Amended in Assembly March 19, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 616

Introduced by Assembly Member Bocanegra

February 20, 2013

An act to amend begin delete Section 3505.4 end delete begin insert Sections 3505.4, 3507, 3507.1, 3507.3, 3507.5, and 3509 end insert of the Government Code, relating to local public employee organizations.

LEGISLATIVE COUNSEL’S DIGEST

AB 616, as amended, Bocanegra. Local public employee organizations: dispute: factfinding panel.

Existing law requires the governing body of a public agency, or begin delete such end delete begin insert those end insert boards, commissions, administrative officers, or other representatives as may be properly designated by law or by begin delete such end delete begin insert a end insert governing body, to meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of recognized employee organizations. Existing law provides that an employee organization may request that the parties’ differences be submitted to a factfinding panel begin delete , as specified end delete begin insert not sooner that 30 days or more than 45 days following the appointment or selection of a mediator pursuant to the parties’ agreement to mediate or a mediation process required by a public agency’s local rules. Existing law authorizes an employee organization, if the dispute was not submitted to a mediation, to request that the parties’ differences be submitted to a factfinding panel not later than 30 days following the date that either party provided the other with a written notice of a declaration of impasse end insert .

begin delete

This bill would make nonsubstantive changes to that provision.

end delete begin insert

This bill would instead authorize an employee organization, if the dispute was not submitted to a mediation, to request in writing that the public agency submit the parties’ differences to a factfinding panel not later than 60 days following the date that either party provided the other with a written notice of a declaration of impasse. The bill would provide that if either party disputes that a genuine impasse, as defined, has been reached, the issue of whether an impasse exists may be submitted to the Public Employment Relations Board for resolution before the dispute is submitted to a factfinding panel, as specified. The bill would also authorize each party to select a person to serve as its member of the factfinding panel.

end insert begin insert

Existing law authorizes a public agency to adopt reasonable rules and regulations for the administration of employer-employee relations, as specified, including provisions for verification that an organization does in fact represent employees of the organization, recognition of employee organizations, and exclusive recognition of employee organizations, as specified.

end insert begin insert

This bill would delete provisions that authorize a public agency to establish rules and regulations that provide for verification that an organization does in fact represent employees of the organization, recognition of employee organizations, and exclusive recognition of employee organizations.

end insert begin insert

Existing law authorizes a public agency to determine and process unit determinations and representation elections pursuant to rules it has adopted.

end insert begin insert

This bill would instead provide that the board, pursuant to rules and regulations it has adopted, shall determine and process unit determinations and representation elections. The bill would specify criteria that the board would be required to take into account in determining an appropriate unit.

end insert begin insert

Existing law authorizes a public agency to adopt reasonable rules and regulations providing for designation of management and confidential employees of the public agency and restricting those employees form representing any employee organization that represents other employees of the public agency on matters within the scope of representation.

end insert begin insert

This bill would instead authorize the board to adopt those rules and regulations.

end insert begin insert

This bill would also make other conforming changes.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 3505.4 of the Government Code is
amended to read:

3505.4.  

(a) The employee organization may request that the
parties’ differences be submitted to a factfinding panel not sooner
than 30 days, but not more than 45 days, following the appointment
or selection of a mediator pursuant to the parties’ agreement to
mediate or a mediation process required by a public agency’s local
rules. If the dispute was not submitted to mediation, an employee
organization may begin delete request end delete begin insert request, in writing, end insert that begin insert the public agency
submit end insert the parties’ begin delete differences be submitted end delete begin insert differences end insert to a
factfinding panel not later than begin delete 30 end delete begin insert 60 end insert days following the date that
either party provided the other with a written notice of a declaration
of impasse. Within five days after receipt of the written request,
each party shall select a person to serve as its member of the
factfinding panel. The Public Employment Relations Board shall,
within five days after the selection of panel members by the parties,
select a chairperson of the factfinding panel.

begin insert

(b) Notwithstanding subdivision (a), if either party disputes that
a genuine impasse has been reached, the issue as to whether an
impasse exists may be submitted to the Public Employment
Relations Board for resolution. If the board determines that an
impasse existed as of the date of written notice of a declaration of
impasse and that the impasse has persisted through the date of the
employee organization’s request for a factfinding panel, it shall,
within five working days of the receipt of a request, notify the
parties of its determination.

end insert begin insert

(c) Within five days after receipt of the written request pursuant
to subdivision (a) or five days after receipt of the board’s
determination that a genuine impasse has been reached and
persists pursuant to subdivision (b), each party shall select a
person to serve as its member of the factfinding panel. The board
shall, within five days after the selection of panel members by the
parties, select a chairperson of the factfinding panel.

end insert begin delete

(b)

end delete

begin insert (d) end insert  Within five days after the board selects a chairperson of the
factfinding panel, the parties may mutually agree upon a person
to serve as chairperson in lieu of the person selected by the board.

begin delete

(c)

end delete

begin insert (e) end insert  The panel shall, within 10 days after its appointment, meet
with the parties or their representatives, either jointly or separately,
and may make inquiries and investigations, hold hearings, and
take any other steps it deems appropriate. For the purpose of the
hearings, investigations, and inquiries, the panel shall have the
power to issue subpoenas requiring the attendance and testimony
of witnesses and the production of evidence. Any state agency, as
defined in Section 11000, the California State University, or any
political subdivision of the state, including any board of education,
shall furnish the panel, upon its request, with all records, papers,
and information in its possession relating to any matter under
investigation by or in issue before the panel.

begin delete

(d)

end delete

begin insert (f) end insert  In arriving at their findings and recommendations, the
factfinders shall consider, weigh, and be guided by all the following
criteria:

(1) State and federal laws that are applicable to the employer.

(2) Local rules, regulations, or ordinances.

(3) Stipulations of the parties.

(4) The interests and welfare of the public and the financial
ability of the public agency.

(5) Comparison of the wages, hours, and conditions of
employment of the employees involved in the factfinding
proceeding with the wages, hours, and conditions of employment
of other employees performing similar services in comparable
public agencies.

(6) The consumer price index for goods and services, commonly
known as the cost of living.

(7) The overall compensation presently received by the
employees, including direct wage compensation, vacations,
holidays, and other excused time, insurance and pensions, medical
and hospitalization benefits, the continuity and stability of
employment, and all other benefits received.

(8) Any other facts, not confined to those specified in paragraphs
(1) to (7), inclusive, that are normally or traditionally taken into
consideration in making the findings and recommendations.

begin delete

(e)

end delete

begin insert (g) end insert  The procedural right of an employee organization to request
a factfinding panel cannot be begin delete expressly or voluntarily end delete waived.

begin insert

(h) For purposes of this section, “impasse” means that the
parties to a dispute over a matter within the scope of representation
have reached a point in meeting and negotiating at which their
difference in position is so substantial or prolonged that future
meetings would be futile.

end insert begin insert

(i) Notwithstanding subdivisions (a) to (g), inclusive, the
employee relations commissions established by, and in effect for,
the County of Los Angeles and the City of Los Angeles pursuant
to Section 3507 shall have the authority to maintain and amend
existing rules and regulations providing for impasse resolution
procedures and to issue determinations and orders as the employee
relations commissions deem necessary, consistent with and
pursuant to the policies of this chapter.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 3507 of the end insert begin insert Government Code end insert begin insert is amended to
read: end insert

3507.  

(a) A public agency may adopt reasonable rules and
regulations after consultation in good faith with representatives of
a recognized employee organization or organizations for the
administration of employer-employee relations under this chapter.

The rules and regulations may include provisions for all of the
following:

begin delete

(1) Verifying that an organization does in fact represent
employees of the public agency.

end delete begin delete

(2)

end delete

begin insert (1) end insert  Verifying the official status of employee organization
officers and representatives.

begin delete

(3) Recognition of employee organizations.

end delete begin delete

(4) Exclusive recognition of employee organizations formally
recognized pursuant to a vote of the employees of the agency or
an appropriate unit thereof, subject to the right of an employee to
represent himself or herself as provided in Section 3502.

end delete begin delete

(5)

end delete

begin insert (2) end insert  Additional procedures for the resolution of disputes involving
wages, hours and other terms and conditions of employment.

begin delete

(6)

end delete

begin insert (3) end insert  Access of employee organization officers and representatives
to work locations.

begin delete

(7)

end delete

begin insert (4) end insert  Use of official bulletin boards and other means of
communication by employee organizations.

begin delete

(8)

end delete

begin insert (5) end insert  Furnishing nonconfidential information pertaining to
employment relations to employee organizations.

begin delete

(9)

end delete

begin insert (6) end insert  Any other matters that are necessary to carry out the purposes
of this chapter.

(b) Exclusive recognition of employee organizations formally
recognized as majority representatives pursuant to a vote of the
employees may be revoked by a majority vote of the employees
only after a period of not less than 12 months following the date
of recognition.

(c) No public agency shall unreasonably withhold recognition
of employee organizations.

(d) Employees and employee organizations shall be able to
challenge a rule or regulation of a public agency as a violation of
this chapter. This subdivision shall not be construed to restrict or
expand the board’s jurisdiction or authority as set forth in
subdivisions (a) begin delete to (c), inclusive, end delete begin insert and (b) end insert of Section 3509.

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 3507.1 of the end insert begin insert Government Code end insert begin insert is amended
to read: end insert

3507.1.  

(a) Unit determinations and representation elections
shall be determined and processed begin insert by the board end insert in accordance with
begin insert the end insert rules begin insert and regulations it has end insert adopted begin delete by a public agency end delete in
accordance with this chapter begin insert , subject to subdivision (c) of Section
3509 end insert . In a representation election, a majority of the votes cast by
the employees in the appropriate bargaining unit shall be required.

(b) Notwithstanding subdivision (a) and rules adopted by begin delete a
public agency pursuant to Section 3507, end delete begin insert the board, end insert a bargaining
unit in effect as of the effective date of this section shall continue
in effect unless changed under the rules adopted by begin delete a public agency
pursuant to Section 3507. end delete begin insert the board pursuant to and consistent
with the policies of this chapter. end insert

begin insert

(c) (1) In determining an appropriate unit, the board shall take
into consideration all of the following criteria:

end insert begin insert

(A) The internal and occupational community of interest among
the employees, including, but not limited to, the extent to which
they perform functionally related services or work toward
established common goals.

end insert begin insert

(B) The history of employee representation in state government
and in similar employment.

end insert begin insert

(C) The extent to which the employees have common skills,
working conditions, job duties, or similar educational or training
requirements.

end insert begin insert

(D) The extent to which the employees have common
supervision.

end insert begin insert

(2) Notwithstanding subparagraph (1), or any other law, an
appropriate group of skilled crafts employees shall have the right
to be a separate unit of representation based upon occupation.
Skilled crafts employees shall include, but not necessarily be
limited to, those within employment categories such as carpenters,
plumbers, electricians, painters, and operating engineers.

end insert begin insert

(3)  There shall be a presumption that professional employees
and nonprofessional employees should not be included in the same
unit. However, the presumption shall be rebuttable, depending
upon what the evidence pertinent to the criteria set forth in this
subdivision establishes.

end insert begin delete

(c)

end delete

begin insert (d) end insert  A public agency shall grant exclusive or majority recognition
to an employee organization based on a signed petition,
authorization cards, or union membership cards showing that a
majority of the employees in an appropriate bargaining unit desire
the representation, unless another labor organization has previously
been lawfully recognized as exclusive or majority representative
of all or part of the same unit. Exclusive or majority representation
shall be determined by a neutral third party selected by the public
agency and the employee organization who shall review the signed
petition, authorization cards, or union membership cards to verify
the exclusive or majority status of the employee organization. In
the event the public agency and the employee organization cannot
agree on a neutral third party, the California State Mediation and
Conciliation Service shall be the neutral third party and shall verify
the exclusive or majority status of the employee organization. In
the event that the neutral third party determines, based on a signed
petition, authorization cards, or union membership cards, that a
second labor organization has the support of at least 30 percent of
the employees in the unit in which recognition is sought, the neutral
third party shall order an election to establish which labor
organization, if any, has majority status.

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 3507.3 of the end insert begin insert Government Code end insert begin insert is amended
to read: end insert

3507.3.  

Professional employees shall not be denied the right
to be represented separately from nonprofessional employees by
a professional employee organization consisting of those
professional employees. In the event of a dispute on the
appropriateness of a unit of representation for professional
employees, upon request of any of the parties, the dispute shall be
submitted to the begin delete California State Mediation and Conciliation
Service for mediation or for recommendation for resolving the
dispute. end delete begin insert board for resolution, subject to subdivision (c) of Section
3509. end insert

“Professional employees,” for the purposes of this section, means
employees engaged in work requiring specialized knowledge and
skills attained through completion of a recognized course of
instruction, including, but not limited to, attorneys, physicians,
registered nurses, engineers, architects, teachers, and the various
types of physical, chemical, and biological scientists.

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 3507.5 of the end insert begin insert Government Code end insert begin insert is amended
to read: end insert

3507.5.  

begin delete In addition to those rules and regulations a public
agency may adopt pursuant to and in the same manner as in Section
3507, any such agency end delete begin insert The board end insert may adopt reasonable rules and
regulations providing for designation of the management and
confidential employees of the public agency and restricting begin delete such end delete
begin insert those end insert employees from representing any employee begin delete organization,
which end delete begin insert organization that end insert represents other employees of the public
begin delete agency, end delete begin insert agency end insert on matters within the scope of representation.
Except as specifically provided otherwise in this chapter, this
section does not otherwise limit the right of employees to be
members of and to hold office in an employee organization.

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 3509 of the end insert begin insert Government Code end insert begin insert is amended to
read: end insert

3509.  

(a) The powers and duties of the board described in
Section 3541.3 shall also apply, as appropriate, to this chapter and
shall include the authority as set forth in subdivisions (b) and (c).
Included among the appropriate powers of the board are the power
begin insert to determine appropriate units, end insert to order elections, to conduct any
election the board orders, and to adopt rules to apply in begin delete areas where
a public agency has no rule. end delete begin insert these areas in accordance with this
chapter. end insert

(b) A complaint alleging any violation of this chapter or of any
rules and regulations adopted by a public agency pursuant to
Section 3507 begin delete or 3507.5 end delete shall be processed as an unfair practice
charge by the board. The initial determination as to whether the
charge of unfair practice is justified and, if so, the appropriate
remedy necessary to effectuate the purposes of this chapter, shall
be a matter within the exclusive jurisdiction of the board, except
that in an action to recover damages due to an unlawful strike, the
board shall have no authority to award strike-preparation expenses
as damages, and shall have no authority to award damages for
costs, expenses, or revenue losses incurred during, or as a
consequence of, an unlawful strike. The board shall apply and
interpret unfair labor practices consistent with existing judicial
interpretations of this chapter.

begin delete

(c) The board shall enforce and apply rules adopted by a public
agency concerning unit determinations, representation, recognition,
and elections.

end delete begin delete

(d)

end delete

begin insert (c) end insert  Notwithstanding subdivisions (a) begin delete to (c), inclusive, end delete begin insert and (b), end insert
the employee relations commissions established by, and in effect
for, the County of Los Angeles and the City of Los Angeles
pursuant to Section 3507 shall have the begin insert exclusive end insert power and
responsibility to take actions on recognition, unit determinations,
elections, and all unfair practices, and to issue determinations and
orders as the employee relations commissions deem necessary,
consistent with and pursuant to the policies of this chapter.

begin delete

(e)

end delete

begin insert (d) end insert  Notwithstanding subdivisions (a) begin delete to (c), inclusive, end delete begin insert and (b), end insert
consistent with, and pursuant to, begin delete the provisions of end delete Sections 3500
and 3505.4, superior courts shall have exclusive jurisdiction over
actions involving interest arbitration, as governed by Title 9
(commencing with Section 1280) of Part 3 of the Code of Civil
Procedure, when the action involves an employee organization
that represents firefighters, as defined in Section 3251.

begin delete

(f)

end delete

begin insert (e) end insert  This section shall not apply to employees designated as
management employees under Section 3507.5.

begin delete

(g)

end delete

begin insert (f) end insert  The board shall not find it an unfair practice for an employee
organization to violate a rule or regulation adopted by a public
agency if that rule or regulation is itself in violation of this chapter.
This subdivision shall not be construed to restrict or expand the
board’s jurisdiction or authority as set forth in subdivisions (a) begin delete to
(c), inclusive. end delete begin insert and (b). end insert