Amended in Assembly April 25, 2013

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 Sections 3505.4, 3507, 3507.1, 3507.3, 3507.5, and 3509 end delete begin insert Section 3505.4 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 begin insert local end insert public agency, or those boards, commissions, administrative officers, or other representatives as may be properly designated by law or by a 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 begin delete provides that end delete begin insert authorizes end insert an employee organization begin delete may end delete begin insert to end insert request that the parties’ differences be submitted to a factfinding panel 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.

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.

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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.

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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.

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

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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.

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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.

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

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This bill would also make other conforming changes.

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Vote: majority. Appropriation: no. Fiscal committee: yes. 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 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. 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.

(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.

(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.

(d) 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.

(e) 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.

(f) 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.

(g) The procedural right of an employee organization to request
a factfinding panel cannot be waived.

(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.

(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.

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SEC. 2.  

Section 3507 of the Government Code is amended to
read:

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:

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

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

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

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

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

(6) 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) and (b) of Section 3509.

SEC. 3.  

Section 3507.1 of the Government Code is amended
to read:

3507.1.  

(a) Unit determinations and representation elections
shall be determined and processed by the board in accordance with
the rules and regulations it has adopted in accordance with this
chapter, subject to subdivision (c) of Section 3509. 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 the
board, a bargaining unit in effect as of the effective date of this
section shall continue in effect unless changed under the rules
adopted by the board pursuant to and consistent with the policies
of this chapter.

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

(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.

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

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

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

(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.

(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.

(d) 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.

SEC. 4.  

Section 3507.3 of the Government Code is amended
to read:

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 board for resolution, subject to subdivision (c) of
Section 3509.

“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.

SEC. 5.  

Section 3507.5 of the Government Code is amended to
read:

3507.5.  

The board may adopt reasonable rules and regulations
providing for designation of the management and confidential
employees of the public agency and restricting those employees
from representing any employee organization that represents other
employees of the public agency 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.

SEC. 6.  

Section 3509 of the Government Code is amended to
read:

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
to determine appropriate units, to order elections, to conduct any
election the board orders, and to adopt rules to apply in these areas
in accordance with this chapter.

(b) A complaint alleging any violation of this chapter or of any
rules and regulations adopted by a public agency pursuant to
Section 3507 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.

(c) Notwithstanding subdivisions (a) and (b), 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 exclusive 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.

(d) Notwithstanding subdivisions (a) and (b), consistent with,
and pursuant to, 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.

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

(f) 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) and
(b).

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