California Officials Publish Guidance on Card Check Legislation

By Benjamin M. Ebbink, Rebecca Hause-Schultz and Alden J. Parker © Fisher Phillips January 19, 2023
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farm workers in field

California's Agricultural Labor Relations Board recently published an overview on AB 2183, the  monumental "card check" legislation passed last year that makes it far easier for California agricultural workers to organize into unions.

The ALRB's guidance, published on their website on Dec. 28, 2022, includes information on the new law and a portal for employers to register a Labor Peace Compact, in which the employer agrees to act neutrally with respect to unionization.

Specifically, such a compact would see the employer agreeing to the following:

  • Our lips are sealed: Not to make statements for or against union representation to employees or publicly (in writing or orally) at any time during employee hire, orientation, or after a Notice of Intent to Organize, Notice to Take Access, or petition is filed.
  • Come on over: To allow union access to worksites. The U.S. Supreme Court recently decided that a California law requiring employers to provide such access was illegal. But agreeing to a Labor Peace Compact requires an employer to give up their rights to block access.
  • Seriously, don't talk about it: To not engage in captive audience meetings where an employer would discuss unions or union representation. Employers can't disparage the union in written or verbal communications to employees or the public. Employers also can't express a preference for one union over another union.

The new guidance notes that employers that opt to enter a Labor Peace Compact must do so by enrolling via the ALRB's online portal between Jan. 1 and Feb. 1, 2023. Thereafter, employers must sign up before January 1st of each year. The list is public and available on the ALRB's website. As of publication, no employers have opted to enter the Labor Peace Compact.

Gov. Gavin Newsom outlined an agreement with the United Farm Workers and California Labor Federation that essentially eliminates the Labor Peace Agreement option, and naturally the mail-in-ballot option. The ALRB's recent guidance clarifies that Newsom's agreement is not the law, and it will enforce AB 2183 as passed until the legislature acts.

Farm Labor Contractors (FLC) are bound by their grower's decision regarding the Labor Peace Compact. If an FLC provides labor to an employer that entered a Labor Peace Compact, the FLC is bound by that determination and must follow the neutrality rules. FLCs and their growers should discuss this point for 2023 contracts.

How Can a Union Petition for Election?

Let us count the ways. Instead of the secret ballot election, the guidance confirms that there are now three ways for a union to petition:

  • The Old Way: Unions may petition for certification for a traditional in-person election. In the petition, the union must provide proof that more than 50 percent of the workers want to have an election. After this threshold showing, the ALRB conducts a secret ballot election where employees cast ballots in-person, privately.
  • You've Got Mail: For employers that enter a Labor Peace Compact, unions may not utilize the card check option, but instead may petition for a mail-ballot election. In this scenario, the ALRB will mail ballots directly to employees. The employees will complete the ballot and return it by mail.
  • Card Check: There is no notice, mailing, or run-up period in this type of election. A unionizing organization is only required to provide proof of support from a majority of workers through authorization cards or petition signatures. Once the union demonstrates majority support, the ALRB will certify the union without a secret ballot election or any prior notice to the employer.

If an employer seeks judicial review of a final order of the board, the guidance confirms that it must post a bond with the board for the entire economic value of the contract, meaning the difference between the employee's existing wages and economic benefit in the new contract. The cost of the bond alone could be a limiting factor for employers when deciding to challenge final ALRB decisions in the courts.

The ALRB's guidance outlines that additional civil penalties are now available where the Board finds a violation of the ALRA. The penalties may be up to $25,000, depending on the circumstances. The guidance specifically describes that a director or officer of an employer may be personally liable for penalties.

If you haven't already, you should be in active discussions with your legal counsel about navigating this new law with a response and mitigation plan in place. Given how quickly a card check election will move forward, you should also have labor counsel at the ready in the event of activity at your operation.

Benjamin M. Ebbink, Rebecca Hause-Schultz and Alden J. Parker are attorneys with Fisher Phillips in Sacramento, Calif. © 2023. All rights reserved. Reprinted with permission. 

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