HB-4751, As Passed House, October 12, 2011
June 14, 2011, Introduced by Rep. Johnson and referred to the Committee on Agriculture.
A bill to amend 1972 PA 344, entitled
"Agricultural marketing and bargaining act,"
by amending sections 2, 2a, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 (MCL 290.702,
290.702a, 290.703, 290.704, 290.705, 290.706, 290.707, 290.708,
290.709, 290.710, 290.711, 290.712, 290.713, 290.714, 290.715,
290.716, 290.717, 290.718, 290.719, 290.720, 290.721, 290.722,
290.723, 290.724, and 290.725), sections 3 and 17 as amended by
1980 PA 195.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2. As used in this act:
(a) "Association" means a cooperative association of producers
or a division thereof, or a federation of cooperative associations
of producers, engaged in the marketing, bargaining, shipping, or
processing
functions of an agricultural commodity on behalf of its
members
who are producers of such the
agricultural commodity.
(b) "Accredited association" means an association accredited
in accordance with this act.
(c) "Person" means an individual, partnership, corporation, or
association.
(d)
"Board" means the agricultural marketing and bargaining
board
created in section 3."Department"
means the department of
agriculture and rural development.
(e) "Producer" means any person who produces or causes to be
produced in any 1 marketing period within the previous 2 marketing
periods , any agricultural commodity in a quantity
beyond his or
her own family use and having a minimum value at first point of
sale
as determined by the board department
for that agricultural
commodity,
and who is able, to during the marketing period, to
transfer to a handler or an association a merchantable title to the
agricultural commodity or provide management, labor, machinery,
facilities, or any other production input, with the assumption of
risk, for the production of the agricultural commodity under a
written or oral contract.
(f) "Agricultural commodity" means all perishable fruits and
vegetables
as defined by the board. department. The kinds, types,
and subtypes of products to be classed together as an agricultural
commodity for the purposes of this act shall be determined by the
board
department on the basis of common usage and practice.
(g) "Handler" means a person other than an association engaged
in
the business or practice of acquiring any of the following:
(i) Acquiring agricultural commodities from producers or
associations
for processing or sale. ; grading,
(ii) Grading, packaging, handling, storing, or processing
agricultural
commodities received from producers or associations. ;
contracting
(iii) Contracting or negotiating contracts or other
arrangements, written or oral, with producers or associations with
respect
to the production of any agricultural commodity. ; or
acting
(iv) Acting as an agent or broker for a handler in the
performance
of any function or act specified above. It Handler does
not
include a producer who sells at a retail establishment which
that he or she owns and operates or who sells directly to consumers
at
a produce market , agricultural
commodities produced by him or
her and agricultural commodities produced by another producer
subject
to value limitation established by the board.department.
(h)
"Marketing period" for an agricultural commodity shall be
means
a period of time determined by the board
department during
which producers normally deliver for sale to handlers or contract
with handlers for the production and future delivery for sale of
substantially all of a crop or periodic production of the
agricultural commodity.
(i) "Member" means a producer who has entered into a contract
with an association appointing the association as his or her
exclusive agent in negotiations with handlers with respect to the
marketing of an agricultural commodity.
(j) "Unfair practices" means those practices prohibited under
section 4.
Sec. 2a. Any sale of a commodity by a producer to another
producer for his or her own exclusive use and not for resale or any
sale
of fresh market produce directly to a consumer consumers or to
a
retail store or stand for resale to consumers shall be excluded
from
the provisions of is exempt
from this act.
Sec.
3. (1) An agricultural marketing and bargaining board is
created
within the department of agriculture. The
board department
shall administer this act.
(2)
The board consists of 5 individuals who shall be citizens
of
the state appointed by the governor with the advice and consent
of
the senate, not more than 3 of whom shall be affiliated with the
same
political party. A minimum of 2 members of the board shall
derive
a substantial portion of their livelihood from agricultural
enterprises.
One member shall be considered a lay person, who shall
not
be a producer, handler, or a member of an association, as
defined
under this act. The governor shall designate 1 member of
the
board to serve as chairperson of the board. The original board
shall
be composed of 2 members of the board for a 1-year term, 1
member
of the board for a 2-year term, 1 member of the board for a
3-year
term and 1 member of the board for a 4-year term. The
governor
shall indicate the length of term when making the
appointment
of the original board. As the term of each member of
the
board expires, the governor, with the advice and consent of the
senate,
shall appoint a successor to serve for a term of 4 years.
An
individual appointed to fill a vacancy caused by other than
expiration
of the term shall be appointed only for the unexpired
term
of the member of the board whom the individual succeeds.
(3)
A member of the board may be removed by the governor, upon
notice
and hearing, for neglect of duty, or for corrupt conduct in
office,
or for any other misfeasance or malfeasance but not for any
other
cause.
(4)
A vacancy in the board shall not impair the right of the
remaining
members to exercise the powers of the board. Three
members
of the board constitutes a quorum.
(5)
Members of the board shall receive per diem reimbursement
fixed
by the legislature and necessary traveling and subsistence
expenses
incurred while attending meetings of the board or engaged
in
the performance of official responsibilities delegated by the
board
or other amounts as may be appropriated by the legislature.
(2) (6)
Services for implementing this act
shall be provided
by
the department of agriculture from appropriations made by the
legislature.
(7)
The business which the board may perform shall be
conducted
at a public meeting of the board held in compliance with
Act
No. 267 of the Public Acts of 1976, as amended, being sections
15.261
to 15.275 of the Michigan Compiled Laws. Public notice of
the
time, date, and place of the meeting shall be given in the
manner
required by Act No. 267 of the Public Acts of 1976, as
amended.
(3) (8)
The board department may promulgate rules necessary
for the administration of this act in accordance with and subject
to
Act No. 306 of the Public Acts of 1969, as amended, being
sections
24.201 to 24.315 of the Michigan Compiled Laws.the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328.
Sec.
4. (1) Producers of agricultural commodities are free to
may join together voluntarily in associations as authorized by law
without
interference by handlers. A handler shall not engage nor or
permit an employee or agent to engage in any of the following
practices: ,
defined as unfair practices:
(a) To coerce a producer in the exercise of his or her right
to join and belong to or to refrain from joining or belonging to an
association or to refuse to deal with a producer because of the
exercise of his or her right to join and belong to an association
except as provided in section 15.
(b) To discriminate against a producer with respect to price,
quantity, quality, or other terms of purchase, acquisition, or
other handling of agricultural products because of his or her
membership in or contract with an association.
(c) To coerce or intimidate a producer to breach, cancel, or
terminate a membership agreement or marketing contract with an
association or a contract with a handler.
(d) To pay or loan money, give anything of value, or offer any
other inducement or reward to a producer for refusing or ceasing to
belong to an association.
(e) To make or circulate unsubstantiated reports about the
finances, management, or activities of associations or handlers.
(f) To conspire, combine, agree, or arrange with any other
person to do or aid or abet the doing of any practice which is in
violation of this act.
(g) To refuse to bargain with an accredited association with
whom the handler has had prior dealings or with an accredited
association whose producers in the bargaining units have had
substantial dealing with the handler prior to the accreditation of
the association.
(h) To negotiate with a producer included in the bargaining
unit after an association is accredited.
(2)
An association shall not engage nor or permit an employee
or
agent to engage in the following practices: , defined as unfair
practices:
(a)
To enter into a contract which that
discriminates against
a producer represented by an accredited association whether or not
he or she is a member producer.
(b)
To act in a manner contrary to the by-laws bylaws of
the
association.
(c) To refuse to bargain with a handler with whom the
accredited association has had prior dealing or with whom its
producers have had substantial dealing prior to the accreditation
of the association.
(d) To coerce or intimidate a handler to breach, cancel, or
terminate a membership agreement or marketing contract with an
association or a contract with a producer.
(e) To make or circulate unsubstantiated reports about the
finances, management or activities of other associations or
handlers.
(f) To conspire, combine, agree, or arrange with any other
person
to do or aid or abet the doing of any practice which that is
in violation of this act.
(3)
For the purpose of enforcing this act, the board
department may receive sworn complaints with respect to violations
or
threatened violations. The board department may make all
necessary investigations, examinations, or inspections of any
violation or threatened violation specified in the sworn complaint
filed
with the board.department.
If, upon such an investigation,
the
board department considers that there is reasonable cause to
believe
that a person charged has committed a an unfair practice,
in
violation of this act, the board
department shall issue and
cause to be served a complaint upon the person in accordance with
Act
No. 306 of the Public Acts of 1969, as amended. the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328. The complaint shall summon the person to a hearing before
the
board or a member thereof department
or a hearing officer at
the
time and place fixed.provided
in the complaint.
(4)
If, upon a preponderance of the evidence, the board
department
determines that the person complained
of has committed a
an
unfair practice, in
violation of this act, it the
department
shall state its findings of fact and shall issue and cause to be
served on the person complained of an order requiring him or her to
cease the violation and shall order further affirmative action as
will effectuate the policies of this act.
(5)
If, upon a preponderance of the evidence, the board
department is of the opinion that the person complained of has not
committed
a an unfair practice, in violation of this act, it the
department shall make its findings of fact and issue an order
dismissing the complaint.
(6) Until the record in a case has been filed in a court, as
provided
in this act, the board department,
at any time upon
reasonable
notice and in such manner as it deems the department
considers proper, may modify or set aside, in whole or in part, any
finding
or order made or issued by it.the
department.
(7) The department shall determine whether the expense of the
proceedings shall be borne by any person found to have committed a
practice in violation of this section.
Sec.
5. (1) The board department
may petition the court of
appeals
for the enforcement of its orders
, and for appropriate
temporary
relief or restraining order orders
and shall file in the
court the record in the proceedings. Upon the filing of the
petition, the court shall cause notice to be served upon the person
complained of, and thereupon shall have jurisdiction of the
proceeding and of the question to be determined, and may grant
temporary
relief or restraining order as it deems considers just
and
proper and to make and enter a decree enforcing, modifying, and
enforcing as so modified, or setting aside in whole or in part the
order
of the board. department. An objection that has not been
urged
before the board, a member thereof department or a hearing
officer
before whom a hearing was conducted shall not be considered
by the court, unless the failure or neglect to urge the objection
shall
be is excused because of extraordinary circumstances. The
findings
of the board department with respect to questions of fact
are conclusive if supported by substantial evidence on the record
considered
as a whole. is conclusive. If either party applies to
the court for leave to adduce additional evidence and shows to the
satisfaction of the court that the additional evidence is material
and that there were reasonable grounds for the failure to adduce
the
evidence in the hearing before the board, department, the court
may
order additional evidence to be taken before the board, a
member
thereof, department or hearing officer and to be made a part
of
the record. The board department
may modify its findings as to
the facts, or make new findings, by reason of additional evidence
so taken and filed, and it shall file the modified or new findings,
which findings with respect to questions of fact if supported by
substantial evidence on the record considered as a whole shall be
conclusive, and shall file its recommendations, if any, for the
modification or setting aside of its original order. Upon the
filing
of the record with it the
court, the jurisdiction of the
court shall be exclusive and its judgment and decree shall be
final, except that it shall be subject to review in accordance with
established procedures for appeal.
(2)
Any person aggrieved by a final order of the board
department granting or denying in whole or in part the relief
sought may obtain a review of an order in the court of appeals, by
filing in the court a written petition requesting that the order of
the
board department be modified or set aside. A copy of the
petition shall be transmitted by the clerk of the court to the
board
department, and the aggrieved party shall file in the court
the
record in the proceeding certified by the board. department.
Upon the filing of the petition, the court shall proceed in the
same
manner as in the case of an application by the board
department under this section and shall have the same jurisdiction
to
grant temporary relief or a restraining order as it deems
considers just and proper, and in like manner to make and enter a
decree enforcing, modifying, and enforcing as so modified, or
setting
aside in whole or in part the order of the board; the
department.
The findings of the board department with respect to
questions
of fact if supported by substantial evidence on the
record
considered as a whole shall in like manner be
conclusive.shall be conclusive if supported by
substantial evidence
on the record as a whole.
(3) The commencement of proceedings under this section shall
not
stay enforcement of the board's department's
decision, but the
board
department or the reviewing court may order a stay upon such
terms
as it deems the court
considers proper.
Sec.
6. (1) The board department
shall determine whether a
proposed bargaining unit is appropriate. This determination shall
be made upon the petition of an association representing not less
than 10% of the producers of the commodity eligible for membership
in the proposed bargaining unit as defined by the association. An
association with an overlapping definition of bargaining unit may,
upon the presentation of a petition by not less than 10% of the
producers eligible for membership in the overlapping bargaining
unit,
contest the proposed bargaining unit. The board department
shall
hold a hearing in accordance with Act No. 306 of the Public
Acts
of 1969, as amended the
administrative procedures act of 1969,
1969 PA 306, MCL 24.201 to 24.328, to resolve the dispute.
(2)
In making its determination, the board department shall
define as appropriate the largest bargaining unit in terms of the
quantity of the agricultural commodity produced, the definition of
the agricultural commodity, the geographic area covered, and the
number of producers included as is consistent with the following
criteria:
(a)
The community of interest of the producers included. ;
(b)
The potential serious conflicts of interests interest
among
members of the proposed unit. ;
(c) The effect of exclusions on the capacity of the
association to effectively bargain for the bargaining unit as
defined. ;
(d) The kinds, types, and subtypes of products to be classed
together as agricultural commodity for which the bargaining unit is
proposed. ;
(e) Whether the producers eligible for membership in the
proposed bargaining unit meet the definition of "producer" for the
agricultural
commodity involved. ;
(f)
The wishes of the producers. ;
(g) The pattern of past marketing of the commodity.
Sec. 7. An association shall be accredited upon determination
by
the board department that the association meets all of the
following:
(a) The association meets the requirements of the Capper-
Volstead
act, 7 U.S.C. 291-2.USC
291 to 292.
(b) The association has submitted a copy of its bylaws, which
shall
provide that: all of the following:
(i) Each member of the association shall have 1 vote in all
votes
of the membership of the association.
; that officers
(ii) Officers or directors shall be elected by a majority of
the members voting or by delegates representing a majority of the
membership. ;
and that all
(iii) All elections shall be by secret ballot.
(c) The association has marketing and bargaining contracts for
the current or next marketing period with more than 50% of the
producers of an agricultural commodity who are in the bargaining
unit and these contracts cover more than 50% of the quantity of
that commodity produced by producers in the bargaining unit. The
board
department may determine the quantity produced by the
bargaining unit using information on production in prior marketing
periods, current market information, and projections on production
during
the current market periods. marketing
period. The board
department shall exclude from that quantity any quantity of the
agricultural commodity contracted by producers with producer owned
and controlled processing cooperatives and any quantity produced by
handlers. An association whose main purpose is bargaining but which
processes a surplus into a form which is not the subject of
bargaining is not a processing cooperative. The contracts with
members shall specify the agricultural commodity and that the
members have appointed the association as their exclusive agent in
negotiations with handlers for prices and other terms of trade with
respect to the sale and marketing of the agricultural commodity and
obligate them to dispose of their production or holdings of the
agricultural commodity through or at the direction of the
association.
(d) The association has established and authorized a marketing
and bargaining committee to negotiate with handlers for the
agricultural
commodity. The committee shall be comprised composed
of members elected by the members in a secret ballot election. The
production of the agricultural commodity shall comprise a
significant portion of the total farming operation of each
committee member. Members who have any quantity of the commodity
contracted with a producer owned and controlled processing
cooperative are not eligible to serve on a marketing and bargaining
committee for such commodity.
Sec. 8. (1) An association desiring accreditation shall file
with
the board department a written request for accreditation in
the
form as required by the board. department.
The request shall
contain properly certified evidence that the association meets the
standards for accreditation and shall be accompanied by a report of
the names and addresses of members, the name of each handler to
whom the member delivered or contracted to deliver the agricultural
commodity during the previous 2 marketing periods, and the quantity
delivered.
A fee to cover the costs of the board department in
processing the request shall be established by rule and paid by the
association when the request is filed.
(2)
The board department may require all handlers of an
agricultural commodity produced in the bargaining unit area as
individuals or through their trade association to file with the
board
department, within 30 days following a request, a properly
certified
report, properly certified, showing
the correct names and
addresses of all producers of the agricultural commodity who have
delivered the agricultural commodity to the handler during the 2
marketing periods preceding the filing of the report and the
quantities of the agricultural commodity received by the handler
from each named producer during the periods. The information
contained in the individual reports of handlers filed with the
board
department shall not be made public by the board department
nor shall it be made available to any person for private use.
Sec. 9. (1) Within 60 days following the date of filing with
the
board department a request for accreditation by an association,
the
board department shall determine whether the association shall
be
accredited. If the board department
determines that insufficient
evidence
was filed by the association, the board department may
permit the association to file an amended request for accreditation
within 30 days following the determination and notification of the
association.
(2)
Within 30 days following the board's department's
preliminary finding that the association is to be accredited, the
board
department shall hold a public hearing to obtain further
evidence relevant to confirmation that the association is to be
accredited. Producers of record involved in the bargaining unit
shall be notified of the hearing by mail and publication in a
newspaper of general circulation in the bargaining unit area at
least 10 days prior to the date of the hearing.
Sec.
10. (1) The board department
shall issue and publish its
determination within 30 days after the close of the hearing. If the
determination
of the board department is to accredit the
association,
the board department shall include a preliminary
declaration of accreditation in its determination. The preliminary
declaration of accreditation shall clearly state that the
association shall represent all producers, members, and nonmembers
alike, who are in the bargaining unit and act as exclusive sales
agents for the bargaining unit in negotiations with handlers. A
producer covered in a declaration of accreditation may join the
association
and have full membership rights therein. in the
association. Handlers shall deduct marketing service fees from the
proceeds to be paid to producers for the agricultural commodity in
the amount as determined by the association and forward the service
fees promptly to the association. The fees shall be within
guidelines
determined by the board department
and shall be subject
to
review by the board department
upon petition by 15% of the
affected producers.
(2)
The accreditation of the association by the board
department shall be effective 30 days after the publication of the
preliminary
declaration of accreditation. The board department
shall
delay the accreditation of the association whenever it if the
department receives during the 30-day period a petition signed by
at least 1/3 of the producers in the bargaining unit who produce at
least 1/3 of the production of the agricultural commodity produced
by the bargaining unit, exclusive of quantities contracted with
processing cooperatives and produced by handlers, and requesting
that
the association should not be accredited. The board department
shall determine, by a mail referendum of bargaining unit producers
within 30 days following receipt of the petition, if producers
assent to the accreditation of the association. Producers in the
bargaining
unit shall be deemed considered
to have assented to
accreditation if more than 50% of the producers in the bargaining
unit who produce more than 50% of the volume of the affected
commodity assent to representation by the association.
(3) All affected producers, handlers, and other interested
parties shall be notified of the outcome of the referendum within
10 days following the referendum. Accreditation shall be effective
immediately if producers assent. Accreditation shall be denied
without the required assent of the producers.
(4)
An association which that is denied accreditation may not
file another request for accreditation for a period of 1 year.
Sec. 11. An accredited association shall file an annual report
with
the board department in such form as required by the board
department to determine if the association continues to meet the
requirements
of for accreditation as provided in section 7.
Sec. 12. (1) To revoke the accreditation of an accredited
association, the board
department shall employ a procedure similar
to the accreditation procedure set forth in sections 8, 9, and 10.
Revocation
Subject to subsection (2),
revocation of accreditation
shall
be considered by the board department
upon receipt of any of
the
following: conditions:
(a)
Upon receipt of a A request from an accredited association
for its own disaccreditation.
(b)
Upon receipt of a A petition requesting that the
accredited association be disaccredited and bearing the signatures
of at least 1/3 of the producers in the bargaining unit who produce
at least 1/3 of the bargaining unit production of the agricultural
commodity exclusive of quantities contracted with processing
cooperatives and produced by handlers.
(2) (c)
A request for revocation of
accreditation may not be
accepted
by the board department during the marketing period or for
a 60-day period prior thereto.
Sec. 13. (1) As used in this act, "bargaining" means the
mutual obligation of a handler and an accredited association or
their designated representatives to meet at reasonable times and
confer and negotiate in good faith. The obligation does not require
either party to agree to a proposal or to make a concession. An
accredited association is the exclusive representative of all
producers in the bargaining unit for the purpose of bargaining with
all handlers that purchase the agricultural commodity produced in
the bargaining unit. Negotiations may include all terms relative to
trading between handlers and producers of the agricultural
commodity such as the following:
(a) Prices and related terms of sale.
(b) Quality specifications.
(c) Quantity to be marketed.
(d) Transactions involving products and services utilized by 1
party and provided to the other party.
(2)
The parties shall notify the board department of the
commencement of negotiations.
Sec. 14. (1) Upon the request of an accredited association or
upon
the request of a handler, the board department shall provide
for
the mediation of the issues in dispute. The board department
shall
take such steps as it deems considers
expedient to effect a
voluntary, amicable, and expeditious adjustment and settlement of
the differences and issues between the association and the handler
which could disrupt the normal sale and purchase of the
agricultural
commodity between producers and the handler. The board
department shall do all of the following:
(a) Arrange for, hold, adjourn, or reconvene a conference or
conferences between disputants and 1 or more of their
representatives.
(b) Invite the disputants and their representatives to attend
the conference and submit, orally or in writing, the differences
between the disputants.
(c) Discuss the differences with the disputants or their
representatives.
(d) Assist in negotiating and drafting agreements for the
adjustment and settlement of differences.
(2)
In implementing its duties under this section, the board
department
may designate 1 of its members or retain
a competent
individual
to act in on its behalf. and may delegate to the
designee
its duties, and for such purpose, the designee shall have
all
of the powers conferred upon the board in connection with the
discharge
of the duties so delegated. If the board
department seeks
to
retain an individual to mediate a dispute, it the department
shall attempt to retain an individual who has experience in
mediation and in agricultural marketing.
(3)
Where an individual is retained, the board department
shall establish his or her fee in advance.
Sec. 15. At any time prior to 30 days before the first day of
the marketing period, if an agreement on the issues in dispute
between the accredited association and the handler has not been
reached, the handler may elect not to purchase, directly or
indirectly, any quantity of the agricultural commodity produced in
the
bargaining unit during the marketing period. or If an agreement
on the issues in dispute between the accredited association and the
handler has not be reached, the affected producers may elect, as
represented by the association, not to sell, directly or
indirectly, any quantity of the agricultural commodity to the
handler during the marketing period. If either party makes an
election, the other party is not under an obligation to continue
bargaining with the party so electing during that marketing period.
Sec. 16. (1) If the election provided for in section 15 is not
exercised by the association or the handler involved in
negotiations, and if the issues in dispute are not agreed upon
through good-faith bargaining by the first day of the marketing
period
for the agricultural commodity, the parties shall be deemed
considered to have consented to the settlement of all issues in
dispute by arbitration and the association shall agree that
producers shall deliver the agricultural commodity to the handler
or initiate the production of the agricultural commodity for future
delivery to the handler and the handler shall accept delivery of
the agricultural commodity or shall commit for the future delivery
of
the agricultural commodity. Where
(2) If the quantity of the agricultural commodity to be
marketed is in dispute, the handler shall offer to accept for
delivery a reasonable quantity of the agricultural commodity. This
offer shall be made in writing to the accredited association at
least 7 days prior to the start of the marketing period. A copy of
this
offer shall be sent by registered mail to the board.
department. The accredited association may file a claim for relief
with
the board department if it feels that the offer is
unreasonable.
The board department shall determine the issue of
reasonableness
at a hearing in accordance with Act No. 306 of the
Public
Acts of 1969, as amended. the
administrative procedures act
of 1969, 1969 PA 306, MCL 24.201 to 24.328. This determination
shall
have priority over all other board department matters. The
board
department shall base its determination on all of the
following:
(a) Projections as to the quantity of the agricultural
commodity
to be produced. ,
(b) the The relationship between the
quantity of the commodity
available
and the amount of the quantity accepted by the handler. ,
(c) the The kind, grade, and quality
of the commodity
available. ,
and
(d) the The past practices of the
handler in relation to the
items in subdivisions (a), (b), and (c).
(3)
If, upon the preponderance of the
evidence, the board
department is of the opinion that the quantity is unreasonable, it
shall
order the handler to accept the quantity which the board
department
finds to be reasonable. The finding of
the board
department shall be final, subject to later modification by the
joint
settlement committee. This finding shall be enforced in
accordance
with the provisions of as
provided in section 5. Within
15 days following the start of the marketing period for the
agricultural
commodity, the board department
shall establish a
joint settlement committee to arbitrate the issues in dispute.
(4) (2)
The joint settlement committee
consists of 1
committeeman
committee member selected by the association, 1
committeeman
committee member selected by the handler, and
1
committeeman
committee member selected by the committeeman
committee members representing the association and the handler.
This
third committeeman committee
member shall be chairman
chairperson
of the committee. If the third committeeman
committee
member cannot be agreed upon by the association and the handler
committeeman
committee members, the board department shall submit a
list
composed of the names of 5 persons knowledgeable knowledgable
in the marketing of the agricultural commodity from which the third
committeeman
committee member shall be chosen. The selection shall
be made by the association representative and the handler
representative each striking 2 different names from the list. The
remaining name shall be the person who serves as the third
committeeman
committee member and as its chairman. chairperson. The
order of striking shall be determined by chance.
Sec. 17. The chairperson of a joint settlement committee
established under section 16 shall call a hearing to begin within
15 days after the joint settlement committee is established and
shall
give reasonable notice of the time , and place of the
hearing. The chairperson shall preside over the hearing and shall
take testimony. Upon application and for good cause shown, and upon
such
terms and conditions as that are
just, a person having a
substantial
interest therein in the
dispute may be granted leave to
intervene by the joint settlement committee. Any oral or
documentary
evidence and other data deemed considered
relevant by
the joint settlement committee may be received in evidence. The
proceedings shall be informal. Technical rules of evidence shall
not
apply and the competency of the evidence shall not thereby be
deemed
considered impaired. A verbatim record of the proceedings
shall be made and the chairperson shall arrange for the necessary
recording service. Transcripts may be ordered at the expense of the
party ordering them but the transcripts shall not be necessary for
a decision by the joint settlement committee. The expense of the
proceedings, including a fee to the chairperson, established in
advance
by the board department shall be borne equally by each of
the
parties to the dispute. and the state. The hearing conducted by
the
arbitration panel joint
settlement committee may be adjourned
from time to time, but, unless otherwise agreed by the parties,
shall be concluded within 30 days of the time of its commencement.
Its
majority The actions and rulings of a majority of the members
of the joint settlement committee shall constitute the actions and
rulings of the joint settlement committee.
Sec. 18. The joint settlement committee may administer oaths,
require the attendance of witnesses, and require the production of
such books, papers, contracts, agreements, and documents as may be
deemed
by it considered material by
the committee to a just
determination of the issues in dispute, and for such purpose may
issue
subpeonas. subpoenas. If any person refuses to obey a
subpeona,
subpoena, or refuses to be sworn or to testify, or if any
witness, party, or attorney is guilty of any contempt while in
attendance at any hearing, the joint settlement committee may, or
the attorney general if requested shall, invoke the aid of any
circuit court within the jurisdiction in which the hearing is being
held, which court shall issue an appropriate order. Any failure to
obey the order may be punished by the court as contempt.
Sec.
19. The committee within Within
20 days after the
conclusion of the hearing or such further time to which the parties
may agree, the joint settlement committee shall make written
findings of fact and issue its written award upon the issues
presented to it and upon the record made before it, and shall mail
or otherwise deliver a true copy thereof to the parties or their
representatives. The award of the joint settlement committee shall
be limited to the last offer of the association or the last offer
of
the handler, which whichever more nearly
complies with the
criteria contained in section 20.
Sec. 20. The joint settlement committee shall base its
decision upon the following factors:
(a) Prices or projected prices for the agricultural commodity
paid by competing handlers in the market area or competing market
areas.
(b) Amount of the commodity produced or projections of
production in the production area or competing marketing areas.
(c) Relationship between the quantity produced and the
quantity handled by the handler.
(d)
The producers producer's cost of production including the
cost which would be involved in paying farm labor a fair wage rate.
(e) The average consumer prices for goods and services,
commonly known as the cost of living.
(f) The impact of the award on the competitive position of the
handler in the marketing area or competing areas.
(g) The impact of the award on the competitive position of the
agricultural commodity in relationship to competing commodities.
(h) A fair return on investment.
(i) Kind, quality, or grade of the commodity involved.
(j) Stipulation of the parties.
(k) Such other factors which are normally or traditionally
taken into consideration in determining prices, quality, quantity,
and the costs of other services involved.
Sec. 21. A majority decision of the joint settlement
committee, if supported by competent, material and substantial
evidence on the whole record, shall be final and binding upon the
parties,
and may be enforced, at the instance insistence of either
party or of the joint settlement committee in the court of appeals.
Sec.
22. A party who wilfully willfully
disobeys a lawful
order of enforcement by the court of appeals pursuant to section 21
,
or wilfully willfully encourages or offers resistance to such
order shall be in contempt. The punishment for each day the
contempt
persists , may be
a fine fixed in the discretion of the
court in an amount not to exceed $500.00 per day.
Sec. 23. (1) Awards of the joint settlement committee shall be
reviewable by the court of appeals but only for the following
reasons: that
the
(a) The joint settlement committee was without or exceeded its
jurisdiction. ;
the
(b) The award is unsupported by competent, material, and
substantial
evidence on the whole record. ; or the
(c) The award was procured by fraud, collusion, or other
similar and unlawful means.
(2) The pendency of such a proceeding
for review shall not
automatically stay the order of the joint settlement committee.
Sec. 24. Within 30 days after an accredited association
negotiates a contract with a handler or receives a joint settlement
committee
award, it shall send to the board department by
registered mail a copy of the contract or award.
Sec.
25. (1) At all reasonable times, the board department
shall have access to and the right to copy evidence relating to any
person or action under investigation by it in connection with any
failure or refusal to bargain or for engaging in unfair practices.
(2)
In case of contumacy or refusal to obey a subpeona
subpoena issued to any person under this act, the circuit court,
upon
application by the board, department,
shall have jurisdiction
to
order such the person to appear before the board department to
produce
evidence or to give testimony touching on the matter under
investigation,
and any failure to obey such the
order may be
punished by the court as a contempt.
(3) Complaints, orders, and other processes and papers of the
board
department under this act may be served personally, by
registered
mail, by telegraph, or by leaving a copy thereof at the
principal office or place of business of the person required to be
served. The verified return of service shall be proof of the
service.
Witnesses summoned before the board department shall be
paid the same fee and mileage allowance that are paid witnesses in
circuit court and witnesses whose depositions are taken, and the
person taking the same shall be entitled to the same fees as are
paid for like services in circuit court.
(4)
All processes of any court of to
which an application or
petition may be made under this act may be served at any place in
the state wherein the person or persons required to be served
reside or may be found.