BILL ANALYSIS �
Senate Committee on Labor and Industrial Relations
William W. Monning, Chair
Date of Hearing: June 26, 2013 2013-2014 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: AB 972
Author: Calderon
As Introduced/Amended: April 29, 2013
SUBJECT
Employment: electricians: certification.
KEY ISSUE
Should the Legislature require the inclusion of an electrician's
state certification number on a contractor or subcontractor's
payroll record?
Should the Legislature involve itself in a jurisdictional
dispute between two labor organizations?
ANALYSIS
Existing law defines "public works" to include, among other
jobs, construction, alteration, demolition, installation, or
repair work done under contract and paid for in whole or in part
out of public funds. (Labor Code �1720)
Existing law requires all employees who work on public works
projects costing $1,000 or more to be paid the general
prevailing rate of per diem wages and the general prevailing
rate for holiday and overtime work for the specific location
where the public work is to be performed (Labor Code �1771)
Existing law states that a joint labor-management committee may
bring an action in any court of competent jurisdiction against
an employer that fails to pay the prevailing wage to its
employees. (Labor Code �1771.2)
Existing law states that each contractor and subcontractor shall
keep accurate payroll records, showing the name, address, social
security number, work classification, straight time and overtime
hours worked each day and week, and the actual per diem wages
paid.
(Labor Code �1776)
Existing law states that any copies of records made available
for inspection by, or furnished to, a joint labor-management
committee established pursuant to the federal Labor Management
Cooperation Act of 1978 (29 U.S.C. Sec. 175a) shall be marked or
obliterated only to prevent disclosure of an individual's name
and social security number . (Labor Code �1776)
This bill requires that, for projects using electricians, each
contractor and subcontractor must also provide the electrician's
state certification number on the payroll records below his or
her name.
COMMENTS
1. A Brief Background of Jurisdictional Disputes in the History
of American Labor:
Generally speaking, a jurisdictional dispute is a conflict
between two or more labor organizations where the
organizations dispute the right to perform certain duties or
jobs (Daykin, Jurisdictional Disputes Under the NLRB, 1955).
These disputes have a long history in the American labor
movement, and historically the labor organizations have sought
to settle these issues among themselves. As noted by Daykin,
the core of these disputes is economic security: each labor
organization wants their members to have access to as much
work as possible, as well as wishes to protect the work
opportunities that have historically been available.
As such, jurisdictional disputes are notoriously tricky.
Neither state nor federal law offers much guidance in how to
resolve them. In looking at National Labor Relations Board
(NLRB) case law, the Board (which has dealt with
jurisdictional disputes since 1944) applies a "common sense
and experience" test - in short, ad hoc and case-by-case.
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In the case of this Committee, it has been a long standing
practice to decline to weigh in on jurisdictional disputes,
instead asking the two labor organizations to work it out
among themselves.
2. Recent Jurisdictional Disputes in the Laying of Conduit:
Currently, both the Labors International Union of North
America (Laborers) and the International Brotherhood of
Electrical Workers (IBEW) dispute who has the right to lay
conduit on public works projects. Conduit, which is a tube or
trough that covers and protects electrical wires or fiber
optic cables, is an incredibly important aspect of many
building projects.
Historically, the Laborers have claimed jurisdiction over
digging of trenches, foundations, holes, and certain types of
piping. Since conduit is frequently in the form of a pipe or
trench, the Laborers claim it as part of their jurisdiction.
Alternatively, IBEW's members work exclusively with the
connection of electrical devices. Since conduit is how these
devices are connected, IBEW also claims jurisdiction over
these activities.
In 2010, in Alameda County Joint Apprenticeship and Training
Committee v. Roadway Electrical Works, Inc., (186 Cal.App.4th
185 (2010)), the California Court of Appeals found that only
electricians could install electrical conduit on the Bay
Bridge Retrofit Project. Since that time, the Contractors
State License Board (CSLB) has a zero-tolerance policy for
C-10 electrical contractors, requiring that those contractors
only use electricians.
However, in a June 18, 2013 informational bulletin, the CSLB
reiterated that "[t]renching, concrete, framing, and other
work that does not involve connecting electrical devices may
be performed by noncertified workers."
3. Jurisdictional Challenges with AB 972:
Several stakeholders believe that AB 972 can and will be
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utilized to further the current jurisdictional dispute between
the Laborers and IBEW. The concern appears to stem from the
fact that an electrician's state certification is an
individual identifier which would not be redacted when
requested by a joint labor-management committee, unlike a
social security number. Stakeholders are concerned that, with
this information, a joint labor-management committee of an
IBEW local could contact an individual electrician, find out
if a non-electrician was used to install conduit, and then
pursue a claim with either the Department of Industrial
Relations (DIR) or the National Labor Relations Board (NLRB).
4. A Final Word on Jurisdictional Disputes:
In his paper on jurisdictional disputes, Walter Daykin says
the following:
"In the main, jurisdictional disputes have had negative
effects as far as unions are concerned. While these conflicts
have undoubtedly increased the power of some unions, they have
created serious barriers for union cooperation which is so
necessary for a successful labor movement in America. The
existence of these union conflicts over the right to perform
various jobs has demonstrated the validity of the sociological
truism that conflict from without solidifies the group, but
conflict from within divides and destroys the group."
5. Proponent Arguments :
This bill is sponsored by the California State Association of
Electrical Workers. The sponsor states that California law
requires electricians achieve minimum standards in training
and competency. These requirements are in place to ensure job
site safety, proper installations and quality of work. The
sponsor also states that, in order to assist in prevailing
wage enforcement, current law requires all contractors and
subcontractors to submit weekly certified payrolls to the
awarding body of a public works contract. The author argues
that, by requiring that the contractor or subcontractor
include the state-issued electrician certification number on
the certified payroll, AB 972 will assist compliance efforts
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with the certification law.
6. Opponent Arguments :
This bill is opposed by the California State Council of
Laborers. The Laborers argue that AB 972 is a violation of
state law and violates the privacy of electricians, as it will
allow someone to search the DIR website and discover the name
of an individual worker. The Laborers also argue that AB 972
contains significant fiscal costs which will place pressure on
the already strained DLSE budget, particularly as each craft
steps up in the future and requests additional certification
numbers on payroll records. The Laborers are concerned that
such strains could take funds away from other important
priorities, such underground economy enforcement. Finally,
the Laborers respectfully urge the members to avoid an issue
that puts two labor organizations at odds.
7. Prior Legislation :
SB 581 (Liu) of 2011 would have specified which kinds of
non-electrical tasks could be lawfully performed by
noncertified electricians. SB 581 was not heard by the Senate
Labor Committee at the direction of the author.
SB 665 (Cedillo) of 2009 would have allowed unionized security
guards to take on-duty meal periods. This bill was sponsored
by Service Employees International Union (SEIU) and opposed by
the Teamsters. The hearing by this Committee for SB 665 was
cancelled at the author's request.
SUPPORT
California State Association of Electrical Workers (Sponsor)
Western Electrical Contractors Association
OPPOSITION
Associated General Contractors
California State Council of Laborers
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Construction Employers Association
Southern California Contractors Association
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