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, Pamela Schneider Date: 1/07/14 Page 1 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. Pamela Schneider Date: 1/07/14 Page 2 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; Pamela Schneider Date: 1/07/14 Page 3 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 Pamela Schneider Date: 1/07/14 Page 4 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 Pamela Schneider Date: 1/07/14 Page 5 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 Pamela Schneider Date: 1/07/14 Page 6 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 Pamela Schneider Date: 1/07/14 Page 7 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 Pamela Schneider Date: 1/07/14 Page 8 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 Pamela Schneider Date: 1/07/14 Page 9 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 ##### Pamela Schneider Date: 1/07/14 Page 10