In January 1997, Governor Pete Wilson issued an Executive Order requiring all state administrative agencies to review their existing regulations. The purpose of these reviews was to assure that outdated regulations would be removed and existing regulations streamlined. Because the Agricultural Labor Relations Board (ALRB) is an independent agency and not part of the executive branch of state government, the executive order was not legally binding on this agency. Notwithstanding the technical inapplicability to the ALRB of the official directive, however, the Board believed in the goals of the Governor's Executive Order and decided to pursue a review of the regulations under its purview.
The procedure for an agency to review its regulations is commonly referred to as "rulemaking." Every state board and commission has the inherent right to enact regulations through the rulemaking process that serve the implementation, administration, and enforcement of the law as codified in a statute. In the case of the ALRB, the regulations are tools the Board uses to assure that the Agricultural Labor Relations Act, passed in 1975, is enforced as intended.
The statute, or law, provides the generic guidelines regarding the rights, obligations, and duties of the parties - typically workers, growers, and/or unions - involved with matters under ALRB jurisdiction. Regulations provide the details that specify to the parties how their rights, objectives and duties will be protected and imposed. The regulations are very significant in defining what a party can or cannot do within the law, so it is not surprising that the decision by the Board to review the agency's regulations has and will generate great interest by many of those who deal with the ALRB.
With so much at stake, the Board from the outset committed itself to an open and accessible process of regulatory review. The Board stated and then demonstrated this commitment through a series of "field hearings" throughout California in early November. Specifically, the hearings were held in the Coachella Valley, Ventura, Monterey, Tulare, and Sacramento. At these hearings every interested party was welcome to speak to the Board about ANY aspect of the ALRB's regulations, and a great many did so. Spanish-speaking interpreters were present at all hearings to make possible full participation by those who wished to address the Board in Spanish.
To assure the Board every opportunity to accumulate a complete record of pertinent facts and perspectives before formulating any recommendations, we scheduled five more hearings for Sacramento in March and April. The purpose of these added hearings was to obtain specific testimony regarding farm worker demographics and agricultural recruitment patterns in California and to learn more about various means of communicating with California farm workers. The lineup of knowledgeable speakers whom the Board planned to hear included: on March 18, James I. Grieshop, U.C. Davis; Don Villarejo, California Institute of Rural Studies; and Larry Jarequi, California Department of Education. On March 25, José Millan, State Labor Commissioner, California Department of Industrial Relations; Pablo Rosales, California Department of Economic Opportunity; Arturo Ramudo, California Employment Development; Gordy Denicochea, California Department of Housing and Community Development; and A. J. Yates, California Department of Food and Agriculture. On April 1, Howard Rosenberg, U.C. Berkeley; Steve Sutter, U.C. Cooperative Extension, Fresno; and Bert Mason, California State University, Fresno. On April 8, Richard Mines, Martin Rios and Andy Nagochi, all from U.S. Department of Labor; Susan Gabbard, Project Director of the National Agricultural Workers Survey; and Myriam Grajales-Hall, U.C. Riverside.
Each of these speakers was asked to provide testimony in two specific areas: (1) how his or her agency or organization communicates with farm workers, and/or (2) demographic information, such as farm worker access to media, housing and migration patterns, literacy, and how farm workers are hired or recruited, whether it be directly or through labor contractors. At one final hearing on April 15, any other person could testify to the Board or provide a written statement. All comments were welcome but had to be made no later than April 15. Submittals after that date cannot become part of the record considered by the Board in the current review of regulations.
At 10:00 a.m. on May 13th, the Board will convene to formally deliberate on any changes that it wishes to make to current regulations under the ALRA. The Board will meet daily until its rulemaking deliberations are completed. Any changes to existing rules and regulations that the Board proposes must then be submitted to the Office of Administrative Law (OAL), along with a notice of proposed rulemaking and a statement of reasons in support thereof. This triggers a 45-day public comment period, during which another hearing may be held, and all interested members of the public will be invited to comment on any of the proposed changes. After the 45-day public comment period closes, the Board will make any changes it concludes are appropriate and submit them with a final statement of reasons to OAL for its approval.
It should be evident that the process to change any administrative regulation is by law lengthy and complex. In the case of the ALRB this year, the Board has been willing to augment its information gathering so as to assure that its regulatory review process is thorough, open, and fair.
To those who have opposed the Board even reviewing its regulations, I would respond that 23 years since passage of the ALRA is a long time to drive a road without ever seeing if the terrain has changed. I do not think anyone familiar with California agriculture could argue seriously that nothing has changed. To the extent change has occurred, it is the responsibility of any governmental board to acknowledge that circumstances differ from the past, to analyze how, and to judge whether changes in its regulations are needed to adequately respond to them.
To his credit, the Governor has provided impetus for all agencies to take steps that lead to California's boards and commissions becoming more streamlined, efficient and effective as we enter the 21st century. For the ALRB, the final stage down this path is scheduled to commence on May 13th.
Agricultural employers and farm labor unions will continue to participate and watch with interest as this process continues to unfold. It is the California farm worker, however, whether union or nonunion, whom the ALRA was enacted to assist and who stands to benefit the most from this rulemaking. To date many farm workers have been actively involved in the hearings. They have had a lot to say, and I am confident their messages will not be lost.
We should not lose sight of the fact that a primary reason for passage of the Agricultural Labor Relations Act was to guarantee justice for agricultural workers. As Section 1 of the Act states: "In enacting this legislation the people of the State of California seek to ensure peace in the agricultural fields by generating justice for all agricultural workers . . . ." It is those workers whose concerns I will remind the entire Board to take to heart as we start our final deliberation in May.
Editor's Note:
As LMD goes to press, the ALRB is concluding its series of fact-finding hearings in Sacramento and preparing to deliberate on the copious testimony it has received in these as well as the field hearings held last November. As Mr. Stoker indicates, the Board has welcomed oral and written comments in connection with both these sets of meetings.
Speakers providing expert testimony in the March-April hearings were asked to focus on how their organizations communicate with farm workers, and the demographics and employment characteristics of farm workers. Comments last Fall from interested members of the public, including grower and worker representatives, included not only information along these two lines but also specific proposals for change in ALRA regulations. Employer advocates consistently offered three recommendations: (1) that labor organizers' virtually routine right to access workers on growers' property be eliminated; (2) that the level of interest needed to support a union's Notice of Intent to Organize, and thus obligate an employer to provide a list of all employees' names and addresses, be raised significantly from the current standard of 10 percent of the current workforce; and (3) that means be established for the Board to reasonably terminate an employer's duty to bargain with a union which has been certified to represent the employer's workforce but has abandoned that unit.
In a letter of transmittal with its lengthy written comment, the United Farm Workers of America (UFW), AFL-CIO, contended that existing law provides adequate means for dealing with the rare cases of actual abandonment, that refusals to bargain in good faith often lead to circumstances misperceived as abandonment, and that ALRB resources would be better spent on enforcing the current rules than considering changes in them. The UFW submittal does, however, propose nearly forty regulatory changes. The section headings under which these recommendations are presented suggest their substance. Among them: Joint employer definition, Time lines for ULPs, Field examiner hours and places of operation, Field examiner language, Expedited hearings, Expert investigators for compliance, Registration of labor consultants, Expanded access, Organizer vehicular access, Identification badges for supervisors, Company bulletin boards, Encouragement of neutrality agreements, Referrals to other agencies, and ALRA rights posting.
As described in the minutes of its December 10 meeting, the Board took preliminary steps toward development of a rulemaking package shortly after Fall field hearings were completed. The Board voted to to direct its staff to draft proposals and list options with regard to: (1) the showing of interest to trigger a union's right to an employee address list, (2) a process whereby a union that has abandoned workers might lose its right to represent them, (3) elimination of blocking, (4) allowing employers to disseminate ALRB informational materials regarding decertification petitions, and (5) possible modification of the present access rules (ranging from retention of status quo to complete repeal).
An ALRB staff report on issues before the Board is expected to be complete by late April, and the Board will meet on May 6 to entertain public comment on this report. Written comments on the report will be accepted until 5:00p.m., May 8. Beginning on May 13, and continuing daily, the Board will deliberate on the staff report content and comments. It then will finally determine what to include in specific regulatory proposals, and direct staff to prepare a formal rulemaking package.
Clearly, with the input it received last fall and after five additional hearings this year, a very wide range of topics and great volume of relevant information are before the Board. Members will sit down to quite a full plate when they convene for deliberations on May 13.
-HRR