Current through Register 2024 Notice Reg. No. 12, March 22, 2024
Labor Code Section
1140.2 declares
it to be the policy of the State of California to encourage and protect the
right of agricultural employees to full freedom of association,
self-organization, and designation of representatives of their own
choosing.
(a) Agricultural employees
have the right under Labor Code Section
1152 to
self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as well as the right to refrain from any or all of
such activities except to the extent that such right may be affected by a
lawful agreement requiring membership in a labor organization as a condition of
continued employment. Labor Code Section
1153(a)
makes it an unfair labor practice for an agricultural employer to interfere
with, restrain, or coerce agricultural employees in the exercise of these
rights.
(b) The United States
Supreme Court has found that organizational rights are not viable in a vacuum.
Their effectiveness depends in some measure on the ability of employees to
learn the advantages and disadvantages of organization from others. When
alternative channels of effective communication are not available to a union,
organizational rights must include a limited right to approach employees on the
property of the employer. Under such circumstances, both statutory and
constitutional principles require that a reasonable and just accommodation be
made between the right of unions to access and the legitimate property and
business interests of the employer.
(c) Generally, unions seeking to organize
agricultural employees do not have available alternative channels of effective
communication. Alternative channels of effective communication which have been
found adequate in industrial settings do not exist or are insufficient in the
context of agricultural labor.
(d)
The legislatively declared purpose of bringing certainty and a sense of fair
play to a presently unstable and potentially volatile condition in the
agricultural fields of California can best be served by the adoption of rules
on access which provide clarity and predictability to all parties. Relegation
of the issues to case-by-case adjudication or the adoption of an overly general
rule would cause further uncertainty and instability and create delay in the
final determination of elections.
(e) Accordingly the Board will consider the
rights of employees under Labor Code Section
1152 to include
the right of access by union organizers to the premises of an agricultural
employer for the purpose of meeting and talking with employees and soliciting
their support, subject to the following regulations:
(1) When Available.
(A) Access under this section onto an
agricultural employer's property shall be available to any one labor
organization for no more than four (4) thirty-day periods in any calendar
year.
(B) Each thirty-day period
shall commence when the labor organization files in the appropriate regional
office two (2) copies of a written notice of intention to take access onto the
described property of an agricultural employer, together with proof of service
of a copy of the written notice upon the employer in the manner set forth in
Section 20300(f).
If a petition for election is filed, the right of access
shall continue until after the election as provided by Section
20900(e)(1)(C). If
a run-off or rerun election is directed, the right of access shall continue
until after said election as provided in Section
20900(e)(1)(C).
(C) The right to take access under
this section terminates as to any labor organization after the fifth day
following completion of the ballot count pursuant to Section
20360(a) in an
election conducted under Chapter 5 of the Act, except that where objections to
the election are filed pursuant to Labor Code Section
1156.3(c),
the right of access shall continue for ten days following service of and the
filing of such objections. The right to take access under this Section
recommences 30 days prior to the expiration of the bars to the direction of an
election set forth in Labor Code Sections
1156.5 and
1156.6, and
13 months prior
to the expiration of a valid collective bargaining agreement that would
otherwise bar the holding of an election but for the provisions of Labor Code
Section
1156.7(d).
Where the right to take access is recommenced during the pendency of a valid
collective-bargaining agreement pursuant to this paragraph, no more than four
thirty-day periods of access shall be permitted to any one labor organization
in the 13 months preceding the expiration of said collective bargaining
agreement.
Nothing herein shall be interpreted or applied to restrict or
diminish whatever rights of access may accrue to a labor organization certified
as a bargaining representative.
(2) Voluntary Agreements on Access. This
regulation establishes the terms upon which a labor organization may take
access. However, it does not preclude agreements by the parties to permit
access on terms other than as set forth in this part, provided that any such
agreement shall permit access on equal terms to any labor organization which
agrees to abide by its terms. For the purpose of facilitating voluntary
resolution by the parties of problems which may arise with access, the notice
of intent to take access shall specify a person or persons who may reach
agreements on behalf of the union with the employer concerning access to
his/her property. The parties are encouraged to reach such agreements and may
request the aid of the regional director and board agents in negotiating such
agreements; however, no such attempts to reach an agreement, be they among the
parties themselves or with the aid of this agency, shall be deemed grounds for
delay in th taking of immediate access once a labor organization has filed its
notice of intent to take access.
(3) Time and Place of Access.
(A) Organizers may enter the property of an
employer for a total period of one hour before the start of work and one hour
after the completion of work to meet and talk with employees in areas in which
employees congregate before and after working. Such areas shall include buses
provided by an employer or by a labor contractor in which employees ride to and
from work, while such buses are parked at sites at which employees are picked
up or delivered to work. Where employees board such buses more than one hour
before the start of work, organizers may have access to such buses from the
time when employees begin to board until such time as the bus
departs.
(B) In addition,
organizers may enter the employer's property for a single period not to exceed
one hour during the working day for the purpose of meeting and talking with
employees during their lunch period, at such location or locations as the
employees eat their lunch. If there is an established lunch break, the one-hour
period shall encompass such lunch break. If there is no established lunch
break, the one-hour period shall encompass the time when employees are actually
taking their lunch break, whenever that occurs during the day.
(4) Numbers of Organizers;
Identification; Prohibited Conduct.
(A) Access
shall be limited to two organizers for each work crew on the property, provided
that if there are more than 30 workers in a crew, there may be one additional
organizer for every 15 additional workers.
(B) Upon request, organizers shall identify
themselves by name and labor organization to the employer or his agent.
Organizers shall also wear a badge which clearly states his or her name, and
the name of the organization which the organizer represents.
(C) The right of access shall not include
conduct disruptive of the employer's property or agricultural operations,
including injury to crops or machinery or interference with the process of
boarding buses. Speech by itself shall not be considered disruptive conduct.
Disruptive conduct by particular organizers shall not be grounds for expelling
organizers not engaged in such conduct, nor for preventing future
access.
(5) Violations
of Section 20900.
(A) Any organizer who violates the provisions
of this part may be barred from exercising the right of access under this part
in any one or more of the four geographical areas currently designated by the
Board as regions, for an appropriate period of time to be determined by the
Board after due notice and hearing.
Any labor organization or division thereof whose organizers
repeatedly violate the provisions of this part may be barred from exercising
the right of access under this part in any one or more of the four geographical
areas currently designated by the Board as regions, for an appropriate period
of time to be determined by the Board after due notice and hearing.
(B) Violation by a labor organizer
or organization of the access regulation may constitute an unfair labor
practice in violation of Labor Code Section
1154(a)(1)
if it independently constitutes restraint and coercion of employees in the
exercise of their rights under Labor Code Section
1152.
Violations by a labor organizer or organization of this part
may constitute grounds for setting aside an election where the Board determines
in objections proceedings under Section
1156.3(c) of the
Act that such conduct affected the results of the election.
(C) Interference by an employer with a labor
organization's right of access under this part may constitute grounds for
setting aside an election where the Board determines in proceedings under
Section 1156.3(c) of the
Act that such conduct affected the results of the election. Furthermore, such
interference may constitute an unfair labor practice in violation of Labor Code
Section
1153(a)
if it independently constitutes interference with, restraint, or coercion of
employees in the exercise of their rights under Labor Code Section
1152.
(6) Citrus Industry.
(A) For purposes of this subsection the term
"employer" refers to any "agricultural employer" involved in the growing,
harvesting or packing of citrus.
(B) The service of a Notice of Intent to Take
Access or Notice of Intent to Organize upon such an employer and the proper
filing of such Notice upon the appropriate regional office by a labor
organization shall be deemed sufficient under Section
20900(e)(1) to
permit the labor organization to take access, as provided in this section, to
the employees employed at groves and orchards of citrus fruit which the
employer grows, harvests or packs.
(C) Any labor organization which has duly
filed a Notice of Intent to Take Access or Notice of Intent to Organize
concerning the employer may request, in writing, from the regional director a
copy of the following information required to be made available pursuant to
Section 20915(b): the
written list of the name(s) of the owner(s)/lessee(s) and the location of each
citrus grove or orchard of citrus fruit which the employer grows, harvests, or
packs. If, after investigation, the regional director determines that some or
all of the owner(s)/lessee(s) of the citrus groves or orchards of citrus fruit
which the employer grows, harvests, or packs, are part of the bargaining unit,
then, pursuant to the labor organization's request, the regional director shall
provide to the labor organization(s) a list containing the names of the
owner(s)/lessee(s) and the location of each grove or orchard that is included
within the bargaining unit. The regional director will immediately notify the
owner(s)/lessee(s) of said citrus groves or orchards in writing of the fact
that a Notice of Intent to Take Access or Notice of Intent to Organize has been
filed and that union organizers may take access to the grove or
orchard.
(D) Upon the proper filing
and service of a Notice of Intent to Take Access or Notice of Intent to
Organize, the employer and the union, with the assistance of the regional
director, shall establish the means whereby the employer will keep the union
informed of the places and times at which the employer's crews may be found
during the relevant access taking or organizing period. For purposes of this
provision, crews consisting of three (3) or fewer workers may be excluded, if
the employer has no knowledge of the specific locations in which such crews
will be working during the day. As to such crews, the employer will provide the
union with as specific a description as possible of the area in which such
employees will be working. Should the employer and the union fail to establish
a mutually agreeable plan for providing the union with the aforesaid
information, the following procedures shall be observed:
(1) The employer shall on a day-by-day basis
during the access period prepare a schedule showing the place and time where
each crew will be working, including the time each crew will begin work, take
its lunch break, and end work each day and directions to the location(s) where
each crew will be working. Said schedule shall be posted at least two hours in
advance of the start of work on each day during the access period. Posting
shall occur at the location from which the employer dispatches its crews, and
the employer will advise the union of that location. The union's
representatives shall be afforded reasonable access to the place where the
employer posts the schedules.
(2)
Should the union desire to take access on any given day during the access
period, it shall so notify the employer in advance of the taking of access and
provide a phone number at which it may be contacted pursuant to subsection (3)
below.
(3) Once posting has
occurred, the employer may find it necessary to change the time or place at
which a crew will be working. In that event, the employer shall make reasonable
efforts to notify the union of the new time or location.
1. Amendment
filed 11-29-76 as an emergency; designated effective 12-1-76 (Register 76, No.
49). For prior history, see Register 75, No. 50.
2. Certificate of
Compliance filed 1-12-77 (Register 77, No. 3).
3. Amendment of
Section 20900(e)(1)(C)
filed 6-19-80 as an emergency; effective upon filing (Register 80, No. 25). A
Certificate of Compliance must be transmitted to OAH within 120 days or
emergency language will be repealed on 10-18-80.
4. Certificate of
Compliance including amendment transmitted to OAL 10-15-80 and filed 11-13-80
(Register 80, No. 46).
5. Amendment filed 5-16-83 as an emergency;
effective upon filing (Register 83, No. 22).
6. Order of Repeal of
5-16-83 order filed 5-23-83 by OAL pursuant to Government Code Section
11349.6
(Register 83, No. 22).
7. New subsections (e)(6)(A), (B) and (C)
filed 1-3-85; effective upon filing pursuant to Government Code Section
11346.2(d)
(Register 85, No. 1).
Note: Authority cited: Section
1144, Labor
Code. Reference: Section
1152, Labor
Code; and ALRB v. Superior Court (1976) 16 Cal. 3d
392.