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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