California Assembly Bill AB1389 Latest Draft

 BILL NUMBER: AB 1389AMENDED BILL TEXT AMENDED IN ASSEMBLY MAY 4, 2015 INTRODUCED BY Assembly Member Patterson (Principal coauthor: Assembly Member Grove) (Coauthor: Assembly Member Chvez) FEBRUARY 27, 2015  An act to add Section 1164.1 to the Labor Code, relating to employment.   An act to amend Sections 1154 and 1164 of, and to add Section 1164.1 to, the Labor Code, relating to employment.  LEGISLATIVE COUNSEL'S DIGEST AB 1389, as amended, Patterson.  Agricultural Labor Relations Act: binding mediation.   Agricultural labor relations: unfair labor practices.   (1) Existing law establishes the right of agricultural employees to form, join, or assist labor organizations to engage in collective bargaining activities with agricultural employers regarding wages, working conditions, or other aspects of employment. Existing law prohibits a labor organization or its agents from engaging in specified unfair labor practices.   This bill would additionally prohibit a labor organization from abandoning or failing to represent a bargaining unit for 3 or more years. This bill would require the Agricultural Labor Relations Board to decertify a labor organization that violates this provision.   (2) Existing law specifies the time for filing a declaration by an agricultural employer or a certified labor organization representing agricultural employees that the parties have failed to reach a collective bargaining agreement, thus triggering mandatory mediation. Once triggered, the mediation under these provisions is immediately scheduled at a time and location reasonably accessible to the parties and proceeds for 30 days, with an additional 30-day extension upon the mutual agreement of the parties.   This bill would deem members of the bargaining unit to be parties for the purposes of the mediation.  Existing law establishes the conditions and time periods under which an agricultural employer, as defined, or a certified labor organization representing agricultural employees may file a declaration with the Agricultural Labor Relations Board stating that the parties have failed to reach a collective bargaining agreement, thus triggering a board order for mandatory mediation. Existing law authorizes a party, within 60 days of the order by the Agricultural Labor Relations Board taking effect, to file an action to enforce the order. Existing law prohibits an order of the board from being stayed during the pendency of any appeal of the order 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 condition the effect and enforcement of an order resulting from the binding mediation on the order being approved by a majority of the members of the affected bargaining unit. Vote: majority. Appropriation: no. Fiscal committee:  no   yes  . State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 1154 of the   Labor Code   is amended to read:  1154. It shall be an unfair labor practice for a labor organization or its agents to do any of the following: (a) To restrain or coerce: (1) Agricultural employees in the exercise of the rights guaranteed in Section 1152. This paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein. (2) An agricultural employer in the selection of his  or her  representatives for the purposes of collective bargaining or the adjustment of grievances. (b) To cause or attempt to cause an agricultural employer to discriminate against an employee in violation of subdivision (c) of Section 1153, or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated for reasons other than failure to satisfy the membership requirements specified in subdivision (c) of Section 1153. (c) To refuse to bargain collectively in good faith with an agricultural employer, provided it is the representative of his  or her  employees subject to the provisions of Chapter 5 (commencing with Section 1156) of this part. (d) To do either of the following: (i) To engage in, or to induce or encourage any individual employed by any person to engage in, a strike or a refusal in the course of his  or her  employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services; or (ii) to threaten, coerce, or restrain any person; where in either case (i) or (ii) an object thereof is any of the following: (1) Forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by Section 1154.5. (2) Forcing or requiring any person to cease using, selling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his  or her  employees unless such labor organization has been certified as the representative of such employees. Nothing contained in this paragraph shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing. (3) Forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his  or her  agricultural employees if another labor organization has been certified as the representative of such employees under the provisions of Chapter 5 (commencing with Section 1156) of this part. (4) Forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class, unless such employer is failing to conform to an order or certification of the board determining the bargaining representative for employees performing such work. Nothing contained in this subdivision (d) shall be construed to prohibit publicity, including picketing for the purpose of truthfully advising the public, including consumers, that a product or products or ingredients thereof are produced by an agricultural employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his  or her  employment to refuse to pick up, deliver, or transport any goods, or not to perform any services at the establishment of the employer engaged in such distribution, and as long as such publicity does not have the effect of requesting the public to cease patronizing  such   the  other employer. However, publicity which includes picketing and has the effect of requesting the public to cease patronizing  such   the  other employer, shall be permitted only if the labor organization is currently certified as the representative of the primary employer's employees. Further, publicity other than picketing, but including peaceful distribution of literature which has the effect of requesting the public to cease patronizing  such   the  other employer, shall be permitted only if the labor organization has not lost an election for the primary employer's employees within the preceding 12-month period, and no other labor organization is currently certified as the representative of the primary employer's employees. Nothing contained in this subdivision (d) shall be construed to prohibit publicity, including picketing, which may not be prohibited under the United States Constitution or the California Constitution. Nor shall anything in this subdivision (d) be construed to apply or be applicable to any labor organization in its representation of workers who are not agricultural employees. Any such labor organization shall continue to be governed in its intrastate activities for nonagricultural workers by Section 923 and applicable judicial precedents. (e) To require of employees covered by an agreement authorized under subdivision (c) of Section 1153 the payment, as a condition precedent to becoming a member of such organization, of a fee in an amount which the board finds excessive or discriminatory under all circumstances. In making such a finding, the board shall consider, among other relevant factors, the practices and customs of labor organizations in the agriculture industry and the wages currently paid to the employees affected. (f) To cause or attempt to cause an agricultural employer to pay or deliver, or agree to pay or deliver, any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed. (g) To picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is either forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his  or her  employees, or forcing or requiring the employees of an employer to accept or select  such   the  labor organization as their collective-bargaining representative, unless such labor organization is currently certified as the representative of such employees, in any of the following cases: (1) Where the employer has lawfully recognized in accordance with this part any other labor organization and a question concerning representation may not appropriately be raised under Section 1156.3. (2) Where within the preceding 12 months a valid election under Chapter 5 (commencing with Section 1156) of this part has been conducted. Nothing in this subdivision shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his  or her  employment, not to pick up, deliver, or transport any goods or not to perform any services. Nothing in this subdivision (g) shall be construed to permit any act which would otherwise be an unfair labor practice under this section. (h) To picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is either forcing or requiring an employer to recognize or bargain with the labor organization as a representative of his  or her  employees unless such labor organization is currently certified as the collective-bargaining representative of such employees.  (i) To abandon or fail to represent the bargaining unit for a period of three years or more. The board shall decertify a labor organization that violates this subdivision.   (i)   (j)  Nothing contained in this section shall be construed to make unlawful a refusal by any person to enter upon the premises of any agricultural employer, other than his  or her  own employer, if the employees of  such   the  employer are engaged in a strike ratified or approved by a representative of  such   the  employees whom  such   the  employer is required to recognize under this part.  SEC. 2.   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 an initial 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.  Members of the bargaining unit shall be considered parties for purposes of this subdivision and shall be entitled to attend all meetings scheduled by the mediator.  (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.  SECTION 1.   SEC. 3.  Section 1164.1 is added to the Labor Code, to read: 1164.1. An order issued by the mediator, the board, or the court that would impose the terms of binding mediation pursuant Section 1164 shall not take effect or be enforceable until it is approved by a majority of the agricultural employees of the bargaining unit affected by the order.