PRINTER'S NO. 234
No. 211 Session of 1975
INTRODUCED BY SHELHAMER, WEIDNER, YAHNER, THOMAS, W. W. FOSTER,
PRATT, R. W. WILT, ZELLER, MORRIS, DAVIS AND BRANDT,
FEBRUARY 4, 1975
REFERRED TO COMMITTEE ON AGRICULTURE, FEBRUARY 4, 1975
AN ACT
1 Creating a Pennsylvania Agricultural Bargaining Board, providing
2 for the accreditation of associations of producers, the
3 obligations of handlers and associations of producers in
4 negotiating regarding agricultural products, the procedure
5 therefor, the powers and duties of said board, and the
6 enforcement and judicial review of its actions.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Legislative Findings and Purpose.--The General
10 Assembly has found that because agricultural products are
11 produced by numerous individual farmers, the marketing and
12 bargaining position of individual farmers will be adversely
13 affected unless they are free to join together voluntarily in
14 cooperative organizations as authorized by law. The General
15 Assembly finds a farmer's membership in a cooperative
16 organization is meaningful only if a handler of agricultural
17 products is required to bargain in good faith therewith as the
18 representative of the members thereof who have had a previous
19 course of dealing with such handler. The purpose of this act is
1 to provide standards for the accreditation of agricultural
2 cooperative organizations for bargaining purposes, to define the
3 mutual obligation of handlers and agricultural cooperative
4 organizations to bargain with respect to the production, sale
5 and marketing of agricultural products and to provide for the
6 enforcement of that obligation.
7 Section 2. Short Title.--This act shall be known and may be
8 cited as the "Pennsylvania Agricultural Marketing and Bargaining
9 Act."
10 Section 3. Definitions.--As used in this act:
11 "Accredited association" means an association of producers
12 accredited in accordance with the provisions of this act.
13 "Association of producers" means any association of producers
14 of agricultural products engaged in marketing, bargaining,
15 shipping or processing as defined in section 15 (a) of the
16 Agricultural Marketing Act of 1929, as amended (49 Stat. 317; 12
17 U.S.C. 1141 (a)), or in section 1 of the act entitled "An act to
18 authorize association of agricultural producers," approved
19 February 18, 1922 (42 Stat. 388; 7 U.S.C. 291).
20 "Board" means the Agricultural Bargaining Board provided for
21 in this act.
22 "Handler" means any person engaged in the business or
23 practice of: (i) acquiring agricultural products from producers
24 or associations of producers for processing or sale; (ii)
25 grading, packaging, handling, storing or processing agricultural
26 products received from producers or associations of producers;
27 (iii) contracting or negotiating contracts or other arrangements
28 with or on behalf of producers or associations of producers with
29 respect to the production or marketing of any agricultural
30 product; or (iv) acting as an agent or broker for a handler in
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1 the performance of any function or act specified in this clause.
2 "Producer" means a person engaged in the production of
3 agricultural products as a farmer, planter, rancher, poultryman,
4 dairyman, or a grower of fruit, vegetables, or nuts.
5 Section 4. Agricultural Bargaining Board.--(a) There is
6 hereby established in the Department of Agriculture the
7 Agricultural Bargaining Board which shall administer the
8 provisions of this act.
9 (b) The board shall consist of three members who shall be
10 appointed by the Governor with the advice and consent of 2/3 of
11 the members elected to the Senate. The original board shall be
12 composed of one member who shall serve a 1-year term, one member
13 who shall serve a 3-year term and one member who shall serve a
14 5-year term. The Governor shall indicate the length of such
15 terms in his appointment of the original board. Thereafter, as
16 the term of each member expires, the Governor shall, with the
17 advice and consent of the Senate, appoint a successor to serve
18 for a term of 5 years. Any individual chosen to fill a vacancy
19 on the board caused by other than expiration of the term of a
20 member shall be appointed for the unexpired term of the member
21 he succeeds. The Governor shall select one member of the board
22 to serve as chairman.
23 (c) Any member of the board may be removed by the Governor,
24 upon notice and hearing, for neglect of duty or malfeasance in
25 office but for no other cause.
26 (d) A vacancy on the board shall not impair the right of the
27 remaining members to exercise all of the powers of the board.
28 Two members of the board shall constitute a quorum.
29 (e) The expenses of the board, including all necessary
30 traveling and subsistence expenses incurred by the members of
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1 the board or the employees thereof under its orders, shall be
2 allowed and paid in the same manner as payment of such expenses
3 for employees of the Department of Agriculture.
4 (f) The board shall have authority from time to time to
5 adopt, amend and rescind, in the manner prescribed by the act of
6 July 31, 1968 (P.L.769, No.240), known as the "Commonwealth
7 Documents Law," such rules and regulations as may be necessary
8 or appropriate to carry out the provisions of this act.
9 Section 5. Accreditation of Associations of Producers.--(a)
10 Only those associations of producers that have been accredited
11 in accordance with the provisions of this section shall be
12 entitled to the benefits of this act.
13 (b) An association of producers desiring accreditation shall
14 file a petition for accreditation with the board. It shall
15 contain such information and be accompanied by such documents as
16 shall be required by the regulations of the board.
17 (c) The board shall provide for a public hearing upon such
18 petition. If, based upon the evidence at such hearing, the board
19 finds:
20 (1) That under the charter documents or the bylaws of the
21 association it is directly or indirectly producer-owned and
22 controlled.
23 (2) It has contracts with its members that are binding under
24 the law of this Commonwealth.
25 (3) It is financially sound and has sufficient resources and
26 management to carry out the purposes for which it was organized.
27 (4) It represents a sufficient number of producers and/or a
28 sufficient quantity of agricultural products to make it an
29 effective agent for producers in bargaining with handlers;
30 the board shall accredit such association.
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1 (d) On awarding accreditation to such an association, the
2 board shall give notice thereof to all known handlers who, in
3 the ordinary course of business, purchase the agricultural
4 commodities that such association represents.
5 (e) An accredited association shall file an annual report
6 with the board in such form as shall be required by the
7 regulations of the board. It shall contain such information as
8 will enable the board to determine whether the association
9 continues to meet the standards for accreditation.
10 (f) If an accredited association ceases to maintain the
11 standards for accreditation set forth in this act, the board
12 shall, after notice and hearing, revoke the accreditation of
13 such association.
14 Section 6. Bargaining.--(a) Bargaining is the mutual
15 obligation of a handler and an accredited association to meet at
16 reasonable times and negotiate in good faith with respect to the
17 price, terms of sale, and other contract provisions relative to
18 the commodities that such accredited association represents and
19 the execution of a written contract incorporating the agreement
20 reached, if requested by either party. Such obligation on the
21 part of the handler shall be limited only to the commodities
22 produced by the members of the association except that when 51%
23 of the producers of a commodity join a marketing association,
24 the handler shall be required to bargain only with that
25 association for the terms surrounding the marketing of that
26 commodity. Such obligation shall not require either party to
27 agree to a proposal or to make a concession.
28 (b) If, after a reasonable period of negotiations in good
29 faith, the association and handler fail to agree on the minimum
30 price by size, grade, quality, type of condition, and other
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1 nonprice terms of sale, the board shall offer conciliation and
2 mediation services for 15 days, after which the negotiations
3 shall be submitted to a joint settlement committee. It shall
4 consist of three persons. One shall be an association
5 representative, one a handler representative, and one a neutral
6 member chosen by the other two, or, in the event of
7 disagreement, by the board.
8 The settlement committee shall resolve all issues in dispute,
9 subject to judicial review in the Commonwealth Court and
10 announce the terms of agreement and their effective date. The
11 committee's decisions shall be invalidated by the court only if
12 found to be:
13 (1) Arbitrary, capricious, an abuse of discretion or
14 otherwise not in accordance with this act.
15 (2) The result of the bias or prejudice of the neutral
16 member.
17 (3) Beyond the committee's jurisdiction or authority.
18 (4) The result of the use of improper procedures.
19 Producers and purchasers are prohibited from buying or
20 selling at a price lower than the minimum agreed upon by the
21 association handler or established by the joint settlement
22 committee.
23 (c) Nothing in this act shall be deemed to prohibit an
24 accredited bargaining association from entering into contracts
25 with handlers to supply the full agricultural production
26 requirements of such handlers.
27 (d) It shall be unlawful for a handler, while negotiating
28 with an accredited bargaining association able to supply all or
29 a substantial portion of the requirements of a handler for such
30 product, to negotiate with an individual producer of a product
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1 with respect to the price, terms of sale, and other contract
2 provisions relative to such product or to offer to producers
3 production items such as plants or seed which would obligate the
4 producer to produce for the handler.
5 (e) It shall be unlawful for a handler to purchase a product
6 from an individual producer under terms other than those
7 negotiated with an accredited bargaining association for such
8 product.
9 (f) It shall be unlawful for any handler knowingly to:
10 (1) Coerce any agricultural producer in the exercise of his
11 right to join an association of producers.
12 (2) Coerce any producer in the exercise of his right to
13 refrain from joining such an association.
14 (3) Refuse to deal with any producer because he has
15 exercised his right to join such an association.
16 (4) Discriminate against any producer with respect to price,
17 quantity, quality, or other terms of purchase because of his
18 membership in such an association or his contract with it.
19 (5) Coerce or intimidate any producer to enter into,
20 maintain, breach, cancel, or terminate a membership agreement or
21 marketing contract with an association of producers or a
22 contract with a handler.
23 (6) Pay or loan money, give anything of value, or offer any
24 other inducement or reward to a producer for refusing to or
25 ceasing to belong to an association of producers.
26 (7) To conspire, combine, agree, or arrange with any other
27 person to do or aid or abet the doing of any of the acts
28 enumerated in this subsection.
29 (g) Nothing in this act shall be deemed to prohibit an
30 accredited bargaining association from entering into contracts
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1 with handlers so that the handlers deduct and remit to the
2 association the producer's marketing service fees.
3 Section 7. Complaints.--(a) Whenever it is charged that an
4 accredited association or handler has refused to bargain as
5 provided in section 6, the board shall investigate such charges.
6 If, upon such investigation, the board considers that there is
7 reasonable cause to believe that the person charged has refused
8 to bargain in violation of this act, the board shall issue a
9 complaint and cause it to be served upon such person. The
10 complaint shall summon the named person to a hearing before the
11 board or a member thereof at the time and place fixed therein.
12 (b) The person complained of shall have the right to file an
13 answer to the original and any amended complaint and to appear
14 in person, or otherwise, at the hearing and testify. In the
15 discretion of the board, or the member conducting the hearing,
16 any person may be allowed to intervene to present testimony.
17 Hearings shall, in so far as practicable, be conducted in
18 accordance with the rules of evidence applicable in the courts
19 of this Commonwealth.
20 (c) If, upon a preponderance of the evidence, the board
21 determines that the person complained of has refused to bargain,
22 in violation of this act, it shall state its findings of fact
23 and shall issue and cause to be served on such person an order
24 requiring him to bargain in accordance with the provisions of
25 section 6 and shall order such further affirmative action,
26 including an award of damages, as will effectuate the purposes
27 of this act.
28 (d) If, upon a preponderance of the evidence, the board is
29 of the opinion that the person complained of has not refused to
30 bargain in violation of this act, it shall make its findings of
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1 fact and issue an order dismissing the complaint.
2 (e) Until the record in a case has been filed in a court, as
3 provided in this act, the board may at any time, upon reasonable
4 notice and in such manner as it deems proper, modify or set
5 aside, in whole or in part, any finding or order made or issued
6 by it.
7 Section 8. Enforcement of Orders and Judicial Review.--(a)
8 The board shall have power to petition the Commonwealth Court
9 for the enforcement of its orders and for appropriate temporary
10 relief or a restraining order. It shall file the record of the
11 proceedings in the court. Upon the filing of such petition the
12 court shall cause notice thereof to be served upon such person
13 and, thereupon, shall have exclusive jurisdiction of the
14 proceeding and of the question to be determined therein. It
15 shall have power to grant such temporary relief or make such
16 restraining order as it deems just and proper. It may enter a
17 decree enforcing, modifying, enforcing as modified, or setting
18 aside in whole or in part the order of the board. No objection
19 that has not been urged before the board or the member before
20 whom a hearing was conducted shall be considered by the court,
21 unless the failure or neglect to urge such objection is excused
22 because of extraordinary circumstances. The findings of the
23 board with respect to questions of fact, if supported by
24 substantial evidence on the record considered as a whole, shall
25 be conclusive. If either party shall apply to the court for
26 leave to introduce additional evidence and shall show to the
27 satisfaction thereof that same is material and that there were
28 reasonable grounds for the failure to introduce it at the
29 hearing before the board, its member, agent, or agency, the
30 court may order such additional evidence to be taken before the
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1 board, or a member thereof, and to be made a part of the record.
2 The board may modify its findings of fact, or make new findings,
3 by reason of additional evidence so taken and filed. It shall,
4 thereupon, file such modified or new findings which, with
5 respect to questions of fact, if supported by substantial
6 evidence on the record considered as a whole, shall be
7 conclusive. It shall then file its recommendations, if any, for
8 the modification or setting aside of its original order.
9 (b) Any person aggrieved by a final order of the board
10 granting or denying in whole or in part the relief sought may
11 obtain a review of such order in the Commonwealth Court by
12 filing in such court a written petition praying that the order
13 of the board be modified or set aside. A copy of such petition
14 shall be forthwith transmitted by the court to the board, and
15 thereupon the aggrieved party shall file in the court the record
16 in the proceeding, certified by the board. Upon the filing of
17 such petition, the court shall proceed in the same manner as in
18 the case of an application by the board under the provisions of
19 subsection (a) of this section. It may grant such temporary
20 relief or make such restraining order as it deems just and
21 proper. It may enter a decree enforcing, modifying, enforcing as
22 modified, or setting aside in whole or in part the order of the
23 board. The findings of the board with respect to questions of
24 fact, if supported by substantial evidence on the record
25 considered as a whole, shall be conclusive.
26 (c) The commencement of the proceedings provided for in this
27 section shall not constitute a stay of enforcement of the
28 board's decision but the board or the reviewing court may order
29 a stay upon such terms as it deems proper.
30 (d) Appellate review of the actions of the board shall be in
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1 accordance with the provisions of the act of June 4, 1945
2 (P.L.1388, No.442), known as the "Administrative Agency Law."
3 Section 9. Miscellaneous Provisions.--(a) The board shall at
4 all reasonable times have access to and the right to copy
5 evidence relating to any person or action under investigation by
6 it in connection with any refusal to bargain. It may administer
7 oaths and issue subpoenas requiring the attendance of witnesses
8 or the production of evidence.
9 (b) In case of contumacy or refusal to obey a subpoena, the
10 Commonwealth Court, upon application by the board, may order a
11 person to appear before the board to produce evidence or to give
12 testimony touching the matter under investigation. Failure to
13 obey such order may be punished by the court as contempt.
14 (c) No person shall be excused from attending and testifying
15 or from producing books, records, correspondence, documents, or
16 other evidence in obedience to the subpoena of the board, on the
17 ground that same may tend to incriminate him or subject him to a
18 penalty or forfeiture. No individual may be prosecuted or
19 subjected to a penalty or forfeiture for or on account of any
20 transaction, matter, or thing concerning which he is compelled,
21 after having claimed his privilege against self-incrimination,
22 to testify or produce evidence, except that such individual
23 shall not be exempt from prosecution and punishment for perjury
24 committed in so testifying.
25 (d) Complaints, orders, and other processes and papers of
26 the board may be served personally, by registered mail, by
27 telegraph, or by leaving a copy thereof at the principal office
28 or place of business of the person required to be served. The
29 verified return of service shall be proof of such service.
30 Witnesses summoned before the board shall be paid the same fee
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1 and mileage allowance that are paid witnesses in the courts of
2 this Commonwealth and witnesses whose depositions are taken. The
3 person taking the same shall severally be entitled to the same
4 fees as are paid for like services in the courts of this
5 Commonwealth.
6 (e) All processes of any court in which an application or
7 petition may be presented under this act may be served in the
8 judicial district wherein the person or persons required to be
9 served reside or may be found.
10 (f) Producers shall receive payment for products delivered
11 within a reasonable period of time after delivery to the
12 handler. The handler shall be required to provide a bond or
13 enter a surety pool supervised by the Department of Agriculture.
14 (g) The provisions of this act are severable. If any
15 provision shall be held unconstitutional or invalid by a court
16 of competent jurisdiction the decision shall not affect or
17 impair any of the remaining provisions.
18 (h) The activities of accredited associations and handlers
19 in bargaining with respect to the price and other terms of sale
20 of the agricultural commodities produced by the members of such
21 associations shall be deemed not to violate any antitrust law of
22 the United States or of Pennsylvania. Nothing in this act,
23 however, is intended to permit handlers to contract, combine or
24 conspire with one another in bargaining with accredited
25 associations.
26 Section 10. Effective Date.--This act shall take effect in
27 60 days.
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