SECTIONS 19455-19455.4 - California Statutes

BUSINESS AND PROFESSIONS CODE

SECTION 19455-19455.4

19455. (a) The Legislature finds and declares that Section 923 of
the Labor Code recognizes that it is necessary that the individual
worker have full freedom of association, self-organization, and
designation of representatives of his or her own choosing, to
negotiate the terms and conditions of his or her employment, and that
he or she shall be free from the interference, restraint, or
coercion of employers of labor, or their agents, in the designation
of representatives or in self-organization or in other concerted
activities for the purpose of collective bargaining.
(b) The Legislature finds that the National Labor Relations Board
has formally declined to assert jurisdiction over horse racing
because of extensive state control over the industry, the dominant
pattern of sporadic short-term employment which poses problems for
the effective enforcement of the National Labor Relations Act, and a
unique and special relationship that has developed between the states
and the industry.
(c) It is the intent of the Legislature to establish an orderly
procedure for backstretch employees to exercise their statutory
rights to organize a labor union, in order to reduce the prospect of
any strikes, disruptions, or economic action that would interfere
with the operation of horse racing meetings in California.
(d) Except as provided in subdivision (e), the board shall oversee
the conduct of a union recognition procedure for backstretch
employees under the following conditions:
(1) Employees shall have the right to join, or refuse to join, a
labor organization for purposes of collective bargaining and mutual
aid and protection. Existing state-recognized organizations of
trainers or horsemen established pursuant to the Horse Racing Law
shall not use funds derived or distributed from parimutuel wagering
pursuant to state law to advocate or advance any position with
respect to unionization of employees. Individual trainers and
horsemen, and their agents, shall not coerce or threaten any employee
of any trainer or horseman because of the exercise of rights
pursuant to this article. No employee shall be discharged or
discriminated against for expressing any opinion concerning the
selection of a labor union or collective bargaining agent for
employees under this article. No trainer or horseman, or group of
trainers or horsemen, shall dominate or interfere with the formation
or administration of any labor organization established under this
article nor contribute financial or other support to it.
(2) The labor union and its representatives shall not coerce or
threaten any employee of any trainer or horseman because of the
exercise of rights pursuant to this article.
(3) Notwithstanding any other provision of law, within 30 days of
a request by a bona fide labor organization representing workers in
the horse racing industry in California, accompanied by a petition of
125 licensed backstretch workers, the board shall provide the labor
organization with a list of all backstretch workers including the
type of licenses they hold, their employer, the location at which
they are employed, and their address and telephone number. The board
may require of any trainer licensee information in the licensee's
possession necessary to comply with this requirement. The labor union
shall use this list solely for the purposes of this article, and
maintain it in a manner, as the board may require, to preserve the
integrity of horse racing. The board may impose an appropriate
penalty for any other use.
(4) Every licensed trainer who employs backstretch employees shall
file with the board, not later than February 1, 2002, and, within
seven days of the commencement of each race meeting thereafter, a
complete and accurate list of the names of its backstretch workers.
In addition, every trainer shall file with the board a complete,
accurate, and updated list within seven days of any changes which
occur to the most recently filed list. The lists described in this
section, together with any updates thereto, shall be provided within
72 hours after receipt by the board, to any bona fide labor
organization which has requested copies thereof and submitted a
petition containing the names of 125 backstretch workers pursuant to
paragraph (3). Any request need only be made one time and the board
shall thereafter be required to provide these lists and any updates
thereto in accordance with the provisions of this section so long as
a bona fide labor organization seeks to represent licensed
backstretch workers.
(5) The labor union may obtain board recognition as the exclusive
bargaining agent for employees of employers pursuant to the
provisions and procedures described in paragraph (8).
(6) For the purposes of this article:
(A) "Backstretch employee" or "backstretch worker" means a person
licensed by the board pursuant to subdivision (c) of Section 1481 of
Division 4 of Title 4 of the California Code of Regulations.
(B) "Multiemployer bargaining unit" means any bargaining unit
created and recognized pursuant to the terms of clause (iii) of
subparagraph (A) of paragraph (8).
(C) "Approved election unit" means any election unit created and
recognized pursuant to paragraph (7).
(7) There are four election units created and recognized pursuant
to this section, as follows:
(A) Backstretch employees working for trainers of thoroughbred
horses stabled at licensed racetracks, including fairs and approved
auxiliary training facilities in the combined central and southern
zones.
(B) Backstretch employees working for trainers of thoroughbred
horses stabled at licensed racetracks, including fairs and approved
auxiliary training facilities in the northern zone.
(C) Backstretch employees working for trainers of quarter horses
stabled at licensed racetracks and approved auxiliary training
facilities in the combined central and southern zones.
(D) Backstretch employees working for trainers of harness horses
stabled at licensed racetracks, including fairs and approved
auxiliary training facilities in the northern zone.
The board shall use the California State Mediation and
Conciliation Service for all appropriate purposes of this act,
including operations related to the conduct of recognition procedures
and elections.
(8) (A) With respect to backstretch workers, a labor organization
seeking recognition as the collective bargaining agent for these
workers shall collect signed cards indicating individual worker's
intent to be represented by that organization for collective
bargaining purposes and submit those cards to the California State
Mediation and Conciliation Service for review and validation. When
the labor organization is in receipt of cards signed by workers
equaling at least 30 percent of the employees in an election unit
described in paragraph (4), the California State Mediation and
Conciliation Service shall conduct a secret ballot election with
respect to the election unit as soon as is practicable thereafter,
but in no event more than 30 calendar days after validation by the
service of the cards.
Those backstretch employees entitled to vote in the election shall
be those who appear on the licensed trainer's most recent list
described in paragraph (3). However, each employer may update his or
her list not more than 72 hours prior to the election. If it is
determined by the stewards pursuant to the provisions in paragraph
(11), that the employer filed an inaccurate or erroneous list with a
willful intention to manipulate the results of an election, and that
the inaccuracy or error may have affected the outcome of the
election, the stewards shall decree that the employer lost the
election, regardless of the actual outcome thereof, and the stewards
shall issue an order to the trainer to negotiate with the union.
(i) Any election shall be conducted by the California State
Mediation and Conciliation Service under rules established by the
service consistent with standard practice. The rules shall be
established no more than 60 days after the effective date of this
section, shall be made available to the bona fide labor union and
employers of backstretch employees, and shall be exempt from the
Administrative Procedure Act. The rules shall provide for a secret
ballot system for the conduct of the election pursuant to which
ballots cast by backstretch employees of individual employers shall
be cast by insertion into envelopes appropriately identified with
respect to each employer. The envelopes shall be collected and
tabulated in secret by the service, subject to observation by one
representative designated by the bona fide labor organization and one
representative designated by the organization representing trainers
pursuant to subdivision (a) of Section 19613.2. Upon completion of
the tabulation, the service shall issue a report certifying those
employers, the majority of whose employees who participated in the
election voted in favor of representation by the union. Those
employers so certified shall be required to bargain with the labor
union pursuant to this subdivision. All other employers shall not be
required to negotiate with the union and there shall not be another
election with respect to those employers for at least one year from
the date of the prior election. The service shall not make public the
numerical tabulation of votes by employer.
(ii) Protests over challenged ballots shall be resolved by the
service in a consolidated hearing commencing no later than three
business days after the election.
(iii) Within 45 days of the certification of the results of the
election by the service to the board, those trainers who are required
to bargain pursuant to this subparagraph may form multiple employer
bargaining units in accordance with the provisions of this
subdivision. Further, the organization representing trainers pursuant
to subdivision (a) of Section 19613.2 shall conduct a meeting
regarding the formulation of multiple employer bargaining units
within five days of the certification of the results of the election.
For licensed trainers described in subparagraph (A) of paragraph
(7), the minimum number of backstretch employees employed by licensed
trainers comprising the multiple employer bargaining unit as of the
date of the election shall be the lesser of 100 employees or 10
percent of the total employees subject to bargaining. For licensed
trainers described in subparagraphs (B), (C), and (D), of paragraph
(7), the minimum number of backstretch employees employed by licensed
trainers comprising the multiple employer bargaining unit as of the
date of the election shall be the lesser of 50 employees or 10
percent of the total employees subject to bargaining. The minimum
number of backstretch employees employed by licensed trainers in
order to qualify as a multiple employer bargaining unit pursuant to
this subdivision may, with the consent of the recognized labor union,
be reduced. On or before the 45th day following the certification of
the results of the election, each representative of a multiple
employer bargaining unit formed pursuant to this subdivision shall
notify the board and the exclusive collective bargaining agent, in
writing, that a unit has been formed, disclose the names of the
licensed trainers which comprise the unit, and indicate the number
and names of the backstretch employees which are employed by the
licensed trainers comprising the unit. Except to join another
multiple employer bargaining unit, without the consent of the bona
fide labor organization, a trainer who has elected to join a multiple
employer bargaining unit may not thereafter elect to resign from the
unit except within a 30-day period prior to the date of the
expiration of the collective bargaining agreement resulting from the
negotiations. The employees of a licensed trainer who has resigned
from a multiple employer bargaining unit and has not joined another
unit, shall not be entitled to petition to decertify the union for a
period of one year from the date of the expiration of the collective
bargaining agreement which resulted from the negotiation between the
union and the multiple employer bargaining unit of which he or she
was formerly a member and which was in effect at the time of the
trainer's resignation. Upon completion and certification of the
election results the union shall be recognized as the exclusive
collective bargaining agent for those workers whose employers are
required to bargain, and the executive director of the board shall
issue an order to affected employers to begin good faith negotiations
for approval of employment agreements pursuant to the procedures set
forth in this section.
(B) If an individual employer of backstretch workers declines to
be represented in the multiemployer collective bargaining procedure
described in clause (iii), the board shall issue an order to begin
good faith negotiations for employment agreements on an individual
employer basis. The board may provide mediation and conciliation
services upon request of the parties at any time. If an employer is
required under this subparagraph to collectively bargain with the
union, and the parties do not reach an agreement within 90 days of
the order, the board shall require the parties to participate in
mandatory mediation and conciliation services for a period of 30
days. If no agreement results from this mediation, either or both
parties may declare an impasse. Upon a party's declaration of an
impasse, the executive director of the board shall appoint an
arbitrator in the manner described in paragraph (11) to determine the
issues and issue a final and binding order establishing the terms of
a collective bargaining agreement.
(9) No labor agreement under this article shall apply to any
trainer or horseman with respect to employment associated with fair
meetings prior to January 1, 2003. After this date, employees shall
be added by accretion into an existing contract where applicable. For
racing meetings conducted in the central and southern zones during
the first three months of any calendar year and for fair racing
meetings, this section shall not apply to trainers who normally
reside and work outside of California and who are engaged in racing
in this state for a limited period of time, not exceeding 90 racing
days in any calendar year. For any other racing meeting conducted
during any calendar year, this section shall not apply to trainers,
backstretch workers, or both, who normally reside and work outside of
California and who are engaged in racing in this state for a limited
period of time, not exceeding 50 racing days in any calendar year.
(10) Except as provided in subparagraph (A) of paragraph (8), at
any time subsequent to the expiration of an agreement under paragraph
(8), when the agreement is not in effect, the board may recognize a
majority interest, obtained during this period in the same manner as
union recognition of employees, within a multiple employer bargaining
unit who no longer desire to be represented by the union, and
withdraw the recognition granted pursuant to this section from that
union. An employer may inform his or her employees that a process for
decertification exists and direct them to the board for information.
However, any card, signature, vote, or other indicator obtained for
this purpose by means of coercion or threat or with the assistance or
inducement of any employer shall be invalid.
(11) Disputes, other than disputes concerning the operation and
application of ongoing contracts, disputes subject to binding
interest arbitration pursuant to subparagraph (B) of paragraph (8),
and economic disputes arising in the context of multiemployer
bargaining pursuant to subparagraph (A) of paragraph (8), but
including disputes concerning the rights established in paragraphs
(1) and (2), upon complaint shall be adjudicated by the stewards. The
stewards shall have the authority to order any remedy, including
reinstatement of employment, injunctive relief, damages, and attorney'
s fees. An investigation and adjudication by the stewards shall be
concluded as expeditiously as possible, consistent with applicable
standards of due process. In addition, the board may require the
parties to submit the issue to binding arbitration subject to
judicial review in the same manner as decisions of the board.
Disputes subject to this paragraph include disputes involving any
backstretch employee or group of employees, and any trainer or group
of trainers.
(12) Upon submission of a complaint to binding arbitration under
any provision of this article, the executive director of the board
shall select an arbitrator from a panel of professional arbitrators
with expertise in labor negotiations selected by the California State
Mediation and Conciliation Service or from a panel identified in
collective bargaining agreements between labor organizations and
employers in the horse racing industry in California, or both. The
arbitrators selected by the service or identified in collective
bargaining agreements shall be available to resolve the matter
expeditiously. The arbitrator selected by the executive director
shall have the authority to convene an immediate hearing and require
the parties to exercise all due diligence in promptly attending to
the issue in controversy. In all matters pertaining to the rights
established by this article, an arbitrator shall have the authority
to fashion an appropriate remedy, including reinstatement of
employment, injunctive relief, damages, and attorney's fees, and
issuance of a make-whole remedy in the event of a persistent failure
of a party to bargain in good faith. The board may take any
administrative action within its authority to ensure compliance with
decisions of arbitrators authorized by this section. Either party may
also bring an action in state court to compel a party to go into
arbitration or to enforce the decision of an arbitrator. Costs of
arbitration shall be shared equally by the parties, and any party
shall be entitled to recover any reasonable fees or costs incurred in
securing compliance with or enforcement of an award or order of the
arbitrator.
(e) Nothing in this section shall prevent a labor union and an
individual trainer, or any group of trainers, from entering into a
mutually acceptable agreement, which may substitute for the
requirements of subdivision (d), for union organizing of employees of
the horsemen or trainers. Nothing in this article shall be
interpreted to require representative parties in negotiation to enter
into any labor agreement, as long as each party is negotiating in a
good faith effort to reach an agreement.

19455.2. (a) The board shall provide for labor agreements under
this article to be binding upon every applicable licensee.
(b) No horseman or trainer who has a separate agreement with the
exclusive representative labor union shall be required to be a party
to a multiemployer collective bargaining agreement.

19455.4. The board may establish reasonable rules to regulate the
time, place, and manner for representatives of labor unions to meet
backstretch workers within the enclosure during working and
nonworking hours. Those rules shall provide that the union and its
representatives shall not interfere with the work of any employee,
but shall have reasonable access to backstretch employees within the
enclosure during working hours and nonworking hours, as determined by
the board. With the approval of the board, these regulations may be
superseded by collective bargaining agreements between horsemen's
organizations or trainers' organizations and labor organizations.