TRI-FANUCCHI FARMS v. AGRICULTURAL LABOR RELATIONS BOARDReal Party in Interest, United Farm Workers of America, Request for Judicial NoticeCal.February 17, 2016 Case No. S227270 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA TRI-FANUCCHI FARMS, Petitioner and Respondent, vy SUPREME COURT AGRICULTURAL LABOR RELATIONS BOARD, Petitioner and Respondent, FEB 17 2016 bs Ree Te UNITED FARM WORKERSOF AMERICA, Frank A. MeCuire Clerk Real Party in Interest. Deputy After a decision by the Court ofAppeal, Fifth Appellate District, Case No. F069419 Affirming in part a decision of the ALRB [In re Tri-Fanucchi Farms (2014) 40 ALRB No.4] REAL PARTYIN INTEREST UNITED FARM WORKERS OF AMERICA’S MOTION FOR JUDICIAL NOTICE MARIO MARTINEZ (SBN 200721) MARTINEZ AGUILASOCHO & LYNCH, APLC P.O. Box 11208 Bakersfield, Ca. 93389-1208 Tel: (661) 859 - 1174 Fax: (661) 840 - 6154 email: mmartinez@farmworkerlaw.com Counselfor Real Party in Interest United Farm Workers ofAmerica M O I N E S a e s a n d s Case No. §227270 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA TRI-FANUCCHI FARMS, Petitioner and Respondent, vz, AGRICULTURAL LABOR RELATIONS BOARD, Petitioner and Respondent, UNITED FARM WORKERS OF AMERICA, Real Party in Interest. After a decision by the Court ofAppeal, Fifth Appellate District, Case No. F069419 Affirming in part a decision ofthe ALRB [In re Tri-Fanucchi Farms (2014) 40 ALRB No.4] REAL PARTYIN INTEREST UNITED FARM WORKERSOF AMERICA’S MOTION FOR JUDICIAL NOTICE MARIO MARTINEZ (SBN 200721) MARTINEZ AGUILASOCHO & LYNCH, APLC P.O. Box 11208 Bakersfield, Ca. 93389-1208 Tel: (661) 859 - 1174 Fax: (661) 840 - 6154 email: mmartinez@farmworkerlaw.com Counselfor Real Party in Interest UnitedFarm Workers ofAmerica MOTION FOR JUDICIAL NOTICE Pursuant to Rules 8.520(g) and 8.252(a) ofthe California Rules of Court and Evidence Code §459, Real Party in Interest United Farm Workers ofAmerica (“UFW7”), movesforjudicial notice ofExhibits A and B to the accompanying Declaration ofMario Martinez. Exhibit A is the text, as amended in the California Assembly Committee on Labor and Employment, on May 04, 2015, ofAssembly Bill 1389, “AB-1389 Agricultural labor relations: unfair labor practices” (hereafter "AB 1389"), introduced by Assembly MemberJim Patterson, February 27, 2015, with principal coauthor, Assembly Member Grove, and coauthor, Assembly Member Chavez.’ Exhibit B is a state legislative record ofthe vote ofMay 06, 2015, in the Assembly Committee on Labor and Employment, during which AB 1389 failed to pass out of the Committee: “Do pass and be re-referred to the Committee on Appropriations.’” The ballot contained in Exhibit B has been published by the California legislature at www.leginfo.ca.gov and a summary also published at https://leginfo.legislature.ca.gov.° Evidence Code §459(a) provides that a “reviewing court may take judicial notice of any matter specified in Section 452.” As discussed below, the documents are subject to judicial notice pursuant to Evidence Code §452(c), which provides for judicial notice of “[o]fficial acts ofthe ‘As ofFebruary 10, 2016, AB 1389 is available for downloadat: https://leginfo.legislature.ca.gov/faces/biliNavClient.xhtml?bill_id=201520 160AB1389 ? As ofFebruary 10, 2016, the vote on AB 1389is available for download at: http://leginfo.ca.gov/pub/15-16/bill/asm/ab_1351- 1400/ab_1389_vote_20150506_000001_asm_comm.html 3 As ofFebruary 10, 2016, the ballot on AB 1389is available for download at: https://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml?bill_id=20152 0160AB1389 legislative, executive, and judicial departments of the United States and of any state of the United States.” The California State Assembly andits Committee on Labor and Employmentis a governmental legislative body, and the official acts ofthe legislature, including the introduction, amendments and vote on AB 1389, submitted here, are therefore the proper subject ofjudicial notice, as “Official acts of the legislative, executive, and judicial departments ofthe United States and of anystate of the United States.” [Evid. Code §452(c); see also, Evid. Code §452.5] The two documents sought to be judicially noticed are also relevant to the actions taken by the Legislature rejecting an amendmentofthe ALRA that would have required the Agricultural Labor Relations Board to decertify a union for “abandoning or failing to represent a bargaining unit for 3 or more years.” (Legislative Counsel’s Digest, AB-1389(1),as amendedMay 04, 2015) In Dole Fresh Fruit Company (1996) 22 ALRB No.4, at p. 16, the Boardstated that it could not "extend its present regulations or case law precedents in regards to initiating an abandonment procedure withoutdistorting the express directives ofthe ALRA and invadingthe province of the Legislature. Since California is a code state, the power to enact and amend statutes is constitutionally entrusted to the Legislature and not to the judiciary or any quasi-judicial subdivision ofthe executive branch. Thus... the Legislature [] is [where] employers must look.” Tri-Fanucchiis presently arguing that the ALRA permits the courts to recognize an "abandonment defense" or abandonment procedure. For more than 30 years, the ALRB has rejected that position, and the Fifth DCA,in its opinion in this matter, similarly rejected that position. The two documents demonstrate that as recently as 2015, the Assembly Labor and Employment Committee considered amending the ALRA to provide an abandonmentprocedure, but the proposedlegislation did not make it out of the Committee. The Legislature's failure to amend the ALRA to provide an abandonment procedureis relevant to the question ofwhether or not the Legislature acceptedor ratified the ALRA's and the courts’ interpretations that employers cannot raise an abandonment "defense" in support oftheir réfusal to bargain. For these reasons, UFW respectfully requests that the Court take judicial notice ofthe documents:discussed above. Dated: February '2~ 2016 Respectfully submitted, MARIO MARTINEZ | MARTINEZ AGUILASOCHO & Attorneysfor Real Party inInifrest UFW Case No. $227270 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA TRI-FANUCCHI FARMS, Petitioner and Respondent, Vv. AGRICULTURAL LABOR RELATIONS BOARD, Petitioner and Respondent, UNITED FARM WORKERSOF AMERICA, Real Party in Interest. After a decision by the Court ofAppeal, Fifth Appellate District, Case No. F069419 Affirming in part a decision ofthe ALRB [In re Tri-Fanucchi Farms (2014) 40 ALRB No.4] DECLARATION OF MARIO MARTINEZ IN SUPPORT OF REAL PARTY IN INTEREST UNITED FARM WORKERSOF AMERICA’S MOTION FOR JUDICIAL NOTICE MARIO MARTINEZ (SBN 200721) MARTINEZ AGUILASOCHO & LYNCH, APLC P.O. Box 11208 Bakersfield, Ca. 93389-1208 Tel: (661) 859 - 1174 Fax: (661) 840 - 6154 email: mmartinez@farmworkerlaw.com Counselfor Real Party in Interest United Farm Workers ofAmerica DECLARATION OF MARIO MARTINEZ I, Mario Martinez, hereby declare as follows: . Iam partner at Martinez Aguilasocho & Lynch, A Professional Law Corporation and one ofthe attorneys for Real Party in Interest United Farm Workers ofAmerica (““UFW”). . Attached as Exhibit A is a true and correct copy ofthe text of the Assembly Bill 1389, as amendedin the California Assembly Committee on Labor and Employment on May 04, 2015, “AB-1389 Agricultural labor relations: unfair labor practices,” introduced by Assembly MemberJim Patterson, February 27, 2015, with principal coauthor, Assembly Member Grove, and coauthor, Assembly Member Chavez. . Attached as Exhibit B is a true and correct copy of a state legislative record ofthe vote ofMay 06, 2015 in the California Assembly Committee on Labor and Employment, in which AB 1389 failed the Motion and did not pass out ofthe Committee: “Do pass and bere- referred to the Committee on Appropriations.” The unofficial ballot contained in Exhibit B has been published by the California legislature at www.leginfo.ca.gov and a summary also published at https://leginfo.legislature.ca.gov, I declare under penalty ofperjury underthe laws of the United States and the State of California that the foregoing is true and correctto the best ofmy knowledge. Execujedin Riverside County, Californiathis V@dayofFebruary, Mario Martinez EXHIBIT A AMENDEDINASSEMBLY MAY4, 2015 CALIFORNIA LEGISLATURE—2015—16 REGULAR SESSION ASSEMBLY BILL No. 1389 Introduced by Assembly MemberPatterson (Principal coauthor: Assembly MemberGrove) (Coauthor: Assembly Member Chavez) February 27, 2015 -An act to amend Sections 1154 and 1164 of and to add Section 1164.1 to, the Labor Code, relating to employment. LEGISLATIVE COUNSEL'S DIGEST AB 1389, as amended, Patterson. AgriewtturalL berRelations Act: bindine-mediation-Agricultural labor relations: unfair laborpractices. (1) Existing law establishes the right ofagricultural employees to form, join, or assist labor organizations to engage in collective bargaining activities with agricultural employers regarding wages, working conditions, or other aspects of employment. Existing law prohibits a labor organizationorits agentsfrom engaging in specified unfair laborpractices. This bill would additionally prohibit a labor organization from abandoning or failing to represent a bargaining unit for 3 or more years. This bill would require the Agricultural Labor Relations Board to decertify a labor organization that violates this provision. (2) Existing law specifies the time for filing a declaration by an agricultural employer or a certified labor organization representing agricultural employees thattheparties havefailed to reach a collective bargaining agreement, thus triggering mandatory mediation. Once triggered, the mediation under theseprovisions is immediately scheduled 98 " AB 1389 _2— ata time and location reasonably accessible to theparties andproceeds Jor 30 days, with an additional 30-day extension upon the mutual agreementofthe parties. This bill would deem members of the bargaining unit to be parties for thepurposes ofthe mediation. Existing law establishes the conditions and time periods under which an agricultural employer, as defined, or a certified labor organization representing agricultural employees may file a declaration with the Agricultural Labor Relations Board stating that the parties have failed to reach a collective bargaining agreement, thustriggering a board order for mandatory mediation. Existing law authorizes a party, within 60 days of the order by the Agricultural Labor Relations Board taking effect, to file an action to enforce the order. Existing law prohibits an order of the board from being stayed during the pendencyofany appealofthe order unless the appellant demonstrates that heorsheis likely to prevail on the merits and that he or she will be irreparably harmed by implementation ofthe board’s order. This bill would condition the effect and enforcement of an order resulting from the binding mediation on the order being approved by a majority of the membersofthe affected bargaining unit. Vote: majority. Appropriation: no, Fiscal committee: e-yes. State-mandated local program: no. Thepeople ofthe State ofCalifornia do enact asfollows: SECTION 1. Section 1154 of the Labor Code is amended to read: 1154. It shall be an unfair laborpractice for a labor organization or its agents to do any ofthe following: (a) To restrain or coerce: (1) Agricultural employees in the exercise of the rights guaranteed in Section 1152. This paragraph shall not impair the right ofa labor organization to prescribe its own rules with respect to the acquisition or retention ofmembership therein. 10 (2) An agricultural employer in the selection of his or her 11 representatives for the purposes of collective bargaining or the 12 adjustment ofgrievances. 13 (b) To cause or attempt to cause an agricultural employer to 14 discriminate against an employee in violation of subdivision (c) O W N N M B W N R e 98 C O n N N N B W N W w W W W W W W W W O P d w d N w N b o —3—- AB 1389 of Section 1153, or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated for reasons other than failure to satisfy the membership requirements specified in subdivision (c) of Section 1153. (c) To refuse to bargain collectively in good faith with an agricultural employer, provided it is the representative of his or her employeessubjectto the provisions ofChapter 5 (commencing with Section 1156) of this part. (d) To do either ofthe following: (i) To engage in,or to induce or encourage any individual employed by any person to engage in, a strike or a refusal in the course of his or her employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services; or (ii) to threaten, coerce, or restrain any person; where in either case (i) or (ii) an object thereof is any of the following: (1) Forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by Section 1154.5. (2) Forcing or requiring any person to cease using, selling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his or her employees unless such labor organization has been certified as the representative of such employees. Nothing contained in this paragraphshall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing. (3) Forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative ofhis or her agricultural employeesifanother labor organization has been certified as the representative of such employees under the provisions of Chapter 5 (commencing with Section 1156) of this part. (4) Forcing or requiring any employerto assign particular work to employees in a particular labor organization or in a particular trade, craft, or class, unless such employeris failing to conform 98 AB 1389 —4—- — D O O w W m W A N A P W N — B W W W W W W W W W N D N W N h d S S M I A A D A O N H A S S R S Y U R R R S S K R B S S I A S T E O S T to an orderorcertification ofthe board determining the bargaining representative for employees performing such work. Nothing containedin this subdivision (d) shall be construed to prohibit publicity, including picketing for the purpose oftruthfully advising the public, including consumers, that a productorproducts or ingredients thereof are produced by an agricultural employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course ofhis or her employmentto refuse to pick up, deliver, or transport any goods, or not to perform anyservicesat the establishment ofthe employer engaged in suchdistribution, and as long as such publicity does not have the effect of requesting the public to cease patronizing sueh the other employer. However, publicity which includespicketing and has the effect of requesting the public to cease patronizing—sueh the other employer, shall be permitted only if the labor organization is currently certified as the representative of the primary employer’s employees. Further, publicity other than picketing, but including peaceful distribution of literature which has the effect of requesting the public to cease patronizing-steh the other employer, shall be permitted only ifthe labor organization hasnotlost an election for the primary employer’s employees within the preceding 12-month period, and no otherlabor organization is currently certified as the representative ofthe primary employer’s employees. Nothing containedin this subdivision (d) shall be construed to prohibit publicity, including picketing, which may notbe prohibited under the United States Constitution or the California Constitution. Norshall anything in this subdivision (d) be construed to apply or be applicable to any labor organization in its representation of workers who are not agricultural employees. Any such labor organization shall continue to be governedin its intrastate activities fornonagricultural workers by Section 923 and applicablejudicial precedents. (e) To require ofemployees covered by an agreementauthorized under subdivision (c) ofSection 1153 the payment, as a condition precedent to becoming a member ofsuch organization, ofa fee in an amount which the boardfinds excessive or discriminatory under 98 O W A I N N A B W Y —5— AB 1389 all circumstances. In making such finding, the board shall consider, among other relevantfactors, the practices and customs of labor organizations in the agriculture industry and the wages currently paid to the employeesaffected. (f) To causeor attempt to cause anagricultural employer to pay or deliver, or agree to pay or deliver, any moneyor other thing of value, in the nature of an exaction, for services which are not performed or not to be performed. (g) To picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is either forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his or her employees, or forcing or requiring the employees of an employer to accept or select—suek the labor organization as_ their collective-bargaining representative, unless such labor organization is currently certified as the representative of such employees,in any ofthe following cases: (1) Where the employer has lawfully recognized in accordance with this part any other labor organization and a question concerning representation may not appropriately be raised under Section 1156.3. (2) Where within the preceding 12 months a valid election under Chapter 5 (commencing with Section 1156) of this part has been conducted. Nothing in this subdivision shall be construed to prohibit any picketing or other publicity for the purpose oftruthfully advising the public (including consumers)that an employer does not employ membersof, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his or her employment, not to pick up, deliver, or transport any goods or not to perform any services. Nothing in this subdivision (g) shall be construed to permit any act which would otherwise be an unfair labor practice under this section. (h) To picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is either forcing or requiring an employer to recognize or bargain with the labor organization as a representative of his or her 98 AB 1389 —6— O M m M r ~ I A N A N A P W N w e employeesunless such labor organization is currently certified as the collective-bargaining representative of such employees. (i) To abandon orfail to represent the bargaining unit for a periodofthree years or more. The board shall decertify a labor organization thatviolates this subdivision. @® Gj) Nothing contained in this section shall be construed to make unlawful a refusal by any person to enter upon the premises ofany agricultural employer, other than his or her own employer,if the employees ofsueh the employer are engaged in a strikeratified or approved by a representative of-steh the employees whom-sueh the employeris required to recognize under this part. SEC. 2. Section 1164 ofthe Labor Code is amendedto read: 1164. (a) An agricultural employer or a labor organization certified as the exclusive bargaining agent of a bargaining unit of agricultural employees may file with the board, at any time following (1) 90 days after a renewed demand to bargain by an agricultural employer or a labor organization certified prior to January 1, 2003, which meets the conditions specified in Section 1164.11, (2) 90 days after an initial request to bargain by an agricultural employeror a labor organizationcertified after January 1, 2003, (3) 60. days after the board has certified the labor organization pursuantto subdivision (f) of Section 1156.3, or (4) 60 days after the board has dismissed a decertification petition upon a finding that the employer has unlawfully initiated, supported, sponsored, or assisted in the filing of a decertification petition.a declaration that the parties have failed to reach a collective bargaining agreement anda requestthat the board issue an order directing the parties to mandatory mediation and conciliation oftheir issues. “Agricultural employer,” for purposes of this chapter, means an agricultural employer, as defined in subdivision (c) of Section 1140.4, who has employed or engaged 25 or more agricultural employees during any calendar week in the year preceding the filing of a declaration pursuant to this subdivision. (b) Upon receipt of a declaration pursuant to subdivision (2), the board shall immediately issue an order directing the parties to mandatory mediation and conciliation of their issues. The board shall request from the California State Mediation and Conciliation Service a list of nine mediators who have experience in labor 98 C O O M A N D M N A R A W N E W W W W n G s W W W w W N N N W h O N d —7— AB 1389 mediation. The California State Mediation and Conciliation Service mayinclude names chosen from its own mediators, or from list ofnamessupplied by the American Arbitration Association orthe Federal Mediation Service. Theparties shall select a mediator from the list within seven days ofreceipt ofthelist. Ifthe parties cannot agree on a mediator, they shall strike names from thelist until a mediator is chosen by process ofelimination.If a party refuses to participate in selecting a mediator, the other party may choose a mediator from the list. The costs of mediation and conciliation shall be borne equally bytheparties. (c) Upon appointment, the mediator shall immediately schedule meetingsat a time andlocation reasonably accessible to the parties. Mediation shall proceed for a period of30 days. Upon expiration ofthe 30-dayperiod,ifthe parties do not resolvethe issuesto their mutualsatisfaction, the mediator shall certify that the mediation process hasbeen exhausted. Upon mutual agreementoftheparties, the mediator may extend the mediation period for an additional 30 days. Members of the bargaining unit shall be considered parties for purposes of this subdivision and shall beentitled to attend all meetings scheduled by the mediator. (d) Within 21 days, the mediator shall file a report with the board that resolves all of the issues between the parties and establishes the final terms of a collective bargaining agreement, including all issues subject to mediation andall issues resolved by the parties prior to the certification of the exhaustion of the mediation process. With respect to any issues in dispute between the parties, the report shall include the basis for the mediator’s determination. The mediator’s determination shall be supported by the record. (ce) Inresolving the issuesin dispute, the mediator may consider those factors commonly considered in similar proceedings, including: (1) Thestipulations ofthe parties. (2) The financial condition of the employer andits ability to meetthe costs ofthe contractin those instances where the employer claims an inability to meet the union’s wage and benefit demands. (3) The corresponding wages, benefits, and terms and conditions ofemploymentin othercollective bargaining agreements covering similar agricultural operations with similar labor requirements. 98 AB 1389 —8— O e r n r A U R W N = (4) The corresponding wages,benefits, and terms and conditions of employment prevailing in comparable firms or industries in geographical areas with similar economic conditions, taking mto accountthe size ofthe employer,the skills, experience, and training required of the employees, and the difficulty and nature of the work performed. (5) The average consumer prices for goods and services according to the California Consumer Price Index, and the overall cost ofliving, in the area where the work is performed. SEC. 3. Section 1164.1 is added to the Labor Code, to read: 1164.1. An order issued by the mediator, the board,or the court that would imposethe terms ofbinding mediation pursuant Section 1164 shall not take effect or be enforceable until it is approved by a majority of the agricultural employees of the bargaining unit affected by the order. 58 EXHIBIT B UNOFFICIAL BALLOT MEASURE: AB 1389 AUTHOR: Patterson TOPIC: Agricultural labor relations: unfair labor pr DATE: 05/06/2015 LOCATION: ASM. I. & EB. MOTION: Do pass and be re-referred to the Committee on Appropriations. {AYES 2. NOES 5.) (FAIL) AYES ee Harper ‘Patterson NOES eee Roger Hernandez Chu Low McCarty Thurmond ABSENT, ABSTAINING, OR.NOT VOTING Be be KR EATEREIREKAHAIRTAINWATT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i| I Case No.: 8227270 | a party to the within entitled action. My business address is P.O. Box 11208, Bakersfield, transmitted to the person(s) email address below. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PROOF OF SERVICE BY MAIL Case Name: Tri-Fanucchi Farmsv. Agricultural Labor Relations Board Iam a resident of the County of Kern. I am overthe age of eighteen years and not California, 93389. On February 12, 2016, I served foregoing documents describedas: 1. REAL PARTYIN INTEREST UNITED FARM WORKERS OF AMERICA’S MOTION FOR JUDICIAL NOTICE 2. DECLARATION OF MARIO MARTINEZ IN SUPPORT OF REAL PARTYIN INTEREST UNITED FARM WORKERS OF AMERICA’S MOTION FOR JUDICIAL NOTICE __x__ (BY REGULAR MAIL)by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Bakersfield, California addressed as set forth below. __x__ (BY ELECTRONIC MAIL). By causing a true copy thereofto be electronically See Service List I declare under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. Executed on February 12, 2016, in the County of Kern, California. sais PROOF OF SERVICE 10 ait 12 ‘Lé 15 16 17 18 25 20 24 22 | 23 24 25 26 27 28 Howard A. Sagaser Sagaser, Watkins & Wieland, PC 7550 N. Palm Avenue, Suite 100 Fresno, CA 93711-5500 haséisw2law.com Office ofthe Clerk Fifth District Court ofAppeal 2424Ventura Street Fresno, CA.93721 Via regular mail only PROOFOF SERVICE Service List Antonio Barbosa, Executive Secretary Scott P. Inciardi, Senior Board Counsel Agricultural Labor RelationsBoard 1325 J. Street, Suite 1900-A. Sacramento, CA 95814 JBarbosa@alrb.ca.gov Scott.Inciardi@alrb.ca.zov -2- deGENINaLadMEMESTA”
