§ 10202. Procedure for Recognizing Labor-Management Agreements Under Labor Code Section 3201.7.

(a) Any union in an industry not covered by Labor Code section 3201.5 who seeks to negotiate a 3201.7 provision with an employer shall file a petition with the Administrative Director, verified under penalty of perjury, on the “Petition for Permission to Negotiate a Section 3201.7 Labor-Management Agreement” form (DWC Form RGS-1), contained in Section 10202.1. A proof of service by mail declaration shall be attached to the petition indicating that the complete petition, including all attachments, was served on the employer, or group of employers.

(b) Within 10 days after receiving a petition, the Administrative Director shall notify the union that the petition is complete or shall specify what further information is needed to complete the petition. Within 30 days after the time the petition is completed, the Administrative Director shall either (1) issue to the union and employer, or group of employers, a letter of eligibility to negotiate a 3201.7 provision, or (2) deny the petition. If the petition is denied, the Administrative Director shall inform the union of the reasons therefor. For good cause and upon written notice to the union, the Administrative Director may extend the periods of notification for an additional 30 days.

(c) The letter of eligibility to negotiate shall remain valid for a period not to exceed one year from the date of issuance. Upon joint request by the union and the employer, or group of employers, an additional one year period to negotiate a 3201.7 agreement shall be granted.

(d) Upon receipt of the letter of eligibility to negotiate, the union and employer, or group of employers, may negotiate a 3201.7 provision. A negotiated and signed 3201.7 provision between a union and employer, or group of employers, will be recognized by the Department of Industrial Relations as valid and binding upon application by the parties to the Administrative Director.

(1) The employer, or group of employers, shall submit the following documents with the application:

(A) Upon its original application and whenever it is renegotiated thereafter, a copy of the 3201.7 provision, and the approximate number of employees who will be covered thereby. If the application is on behalf of a group of employers, the application shall clearly define the group and shall state whether all the members of the group are bound by the 3201.7 provision, or whether each member must individually agree to be bound.

(B) Upon its original application and annually thereafter, a statement signed under penalty of perjury, that no action has been taken by any administrative agency or court of the United States to invalidate the collective bargaining agreement.

(C) Upon its original application and annually thereafter, the name, address, and telephone number of the contact person of the employer, or group of employers.

(D) Upon its original application and annually thereafter, evidence of a valid and active license where that license is required by law as a condition of doing business in the state.

(E) Upon its original application and annually thereafter, evidence that the employer:

(i) is developing or projecting an annual workers' compensation insurance premium, in California, of fifty thousand dollars ($50,000) or more, and employing at least fifty (50) employees, or has paid an annual workers' compensation insurance premium, in California, of fifty thousand dollars ($50,000), and employing at least fifty (50) employees in at least one of the previous three years; or

(ii) is a group of employers engaged in a workers' compensation safety group complying with Sections 11656.6 and 11656.7 of the Insurance Code, and established pursuant to a joint labor management safety committee or committees, that develops or projects annual workers' compensation insurance premiums of five hundred thousand dollars ($500,000) or more; or

(iii) is an employer or group of employers, including cities and counties, that is self-insured in compliance with Labor Code section 3700 that has projected annual workers' compensation costs that meet the requirements of, and that meet the other requirements of, paragraph (i) in the case of employers, or paragraph (ii) in the case of groups of employers.

(F) Upon its original application and annually thereafter a statement that it is able and willing to supply the data required by Labor Code section 3201.7(h).

(G) If the application is on behalf of a group of employers, evidence that:

(i) membership in the group is limited to employers that meet all the criteria of Labor Code section 3201.7 and these regulations;

(ii) the group shall, on behalf of its individual members, provide the data required by Labor Code section 3201.7(h);

(iii) the group shall maintain records of its membership satisfactory to the Administrative Director for the purpose of readily ascertaining the facts required by subdivision (h) of the section. Membership records shall include evidence of security for the payment of compensation for each member, including the insurance policy number, or a copy of the certificate of self-insurance issued pursuant to Labor Code section 3700. Membership records shall also include the approximate number of employees for each individual member of the group who is bound by the collective bargaining agreement. Copies of membership records shall be delivered to the Administrative Director on request.

(2) Unions shall submit the following documents with the application:

(A) Upon its original application and annually thereafter, a copy of its most recent LM-2 or LM-3 filing with the United States Department of Labor, along with a statement, signed under penalty of perjury, that the document is a true and correct copy.

(B) Upon its original application and annually thereafter, the name, address, and telephone number of the contact person or persons of the collective bargaining representative or representatives.

(C) Upon its original application and annually thereafter evidence that the union is a bona fide labor organization in that:

(i) its officers have been elected by secret ballot or otherwise in a manner consistent with federal law, and

(ii) it is free of domination or interference of any employer and has received no improper assistance or support from any employer.

It will be presumed that a union is bona fide if for a period of five years it has actually entered into collective bargaining agreements with employers in California and has filed all appropriate reports with the United States Department of Labor in that period. If a union is not presumed to be bona fide, it shall present evidence satisfactory to the Administrative Director that it meets the criteria of a bona fide labor organization.

(e) Every member of a group of employers must maintain separately administered workers' compensation insurance or a self-insurance program distinct from all other types of insurance. Every member must maintain this insurance or self-insurance in one of the ways enumerated in Labor Code section 3700; but it is not necessary that all members maintain insurance or a self-insurance program in the same way. Every member must meet one of the minimum premium or cost requirements listed above in subdivision (d)(1)(E), paragraphs (i) through (iii).

(f) Any person may submit documents to the Administrative Director that bear on the application of the union and employer, or group of employers. Copies of all such documents received shall be sent to the union and employer, or group of employers, for comment.

(g) Within 30 days after receiving the application, the Administrative Director shall notify the union and employer, or group of employers, that the application is complete or shall specify what further information is needed to complete the application. Within 30 days after the time the application is completed, the Administrative Director shall either (1) issue to the union and employer, or group of employers, a letter recognizing the 3201.7 provision, or (2) deny the application. If the application is denied, the Administrative Director shall inform the union and employer, or group of employers, of the reasons therefor. For good cause and upon written notice to the union and employer, or group of employers, the Administrative Director may extend the periods of notification for an additional 30 days.

(h) The recognition of the Section 3201.7 provision is a determination by the Administrative Director that the parties meet the eligibility requirements of Labor Code section 3201.7. Recognition is not a determination by the Administrative Director that the 3201.7 agreement, or any part of it, is in compliance with Labor Code section 3201.7.

(1) A 3201.7 provision is valid and binding only if there was a complete application filed with the Administrative Director at the time of injury.

(2) A 3201.7 provision negotiated and signed by a group of employers shall be valid as to an individual member of the group if all the following facts are established as of the time the provision is alleged to be in effect and at the time of injury:

(A) the group of employers has a complete application filed with the Administrative Director;

(B) the individual employer was a member of the group;

(C) the individual employer had signed the 3201.7 provision;

(D) the individual employer was is compliance with Labor Code section 3201.7(c).

(i) All insurers, self-insured employers, and third party administrators who adjust claims subject to a Section 3201.7 provision shall comply with the applicable provisions of Section 138.4 of the Labor Code and the administrative regulations contained in Title 8, Cal. Code Regs., Division 1, Chapter 4.5:

(1) Subchapter 1: Article 1.1, commencing with Section 9700; Article 5, commencing with Section 9780; Article 6, commencing with Section 9796; Article 8, commencing with Section 9810; Article 8.5, commencing with Section 9880; Article 10, commencing with Section 9900;

(2) Subchapter 1.5: Article 1, commencing with Section 10100; Article 2, commencing with Section 10101; Article 3, commencing with Section 10105; Article 4, commencing with Section 10110; Article 5, commencing with Section 10111; Article 6, commencing with Section 10113; Article 7, commencing with Section 10115; Article 6, commencing with Section 10116; Article 7, commencing with Section 10122; and,

(3) Subchapter 1.6, commencing with Section 10150.

HISTORY

1. New section filed 8-8-95; operative 8-8-95. Submitted to OAL for printing only pursuant to Government Code section 11351 (Register 95, No. 32).

2. Amendment of section heading, repealer and new section and amendment of Note filed 4-22-2004 as an emergency; operative 4-22-2004 (Register 2004, No. 17). A Certificate of Compliance must be transmitted to OAL by 8-20-2004 or emergency language will be repealed by operation of law on the following day.

3. Certificate of Compliance as to 4-22-2004 order, including further amendment of section, transmitted to OAL 8-20-2004 and filed 10-4-2004 (Register 2004, No. 41).

Note

Note: Authority cited: Sections 133 and 5307.3, Labor Code. Reference: Section 3201.7, Labor Code.