Code Section Group

Labor Code - LAB

DIVISION 2. EMPLOYMENT REGULATION AND SUPERVISION [200 - 2699.5]

  ( Division 2 enacted by Stats. 1937, Ch. 90. )

PART 3.5. AGRICULTURAL LABOR RELATIONS [1140 - 1166.3]

  ( Part 3.5 added by Stats. 1975, 3rd Ex. Sess., Ch. 1. )

CHAPTER 6.5. Contract Dispute Resolution [1164 - 1164.13]
  ( Chapter 6.5 added by Stats. 2002, Ch. 1145, Sec. 2. )

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.

(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.

(Amended by Stats. 2011, Ch. 697, Sec. 4. (SB 126) Effective January 1, 2012.)

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.

(Amended by Stats. 2018, Ch. 718, Sec. 2. (AB 2751) Effective January 1, 2019.)

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.

(Added by Stats. 2002, Ch. 1145, Sec. 2. Effective January 1, 2003.)

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.

(Added by Stats. 2002, Ch. 1145, Sec. 2. Effective January 1, 2003.)

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.

(Added by Stats. 2002, Ch. 1145, Sec. 2. Effective January 1, 2003.)

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.

(Added by Stats. 2018, Ch. 718, Sec. 3. (AB 2751) Effective January 1, 2019.)

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, (b) the employer has committed an unfair labor practice, and (c) the parties have not previously had a binding contract between them.

(Amended (as added by Stats. 2002, Ch. 1145) by Stats. 2002, Ch. 1146, Sec. 3. Effective January 1, 2003.)

1164.12.
  

To ensure an orderly implementation of the mediation process ordered by this chapter, a party may not file a total of more than 75 declarations with the board prior to January 1, 2008. In calculating the number of declarations so filed, the identity of the other party with respect to whom the declaration is filed, shall be irrelevant.

(Amended by Stats. 2003, Ch. 870, Sec. 3. Effective January 1, 2004.)

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.

(Added by Stats. 2002, Ch. 1145, Sec. 2. Effective January 1, 2003.)

LABLabor Code - LAB