ALRB approves agricultural employee unionization regs implementing AB 113/AB 2183 “card check” law

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After enactment of last year’s Assembly Bill (AB) 113, designed to reinforce the previous year’s passage of AB 2183, the so-called “card check bill,” the Agricultural Labor Relations Board (ALRB) has now approved the implementing regulations for these two pieces of legislation. The Office of Administrative Law has 30 days to approve the regulations, at which point the regulations are filed with the Secretary of State and become legally enforceable rules that can be implemented by the relevant state agency, in this case the ALRB.

 

First, a little background: The ALRB is a quasi-judicial administrative agency charged with administering and enforcing the Agricultural Labor Relations Act (ALRA), codified at Labor Code section 1140 et seq., a 1975 law extending collective bargaining rights to California farmworkers who were excluded from the coverage of the National Labor Relations Act. The ALRB enforces and protects the organizational rights of farmworkers and oversees labor relations disputes between growers and the unions representing farmworkers.

 

AB 113 added new Labor Code section 1156.37 to the ALRA, which introduces a new “majority support petition” process for certain labor organizations to become certified to represent agricultural employees in collective bargaining negotiations and dealings with their employers.

AB 113 also added new appeal bond statutes to the ALRA, which require agricultural employers to post an appeal bond with the Board as a condition to seeking judicial review of Board orders awarding monetary remedies or involving economic benefits to agricultural employees.

In adopting new unfair labor practice appeal bond requirements, AB 113 also restructured how the Board’s compliance proceedings are conducted. Finally, new Labor Code section 1160.10, as added by AB 2183, requires the Board to assess civil penalties up to $10,000 or $25,000 against employers found to have violated the ALRA, depending on the nature of the violation committed. The new regulations are designed to give the Board a procedural structure for implementing the new Labor Code provisions.

 

Here are the anticipated benefits of the new regulations according to the ALRB’s Statement of Reasons in support of the proposed regulatory action to repeal existing sections 20290, 20291, 20292, and 20293 of, and adopt new sections 20290, 20291, 20292, 20293, 20294, 20295, 20296, 20297, 20297.5, 20391, and 20411 of, Title 8 of the California Code of Regulations:

 

• New rules and procedures are adopted governing the handling and investigation of majority support petitions filed by labor organizations seeking to become designated as the exclusive collective bargaining representative for agricultural employees in dealings with their employers. This will provide guidance to ALRB staff responsible for processing majority support petitions, as well as defining the respective rights and obligations of labor organizations and agricultural employers involved in such proceedings, in addition to other interested parties or affected stakeholders.

 

• The regulations also aim to make more efficient the Board’s administrative compliance proceedings after the Board has issued a decision finding a labor organization or agricultural employer has committed an unfair labor practice in violation of the ALRA. Under prior law when the Board ordered a monetary remedy, such as backpay to affected workers or bargaining make-whole relief to employees denied the benefits of a collective bargaining agreement due to their employer’s unlawful conduct, a party could seek judicial review of the Board’s unfair labor practice liability decision before the specific amount of the monetary relief owed was determined. After AB 113, such administrative compliance proceedings to determine the amount of a Board-ordered monetary remedy must commence immediately after the Board finds a party has committed an unfair labor practice for which a monetary remedy is due, and such proceedings must be completed within one year. The proposed regulations implement such procedures while aiming to make such proceedings involving monetary remedies more efficient and expedient. In addition, the proposed regulations include amendments to the Board’s compliance proceedings involving other types of non-monetary remedies ordered by the Board in unfair labor practice cases to make such proceedings more efficient across the board and to bring quicker resolution to disputes involving Board-ordered remedies.

• The proposed regulations also provide guidance to agricultural employers now required to post an appeal bond as a condition of seeking judicial review of certain Board orders. Specifically, AB 113 requires an employer to post an appeal bond with the Board when seeking judicial review of a Board decision involving monetary remedies to farmworkers in unfair labor practice cases or setting the terms of a collective bargaining agreement after mandatory mediation and conciliation proceedings. In unfair labor practice proceedings, the amount of the appeal bond required is the amount of the monetary remedy ordered to be paid to the aggrieved farmworker(s). In mandatory mediation and conciliation proceedings, the amount of the appeal bond required is determined by the value of the economic benefits provided by the new collective bargaining agreement less the value of the employees’ existing wages and benefits. The proposed regulatory action provides guidance to employers regarding the requirements for posting an appeal bond, or a cash deposit in lieu of a bond, with the Board and the procedures by which the Board will handle such bonds.

 

• Finally, the proposed regulatory action includes guidance to ALRB staff and agricultural employers regarding the procedures by which the Board will determine the amount of civil penalties to be assessed against an employer found to have violated the ALRA. Under this proposed regulatory action, such determinations will be subject to compliance proceedings after an employer’s unfair labor practice liability first has been determined. This will allow an expedient and efficient administrative process by which factors relevant to determining the amount of penalties to be assessed can be developed and established.

 

Questions on “card check” and other unionization issues? Please contact Rosasco Law Group for all of your labor and employment law needs.