BILL NUMBER: AB 616 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 25, 2013
AMENDED IN ASSEMBLY MARCH 19, 2013
INTRODUCED BY Assembly Member Bocanegra
FEBRUARY 20, 2013
An act to amend Sections 3505.4, 3507, 3507.1, 3507.3,
3507.5, and 3509 Section 3505.4 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 local
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
provides that authorizes an employee
organization may to 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.
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.
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.
Existing law authorizes a public agency to determine and process
unit determinations and representation elections pursuant to rules it
has adopted.
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.
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.
This bill would instead authorize the board to adopt those rules
and regulations.
This bill would also make other conforming changes.
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.
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).