Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 385 18. Rights of Organized Labor 18.1 Agricultural Workers In America generally, collective bargaining laws do not protect farm workers, as the National Labor Relations Act (NLRA) exempts agricultural labor. In California, the home of Cesar Chavez, it’s different. Since 1975, the California Agricultural Labor Relations Act (ALRA) has given farm workers the right to be recognized at the bargaining table, under state procedures similar to those used under the NLRA. But the ALRA goes a big step further. Mandatory mediation and conciliation. While the NLRA simply requires employers to bargain, and does not mandate results, the California Legislature, in 2002, amended the ALRA to add provisions on “mandatory mediation and conciliation.”1 Under the MMC provisions, the ALRA imposes, on growers who refuse to meet union demands, a neutral mediator who can decree the terms of a binding contract, subject to final approval by the Agricultural Labor Relations Board (ALRB). A grower successfully challenged the MMC process in 2015. In 1992, the United Farm Workers of America (UFW) had been certified as the union for the grower’s agricultural employees. The parties held an introductory negotiating session in early 1995. The UFW then disappeared, only to reassert its status as the employees’ certified bargaining representative 17 years later, in 2012. The grower asserted that the UFW, by its lengthy absence, had abandoned its status as bargaining representative. The ALRB ruled against the grower and ordered it to submit to the MMC process, and then adopted the mediator’s proposed collective bargaining agreement in a final order. The Court of Appeal held that the ALRB had abused its discretion in rejecting the grower’s claim that a union’s abandonment of its members barred the union’s MMC request. The Court of Appeal held further that the MMC process both violated equal protection and invalidly delegated legislative authority, in violation of the California Constitution. But then the California Supreme Court granted review of this decision2 and, in 2017, ruled in the UFW’s favor on all issues. First, the high court held that the MMC provisions are constitutional. Second, the high court held that an employer may not refuse to bargain with a union, whether during the ordinary bargaining process or during MMC, on the basis that the union has abandoned its representative status. The high court reasoned that the Legislature intended to reserve the power to decertify unions to employees and labor organizations alone. Allowing employers to raise an abandonment defense, the high court concluded, would frustrate that intent and undermine the ALRA’s comprehensive scheme of labor protections for agricultural employees.3 Special union access rule. In America generally, employers can prohibit nonemployee union organizers from promoting their union on company property, as long as the union has other available channels of communication with employees and the employer prohibits similar promotions by other organizations.4 In California it’s different. The ALRB in 1975 adopted an emergency regulation to grant union organizers the right to enter growers’ property during nonworking times to solicit the support of grower employees for a union.5 This cal-peculiar union right does not depend on whether union organizers lack reasonable access to employees. Rather, the access regulation empowers union organizers—numbering two for every 15 employees—to enter private property for one hour before the start of work, for one hour after work ends, and for one hour during the lunch break, for 120 days
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