California Ag Officials Publish Guidance On Card Check Legislation: 6 Things Employers Need to Know
The Agricultural Labor Relations Board recently published a brief on AB 2183, the monumental “card check” legislation passed last year that makes it much easier for California farmworkers to organize in unions. The ALRB’s guidance, published on their website on December 28, includes guidance on the new law and a portal for employers to register a Labor Peace Pact. What are the six most important things employers need to know?
1. Portal for the Labor Peace Pact
As we explained in detail in our summary when the law passed, AB 2183 provides that an employer can enter into an agreement called a “Labor Peace Agreement” in which it agrees to act neutrally with respect to unionization. Much of the ALRB’s guidance centers around the controversial Labor Peace Pact provisions of AB 2183.
Specifically, such a Compact would have the employer agree to the following:
Our Lips Are Sealed — Not to make statements for or against union representation to its employees or publicly (written or oral) at any time during employee hiring, orientation, or after a Notice of Intent to Organize, notice to obtain access or a petition has been filed. Come – Allowing trade union access to work sites. The US Supreme Court recently ruled that a California law requiring employers to provide such access was illegal. But agreeing to a Labor Peace Pact requires an employer to waive its rights to block access. Seriously, don’t talk about it – don’t engage in “captive audience” meetings – where an employer would discuss unions or union representation – and don’t disparage unions in written or verbal communications to employees or the public. Employers are also not allowed to express a preference for one union over another.
The new guidance notes that employers who choose to enter into a Labor Peace Pact must do so by registering through the ALRB’s online portal between January 1 and February 1, 2023. Employers must then register by January 1 of each year. The list is public and available on the ALRB website. As of publication, no employers have chosen to enter into the Labor Peace Pact.
2. Will this change?
In his statement released along with his signing of AB 2183, Governor Newsom outlined an agreement with the United Farm Workers and the California Federation of Labor that essentially eliminates the Labor Peace Agreement option, and of course the mail option in voting. The ALRB’s latest guidance clarifies that Governor Newsom’s agreement is not law and will apply AB 2183 as enacted until the Legislature acts.
3. Guide for farm labor contractors on labor peace agreements
Farm labor contractors (FLCs) are bound by their grower’s decision regarding the Labor Peace Pact. If an FLC offers work to an employer that has entered into a Labor Peace Agreement, the FLC is bound by this provision and must follow the rules of “neutrality”. FLCs and their growers should discuss this point for the 2023 contracts.
4. How can a trade union apply for elections?
Let’s count the ways. Instead of secret elections, the guidance confirms that there are now three ways for a union to petition:
The Old Way: Unions can apply for certification for a traditional in-person election. In the petition, the union must provide evidence that more than 50% of workers want to have an election. After this threshold is reached, the ALRB conducts a secret ballot, where employees vote in person, privately. You’ve Got Mail: For employers who choose to enter into a Labor Peace Compact, unions may not use the “card check” option (below) but instead may petition for election by mail. In this scenario, the ALRB will mail the ballots directly to the employees. The employee will complete the ballot and return it by mail. Card Check: There is no notice, mailing or default period in this type of election. A union organization is only required to provide evidence of “support” from a majority of workers through proxy cards or petition signatures. Once the union shows majority support, the ALRB will certify the union without a secret ballot or any prior notice to the employer.
5. Challenge the ALRB? Pay a bond.
If an employer decides to seek judicial review of a final board order, 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 may be a limiting factor for employers when deciding to contest final ALRB decisions in the courts.
6. New penalties available
The ALRB’s guidance states that additional civil penalties are now available when the Board finds a violation of the ALRA. Penalties can be up to $25,000, depending on the circumstances. The guidance specifically states that a director or officer of an employer may be personally liable for penalties.
What can employers do now?
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 control election will move forward, you should also have a job advisor ready in case of activity in your operation.
We’ll be monitoring the situation for developments and providing updates as warranted, so make sure you’re subscribed to the Fisher Phillips Insight System to get the most up-to-date information straight to your inbox. If you have questions, contact your Fisher Phillips attorney, the authors of this Insight, or any attorney in our California offices.