Overview of AB 2183

Assembly Bill No. 2183 (AB 2183), effective January 1, 2023, makes several significant changes to the California Agricultural Labor Relations Act (ALRA). AB 2183 creates new methods for a union to be certified as the exclusive collective bargaining representative of farmworkers protected by the ALRA. This bill allows two alternatives to the preexisting in-person secret ballot election, depending on whether an employer agrees to remain neutral with respect to a union’s organizing efforts:

• If an employer agrees to specified neutrality rules, known as a “labor peace compact,” a union may seek certification through an election conducted by ALRB-issued mail ballots. This is known as a “labor peace election.”
• If an employer does not agree to a labor peace compact, a union may be certified based on authorization cards or petition signatures from a majority of the farmworkers in the unit sought to be represented. This is known as a “non-labor peace election.”

Only unions that have filed a LM-2 form with the United States Department of Labor in the previous two years may seek certification via these new processes.

AB 2183 also allows the Board to assess civil penalties against employers that violate the ALRA and requires an employer to post a bond when appealing a Board decision that awards monetary relief to farmworkers or a union.

I’ve heard that the law enacted by AB 2183 may be amended. When will that happen and what does that mean?

When Governor Newsom signed AB 2183, he issued a public statement that his approval of AB 2183 was conditioned upon an agreement with the United Farm Workers and California Labor Federation that they would support enactment of certain clarifying language in the next year. The clarifying language is not part of AB 2183 and must still go through the legislative process. The ALRB is required by law, however, to implement AB 2183 as enacted until the Legislature and Governor approve the clarifying language through the legislative process. Upon enactment of new legislation, the ALRB will revise this guidance and develop additional forms as required.

What is a labor peace compact?

A labor peace compact under AB 2183 is a set of rules by which an agricultural employer agrees to remain neutral (not take a position for or against a union) with respect to union organizing efforts. For example, an employer that chooses to enter a labor peace compact agrees to refrain from making public statements or statements to its employees for or against unions or union representation. For additional information, see Labor Code section 1156.35, subdivision (c).

How does an employer enter into a labor peace compact?

A Labor Peace Compact Agreement Form may be submitted using the ALRB’s website. Employers may enter into a labor peace compact between January 1 and February 1, 2023. After this initial sign-up window, employers may enter into a labor peace compact during the 30 days prior to January 1 of each year as long as this provision of AB 2183 is in effect. Once an employer agrees to labor peace compact terms, it does not need to do so again in following years, as its selection will renew automatically. However, an employer that previously agreed to a labor peace compact and wishes to revoke this choice may do so during the same 30-day period before the beginning of the next calendar year in which new agreements may be made.

How can I see if an employer has entered into a labor peace compact?

The ALRB will maintain a publicly-accessible list of employers that have entered into a labor peace compact.

How do these requirements apply to farm labor contractors?

Farm labor contractors are bound by the labor peace compact choice of the agricultural employer that hired the contractor, as well as the results of the election process resulting from that choice. Farm labor contractors that provide workers to an employer that has entered into a labor peace compact are required to follow the terms of that compact and remain neutral with respect to union organizing efforts. An agricultural employer is liable for any violations of a labor peace compact committed by one of its farm labor contractors.

Is the labor peace agreement required for cannabis licensees the same as a labor peace compact?

No. The labor peace agreement required for cannabis licensees is not the same as a labor peace compact for purposes of ALRA union elections under AB 2183. California law requires an employer engaged in commercial cannabis activities to enter into a labor peace agreement with a union as a condition of licensing if the employer has 20 or more employees (10 or more employees effective July 1, 2024).

A cannabis licensee that has entered into a labor peace agreement with a union must also agree to a labor peace compact if the employer wants to be subject to the “labor peace election” procedure.

For information about labor peace agreements, please see the additional guidance issued by the Department of Cannabis Control.

What are the different ways that a union can petition for an election and what do they mean?

With the enactment of AB 2183, there are several election petitions available. The availability of each type depends on whether an employer has entered into a labor peace compact and whether a union has met certain requirements.

• Petition for certification: This is the method to petition for a traditional in-person election and remains the same after AB 2183. Regardless of whether an employer enters into a labor peace compact, a union may file a petition for certification to call an election. A petition must include proof that more than 50% of the workers wish to have an election. Once this showing of support is confirmed, the ALRB will conduct a secret ballot election at the grower’s worksite where workers will be able to cast their ballots in-person.
• Petition for mail-ballot election (“labor peace election”): If an employer has entered into a labor peace compact, qualifying unions may file a petition for a mail-ballot election. To be able to use this mail-ballot option, a union must have filed LM-2 forms for the previous two years with the United States Department of Labor in accordance with the Labor-Management Reporting and Disclosure Act. Under a mail-ballot election, individual employees or a union may request that the ALRB send ballots directly to employees. The employees may complete the ballots and return them by mail. A petition for a mail ballot election must be supported by mail ballots signed by more than 50 percent of employees.
• Petition for a non-labor peace election: If an employer has not entered into a labor peace compact, unions that have filed LM-2 forms with the United States Department of Labor for the previous two years may file a petition for a non-labor peace election. A union filing this type of petition must provide proof of support from a majority of the workers it seeks to represent through authorization cards or petition signatures. If the union demonstrates majority support in this way, the ALRB will certify the union as the exclusive bargaining representative for the workforce.

What obligations does an employer have once they receive a petition relating to an election?

After a union files a petition for certification, a petition for a mail-ballot election, or a petition for a non-labor peace election, the employer will have 48 hours after it receives the petition from the union to file its response. The employer must include a list containing the names, crew, and contact information for all of its agricultural workers, including those employed by farm labor contractors, as of the payroll period immediately preceding the filing of the petition.

What happens if an employer violates the terms of a labor peace compact?

If a party believes an employer has violated a labor peace compact, they may file a charge with the ALRB. The regional director will expedite the investigation and determine whether a violation occurred.

If an employer violates a labor peace compact in any way while a union’s mail-ballot campaign is underway, the union may still be certified as the workers’ bargaining representative through the mail-ballot election process. Alternatively, the union may pursue certification through a non-labor peace election. A union’s ability to seek certification through a secret ballot election is not affected by an employer’s violation of labor peace compact terms.

What rights do employees have under a labor peace compact?

If an employer has entered into a labor peace compact, its employees have the right to speak to union organizers at the employer’s worksite during non-working times, typically before or after work or during their lunch break. A union may exercise this right to speak with employees at their worksite by filing a notice of intent to take access with the ALRB and serving a copy of the notice on the employer. Employees whose employer has entered into a labor peace compact also cannot be required to attend meetings where unions or unionization efforts are discussed. Generally, an employer that has entered into a labor peace compact cannot speak with its employees about unions or union organizing efforts.

Under existing law, employees also have the right to choose not to speak with union organizers or to support any union. It is unlawful for any union to restrain or coerce employees in exercising their rights to choose not to participate in or support union activities. Employers also may not interfere with, restrain, or coerce employees in exercising their right to decide whether to support a union.

How can employees obtain vote-by-mail ballots if their employer has entered into a labor peace compact?

An employee may request a mail-ballot from the ALRB or a union may request a mail-ballot from the ALRB on behalf of an employee. To request a mail-ballot, the person must complete a form to submit to the closest ALRB office. If a union is requesting a ballot on behalf of an employee, the union must provide proof that the employee has authorized the union to request a ballot on their behalf.

Can an employee request a mail-ballot even if a union has not filed a petition for a mail-ballot election?

Yes. Either an employee or a union may request mail-ballots from the ALRB before any petition for a mail-ballot election has been filed. A union may file a petition for a mail-ballot election after more than 50% of the employees have returned mail-ballots supporting the union.

What are the new appeal bond requirements?

Labor Code section 1162, enacted by AB 2183, requires agricultural employers to post an appeal bond if they seek to challenge a decision of the ALRB where the Board has ordered the employer to pay money to workers or a union.

The Board’s unfair labor practice proceedings usually are divided into two parts. The first phase determines whether an employer has violated the ALRA. If the Board finds an employer has violated the ALRA and the Board orders the employer to provide backpay or other payment to workers or a union, then the specific amount of money the employer owes is determined in subsequent proceedings, which involve a hearing before an administrative law judge and administrative review by the Board. After those proceedings are concluded and the amount of money the employer owes is determined, an employer that wants to challenge this portion of the Board’s decision will be required to post a bond in the amount the Board has ordered it to pay. If an employer does not post the bond, then it will not be able to obtain judicial review of the Board’s decision and its appeal will be dismissed.

What are the new civil penalties the Board is able to assess?

New Labor Code section 1160.10 requires the Board to assess civil penalties against agricultural employers found to have violated the ALRA. The penalties may be up to $10,000 or $25,000 depending on the circumstances. In some cases, the Board may assess penalties directly against a director or officer of an employer if that individual was directly involved in the violation.

Can the Board assess civil penalties against farm labor contractors?

No. The Board may assess civil penalties only against agricultural employers. Under the ALRA, a grower that engages a farm labor contractor to supply workers to it is deemed to be the employer of all workers provided by the farm labor contractor. Therefore, the grower is responsible for the actions of a farm labor contractor’s supervisors. If a supervisor from a farm labor contractor engages in conduct found to violate the ALRA, the grower is responsible for all remedies ordered by the Board, including civil penalties under new section 1160.10.