AB 2183 Fact Sheet

FACT SHEET
Assembly Bill 2183
Mail Balloting and Card Check

• AB 2183 was signed by Gov. Gavin Newsom on Sept. 28, 2022; effective Jan. 1, 2023
• Major rewrite of how California ag employees decide on unionization

The long-standing Agricultural Labor Relations Act (ALRA) union election process

• Since 1975, the California ALRA has provided a two-step process for certifying a labor union as the collective bargaining agent of agricultural employees
  • First Step: A majority of an ag employer’s employees at 50% of peak employment for that year must sign “authorization cards” asking the Agricultural Labor Relations Board (ALRB) to hold a secret-ballot, polling-place election
  • Second Step: The ALRB conducts the election; if a majority of eligible employees vote for union representation, the union is certified to represent them

The AB 2183 Certification Processes

• AB 2183 effectively discards this secure process by creating two options by which unions may be certified which any union that can qualify to use them will always opt for because these two options will offer easier, cheaper, and faster means to organize
• The availability to unions of each option depends on a choice made by each agricultural employer
• Option 1: Ag employer agrees to a “labor peace compact”
  • Under a labor peace compact, an employer agrees to
    • Refrain from expressing to its employees or publicly any opinion about union representation and
    • Give union organizers access to the workplace
  • The employer forfeits constitutional protection of private property affirmed by the U.S. Supreme Court in Cedar Point Nursery
  • Employees vote in an unsecure mail-ballot election that permits union involvement in acquiring, completing, and returning ballots, with ample opportunity for union agent coercion, intimidation, and deceit of employees
  • Employers agreeing to labor peace compacts will do so online, thus allowing unions to see that they agreed to labor peace election campaigns.
  • That knowledge could increase the likelihood that unions will target those employers for unionization
• An employer’s agreement to a labor peace compact will automatically renew each calendar year unless revoked in the 30-day period before Jan. 1

Option 2: Ag employer does not agree to a “labor peace compact”

• An employer NOT agreeing to a labor peace compact
  • Can tell employees why unionization is not good for them
  • Can bar union organizers from the workplace
  • But can be unionized through a “card check” process—similar to the “First Step” of the long-standing ALRA election processed described above in which a majority of an employer’s 50% peak employment triggers an election by expressing an interest in an election
• No ballot box election—as was exclusively required pre-2023—or mail-ballot election—as allowed under a labor peace compact—is held among the employees
• Union could choose a ballot box election but almost certainly will instead initiate a card-check campaign
• Union gathers authorization cards signed by employees
• Union then petitions the ALRB for certification with a showing of majority support at 50% of employer’s peak employment for that year
• The employer then must submit to the ALRB and union a list of employees in the pay period before the petition’s submission
• If the ALRB finds the union has not demonstrated majority support, the union has 30 days while in possession of the employee list to coerce, intimidate, or trick enough employees to sign authorization cards to demonstrate majority support

“Agreement in Principle” and Possible ALRA Amendments

• When signing AB 2183, Gov. Newsom announced a sort of “agreement in principle” with the California Labor Federation and United Farm Workers union to seek legislation in 2023 to significantly amend the new law, doing away with the “labor peace/non-labor peace” structure and simply providing for only card check and no mail-ballot elections

Appeal Bonds

• AB 2183 requires an employer to post an appeal bond to challenge a decision of the ALRB ordering the employer to make monetary payments to employees or a union
• This could occur where the ALRB determines the employer committed an unfair labor practice and the ALRB orders payment of backpay or other payments in addition to remedial remedies traditionally ordered by the ALRB, including reinstatement of employees discharged in violation of their right to engage in protected concerted activity, or where the ALRB has imposed a collective bargaining agreement (CBA) through the Mandatory Mediation and Conciliation (MMC) process
• The appeal bond would be in the amount of the award directed by the ALRB; in the case of a CBA imposed through the MMC process, the appeal bond would be in the amount of the entire economic value of the CBA over the course of its effective period–potentially millions of dollars, with an extra amount for collateral for the bonding agency

Civil Money Penalties

• AB 2183 requires the ALRB to assess civil money penalties against employers found to have violated the ALRA
• Penalties may be up to $10,000, or up to $25,000 if the violation involves retaliation or discrimination
• Penalties could be assessed separately for each effected employee, resulting in total penalties of millions of dollars
• Penalties may be assessed against directors or officers of the employer who were directly involved in committing the violation
• The ALRB may not assess civil money penalties against a farm labor contractor, as the ALRA deems employees of a farm labor contractor to be the employees of the farmer or rancher retaining the services of the farm labor contractor

Going forward after AB 2183

• Communicate with your employees
  • Ensure they understand their compensation; this is particularly important if you use piece-rate compensation systems, which can be complicated
  • Avoid sudden changes in work schedules that force employees to re-arrange daycare, transportation of children to schools, and other aspects of personal lives
• Ensure that their pay, benefits, and working conditions not only meet but exceed legal requirements
• Be sure pay/benefits/working conditions are competitive with employers in your area
• Ensure that payroll, workplace safety, and employee relations practices—including supervisor and foreperson treatment of employees–are at least up to par
• Agricultural employees who believe they are treated fairly and equitably won’t go to farmworker advocates, union organizers, or other third parties seeking information or help
• Contact Farm Employers Labor Service (FELS®)
  • FELS provides products and information to help you understand federal and state workplace requirements as well as the latest legislative and regulatory developments
  • FELS Labor Management Consultants can provide a communications bridge to your workforce. They are bilingual and bicultural and have deep experience in working with agricultural businesses