Agricultural employee unionization made easier thanks to trailer bill passage

Last Updated 5/23/2023


As he promised last year, California Gavin Newsom has just signed supplementary legislation by way of a budget trailer bill, Assembly Bill (AB) 113, designed to reinforce last year’s passage of AB 2183, the so-called “card check bill.”
 
Traditionally, a union who wished to represent the agricultural workers of an employer would submit a petition to the ALRB with a number of signatures equal to at least 50 percent of the peak agricultural employment of that employer. If the union met this threshold, a secret ballot election would have to commence within seven days. Labor organizations have long argued that this employer-friendly method of unionizing gives employers the opportunity to ruin a potential union formation through intimidation, retaliation or even deportation.  Enter AB 2183 and “card check” as the answer for laborers and unions. 
AB 2183 provided two additional methods for agricultural workers to select a union representative:
  1. Through mail-in ballots (a labor-peace election). Through this process, the employer agrees to make no statements for or against union representation to its employees. Then, agricultural employees may select union representation through a mail ballot election without holding a polling place election. The employees or the union would request voting kits issued by the ALRB that would contain voting instructions for participating in a mail ballot election. The ALRB would verify the validity of the petition for representation and the supporting mail ballots before certifying the collective bargaining representative.
  1. By “card check” (a non-labor peace election). Here, the employer does not agree to make statements for or against union representation to its employees. A union may submit proof of majority support, through authorization cards or petitions, demonstrating majority support of currently employed employees determined from the employer’s payroll. Upon receipt of the proof of majority support, the ALRB verifies the validity of the petition before certifying the collective bargaining representative.
When the Governor signed AB 2183, he promised, in tandem with the United Farm Workers and the California Labor Federation, a second bill to alleviate “concerns around implementation and voting integrity.”  However, the agricultural industry and grower associations have voiced their objections since negotiations were not only carried out behind closed doors, but the legislation was fast-tracked by way of a budget-trailer bill.  Budget-trailer bills are essentially drive-through proposals that can circumvent the regular legislative process – they can be introduced at any time, no committees consider the bill’s policy ramifications, and the legislation is effective the moment the Governor signs his approval.
 
Here are the specs on AB 113:
  • Eliminates the option to conduct union elections using mail-in ballots.
  • Retains the option to conduct union elections via the “card-check” system, now called the “Majority Support Petition.” Similar to the original provisions of AB 2183, a Majority Support Petition is submitted by a union wishing to represent employees to the ALRB, accompanied by proof of majority support through petition cards, petitions, or other appropriate proof.
  • Limits the number of card-check/Majority Support Petition elections that result in the certification of a labor organization to 75 certifications.
  • Retains from AB 2183 civil penalties on agricultural employers who have been found to have engaged in unfair labor practices of up to $10,000 for each violation and up to $25,000 for cases where the employee suffers “serious economic harm,” and can include personal liability on directors and officers of the employer.  Also carried over from AB 2183 is the requirement that employers post an appeal bond for employers who wish to appeal an ALRB order involving monetary awards or economic benefits to employees or unions.
  • Sunsets on January 1, 2028. On that date, Majority Support Petitions would no longer be an available option for union elections. Of note, the original provisions of AB 2183 are also scheduled to sunset on January 1, 2028.
Now is the time to train your management on how to deal with employee issues and how to spot potential issues that could result in unionization.  It is also more important than ever to document employee discipline issues to combat baseless claims of retaliation.  If you have questions about card check, contact Rosasco Law Group APC. 
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