed during any review sought under this section,
unless the court finds and states in its initial findings that (1)
the appellant has demonstrated, by clear and convincing evidence,
that he or she will be irreparably harmed by the implementation of
the board's order, and (2) the appellant has demonstrated, by clear
and convincing evidence, a likelihood of success on appeal. For
purposes of this section, the court deciding the stay shall provide
written findings and analysis supporting the decision to grant a
stay.
   SEC. 4.   SEC. 3.   Section 1164.11 of
the Labor Code is amended to read:
   1164.11.  A demand made pursuant to paragraph (1) of subdivision
(a) of Section 1164 may be made only in cases which meet all of the
following criteria: (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, and (b) the employer has
committed an unfair labor practice.