BILL ANALYSIS Ó
SENATE PUBLIC EMPLOYMENT & RETIREMENT BILL NO: SB 857
Gloria Negrete McLeod, Chair
Hearing date: August 30, 2011
SB 857 (Lieu) as amended 7/07/11 FISCAL: YES
PUBLIC EMPLOYMENT RELATIONS BOARD: UNLAWFUL STRIKE DAMAGES
HISTORY :
Sponsor: American Federation of State, County and
Municipal Employees (AFSCME)
Prior legislation: Unknown.
ASSEMBLY VOTES :
PER & SS 4-1 7/06/11
Appropriations 12-5 8/17/11
Assembly Floor 51-278/25/11
SUMMARY :
SB 857 was amended in the Assembly to specify that the Public
Employment Relations Board (PERB) has no authority to award
damages for strike-preparation expenses or for costs,
expenses, or revenue losses incurred during an unlawful
strike.
SB 857 further states that this prohibition is declaratory of
existing law.
BACKGROUND AND ANALYSIS :
a) 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
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Employer-Employee Relations Act); the State of California
(Ralph C. Dills Act); local public agencies (cities,
counties and special districts under the
Meyers-Milias-Brown Act); trial courts (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 labor practice charge
and to determine whether the charge is justified and, if
so, the appropriate remedy.
b) This bill :
1) specifies that PERB shall have no authority to issue an
action to recover damages due to, or for, the following:
an unlawful strike
strike-preparation expenses
costs, expenses, or revenue losses during, or due
to, and unlawful strike
2) specifies that the amendments added by the bill are
declaratory of existing law and are not intended to
modify existing law allowing a court, upon a showing of
clear and convincing evidence, to award costs, expenses,
or lost revenues resulting from unlawful activity.
COMMENTS :
1) Arguments in support
According to information provided 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
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whole-cloth a right which had previously not existed:
strike damages due to the threat of a strike.
"In response to this, both the Assembly and Senate Labor
Committee 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.
"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:
"SB 857 would protect unions from union-busting tactics.
Specifically, it would protect them from having an
injunction filed by the employer with PERB after a notice
is given of a strike, followed by the employer claiming
exorbitant damages for a strike that never took place."
(from the American Federation of State, County, and
Municipal Employees, AFL-CIO, sponsor)
"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." (from the California Nurses
Association)
2) Argument in opposition
Opponents state:
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"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." (from the University of California)
3) SUPPORT :
American Federation of State, County and Municipal
Employees (Sponsor)
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
California Federation of Teachers (CFT)
California Labor Federation (CLF)
California Nurses Association (CNA)
California Professional Firefighters (CPF)
California Teamsters Public Affairs Council
Engineers and Scientists of California
International Longshore and Warehouse Union'
Professional and Technical Engineers, Local 21
Service Employees International Union, Local 1000 (SEIU)
UAW Local 2865
UNITE HERE!
United Food and Commercial Workers - Western States
Conference
University Professional and Technical Employees, CWA Local
9119 (UPTE)
Utility Workers Union of America, Local 132
4) OPPOSITION :
Association of California Healthcare Districts (ACHD)
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Association of California School Administrators (ACSA)
California Association of Joint Powers Authorities (CAJPA)
California Association of School Business Officials (CASBO)
California County Superintendents Educational Services
Association (CCSESA)
California School Boards Association (CSBA)
California State Association of Counties (CSAC)
California State University (CSU)
League of California Cities (LCC)
Orange County Department of Education
Regional Council of Rural Counties (RCRC)
Riverside County School Superintendents Association (RCSSA)
School Employers Association of California (SEAC)
Small School Districts' Association (SSDA)
University of California (UC)
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