BILL NUMBER: SB 1156 CHAPTERED
BILL TEXT
CHAPTER 1145
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2002
APPROVED BY GOVERNOR SEPTEMBER 30, 2002
PASSED THE SENATE AUGUST 30, 2002
PASSED THE ASSEMBLY AUGUST 30, 2002
AMENDED IN ASSEMBLY AUGUST 30, 2002
AMENDED IN ASSEMBLY MARCH 13, 2002
AMENDED IN ASSEMBLY JANUARY 14, 2002
AMENDED IN ASSEMBLY SEPTEMBER 10, 2001
INTRODUCED BY Senator Burton and Assembly Member Wesson
(Principal coauthors: Senators Polanco and Romero)
(Principal coauthor: Assembly Member Firebaugh)
(Coauthors: Senators Alarcon, Alpert, Bowen, Dunn, Escutia,
Figueroa, Karnette, Kuehl, Machado, Murray, O'Connell, Ortiz, Peace,
Perata, Sher, Soto, Speier, Torlakson, and Vasconcellos)
(Coauthors: Assembly Members Alquist, Aroner, Calderon,
Canciamilla, Cardenas, Cedillo, Chan, Chavez, Chu, Cohn, Corbett,
Correa, Diaz, Florez, Frommer, Goldberg, Hertzberg, Horton, Jackson,
Keeley, Kehoe, Koretz, Liu, Longville, Lowenthal, Negrete McLeod,
Migden, Oropeza, Pavley, Reyes, Salinas, Shelley, Simitian,
Steinberg, Strom-Martin, Vargas, Washington, Wayne, and Wright)
FEBRUARY 23, 2001
An act to add Chapter 6.5 (commencing with Section 1164) to Part
3.5 of Division 2 of the Labor Code, relating to agricultural labor
relations.
LEGISLATIVE COUNSEL'S DIGEST
SB 1156, Burton. Agricultural employer-employee collective
bargaining and mediation.
Existing law establishes a procedure pursuant to which backstretch
employees working for a licensed trainer or horseman in the horse
racing industry may join a labor organization for purposes of
collective bargaining with their employers. It authorizes the
California Horse Racing Board to order the parties to engage in good
faith negotiations for employment agreements on an individual
employer basis and to participate in mandatory mediation if no
agreement is reached. If an impasse is declared the board may
appoint an arbitrator to determine the issues and issue a binding
order. Existing law authorizes specified disputes to be adjudicated
by the stewards, who have the authority to order any remedy therefor,
and authorizes the California Horse Racing Board to require the
parties to submit to binding arbitration subject to judicial review.
This bill would provide a mediation procedure applicable to
specified agricultural employers and a labor organization certified
as the exclusive bargaining agent of a bargaining unit of
agricultural employees. It would permit either party to file with
the Agricultural Labor Relations Board, following a specified period,
a declaration that the parties have failed to reach a collective
bargaining agreement. It would require the board, upon receipt of a
declaration pursuant to this procedure, to immediately issue an order
directing the parties to mandatory mediation and conciliation of the
issues for a specified period.
This bill would require the mediator, if the parties do not
resolve the issues to their mutual satisfaction, to certify that the
mediation process has been exhausted. It would require the mediator
to issue a report that determines all unresolved issues and
establishes the final terms of a collective bargaining agreement.
This bill would permit either party, within a specified period, to
petition the board to review the mediator's report, and would permit
the board to accept for review only those portions of a petition
that establish a prima facie case of grounds therefor, as specified.
It would require the board, if it does not accept a petition for
review, to issue an order confirming the mediator's report and order
it into immediate effect. It would require the board, if it finds
grounds to grant review, to 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 the mediator's report would become the final order of the
board.
This bill would require the board to issue a decision concerning
the petition and under specified conditions to issue an order
requiring modification of the collective bargaining agreement in the
mediator's report. It would require the mediator to meet with the
parties for an additional mediation period and, at the end of this
mediation period, to prepare a 2nd report resolving any outstanding
issues, and to file it with the board.
This bill would permit either party within a specified period
after the issuance of the mediator's 2nd report, to petition the
board for a review of the mediator's 2nd report. If no petition is
filed, the mediator's report would take immediate effect as a final
order of the board. If a petition is filed, the board would be
required to issue an order confirming the mediator's report and order
it into immediate effect, unless it finds that the report is subject
to review on any of the grounds specified by this bill, in which
case the board shall determine the issues and shall order the
mediator's report, as modified by the board, into immediate effect as
a final order of the board. It would permit the board to set aside
the mediator's report on specified grounds.
This bill would permit either party, within a specified period
after the mediator's report takes effect, to file an action to
enforce the provisions of the mediator's report, as specified. It
would also permit either party, within a specified period after the
mediator's report takes effect, to petition for a writ of review in
the court of appeal or the California Supreme Court for a writ of
review, and would specify the basis for review by the court.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares that a need exists
for a mediation procedure in order to ensure a more effective
collective bargaining process between agricultural employers and
agricultural employees, and thereby more fully attain the purposes of
the Agricultural Labor Relations Act, ameliorate the working
conditions and economic standing of agricultural employees, create
stability in the agricultural labor force, and promote California's
economic well-being by ensuring stability in its most vital industry.
SEC. 2. Chapter 6.5 (commencing with Section 1164) is added to
Part 3.5 of Division 2 of the Labor Code, to read:
CHAPTER 6.5. CONTRACT DISPUTE RESOLUTION
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
90 days after certification of the labor organization, 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.
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, or (2) a
provision of the collective bargaining agreement set forth in the
mediator's report is based on clearly erroneous findings of material
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 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,
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 the parties' principal place of business is located.
No final order of the board shall be stayed during any appeal under
this section, unless the court finds that (1) the appellant will be
irreparably harmed by the implementation of the board's order, and
(2) the appellant has demonstrated a likelihood of success on appeal.
1164.5. (a) Within 30 days after the order of the board takes
effect, a party may petition for a writ of review in the court of
appeal or the California Supreme Court. If the writ issues, it shall
be made returnable at a time and place specified by court order and
shall direct the board to certify its record in the case to the court
within the time specified. The petition for review shall be served
personally upon the executive director of the board and the
nonappealing party personally or by service.
(b) The review by the court shall not extend further than to
determine, on the basis of the entire record, whether any of the
following occurred:
(1) The board acted without, or in excess of, its powers or
jurisdiction.
(2) The board has not proceeded in the manner required by law.
(3) The order or decision of the board was procured by fraud or
was an abuse of discretion.
(4) The order or decision of the board violates any right of the
petitioner under the Constitution of the United States or the
California Constitution.
(c) Nothing in this section shall be construed to permit the court
to hold a trial de novo, to take evidence other than as specified by
the California Rules of Court, or to exercise its independent
judgment on the evidence.
1164.7. (a) The board and each party to the action or proceeding
before the mediator may appear in the review proceeding. Upon the
hearing, the court of appeal or the Supreme Court shall enter
judgment either affirming or setting aside the order of the board.
(b) The provisions of the Code of Civil Procedure relating to
writs of review shall, so far as applicable, apply to proceedings
instituted under this chapter.
1164.9. No court of this state, except the court of appeal or the
Supreme Court, to the extent specified in this article, shall have
jurisdiction to review, reverse, correct, or annul any order or
decision of the board to suspend or delay the execution or operation
thereof, or to enjoin, restrain, or interfere with the board in the
performance of its official duties, as provided by law and the rules
of court.
1164.11. This chapter shall apply to all election certifications
issued by the board before and after the effective date of this
chapter.
1164.13. The provisions of this chapter are severable. If any
provision of this chapter or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.