Hello.
First of all, I must note that Google Answers provides general
information, not professional legal advice. The information below is
in no way intended as legal advice, and should not be taken as such.
If you need legal advice, you should contact a qualified attorney.
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The secret ballot election procedures aren't in the California Labor
Code. Rather, Section 517 of the Labor Code directs the Industrial
Welfare Commission to issue the necessary regulations for the election
procedures.
See:
"517. (a) The Industrial Welfare Commission shall, at a public
hearing to be concluded by July 1, 2000, adopt wage, hours, and
working conditions orders consistent with this chapter without
convening wage boards, which orders shall be final and conclusive for
all purposes. These orders shall include regulations necessary to
provide assurances of fairness regarding the conduct of employee
workweek elections, procedures for employees to petition for and
obtain elections to repeal alternative workweek schedules..."
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=00001-01000&file=500-558
The Wage Orders are available on the Industrial Welfare Commission's
web site. You may read them all:
http://www.dir.ca.gov/Iwc/WageOrderIndustries.htm
For example, the election procedures for Professional, Technical,
Clerical, Mechanical and Similar Occupations are in Wage Order #4:
http://www.dir.ca.gov/Iwc/IWCArticle4.html
Here they are:
"(C) Election Procedures
Election procedures for the adoption and repeal of alternative
workweek schedules require the following:
(1) Each proposal for an alternative workweek schedule shall be in
the form of a written agreement proposed by the employer. The proposed
agreement must designate a regularly scheduled alternative workweek in
which the specified number of work days and work hours are regularly
recurring. The actual days worked within that alternative workweek
schedule need not be specified. The employer may propose a single work
schedule that would become the standard schedule for workers in the
work unit, or a menu of work schedule options, from which each
employee in the unit would be entitled to choose. If the employer
proposes a menu of work schedule options, the employee may, with the
approval of the employer, move from one menu option to another.
(2) In order to be valid, the proposed alternative workweek
schedule must be adopted in a secret ballot election, before the
performance of work, by at least a two-thirds (2/3) vote of the
affected employees in the work unit. The election shall be held during
regular working hours at the employees? work site. For purposes of
this subsection, "affected employees in the work unit" may include all
employees in a readily identifiable work unit, such as a division, a
department, a job classification, a shift, a separate physical
location, or a recognized subdivision of any such work unit. A work
unit may consist of an individual employee as long as the criteria for
an identifiable work unit in this subsection are met.
(3) Prior to the secret ballot vote, any employer who proposed to
institute an alternative workweek schedule shall have made a
disclosure in writing to the affected employees, including the effects
of the proposed arrangement on the employees? wages, hours, and
benefits. Such a disclosure shall include meeting(s), duly noticed,
held at least 14 days prior to voting, for the specific purpose of
discussing the effects of the alternative workweek schedule. An
employer shall provide that disclosure in a non-English language, as
well as in English, if at least five (5) percent of the affected
employees primarily speak that non-English language. The employer
shall mail the written disclosure to employees who do not attend the
meeting. Failure to comply with this paragraph shall make the election
null and void.
(4) Any election to establish or repeal an alternative workweek
schedule shall be held at the work site of the affected employees. The
employer shall bear the costs of conducting any election held pursuant
to this section. Upon a complaint by an affected employee, and after
an investigation by the labor commissioner, the labor commissioner may
require the employer to select a neutral third party to conduct the
election.
(5) Any type of alternative workweek schedule that is authorized
by the Labor Code may be repealed by the affected employees. Upon a
petition of one-third (1/3) of the affected employees, a new secret
ballot election shall be held and a two-thirds (2/3) vote of the
affected employees shall be required to reverse the alternative
workweek schedule. The election to repeal the alternative workweek
schedule shall be held not more than 30 days after the petition is
submitted to the employer, except that the election shall be held not
less than 12 months after the date that the same group of employees
voted in an election held to adopt or repeal an alternative workweek
schedule. However, where an alternative workweek schedule was adopted
between October 1, 1999 and October 1, 2000, a new secret ballot
election to repeal the alternative workweek schedule shall not be
subject to the 12-month interval between elections. The election shall
take place during regular working hours at the employees? work site.
If the alternative workweek schedule is revoked, the employer shall
comply within 60 days. Upon proper showing of undue hardship, the
Division of Labor Standards Enforcement may grant an extension of time
for compliance.
(6) Only secret ballots may be cast by affected employees in the
work unit at any election held pursuant to this section. The results
of any election conducted pursuant to this section shall be reported
by the employer to the Division of Labor Statistics and Research
within 30 days after the results are final, and the report of election
results shall be a public document. The report shall include the final
tally of the vote, the size of the unit, and the nature of the
business of the employer.
(7) Employees affected by a change in the work hours resulting
from the adoption of an alternative workweek schedule may not be
required to work those new work hours for at least 30 days after the
announcement of the final results of the election.
(8) Employers shall not intimidate or coerce employees to vote
either in support of or in opposition to a proposed alternative
workweek. No employees shall be discharged or discriminated against
for expressing opinions concerning the alternative workweek election
or for opposing or supporting its adoption or repeal. However, nothing
in this section shall prohibit an employer from expressing his/her
position concerning that alternative workweek to the affected
employees. A violation of this paragraph shall be subject to Labor
Code Section 98 et seq.
source: Industrial Welfare Commission, Wage Order #4
http://www.dir.ca.gov/Iwc/IWCArticle4.html
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Now, you've probably noticed that the procedures aren't all that specific.
If you're looking for a good definition of "secret ballot," here is
what the U.S. Department of Labor uses:
"Secret ballot means the expression by ballot, voting machine, or
otherwise, but in no event by proxy, of a choice with respect to any
election or vote taken upon any matter, which is cast in such a manner
that the person expressing such choice cannot be identified with the
choice expressed."
http://www.dol.gov/esa/regs/cfr/29cfr/toc_Part400-499/0401.0011.htm
The bottom line is that a ballot is secret if the person expressing a
choice cannot be identified with the choice expressed.
If you're looking for some voting procedure tips, some California
legal newsletters offer a few...
From the California Association of Orthodontists:
"# Conduct secret ballot election. Arrange for employee privacy for
voting while maintaining integrity of the process (closed ballot box,
election observers, etc.). Keep a voter list and a ballot tally/count.
# Count Ballots, in the presence of any unit employees who care to be there."
http://www.caortho.org/practice/laborlaw.cfm
From the law firm of Snell & Wilmer LLP:
"The ballot box should be kept secure and each voter's name should be
checked off the eligible list when they vote. It is often helpful to
have an employee representative and management representative
observing the voting"
http://www.swlaw.com/publications/files/CDJ-forOCBJ.PDF
Ultimately, if you feel that an election is unfair, the thing to do
would be to contact the Labor Commission and seek a neutral third
party to conduct the election.
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search strategy:
"find california code"
"wage order" california "secret ballot"
I hope this helps. |