ALRB’s new Card Check FAQs are now available

We recently reported on Assembly Bill [“AB”] 113, signed by California Governor Gavin Newsom on May 15, 2023, and effective immediately upon his signature, a budget trailer bill that rebranded the card check for farmworker unions.

As a refresher, when the Governor signed AB 2183 last year, he agreed with labor groups to provide clarifying language later on down the line.  AB 113 reflects this promised clarifying language, revising (1) the labor union election and (2) appellate bonding provisions.

With regard to union elections, AB 113 repeals the “labor peace compact” provisions of AB 2183, which allowed employers an option to agree to specified neutrality rules regarding a union’s efforts to organize its employees. AB 113 also repeals the mail-ballot election procedures which AB 2183 made available to certain unions in circumstances where an employer had agreed to abide by labor peace compact rules. AB 113 then adopts a “majority support petition” process largely modeled after the “non-labor peace election” procedure under AB 2183 which allows certain labor unions the ability to become certified as the exclusive collective bargaining representative of an employer’s agricultural employees upon demonstrating proof of support from a majority of the employees.

AB 113 also changes the appellate bond provisions adopted in AB 2183, and requires employers to post a bond as a condition of seeking appellate review of a Board order in an unfair labor practice case involving monetary relief or a Board order in mandatory mediation and conciliation proceedings where the Board has ordered a contract into effect.

In comes the Agricultural Labor Relations Board (ALRB), which has now published new FAQs regarding the intricacies of AB 113.  The ALRB has also announced further clarification of AB 113 through the promulgation of regulations that will be forthcoming.

Thus far, the ALRB has posted 4 questions and answers as follows:

Ø  What are the different ways that a union can be certified as the exclusive collective bargaining representative of an employer’s agricultural employees?

• Petition for Certification:  Allows any labor union to file a petition for an in-person, secret ballot election. A petition must include proof that more than 50% of the workers wish to have an election. Once this showing of support is confirmed, the ALRB will conduct a secret ballot election, often at the grower’s worksite, where workers will be able to cast their ballots in-person.
•  Majority Support Petition:  Available to unions that have filed LM-2 forms with the United States Department of Labor for the previous two years and that have a collective bargaining agreement covering agricultural employees in effect on the day AB 113 took effect, i.e., May 15, 2023. A union filing this type of petition must provide proof of support from a majority of the workers it seeks to represent through authorization cards or petition signatures. If the union demonstrates majority support in this way, the ALRB will certify the union as the exclusive bargaining representative for the workforce.

You can access the ALRB’s new Majority Support Petition here.

Ø  What obligations does an employer have once they receive a petition relating to an election?

After a union files one of the two petitions listed above, the employer will have 48 hours after it receives the petition from the union to file its response. The employer’s response must include a list containing the full names, street addresses, telephone numbers, job classifications, and crew identification for all of its agricultural workers, including those employed by farm labor contractors, as of the payroll period immediately preceding the filing of the petition.

Ø  What are the new appeal bond requirements?

AB 113 makes clear that the appeal bond requirements apply in both unfair labor practice and mandatory mediation and conciliation proceedings.

In unfair labor practice proceedings, when the Board issues a decision providing for a monetary remedy due to an agricultural employee or labor organization, AB 113 requires further administrative proceedings to determine the specific amount of monetary relief owed by an agricultural employer. Upon completion of these proceedings, an agricultural employer who wishes to seek judicial review of the Board’s unfair labor practice decision will be required to post a bond in the amount of the monetary relief ordered by the Board as a condition of obtaining review of the Board’s unfair labor practice and remedy decisions.

In mandatory mediation and conciliation proceedings between a certified labor organization and agricultural employer when they are unable to reach agreement on a collective bargaining agreement, AB 113 requires a mediator to include in their report to the Board recommending the terms of a final contract a statement of the economic value of the recommended contract. An agricultural employer who wishes to seek judicial review of a Board order directing a mandatory mediation and conciliation contract be put into effect must post a bond in the amount of the economic value of the contract as a condition of obtaining review of the Board’s order.

Ø  What do the sunset dates and caps in AB 113 apply to?

AB 113 includes “sunset” provisions relating to the new majority support petition as a means for workers to choose a collective bargaining representative. This means that these amendments to the ALRA to allow certain labor organizations to become certified as an exclusive collective bargaining representative will last only until January 1, 2028. Note this sunset date applies only to the process to select a bargaining representative, and a union selected through this process will remain certified as the bargaining representative of the employees that selected it.

AB 113 also limits the number of labor organization certifications allowed as a result of majority support petitions to 75. There are no time limits or certification limits placed on the ALRA’s pre-existing petition for certification process where a labor organization may seek certification following an in-person, secret ballot election.

The new appeal bond procedures and requirements enacted by AB 113 are permanent amendments to the ALRA.

Questions about card check?  Contact the Rosasco Law Group APC.