University of California Cooperative Extension AGRICULTURAL PERSONNEL MANAGEMENT PROGRAM Steve Sutter, Area Personnel Management Farm Advisor 1720 South Maple Avenue, Fresno, California 93702 Phone: (559) 456-7560 (direct Line, with answering machine) or (559) 456-7285 FAX (559) 456-7575 http://are.Berkeley.EDU/APMP/ e-mail srsutter@ucdavis.edu

California's Agricultural Labor Relations Act protects farm workers' rights to organize and negotiate employment terms without interference, restraint, or coercion, and protects" concerted" activity (not necessarily union-activated) including conversations with supervisors in which two or more employees request a pay increase or other change, or protest an employee's treatment. The ALRA applies only to agricultural employers, their employees and labor organizations representing agricultural employees.

The Agricultural Labor Relations Board determines employee units among which secret ballot elections are held, conducts elections, answers questions, and enforces unfair labor practice (ULP) regulations.

Definitions ... "Agricultural employer" includes growers and custom harvesters – but excludes farm labor contractors. The employer for whom an FLC works is deemed the FLC employees' employer.

"Agriculture" is defined as farming in all its branches ... (including) the cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural or horticultural commodities, the raising of livestock, bees, fur-bearing animals, or poultry, and any practices...performed by a farm or on a farm as an incident to or in conjunction with such farming operations, including preparation for market and delivery to storage or to market or to carriers for transportation to market.

A "bargaining unit" is generally all of an employer's employees who are engaged in agricultural work, and those who have jobs which are incident to the employer's agricultural operations. The ALRB may approve an employer's noncontiguous operations as separate units.

"Concerted activities" - Conduct by two or more employees, acting together, for mutual aid and protection. Such activities are protected whether or not they involve union membership or activity.

A "labor organization" (union) is a group, employee representation committee, or plan in which employees participate, in some part, to deal with employers about disputes, pay rates, hours, or work conditions. Although labor organizations are responsible for the acts of their agents and employees, an agricultural employee does not become an agent of a labor organization merely by joining or supporting the union.

"Peak of Season" is the payroll period during which an employer employs the largest number of employees for that calendar year.

"Supervisors" use independent judgment and authority to hire, direct, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline employees, or adjust grievances, or effectively recommend such actions. Under the ALRA, employers are generally liable for actions of supervisors and FLCs.

Access Rights ... Unions may take access to an employer's property during four 30-day periods each calendar year. A 30-day period starts when a union files a completed form "Notice of Intent to Take Access," which must be presented to the employer before being filed with the ALRB. Nonemployee access to greenhouses and areas within dairy/poultry operations are limited because of various conditions, including "the frequent indoor spraying of lethal insecticides" and "possible animal stress."

During access periods, nonemployee union representatives may enter the employer's property to meet with employees for: 1 hour before the start of work; 1 hour after the end of work; and 1 hour during the work day that encompasses the employer-established lunch period, if the employer has one. If there is no established lunch break, the 1-hour period "shall encompass the time when employees are actually taking their lunch break, whenever that occurs during the day."

Organizers must wear badges stating their name and organization and, on request, identify themselves to the employer or supervisor. Access is limited to two organizers per work crew on the property. For crews exceeding 30 workers, an additional organizer is allowed per 15 additional workers. Access rights prohibit disruptive conduct. Speech by itself is not "disruptive." Employers may deny nonemployee organizers access if they exceed time limits. Abusing access rules could constitute a ULP, or be grounds for setting aside an election.

Employer "campaign" ... Rather than trying to block an organizing campaign, supervisors may wish to conduct their own campaign. Employers and supervisors may express (verbally or in print) any view, opinion, or argument, and rebut organizers' statements. Actions or statements containing "threats of reprisal or force or promise of benefit" may constitute ULPs. Threats, interrogations, promises, and surveillance that taint workers' choice are unfair actions interfering, restraining, or coercing employees in exercising rights under the ALRA.

"Notice of Intent to Organize" ... Within 30 days after a union has filed a "Notice of Intent to Obtain Access," it may file a "Notice of Intent to Organize"--signed and dated by at least 10 percent of employees in the unit. Union authorizations, valid one year, are employer-specific. If the ALRB Regional Director determines the 10 percent "showing of interest" is satisfied, a copy of the "employee list" is made available to the union.

Employee List ... Within 5 days after a "Notice of Intent to Organize" is filed, the employer must submit to the regional director an alphabetical list of the name, residence address (a P.O. Box is not acceptable), and job classification of each non-supervisory employee employed in the payroll period immediately preceding the filing of the notice, including these hired through contractors. The number of hours worked by each employee each day during the period, and if paid piece-rate, the number of units credited each employee, must be included.

"Petition For Certification" ... Unions may file a "Petition For Certification" (election petition) if over half of current employees have signed authorization cards. Employees who sign union authorization cards are not obligated to vote for the union. These cards are held by the ALRB in confidence and are not, under any circumstances, divulged to an employer, another labor organization, or the public.

Fifty percent of peak employment ... If the ALRB determines at least half of the employees support the election petition, and the employer is, on the date the petition is filed, at 50 percent of peak employment, the petition is deemed "timely." The ALRB must conduct an election within 7 calendar days after the election petition is filed.

"Strikes" ... If the election petition is filed and the regional director believes a labor dispute (strike) is in progress, an election must be held within 48 hours of the filing. The employer's response to the petition must generally be submitted within 24 hours.

A "Labor dispute" ... is "any controversy concerning terms, tenure, or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee."

"Employer's Response to Petition For Certification" ... When an election petition is filed with the ALRB, the employer has (absent a strike) 48 hours to submit the "Employer's Response to Petition For Certification," agreeing with or contesting (with documentation) statements in it. If the 48-hour response period ends on a Sunday or Holiday, it is extended to the next business day. Responses must identify the employer's attorney or other representative, "if any."

Failure to respond to the petition ... If an employer fails to submit the "Employer's Written Response to the Petition," the regional director may presume: there is adequate employee support for the petition; the petition is timely with respect to the employer's peak of season; and -- when no employee list is submitted or when the list is inadequate to determine employee eligibility -- that all persons who appear to vote, provide adequate identification, and are not challenged by an ALRB agent or a party other than the employer, are eligible voters. Even then, the employer's observers may, for good cause, challenge a voter's eligibility.

Pre-election conference ... After the employer responds, a pre-election conference with the ALRB and the petitioner(s) is held to set the date, time, and location of the election, and names of observers the union and the employer want present to observe and assist ALRB agents in determining voter eligibility. Observers may witness opening of the ballot box and ballot counting. Pre-election conferences generally include attorneys.

Election day ... Observers are eligible voters or non-supervisory employees designated by the parties to help insure the election is run properly. Observers help Board agents identify voters, check names off the eligibility list, and see that the ballot box is secure. Only workers waiting to vote, observers, and Board agents may be present in the polling area. Campaigning is prohibited in the voting area, but voters may converse while waiting to vote.

"Petition To Set Aside the Election" ... Within 5 days after the election, any party may petition to set the election aside on grounds it was not conducted properly or there was preelection conduct which interfered with employee free choice which affected the results.

Election Won by Union ... If the ALRB certifies that the union won the election, the employer must bargain in good faith towards a collective bargaining agreement covering all agricultural employees.

Collective Bargaining ... The duty to bargain requires the union and employer to meet at reasonable times and places to confer about wages, hours, and other employment conditions. Neither party has to agree to a proposal or make a concession. Parties must, however, consummate a written collective bargaining contract incorporating any agreement reached, if requested by either party.

Decertification of union ... If a union is certified, a decertification petition may be filed by employees with a 30 percent showing of interest. The petition may not be filed within 12 months of the original certification or during the term of an existing collective bargaining agreement. If the petition is valid, and no ULP charges are pending, an election is held.

The ALRA specifies certain unfair labor practices which may be committed by a union or an employer. Potential claimants may be referred to the ALRB if they are or recently were agricultural employees who experienced changes in employment terms which were motivated or caused by ALRA-protected activity. Changes in terms of employment includes discharge, layoff, refusal to recall or rehire, reductions in pay, hours, or benefits, or less desirable work assignments or conditions. The ALRB cannot initiate ULP charges on its own. Charges must be filed by an individual, corporation, or labor organization.

Settlement ... The ALRB will facilitate settlements at all phases of ULP proceedings, whether at the point charges are filed, complaints are issued, or during litigation.

Employer ULPs ... An employer generally commits a ULP if it interferes with, restrains, or coerces agricultural employees in the exercise of rights to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their choice, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection (LC Sec. 1153(a)).

The U.S. Supreme Court has held that during an election campaign granting of benefits or promising to raise wages, improve working conditions, make promotions, or provide benefits violate the ALRA because they may imply a threat that such benefits will also be taken away if a representative is elected, or because they make voting for a representative seem irrelevant or unnecessary. Even questioning employees about their union activities or their support of a union on the part of an employer, his or her agents, forepersons, supervisors, or FLCs may constitute a ULP (Section 1153 (a)).

An employer also commits a ULP if it: dominates or interferes with the formation or administration of any labor organization (Sec. 1153(b)); discriminates in regard to hiring, tenure, or other term or condition of employment to discourage (or encourage) membership in any labor organization (Sec. 1153(c)); discharges or discriminates against an employee because he has filed charges or testified under the ALRA (Sec. 1153(d)); or refuses to bargain in good faith with a union after it has won election (Sec. 1153(e)). It is a ULP for an employer (or union) to willfully hire workers for the main purpose of voting in elections (Sec. 1154.6)).

Labor Organization ULPs ... Employees have the right to refrain from organizing activities. Restraint or coercion of employees by unions in their exercise of this right is a ULP committed by the union (Sec. 1154(a)). An example of "restraint and coercion" by a union includes threatening employees with deportation for refusing to support the union.

It is an ULP for a labor organization to charge employees excessive (or discriminatory) membership fees (Section 1154 (e)). The ALRB would consider the practices and customs of agricultural labor organizations, and the wages currently paid the employee concerned. Charging a membership fee which is unreasonably large relative to the amount earned by the employee could be a ULP.

Case handling procedures ... An individual or union has up to 6 months to file a ULP after the action(s) prompting the charge. The charging party must present to the ALRB declarations supporting the charge "under penalty of perjury." ULP handling procedures generally include a letter informing the charged party they will be contacted if a "prima facie case" is established. A prima facie case is "such as will prevail until contradicted and overcome by other evidence."

ULP investigation ... After investigation, the regional director may dismiss the charge (the charging party has 10 days to appeal), or, if a "prima facie case" is evident, apprise the charged party of the details and give that individual time to respond with information for further evaluation -- or to retain an attorney. Representation by an attorney (or union) could bar direct communication between the ALRB and the grower (or farm worker).

Complaints ... If the charged party's explanation does not "overcome" the charging party's evidence, a complaint is issued. Respondents have 10 days to answer. Replies should say which facts are admitted, denied, or are beyond the respondent's knowledge. Allegations not denied are considered admitted. Complaints explain respondents' rights to a hearing.

ULP hearings ... When there is no settlement -- which is relatively rare -- the ALRB chooses a hearing site, assigns an Administrative Law Judge to hear the case, and engages needed interpreters. To prevail in a hearing, the regional director must be shown to be mistaken. Judges' decisions may be appealed. On one occasion, I asked an attorney if I could attend a ULP hearing. He suggested I "get a life." In other words, such hearings are open to the public.

ULP remedies ... must be remedial -- not punitive. They include reinstatement, back pay (lump-sum or installment), and/or orders requiring the person(s) to whom they are directed to do, or not to do certain things. Employers may have to post or send notices to employees' homes stating future violations of the Act will not occur or allow ALRB agents to read notices and answer employees' questions on the employer's property.

915 Capitol Mall, Third Floor

Sacramento, CA 95814

(916) 653-3699 or 1-800-449-3699

Fax: (916) 653-8750

319 Waterman Ave., El Centro, CA 92243

(760) 353-2130

Fax: (760) 353-2443

Regional Director, Kerry Donnell

Counties: Imperial, Inyo, Los Angeles, Orange, Riverside, San Bernardino, San Diego.

141 South A Street

Oxnard, CA 93030-5357

Phone: (805) 385-5525

Fax: (805) 483-0476

Field Examiner – Art Gonzales

1880 N. Main Street, Suite 200

Salinas, Ca 93906

(831) 443-3161

Fax: (831) 443-3225

Regional Director – Freddie Capuyan

Counties: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey,

Napa, San Benito, San Francisco, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara,

Santa Cruz, Solano, Sonoma, Ventura.

711 North Court Street, Suite H

Visalia, CA 93291

Phone: (559) 627-0995

Fax: (559) 627-0985

Regional Director – Lawrence Alderete

Counties: Alpine, Amador, Butte, Calaveras, Colusa, El Dorado, Fresno, Glenn, Kern, Kings,

Lassen, Madera, Mariposa, Merced, Modoc, Mono, Nevada, Placer, Plumas, Sacramento,

San Joaquin, Shasta, Sierra, Siskiyou, Stanislaus, Sutter, Tehama, Trinity, Tulare, Tuolumne,

Yolo, Yuba.

This digest was prepared for AgFresno Ag Employers Seminar, November 20, 1996.