AGRICULTURAL LABOR RELATIONS BOARD Mandatory Mediation and Conciliation
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1 AGRICULTURAL LABOR RELATIONS BOARD Mandatory Mediation and Conciliation Conference on NAFTA, H-2A, Immigration, and the ALRB UC Davis Law School Friday, April 13, 2018.
2 MANDATORY MEDIATION AND CONCILIATION Most significant amendment to the ALRA Governor Davis signed into law in 2002 two companion bills SB 1156 and AB 2596 Purpose to provide a process for unions and employers that were unable to reach a collective bargaining agreement (CBA) Hundreds of certifications where no CBA existed and existing remedies for bargaining violations were insufficient.
3 MMC By The Numbers 22 MMC Requests 16 Employers 12 contracts reached: 9 mediator set one or more provision 5 appealed to District Courts of Appeal 2 cases heard: Held constitutional in 3rd DCA (Hess) and unconstitutional in 5th DCA (Gerawan)
4 ~ File Edit View Window Help Home Tools Gerawan litigation... >< SUMMAllY CHART orgdawan LfflGATION (N,1512t11) CaHfornla Supreme Court and United State, Supreme Court AppellateCourts GER..\.W.-\SY..\LRB f (5DC.\.) Petition for Re, iew of Ileclion-Related n,ps GER..\. \Y..\... 'i,...\.lrb f (5DC'..\. ) Petition for Re,iew of Surface Bargaining ll,p GERAWANv. ALRB LOPEZv.ALRB : 19P.1?2 \1- smr-o l\fa:..:,: l~ l~p (9ili Gil):,: F (SDCA) F (SDCA) AtRBa)ipe:1hirtii1iiig :. Mandate Petition Mandate Petition..:'... : $jbiltjify :' :-..:' ChallengingElection ChallengingElection Decision Decision ---, TrialCourts..... LOI!E.z, ~.... '... '.... -: :-:-:sim.0~1.,\: - : :-: :- i:i4~(\',0q?3-6 :-: <fed;r~1:s11itap,i~si :: : l;l<iai'<! ~l~~!iej S:~e; : :: ~~~ii~~~f~~o~ ~ : : GERAWAl'>,. ALRB f (5th DCA) Appeal of Order Denying Wnt of Mandate GAR.CV\v. ALRB GERAWANv. ALRB 13 CECG CECG Fresno Superior Writ Fresno Superior Writ of Mandate of Mandate ChallengingMMC Challenging MMC GERA WAN Y. ALRB S California Supreme Court Al.RB Petition for ReYiew Re. Constitutionality of MMC GERAWANv.ALRB F (5th DCA) Petition for Review of MMCOrder SacramentoSuperior Action to Enforce MMC Contract UFWv. GERAWAN C (3 rd DCA) Appeal of Denial of TRO to Enforce MMC Contract GERA\Y..\.'i Y. Al.RB rnited States Supreme Court Gerawan Petition for Certiorari Re. Cal. Supreme Com1 Opinion Fresno Superior Declaratory Relief Re. Access to 'II:\IC GERAWA.'<Y. Al.RB f (SDCA) F (5DCA) GER..\. \U. 'i,...\.lrb Case '.\o. FOi4423 (5DC'..\. ) Gerawan Appeal Re TRO Doc. Subpoenas ' \.LRB-i',..... sn...c : :C:O~l:J.3'.-(3))~,\J. :.: : : AL({&;-1.j,pe~I:of : : sar: s~pei lot. order :::,: ~e:i:~q J:>~,µ~11) (,:.. '.... '.'... (Fresno Superior) : :-34-~0l~-SOOQ ZlQO : 16-CECG : : :(S:ic: Sujx:ripr)- : : : Challengeto Order : : PRAAciicin:si:eking: Denying Subpoenas for -: : : ri.o,il,1ated :-: : '... '... : Ai:R:Jh '.:GEk.4. tva.'1 : -, ''.'. '.. '. '. ' :.:,i:: 01-qMHS\h:U.CAl :. : Appeal o'fdenial-of :...:-. <fro-:-:--: (D Santiago ~ ': ~ V'.- 91;:½l.Y~ : :.:G.C '.s:fre,srio :siipmor :' : Aj,p!ic.itimi fuitrci : TRODocs.:-:-: o~l!ll)eiit: ~-:-:-:. : : ~/ ~p1$~i~~;:::: ::,;\~-~Jfy: ~~~~~:. :': MMC :Ci>nriact :ul:.p: ' : Gq Fr~si1-0Su~:~ : : :Api>! ic~t ioii for tll.o :.:. fu!~ r.einimaiiciiioi' :.. '' ' '. '. ' '' '''',:,:, Uni011 S11PP,1>1ter :,:.:.. ''. '. '.. '. '.... '''....J " Board GERAWAN GERAWAN GER..\.WA.1 '< GERAWANFARMING f ARMING (LOPEZ) FARMING (LOPEZ) far.lling 2013-MMC RD-003-VIS Order Dismissing Order Finding ULP Final Board Order Decertification Decertification Violations Adopting MMC Report Election Petition and Finding (Surface Bargaining) ULPs GERAWAN FARMING 2015-CE-O II -VIS Order Denying Appeal of AU Order Re. TRO Packet
5 REQUIREMENTS FOR MMC REFERRAL Employer employs 25 or more employees during any calendar week in the preceding year. File request 90 days from initial or renewed demand to bargain. For older certifications: 1) Parties failed to reach agreement for at least one year 2) Employer has committed an unfair labor practice 3) No previous certified bargaining agreement (CBA)
6 REFERRAL OR NO REFERRAL? 25 employee provision requires 25 or more agricultural employees for an entire seven-day week, rather than at any point during a week. Frank Pinheiro Dairy 35 ALRB No. 5 (2009-MMC-002) MMC statute places no time limit on the age of the ULP in question. San Joaquin Tomato Growers, Inc. 37 ALRB No. 5 (2011-MMC-001) A ULP under appellate review is sufficient to meet requirement. Perez Packing, Inc. (2014) 40 ALRB No. 1 (2014-MMC-001)
7 REFERRAL OR NO REFERRAL? (continued) MMC requirement that there have been no CBA between the parties refers only to existing parties to a collective bargaining relationship. Pictsweet Mushroom Farms 29 ALRB No. 3 (2003-MMC-002) An alleged 11- year union absence does not constitute abandonment of the unit sufficient to void the certification. Pictsweet Mushroom Farms 29 ALRB No. 3 (2003) (2003-MMC-002) The parties intent will determine whether a CBA the parties negotiated but never signed constitutes a binding contract. San Joaquin Tomato Growers, Inc. (2012) 38 ALRB No. 2 (2011-MMC-001)
8 RULES GOVERNING MEDIATION PROCESS State laws pertaining to confidentiality in mediation does not apply to MMC arbitration sessions. Hess Collection Winery (2003) 29 ALRB No. 6 (2003-MMC-001) Mediator has broad authority to control the conduct of the MMC process. Rules of evidence need not be observed and mediator may reopen the record for good cause. Ace Tomato Co., Inc. (2012) 38 ALRB No. 6 (2012-MMC-001) Not arbitrary or capricious to make wage rates retroactive to the effective date of the MMC contract when necessary to provide the crews with the benefit of their work. Ace Tomato Co., Inc. (2012) 38 ALRB No. 6 (2012-MMC-001); San Joaquin Tomato Growers, Inc. (2012) 38 ALRB No. 7 (2011-MMC-001)
9 LIMITS ON MEDIATOR AUTHORITY May not remand the parties for further negotiations as he is charged with resolving all issues. ARNAUDO BROS., INC. (2014) 40 ALRB NO. 9 (2013-MMC-001) CBA may not contain a provision prohibiting the employer from disparaging the union. GERAWAN FARMING, INC. (2013) 39 ALRB NO. 16 (2013-MMC-003) May not contain a provision making the contract binding on any successor employer. GERAWAN FARMING, INC. (2013) 39 ALRB NO. 16 (2013-MMC-003)
10 LIMITS ON MEDIATOR AUTHORITY (continued) May not order a delay in terms based upon the mediator s belief that employees may no longer support the certified union. Arnaudo Bros., Inc. (2014) 40 ALRB No. 7 (2013-MMC-001) An individual employee does not have a constitutional right to attend MMC proceedings. Gerawan Farming, Inc. (2013) 39 ALRB No. 13 (2013-MMC-003) The Board may not seek immediate enforcement of its order where no reviewing court has issued a judgment affirming the Board order and the time for seeking review has not expired. Ace Tomato Co., Inc. (2012) 38 ALRB No. 8 (2012-MMC-001)
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