BILL ANALYSIS                                                                                                                                                                                                    Ó






          SENATE PUBLIC EMPLOYMENT & RETIREMENT    BILL NO:  SB 423
          Jim Beall, Chair          HEARING DATE:  January 13, 2014
          SB 423 (Huff)    as amended   1/06/14        FISCAL:  YES

           TRANSPORTATION WORKERS:  ELIMINATION OF RIGHT TO STRIKE
           
           HISTORY  :

            Sponsor:  Author

            Other legislation:  SB 1038 (Senate Budget and fiscal  
            Review Committee)
                           Chapter 46, Statutes of 2012
                      
           SUMMARY  :

          SB 423 repeals various statutes governing public  
          transportation labor disputes, including requirements  
          governing labor relations when a strike is threatened; adds  
          new laws to prohibit public transportation workers from  
          striking; and proscribes penalties and sanctions for  
          employees and recognized labor organizations that participate  
          in, cause, encourage, or condone strikes.

           BACKGROUND AND ANALYSIS  :
          
           1)Existing law  governs procedures when disputes arise between  
            public transportation employees and employers, including  
            the following:

             a)   establishes the Public Employment Relations Board  
               (PERB), which houses the State Mediation and  
               Conciliation Service, and has legal jurisdiction over  
               labor relations between most state and local public  
               employers and their employees, including employers  
               subject to the Meyers-Milias-Brown Act (MMBA) and the  
               Ralph C. Dills Act (Dills Act).

             b)   establishes the MMBA, which governs labor relations  
               between local public employers and employees, including  
               employees' rights to be represented, to negotiate with  
               employers in good faith over wages and working  
               conditions, and other aspects of collective bargaining,  
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               including the right to strike under specified  
               conditions.

             c)   establishes the Dills Act, which governs labor  
               relations between the Executive Branch of state  
               government and its employees.

             d)   specifically defines how to resolve  disputes  between  
               public transportation employers and employee  
               organizations, including timeframes for the exchange of  
               contract proposals and collective bargaining, and the  
               assignment of a conciliator from the State Mediation and  
               Conciliation Service, as specified.

             e)   allows the Governor, whenever he or she determines  
               that a threatened strike or lockout, if permitted to  
               occur, would significantly disrupt the public's health,  
               safety, or welfare, to appoint a board to investigate  
               the issues involved in the dispute and submit a report  
               to the Governor within 7 days.

             f)   requires that the report include statements of fact  
               with regard to the dispute, be public, and not contain  
               recommendations.

             g)   prohibits any strike or walkout during the period of  
               investigation by the board.

             h)   requires the board to consist of no more than 5  
               members, defines per diem and reimbursements for board  
               members, and allows the board to hold public hearings,  
               subpoena witnesses, require the production of documents,  
               and to use all necessary means to compel witnesses and  
               obtain testimony.

             i)   allows the Governor, upon receiving the report from  
               the board, to request the Attorney General to petition  
               any court of competent jurisdiction to enjoin the strike  
               or lockout for a period of 60 days, and requires the  
               court to issue the enjoining order if the court finds  
               that the strike or lockout, if permitted, would  
               significantly disrupt public transportation or endanger  
               public health, safety, or welfare.
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             j)   specifies that if the local agency has a charter or  
               establishing legislation that establishes a time period  
               for negotiating or meeting and conferring that is  
               shorter than 60 days, then these provisions do not apply  
               to disputes arising in that agency between the employer  
               and exclusive bargaining representative.

             aa)  clarifies that, except as expressly provided, nothing  
               in these laws shall be construed either to expressly  
               grant or deprive employees of the right to strike.

           1)This bill  repeals statutes governing the current process  
            for responding to threatened transportation strikes and  
            lockouts, and proscribes penalties and sanctions for  
            employees and recognized employee organizations, including  
            the following:  
           
             a)   prohibits a public transportation employee or  
               employee organization from engaging in, causing,  
               instigating, encouraging, or condoning a strike.

             b)   states that a public transportation employee who  
               violates this prohibition shall be subject to removal or  
               other disciplinary action.

             c)   presumes that an employee has engaged in the strike  
               if he or she is absent without permission or abstains  
               wholly or in part from the performance of official  
               duties on the date or dates of a strike.

             d)   prohibits supervisory and management personnel from  
               authorizing, approving, condoning, or consenting to a  
               strike.

             e)   provides certain rights and obligations to the chief  
               executive officer of the transportation agency to  
               investigate and discipline employees who violate the  
               prohibitions against striking, as follows:

            i)     the right to investigate and obtain affidavits as he  
                 or she deems appropriate;

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            ii)    the obligation to notify employees who have been  
                 determined to have committed violations of the strike  
                 prohibitions of their rights to object to the  
                 determination, and to notify the chief financial  
                 officer of the violating employees' names, as  
                 specified;

            iii)   a prohibition against paying any public employee his  
                 or her wages for any day or portion of a day in which  
                 the employee was engaged in a strike, as specified,  
                 upon the notification of the chief executive officer;

            iv)    a requirement of the chief financial officer to  
                 deduct twice the daily rate of pay for any day or  
                 portion thereof the employee was determined by the  
                 chief executive officer to have violated the strike  
                 prohibition, as specified;

            v)     the right of the employee to submit a sworn  
                 affidavit containing supporting facts as to why he or  
                 she was not in violation of the strike prohibition,  
                 and the obligation of the chief executive officer to  
                 determine if the employee either did or did not commit  
                 the violation based on the employee's affidavit, as  
                 specified;

            vi)    provisions for the chief executive officer, in cases  
                 in which the facts are not clear, to appoint an  
                 officer to conduct a hearing at which the employee  
                 shall bear the burden of proof, and specifies  
                 notification requirements for the outcome of the  
                 hearing; and

            vii)   a requirement to notify the chief financial officer  
                 to reimburse any withheld wages if the employee's  
                 objection is sustained.

             a)   requires a recognized employee representative that  
               has violated the strike prohibitions to forfeit rights  
               granted under the MMBA  or  the Dills Act, if so  
               determined by PERB, as follows:

            i)     requires the chief executive officer to notify the  
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                 chief legal officer of the agency and PERB of the  
                 violation and to provide assistance and data to enable  
                 those entities to carry out their duties;

            ii)    requires, as specified, a process for the parties to  
                 be charged, properly noticed, to respond to charges,  
                 and to have the matter heard by PERB;

            iii)   requires PERB, in making its determination, to  
                 consider whether the employee organization called the  
                 strike or tried to prevent it and whether the  
                 organization made a good faith effort to end the  
                 strike;

            iv)    requires PERB, if it finds that the organization  
                 violated the strike prohibitions, to order forfeiture  
                 by the organization of its rights granted under MMBA  
                 or the Dills Act for an either specified period of  
                 time, or an unspecified period of time, in which case  
                 the employee organization would be required to make  
                 application to PERB to have its rights restored;

            v)     in fixing the duration of the forfeiture, requires  
                 PERB to consider all relevant facts, including the  
                 extent of any intentional violation of the strike  
                 prohibitions, the public impact of the strike, the  
                 financial resources of the employee organization,  
                 whether the employer or employee organization refused  
                 to submit to mediation and fact-finding procedures,  
                 and whether (if alleged by the employee organization)  
                 the employer or its representative engaged in acts of  
                 extreme provocation so as to detract from the  
                 responsibility of the employee organization for the  
                 strike;

            vi)    sets forth provisions allowing for the reinstatement  
                 of the rights of the employee organization following  
                 specified actions, including the successful  
                 negotiation of a contract covering the employee in the  
                 unit affected by the strike; and

            vii)   allows the Legislature, after three years have  
                 passed following the forfeiture, to reinstate rights  
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                 to the employee organization.

             a)   requires, within 60 days of the end of a strike, the  
               chief executive officer to prepare a written report, to  
               be made public, containing the following:

            i)     the circumstances surrounding the commencement of  
                 the strike;

            ii)    the efforts made to terminate the strike;

            iii)   the names of employees who the chief executive  
                 officer has reason to believe were responsible for  
                 causing, instigating, or encouraging the strike;

            iv)    the sanctions imposed or proceedings pending against  
                 those employees as a result of actual or suspected  
                 responsibility.

             a)   states that this bill does not require reimbursement  
               from the state to local agencies because it creates a  
               new crime or infraction, or changes the penalty for  
               crime or infraction, or changes the definition of a  
               crime, as specified.

             b)   states that if the Commission on State Mandates  
               determines that this act contains other costs mandated  
               by the state, reimbursement to local agencies shall be  
               made, as specified.

           FISCAL  :

          No fiscal analysis has been completed.







           COMMENTS  :

           1)Concerns of the Committee
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              a)   This bill raises significant legal issues

                The MMBA requires that public employees have the right  
               to choose their own representatives and to have those  
               representatives officially recognized by the employer in  
               all matters related to collective bargaining.  Moreover,  
               the law sets requirements and obligations with regard to  
               the rights of employees to change their official  
               representatives through an election process and to be  
               represented by their official representative during  
               disciplinary actions.

               As written, this bill would require PERB to strip a  
               recognized employee organization of  all  of its  
               representation rights granted under MMBA or the Dills  
               Act based on evidence that it engaged in, caused,  
               instigated, encouraged, or condoned a strike.  Since the  
               organization must forfeit all rights, the bill appears  
               to require the forfeiture of the right to represent  
               employees of other employers, as well as the applicable  
               transportation employees.  This appears to therefore  
               impact the collective bargaining rights of non-striking  
               employees. In addition, an employee under disciplinary  
               action for any reason could lose his or her union  
               representation upon the forfeiture. 

               The forfeiture would last for an indefinite period of  
               time of up to three years, after which the  
               organization's rights could be reinstated by PERB or the  
               Legislature.  The bill does not address how employees  
               could be represented during that interim period.   
               Additionally, the bill contains unclear language  
               regarding actions by the employee representative to  
               negotiate a new contract during the forfeiture period.   
               An organization stripped of its rights under MMBA and  
               the Dills Act would not be able to be recognized or  
               negotiate on behalf of employees.

               Finally, federal laws prohibit the flow of federal  
               transportation dollars to transportation employers if  
               the Federal Department of Labor determines that the  
               state or employer has taken action to impair the  
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               collective bargaining rights of specified transportation  
               workers.  By eliminating transportation workers' rights  
               to strike and to be represented by organizations of  
               their choosing, this bill could result in the loss of  
               federal transportation funding.
           
          1)Arguments in Support  :  

             According to the author, "SB 423 protects the reliability  
            of mass transit for riders by prohibiting public employee  
            strikes."  Citing the need to protect transit services, the  
            author states, "Passengers daily rely on buses, metro  
            trains, light rail, paratransit and other services to get  
            to work, go to school, see the doctor, and visit with  
            family and friends." "It is already against the law for  
            California police officers and firefighters to strike  
            because they provide essential public services.  SB 423  
            recognizes that reliable public transit is essential as  
            well." "The BART strike alone cost the Bay Area $70 million  
            a day in lost economic activity.  Public transit is a vital  
            public service and the millions of annual public transit  
            riders in California should not be at risk of abruptly  
            losing these services." 

           3)Arguments in Opposition  :  

           Service Employees International Union (SEIU) states the  
          following:

               Codified into law via the 1935 National Labor Relations  
               Act, the right to strike is a longstanding federally  
               protected action and cornerstone for workers' rights in  
               the workplace, and is part of the collective bargaining  
               process.

               Generally, public employees and their representatives  
               exercise this right only as a measure of last resort to  
               collectively and publicly express concern regarding  
               unacceptable conduct by employers, and only when all  
               other methods of communication in the collective  
               bargaining process have failed.  Moreover, it is not the  
               preferred method by SEIU-represented employees to  
               achieve results with an employer.  The preferred method  
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               is to negotiate a compromise with employers in  
               accordance to existing and well-established guidelines  
               via the collective bargaining process.

          Noting that SB 423 would "dismantle and destroy the long  
          established process for dispute resolution in the transit  
          industry in California," the United Transportation Union  
          (UTU) goes on to state that "the collective bargaining  
          process in the public transit industry in California has a  
          long history of success in arriving at mutually agreeable  
          conditions for wages, hours, and working conditions between  
          the parties (management and labor).  To radically change and  
          completely alter the process that has led to this success  
          would be counterproductive."

           4)OPPOSITION  :

            Alameda Labor Council, AFL-CIO
             American Federation of State, County and Municipal  
              Employees (AFSCME)
             American Federation of State, County and Municipal  
              Employees, District Council 57 (AFSCME Council 57)
             American Federation of State, County and Municipal  
              Employees, District Local 146 (AFSCME Local 146)
            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 State Council of the Service Employees  
            International Union (SEIU)
            California Teamsters Public Affairs Council
            Causa Justa:  Just Cause
             Central Labor Council of Contra Costa County, AFL-CIO  
              (Labor Council)
            Chinese Progressive Association
             Communications Workers of America, District 9, AFL-CIO  
              (CWA)
            East Bay Alliance for a Sustainable Economy (EBASE)
            Engineers & Scientists of CA, IFPTE Local 20, AFL-CIO
            Executive Board of the Harvey Milk LGBT Democratic Club
            Gray Panthers San Francisco
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            International Longshore & Warehouse Union
            Jobs with Justice San Francisco
             La Colectiva/Women's Collective of Dolores Street  
              Community Services
            LIUNA Locals 777 & 792
            North Bay Jobs with Justice
            OPEIU Local 3
            Orange County Employees Association (OCEA)
            Professional & Technical Engineers, IFPTE Local 20, AFL-CIO
            San Mateo County Central Labor Council
            SEIU United Service Workers West
            SEIU Bart Chapter, Local 1021
            Student Labor Action Project, San Francisco
            UNITE-HERE, AFL-CIO
            Unite Here Local 2
            Unite Here Local 2850
            United Educators of San Francisco
            United Transportation Union (UTU)
            Utility Workers Union of America, Local 132, AFL-CIO
            Women's Economic Agenda Project (WEAP)
            Young Workers United
            60 Individual letters




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          Pamela Schneider
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