1156.36. (a) As an alternative procedure to the polling place election process set forth in Section 1156.3, a labor organization may be certified as the exclusive bargaining representative of a bargaining unit through a labor peace election conducted by mail ballot. A labor peace election permits a bargaining unit to select a labor organization as its representative for collective bargaining purposes without holding a polling place election through use of board-issued mail ballots.
(b) (1) Prior to the submission of a petition for mail ballot election as described in subdivision (c), an agricultural employee or an authorized labor organization representative, as described below, may submit a “Voting Kit Request Form” with the board. The Voting Kit Request Form shall include: (A) the name, telephone number, physical address, and mailing address of the person submitting the Voting Kit Request Form; (B) the name, telephone number, physical address, and mailing address of the agricultural employee for whom the voting kit is being requested; (C) the name of an agricultural employer or farm labor contractor to be associated with the voting kit; and (D) a physical or post office box address where the board shall mail the voting kit. Within two business days of receiving a Voting Kit Request Form, the board shall mail a voting kit to the agricultural employee at the address listed in the form. Only labor organizations that have filed LM-2 forms for the preceding two years with the federal government may request voting kits for agricultural employees, and agricultural employees may submit a request for a single voting kit for themselves. Any labor organization representative submitting a Voting Kit Request Form shall also submit a document specifying that an agricultural employee has authorized the labor organization to submit the Voting Kit Request Form on their behalf, and such authorization must be signed by the agricultural employee on whose behalf the Voting Kit Request Form is being submitted.
(2) Voting kits shall include a form containing voting instructions for mail ballot elections, a standardized mail ballot, and postage paid envelopes with the board’s office return address. The name and contact information of a designated staff person in the board regional office shall be provided at the bottom of the instructions form. All voter kits shall be marked with key codes assigned to the agricultural employee receiving the voter kit.
(3) The mail ballots shall be titled “Mail Ballots for Certification of a Labor Organization.” Each mail ballot shall include the following:
(A) The opportunity to vote for representation by a labor organization by providing an appropriate space designated “Yes Union” followed by a statement indicating that the employee signing it wishes to have a specified labor organization as the employee’s collective bargaining representative with respect to rates of pay, wages, hours of employment, benefits, and other terms and conditions of employment.
(B) The opportunity to vote against representation by a labor organization by providing an appropriate space designated “No Union.”
(C) Sufficient space to provide all of the following information:
(i) The name of the labor organization.
(ii) The name of the agricultural employer or farm labor contractor used by the agricultural employer.
(iii) The employee’s name.
(iv) The signature of the employee.
(v) The date.
(vi) The signature of the person witnessing that the employee signed the ballot card or assisting them in filling out the ballot card, or both.
(4) The ballot card shall be placed in the sealed envelope provided by the board and the outer part of the envelope shall be signed by the employee who signed the ballot card. The ballot card shall be submitted directly to an office of the board in the envelope provided by the board or mailed to the board office.
(5) The board shall maintain the confidentiality and secrecy of the employee name on the mail ballot. The board shall give the mail ballot the same confidentiality and secrecy as a polling place election ballot.
(6) A mail ballot is valid for the purpose of supporting a petition for mail ballot election if it contains the name of the labor organization, the name of the employee, the employee’s signature, and is in a sealed envelope. A labor organization representative may fill out all of the information contained in a mail ballot, except for the employee’s signature.
(7) A mail ballot remains valid for 180 days after it is signed by an agricultural employee.
(c) A labor organization that wishes to represent a particular bargaining unit, as defined in Section 1156.2, may be certified through a mail ballot election as that unit’s bargaining representative by submitting to the board a petition for mail ballot election. The petition shall allege all of the following:
(1) That the number of agricultural employees currently employed by the employer named in the petition for mail ballot election, as determined from the employer’s payroll immediately preceding the filing of the petition for mail ballot election, is not less than 50 percent of the employer’s peak agricultural employment for the current calendar year.
(2) That no valid election has been conducted among the agricultural employees of the employer named in the petition for mail ballot election within the 12 months immediately preceding the filing of the petition.
(3) That the petition is not barred by an existing collective bargaining agreement.
(d) The petition for mail ballot election described in subdivision (c) shall be supported by mail ballots in individually sealed envelopes signed by more than 50 percent of the currently employed employees. For purposes of this section, “currently employed employees” means those agricultural employees of the employer who were employed at any time during the employer’s last payroll period that ended prior to the filing of the petition for mail ballot election. The mail ballots may be submitted together with the petition for representation or mailed in separately to any board office.
(e) A labor organization submitting a petition for a mail ballot election shall personally serve the petition on the employer on the same day that the petition is filed with the board. Within 48 hours after the petition is served, the employer shall file with the board, and personally serve upon the labor organization that filed the petition, its response to the petition. As part of the response, the employer shall provide a complete and accurate list of the full names, current street addresses, telephone numbers, job classifications, and crew or department of all currently employed employees in the bargaining unit employed as of the payroll period immediately preceding the filing of the petition. The employer shall organize the employees’ names and addresses and other information by crew or department and shall provide the list to the board and petitioning labor organization in hard copy and electronic format. The employee’s first name, middle name or initial, last name, address, city, state, ZIP Code, telephone number, classification, and crew or department shall be organized into separate columns. Immediately upon receiving the employer response and employee list, the board shall provide the response and employee list by hardcopy and electronic copy to the labor organization that filed the mail ballot election petition.
(f) (1) Upon receipt of a petition for mail ballot election, the board shall immediately commence an investigation regarding the validity of the petition and the supporting mail ballots. Within five days of receipt of the petition, the board shall make an administrative determination as to whether a bona fide question of representation exists, whether the requirements set forth in subdivision (c) are met by the petition, and whether the labor organization submitting the petition has submitted the number of mail ballots required by subdivision (d). In making this determination, the board shall compare the names on the mail ballots submitted by the labor organization to the names on the list of currently employed employees provided by the employer. The board shall ignore discrepancies between the employee’s name listed on the mail ballot and the employee’s name on the employer’s list if the preponderance of the evidence, such as the employee’s address, the name of the employee’s foreman or forewoman, or evidence submitted by the labor organization or employee shows that the employee who signed the ballot card is the same person as the employee on the employer’s list.
(2) If the board makes an initial determination that the showing is insufficient, the board may allow an additional 10 days for a petitioner to perfect its proof of support.
(3) Within three days of determining that a bona fide question of representation exists and the requirements of subdivisions (c) and (d) are met, the board shall mail voting kits to all agricultural employees on the employee list specified in subdivision (e) at the address listed on such employee list. The board shall exclude from this mailing any agricultural employees who have submitted a prepetition Voting Kit Request Form pursuant to paragraph (1) of subdivision (b) and who have submitted a mail ballot to the board prior to the filing of the petition for mail ballot election pursuant to subdivision (c).
(4) If any challenge to the validity of a voter’s identity would affect the outcome of the mail ballot election and is deemed worthy of additional verification by the board, the board shall investigate the matter within seven days and the party making the challenge, the employee, and the labor organization shall have seven days to present evidence either verifying the validity or invalidity of the employee’s identity on the mail ballot. The board shall disclose to the labor organization that submitted the ballot card all evidence it has obtained regarding the matter. The board shall make the final determination and shall disclose to the labor organization that submitted the ballot card whether the card can be cured.
(5) The board shall return those mail ballots that it finds invalid to the labor organization that filed the petition for mail ballot election, with an explanation as to why each mail ballot was found to be invalid. To protect the confidentiality of the employees whose names are on the mail ballots, the board’s determination of whether a particular ballot card is valid shall be final and not subject to appeal or review.
(6) Thirty days following the voting kit mailing pursuant to paragraph (3), the board shall tally mail ballots received by the board. If the board determines that a majority of mail ballots received by the board at the time of the tally support certification of a labor organization and the requirements set forth in this section and in Section 1156.4 have been met, it shall immediately certify the labor organization as the exclusive bargaining representative of the employees in the bargaining unit. An employer’s duty to bargain with the labor organization commences immediately after the labor organization is certified.
(g) (1) Within five days after the board certifies a labor organization through a mail ballot election, any person may file with the board a petition objecting to the certification on one or more of the following grounds:
(A) Allegations in the mail ballot petition were false.
(B) The board improperly determined the geographical scope of the bargaining unit.
(C) The mail ballot election was conducted improperly.
(D) Improper conduct affected the results of the mail ballot election.
(2) Upon receipt of a petition objecting to certification, the board may administratively rule on the petitioner’s objections or may choose to conduct a hearing to rule on the petitioner’s objections. If the board decides to conduct a hearing on the objections, it shall mail a notice of the time and place of the hearing to the petitioner and the labor organization whose certification is being challenged. The board shall conduct the hearing within 14 days of the filing of an objection, unless an extension is agreed to by the labor organization. If the board finds at the hearing that any of the allegations in the petition of the grounds set forth in paragraph (1) are true, the board shall revoke the certification issued under subdivision (e).
(3) The filing of a petition objecting to a mail ballot election certification shall not diminish the duty to bargain or delay the running of the 90-day period set forth in subdivision (a) of Section 1164.
(h) The board shall not permit the filing of an election petition pursuant to any other sections in this part once a mail ballot petition is filed until the board determines whether the labor organization filing the mail ballot election petition should be certified.
(i) Once a labor organization has filed a mail ballot election petition, no other mail ballot election petition shall be considered by the board with the same agricultural employer until the board determines whether the labor organization that filed the pending mail ballot election petition should be certified. However, the board may consider a second mail ballot petition if the second petition alleges that the first petition was filed because of the employer’s unlawful assistance, support, creation, or domination of the labor organization that filed the first petition. In those cases, the board shall expedite its investigation of the matter and render a decision on certification within three months of the filing of the first petition. If the board finds that a labor organization was unlawfully assisted, supported, created, or dominated by an employer, that labor organization’s petition shall be dismissed and the second petition shall be considered. A labor peace agreement shall not be deemed unlawful by virtue of the fact that it was entered into pursuant to Section 26051.5 of the Business and Professions Code. Any labor organization that has been unlawfully assisted, supported, or dominated by an employer shall be disqualified from filing any further petitions with the board for a period of one year. That labor organization’s representatives, agents, or officers shall similarly be disqualified from filing any further petitions with the board for a period of one year. A labor organization assisted, supported, created, or dominated by an employer, along with its representatives, agents, or officers, shall be permanently barred from filing any further petitions.
(j) If an employer commits an unfair labor practice or misconduct, including vote suppression, during a labor organization’s mail ballot campaign, and the employer’s unfair labor practice or misconduct would render slight the chances of a new mail ballot campaign reflecting the free and fair choice of employees, the labor organization shall be certified by the board as the exclusive bargaining representative for the bargaining unit. For purposes of a finding of an unfair labor practice or misconduct under this part and under this section, a misrepresentation of fact or law by an employer, an employer’s representative, or agent is an unfair labor practice or misconduct whether or not a labor organization has had an opportunity to respond to or correct the misrepresentation.
(k) If an employer disciplines, suspends, demotes, lays off, terminates, or otherwise takes adverse action against a worker during a labor organization’s mail ballot campaign, there shall be a presumption that the adverse action was retaliatory and illegal, and the employer shall escape liability for the illegal action only if the employer provides clear, convincing, and overwhelming evidence that the adverse action would have been taken in the absence of the mail ballot campaign.
(l) For purposes of Section 1156.5, a mail ballot election is a valid election.
(m) As used in this section, “polling place election” means the election process described in subdivision (b) of Section 1156.3.
(n) This section shall remain in effect only until January 1, 2028, and as of that date is repealed.
(Added by Stats. 2022, Ch. 673, Sec. 2. (AB 2183) Effective January 1, 2023. Repealed as of January 1, 2028, by its own provisions.)