Sec. 20900 - Solicitation by Non-Employee Organizers
§ 20900. Solicitation by Non-Employee Organizers
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.
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