Laws: January, 2003 - Number #4

California took another "innovative step" to regulate farm labor relations by requiring mandatory mediation when farm employers and unions cannot negotiate agreements. On September 30, 2002, two bills, SB 1156 and AB 2596, were signed into law to amend the Agricultural Labor Relations Act (www.alrb.ca.gov/). Mandatory mediation applies to employers who had 25 or more agricultural employees during any calendar week in the preceding year, and can be requested up to 75 times by one party between 2003 and 2007.

For unions certified to represent the workers on a farm after January 1, 2003, the employer and union must bargain at least 180 days before filing a declaration of impasse and requesting the ALRB to appoint a mediator (and splitting the costs of mediation); the other party may file a counter-declaration within five days. The ALRB then appoints a mediator, who has 30 days to help the parties reach agreement. The mediator sets a time and place for mediation, and the parties are to provide lists of witnesses and other materials they will provide to make their case to the mediator.

The first mediation session begins the 30-day clock. Mediation sessions are to be reported by a court reporter, and the mediator is to cite the record to support the proposed agreement. Mediators are to base their proposed contracts on the parties' declarations, employer finances, comparisons of wages and benefits in collective bargaining agreements covering similar agricultural operations with similar labor requirements, "considering the size of the employer, the skills, experience, and training required of the employees, as well as the difficulty and nature of the work," and the cost of living.

If mediation fails to produce an agreement, the mediator, within 21 days of the last mediation session, sends the ALRB a proposed contract, which the parties can petition the ALRB to accept or reject. The ALRB is to order the parties to accept the proposed contract unless if finds errors "based on clearly erroneous findings of material fact." The ALRB is not expected to reject many mediator-recommended agreements. Either party can appeal the mandated contract to the California Supreme Court.

SB 1156 and AB 2596 are quite specific on many points. For example, AB 2596 says that the mediator's report "shall include the basis for the mediator's determination" of an imposed agreement, and "must be supported by the record." Unions or employers objecting to the mediator's collective bargaining agreement must "specify the "particular provisions" and the "specific grounds" for having the ALRB review the proposed contract. If the ALRB orders a review of the mediator's recommended agreement, the mediator is given an opportunity to correct errors, and only after a second report is filed with the Board can the Board alter the mediator's recommendation.

The regulations implementing mandatory mediation were published January 17, 2003. During the discussion of the regulations, it was emphasized that mediators usually meet separately with opposing sides to find points of compromise, keeping their discussions with the parties confidential. Arbitrators, on the other hand, are more like judges, conducting hearings "on the record" and unilaterally imposing contracts. Under the amended ALRA, these roles are combined, and mediators are called "neutrals."

Mandatory mediation may revive interest in long-running disputes, some of which date back to 1975--the first ALRB-supervised election was held September 5, 1975 at the Molera Agricultural Group in Castroville. Under mandatory mediation, if the union was certified to represent farm workers before January 1, 2003, it can request mediation after 90 days of fruitless bargaining, that is, after April 1, 2003, if: (1) there was no previous contract; and (2) the employer committed an unfair labor practice.

Mandatory mediation has refocused attention on the five-member Board that supervises elections to determine if farm workers want to be represented by a union and resolves charges that unfair labor practices have been committed. Cathryn Rivera, 32, who had been the chief deputy cabinet secretary, was named to the five-member Agricultural Labor Relations Board in November 2002. The ALRB is now part of the Labor and Workforce Development Agency (http://www.dir.ca.gov/), along with the Department of Industrial Relations (DIR), and the Employment Development Department (EDD).