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AB-2751 Agricultural labor relations.(2017-2018)

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Date Published: 09/24/2018 09:00 PM
AB2751:v94#DOCUMENT

Assembly Bill No. 2751
CHAPTER 718

An act to amend Section 1164.3 of, and to add Sections 1149.3, 1164.10, and 6721 to, the Labor Code, relating to agricultural labor relations.

[ Approved by Governor  September 23, 2018. Filed with Secretary of State  September 23, 2018. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 2751, Mark Stone. Agricultural labor relations.
Existing law, the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975, grants agricultural employees the right to form and join labor organizations and engage in collective bargaining with respect to wages, terms of employment, and other employment conditions. The act creates the Agricultural Labor Relations Board (ALRB).
The act prohibits agricultural employers and labor organizations from engaging in unfair labor practices, as defined, and empowers the ALRB to prevent any person from engaging in those practices.
This bill would require the ALRB to process to final board order, within one year, all decisions concerning make-whole awards, backpay, and other monetary awards to employees, or any board order finding liability for an award, unless the ALRB makes a specified certification to the parties.
Existing law authorizes an agricultural employer or a labor organization certified as the exclusive bargaining agent of a bargaining unit of agricultural employees to file with the board, at specified times, 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. Existing law requires the mediator to file a report with the board that may become a final order of the board, or the board may determine the issues and issue a final order of the board, as specified.
Existing law authorizes either party or the board to 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; however, the law prohibits enforcement of a pending board order unless the court makes specified findings.
This bill would, instead, require immediate implementation of the board order during the pendency of any challenge, appeal, writ of review, or other action seeking to modify or overturn a board order, unless the court makes specified findings. The bill would require at the conclusion of any review proceedings commenced under these provisions in which the board’s order is affirmed, and the terms set forth in the board’s order are not implemented or effective, the agricultural employer and the labor organization to immediately implement the board’s order.
The bill would specify a procedure for either the agricultural employer or labor organization to file a request with the board for referral to mandatory mediation and conciliation if a collective bargaining agreement in a mediator’s report adopted as a final board order includes a duration provision setting a term for the agreement that has since expired during the course of any review proceedings, or other provisions that have become outdated or otherwise moot as a result of the passage of time during the course of review proceedings.
Existing regulatory law, applicable to all outdoor places of employment, among other things, requires that employees have access to potable water and be encouraged to drink water frequently, that the employer have and maintain one or more areas with shade at all times while employees are present that are either open to the air or provided with ventilation or cooling, and that the employer implement high-heat procedures when the temperature equals or exceeds 95 degrees Fahrenheit, as specified.
This bill would authorize the requirements described above to be known and cited as the Maria Isabel Vasquez Jimenez heat illness standard.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1149.3 is added to the Labor Code, to read:

1149.3.
 (a) The board shall process to final board order all decisions concerning make-whole awards, backpay, and other monetary awards to employees, within one year of any board order finding liability for that award, unless the board certifies to the parties that there is good cause for exceeding this time limit and provides a reasoned explanation for the assertion of good cause.
(b) If the board has already made a finding that an employer is liable for a make-whole, backpay, or other monetary award to an employee or employees, and a compliance proceeding is necessary to determine the specific amount owed by the employer, the board shall process to final board order a decision concerning the amount or amounts owed within one year of the time that a final decision on employer liability has been made by the board, unless the board certifies to the parties that there is good cause for exceeding this time limit and provides a reasoned explanation for the assertion of good cause. For purposes of this subdivision, “final decision on employer liability” means either the date when a board order concerning liability becomes final because no appeal was sought or the date when a reviewing court dismisses an employer’s appeal or decides in favor of the board concerning the employer’s liability.
(c) If an employer’s liability and compliance proceedings are consolidated, the board shall act reasonably and without delay in reaching a final decision concerning the liability and amounts owed to workers, and shall explain to the parties any good cause for delay.

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) (1) Notwithstanding Section 1164.9, within 60 days after the order of the board takes effect, even if a party seeks to challenge, appeal, overturn, modify, or stay in any manner any order of the board under these provisions, 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.
(2) To the extent that the board’s decision in Ace Tomato Co., Inc. (2012) 38 ALRB No. 8, states that a party cannot enforce a board order while an appeal or challenge to the board order in any form is pending, this section abrogates that decision. During the pendency of any challenge, appeal, writ of review, or other action seeking to modify or overturn a board order, the parties shall be required to implement the terms of the board’s order immediately upon issuance of the order.
(3) No final order of the board shall be stayed during any review under this chapter unless the court finds and states in its findings that (1) the appellant or petitioner 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 or petitioner 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. 3.

 Section 1164.10 is added to the Labor Code, to read:

1164.10.
 (a) At the conclusion of any review proceedings commenced under this chapter in which the board’s order is affirmed, and the terms set forth in the board’s order are not implemented or effective, the agricultural employer and the labor organization shall immediately implement the board’s order if the order has not already been implemented.
(b) If a collective bargaining agreement in a mediator’s report adopted as a final board order includes a duration provision setting a term for the agreement that has since expired during the course of any review proceedings, or other provisions that have become outdated or otherwise moot as a result of the passage of time during the course of review proceedings, either the agricultural employer or labor organization may file a request with the board for referral to mandatory mediation and conciliation with the original mediator that decided the disputed issues for purposes of updating those specific provisions. If that mediator is unavailable, the parties may agree to another mediator or the board shall request a list of mediators in accordance with subdivision (b) of Section 1164, and the parties shall be required to select a mediator within 48 hours of receipt of the mediator list, exclusive of weekends or holidays. Any request for referral to mediation shall be filed within 15 days after any judicial review proceedings become final. Any supplemental mandatory mediation and conciliation proceedings provided for in this section shall not extend to any other issues.
(c) Mandatory mediation and conciliation proceedings ordered by the board under subdivision (b) shall be in accordance with the provisions of this chapter, as applicable, except as provided in this subdivision. The mediation under this section shall be scheduled within seven days of the selection or reselection of the mediator. For purposes of complying with this seven-day period, the mediation may occur by telephone if so ordered by the mediator and the parties may submit their written positions and evidence electronically to the mediator. The mediator shall have 10 days to issue an order on the issues in dispute. The review provisions contained in Sections 1164.3 and 1164.5 shall apply.

SEC. 4.

 Section 6721 is added to the Labor Code, to read:

6721.
 The heat illness prevention standards set forth in Section 3395 of Title 8 of the California Code of Regulations shall be known, and may be cited, as the Maria Isabel Vasquez Jimenez heat illness standard.