BILL ANALYSIS Ó
SB 857
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Date of Hearing: July 6, 2011
ASSEMBLY COMMITTEE ON PUBLIC EMPLOYEES, RETIREMENT AND SOCIAL
SECURITY
Warren T. Furutani, Chair
SB 857 (Lieu) - As Amended: June 13, 2011
SENATE VOTE : 24-14
SUBJECT : Public employment: unlawful strike damages.
SUMMARY : Specifies that the Public Employment Relations Board
(PERB) has no authority to award as damages strike-preparation
expenses or to award damages for costs, expenses, or revenue
losses incurred during an unlawful strike and states that this
provision is declaratory of existing law.
EXISTING LAW :
1)Charges PERB with administering the collective bargaining
statutes covering employees of California's public schools
(Educational Employment Relations Act), colleges and
universities (Higher Education Employer-Employee Relations
Act), employees of the State of California (Ralph C. Dills
Act), employees of local public agencies (cities, counties and
special districts under the Meyers-Milias-Brown Act), trial
court employees (Trial Court Employment Protection and
Governance Act and the Trial Court Interpreter Employment and
Labor Relations Act), and supervisory employees of the Los
Angeles County Metropolitan Transportation Authority.
2)Establishes PERB as the State agency that has the power and
duty to investigate an unfair practice charge and to determine
whether the charge is justified and, if so, the appropriate
remedy.
FISCAL EFFECT : Unknown.
COMMENTS : According to information provided to the Committee
by the author, "In February of 2010, PERB was hearing an unfair
labor practice case between the University of California system
and the California Nurses Association. Largely made up of
Schwarzenegger appointees, the Board created out of whole-cloth
a right which had previously not existed: strike damages due to
the threat of a strike.
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"This opinion flies in the face of previous case law.
Specifically, in City and County of San Francisco v. United
Assn. of Journeymen, etc. (1986) 42 Cal.3d 810, the court held
that:
'Ýt]here remain today relatively few cases in which the
imposition of a judicial remedy of tort damages would not
impinge directly upon an established administrative
mechanism for resolving disputes between a public employer
and its employees. The possible scope of a damage remedy
has been so greatly narrowed that one senses that it would
be fundamentally unfair to hold a few public employee
unions liable for damage awards when teachers' unions,
state employee unions, and many local employee unions would
not be liable for the same conduct.'
"In response to this, both the Assembly and Senate Chairs at the
time challenged the right of PERB to levy strike damages in this
case; PERB was ultimately unresponsive. To date, appellate
courts have declined to hear the appeal on the PERB decision as
well."
"The author and the sponsor believe that this decision is a
deviation from the traditional scope of PERB's powers and
rights, and therefore requires a legislative response."
"As this bill only deals with strike-preparation damages and
damages for costs, expenses, or revenue loss in unlawful
strikes, it does not limit the authority of PERB to deal with
tortious liability in either lawful or unlawful strikes. SB 857
also declares these amendments are declarative of existing law,
making clear that the PERB opinion is outside of the scope of
their statutory authority."
Supporters state, "The right to collectively bargain is not
meaningful if workers cannot engage in concerted activities.
The premise that an employer is entitled to strike preparation
damages where no actual strike even occurred directly interferes
with the ability of workers to exercise their rights under the
law. Many of the activities workers routinely engage in during
a contract campaign, such as membership rallies, wearing union
buttons, or participating in a strike authorization vote, could
be used to justify an employer's strike preparation."
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Opponents state, "SB 857 would remove the authority of PERB to
award damages resulting from an unlawful strike, and as a result
would encourage more unlawful strikes, costing the University
millions at a time when the University can least afford such
costs. This bill would perhaps be most problematic in its
effects on the UC medical centers, where modifying operations
and hiring replacement staff during strikes is particularly
costly, and impacts patient services?If the law is rewritten as
proposed in SB 857 to ensure that there will be no significant
negative consequences for violations of unlawful strike laws,
there is little to no incentive for unions to exercise caution
in their approach to a strike. This approach contradicts the
principle that strikes should be pursued only as a last resort
and not as a negotiating tactic."
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
(Sponsor)
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
California Nurses Association
California Professional Firefighters
California Teamsters Public Affairs Council
Engineers and Scientists of California
International Longshore and Warehouse Union
Professional and Technical Engineers, Local 21
UAW Local 2865
UNITE HERE!
United Food and Commercial Workers - Western States Conference
Utility Workers Union of America, Local 132
Opposition
California State University
University of California
Analysis Prepared by : Karon Green / P.E., R. & S.S. / (916)
319-3957
SB 857
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