BILL ANALYSIS Ó
AB 528
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Date of Hearing: May 6, 2015
ASSEMBLY COMMITTEE ON PUBLIC EMPLOYEES, RETIREMENT, AND SOCIAL
SECURITY
Rob Bonta, Chair
AB 528
(Baker) - As Introduced February 23, 2015
SUBJECT: San Francisco Bay Area Rapid Transit District:
strikes: prohibition
SUMMARY: Prohibits employees of the San Francisco Bay Area
Rapid Transit District (BART) from striking if the transit
district board maintains the compensation and benefit provisions
of an expired contract and that contract or previous contract
includes provisions prohibiting strikes. Specifically, this
bill:
1)Prohibits BART employees from striking or engaging in a work
stoppage as long as the BART board of directors maintains the
compensation and benefit provisions of an expired contract and
the expired contract or previous contract includes an agreed
upon provision prohibiting strikes.
2)Provides that if the transit district employer finds that an
employee willfully engaged in a strike or work stoppage in
violation of the above, the employee may be dismissed, upon
the conclusion of appropriate proceedings, if that finding is
sustained.
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EXISTING LAW:
1)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.
2)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.
3)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.
4)Requires that the report include statements of fact with
regard to the dispute, be public, and not contain
recommendations.
5)Prohibits any strike or walkout during the period of
investigation by the board.
6)Requires the board to consist of no more than 5 members,
defines per diem and reimbursements for board members, and
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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.
7)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.
8)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.
9)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.
FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS: According to the author, "The San Francisco Bay Area
Rapid Transit District (BART) was formed by the state
legislature in 1957, and has established provisions regulating
collective bargaining of the employees and the board of
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directors. Over 400,000 riders rely daily on BART to get to
work, go to school, see the doctor, visit family and friends,
and engage in their communities. BART transit services are
essential to Bay Area residents and commuters, and must be
protected. There have been five labor strikes in BART history.
Two strikes in 2013 created havoc for riders, jammed Bay Area
roads, and caused environmental damage with greater carbon
emissions impacting air quality. The 2013 strikes brought
transportation to a grinding halt in the Bay Area and cost over
$73 million dollars a day to the Bay Area economy. These 2013
strikes occurred even though BART workers had a no-strike clause
in their most recent contract.'
"In past and current labor contracts for BART, strikes and work
stoppages are prohibited by no-strike clauses. Strikes and work
stoppages are also prohibited during times of investigation that
are called by the Governor. A loophole, however, was made
glaringly apparent when BART workers twice went on strike in
2013. The workers went on strike anyway, because the contract
with a no-strike clause had expired. They went on strike even
though they continued to receive wages and benefits under the
expired contract."
The author concludes, "This bill closes the loophole and ensures
public safety, health, and welfare are protected by declaring
that if BART employees continue to receive pay and other
benefits provided by BART management under the expired contract,
the worker must abide by the no-strike clause of that contract."
Opponents state, "The right to strike - as codified into law in
1935 via the National Labor Relations Act (NLRA) - is a
longstanding, federally-protected action and cornerstone from
workers' rights in the workplace, and is part of the collective
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bargaining process. Ultimately,
AB 528 is punitive and does not consider the intricacies of the
collective bargaining process, the history and underlying
rationale of how or why a strike might be considered, nor the
careful considerations given by represented public employees in
public transportation agencies prior to calling a strike."
Additionally, opponents believe that, "?this bill may run afoul
of the provisions of section 13(c) of the Federal Urban Mass
Transit Act of 1966, which prohibits states and local
governments from eroding employee collective bargaining rights.
Consequently, passage of this bill could result in a withholding
of federal funding for BART."
Existing federal law protects the collective bargaining rights
of specified transit workers employed in certain transit
agencies and districts that were, mostly in the 1960's through
the 1970's, converted from private to public agencies. Federal
Transit Law Section 13(c) requires that these employee
protections, commonly referred to as "protective arrangements"
or "Section 13(c) arrangements" must be certified by the United
States Department of Labor (USDOL) and in place before federal
transit funds can be released to a mass transit employer subject
to the Federal Transit Law.
Section 13(c) requires, among other things, the continuation of
collective bargaining rights, and protection of transit
employees' wages, working conditions, pension benefits,
seniority, vacation, sick and personal leave, travel passes, and
other conditions of employment.
SB 423 (Huff) of last year would have repealed various statutes
governing public transportation labor disputes, including
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requirements governing labor relations when a strike is
threatened; added new laws to prohibit public transportation
workers from striking; and proscribed penalties and sanctions
for employees and recognized labor organizations that
participate in, cause, encourage, or condone strikes. This bill
failed passage in the Senate Public Employment and Retirement
Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
Innovation Tri-Valley Leadership Group
Jerry T. Thorne, Mayor, City of Pleasanton
Moraga Town Council
Opposition
American Federation of State, County and Municipal Employees
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
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California Federation of Teachers
California Labor Federation
California Professional Firefighters
California State Council of the Service Employees International
Union
California Teamsters Public Affairs Council
Engineers & Scientists of CA, IFPTE Local 20, AFL-CIO
International Longshore & Warehouse Union
Professional & Technical Engineers, IFPTE Local 21, AFL-CIO
UNITE-HERE, AFL-CIO
Utility Workers Union of America
Analysis Prepared by:Karon Green / P.E.,R., & S.S. / (916)
319-3957
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