When Gov. Gavin Newsom signed AB 113 into law on May 15, 2023, AB 2183 was immediately amended, and the new law went into effect. Gone is the “Labor Peace Compact” and the promise of mail-in ballot elections—a Hobson’s choice no employer signed up for. It retains the card check provisions under the new moniker— “Majority Support Petition.” Untouched are the onerous penalties of $10,000 for each unfair labor practices charge and up to $25,000 for cases involving retaliation or discrimination. The bond requirements, the presumption that any adverse employment action taken against an employee was retaliatory, which can only be overcome by “clear, convincing and overwhelming” evidence, and personal liability for directors and officers of the employer are still in there. So, what happens if the union presents a Majority Support Petition to the Agricultural Labor Relations Board (ALRB)? You better find out now, because you will have only 48 hours to respond.
48 Hours…Starting Now!
Labor Code Section 1156.37 outlines the obligations of employers after receiving a Majority Support Petition from a qualified labor organization seeking to represent a group of agricultural employees, called a bargaining unit. Within 48 hours of being served with the petition, the employer must provide a comprehensive and accurate list of currently employed employees in the bargaining unit. The list should include the full names, current street addresses, telephone numbers, job classifications and crew or department of each employee. Additionally, the employer must organize this information into separate columns, both in hard copy and electronic format, and submit it to the labor board and the petitioning labor organization. Employers should not wait until they are served with a Majority Support Petition to gather and organize this information. Agricultural employers should be gathering and updating their employees’ contact information on a regular basis, at least seasonally. If the employee does not have a regular current street address, they should describe where they are residing with reasonable accuracy.
Defining the Bargaining Unit
The crucial question that arises in this context is what is the “bargaining unit”? The answer is not straightforward. When a union files a majority support petition, it must describe the bargaining unit it seeks to represent. This description may or may not be limited to harvest crew workers or a particular location, as unions can choose to define the unit based on their strategic considerations. The larger the bargaining unit, the more challenging it is for the union to obtain majority support, which may lead the union to limit the unit to harvest workers or a single location.
Eligibility of Employees in the Bargaining Unit
Not all employees fall within the scope of the petition for representation. Only “agricultural employees” are eligible to be represented under the Agricultural Labor Relations Act (ALRA). The ALRA defines “agricultural employee” as an individual engaged in agriculture, and it excludes employees covered by the National Labor Relations Board (NLRB)—which includes private employees not involved in “agriculture.”
The definition of “agriculture” under the ALRA includes various agricultural and horticultural activities, livestock and poultry raising, forestry or lumbering operations related to farming and more. Based on this definition, clerical and management staff are generally excluded from the bargaining unit. However, certain positions, such as cooler workers, crew foremen, quality control, sanitization and food safety personnel, may or may not be considered agricultural employees, depending on their specific duties and authority.
Exclusions from the Bargaining Unit
Certain categories of employees are ineligible to be represented by the union. These include supervisors with actual supervisorial authority (e.g., the power to hire, fire, impose discipline), guards, managerial employees, family members of the employer and substantial stockholders in closely held corporations.
Understanding the Regulations
The ALRB’s regulatory framework complements the Labor Code provisions and provides further guidance on the certification process and related matters. AB 113 regulations have been proposed but not yet implemented. Those interested in exploring the comprehensive regulatory scheme can find it on the ALRB website.
Conclusion
Labor Code Section 1156.37 outlines the employer’s responsibilities in providing to the union employee information during the certification process. Employers should be gathering and organizing their employees’ information now, including from their farm labor contractors, and not wait until served with a petition. As we anticipate unions taking advantage of their long sought-after new weapon—card check—it is essential to ensure management’s compliance with the ALRA in order to avoid onerous penalties. If you do get served with a Majority Support Petition, avoid taking adverse action against any employees without seeking legal advice. And don’t hesitate to contact Western Growers or your labor attorney immediately, because the 48-hour clock is ticking, and you want to give your counsel maximum time to assist in the process.