BILL ANALYSIS                                                                                                                                                                                                    Ó






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                                   THIRD READING 


          Bill No:  AB 1050
          Author:   Low (D), et al.
          Amended:  2/10/16 in Senate
          Vote:     21 

           PRIOR VOTES NOT RELEVANT

           SENATE LABOR & IND. REL. COMMITTEE:  3-1, 6/8/16
           AYES:  Mendoza, Leno, Mitchell
           NOES:  Stone
           NO VOTE RECORDED:  Jackson

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 8/11/16
           AYES:  Lara, Beall, Hill, McGuire, Mendoza
           NOES:  Bates, Nielsen

           SUBJECT:   Occupational safety and health:  permanent variances


          SOURCE:    International Union of Elevator Constructors

          DIGEST:   This bill (1) requires that employers seeking a  
          permanent variance to an elevator safety order notify specified  
          affected workers, and (2) grant party status to affected  
          workers, or their authorized representative, to participate in  
          variance proceedings.


          ANALYSIS:  


          Existing law:









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          1)Permits employers to apply to the Occupational Safety and  
            Health Standards Board (Board) for a permanent variance from  
            an occupational safety health standard, order, or special  
            order upon showing an alternate program, method, practice,  
            means, device, or process which will provide equal or superior  
            safety.


          2)Provides that the Board shall issue such a variance if it  
            determines on the record, after opportunity for an  
            investigation where appropriate and a hearing, that the  
            proponent of the variance has demonstrated by a preponderance  
            of evidence that the conditions, practices, means, methods,  
            operations, or processes used or proposed to be used by an  
            employer are as safe and healthful as those which would  
            prevail under the standard. 


          3)Authorizes the Board to grant a variance from any standard or  
            portion thereof where it determines a variance is necessary to  
            permit an employer to participate in an approved experiment  
            designed to demonstrate or validate new and improved  
            techniques to safeguard the health or safety of workers. 


          4)Provides that a permanent variance may be modified or revoked  
            upon application by an employer, employees, or the division,  
            or by the board on its own motion, as specified.  


          5)Requires that the Board conduct hearings on such requests for  
            a permanent variance after employees or employee  
            representatives are properly notified and given an opportunity  
            to appear. (Labor Code §143.1)


          This bill:


          1)Requires employers seeking a permanent variance to a  
            conveyance covered by the elevator safety orders to notify the  
            union representing elevator workers in the region where the  
            building is being constructed or modified and those workers  







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            who will be performing the tasks pursuant to the proposed  
            variance, or their authorized representative. 


          2)Grants these workers, or their authorized representative,  
            party status upon request to the Board. 


          Background 


          The Board adopts safety and health standards that are designed  
          to protect California workers. However, existing law authorizes  
          and sets forth a process whereby an employer may apply for a  
          "variance," which is generally permission to deviate or not  
          follow an existing standard. These variances fall into two  
          categories - permanent variances and temporary variances.  The  
          application process for both permanent and temporary variances  
          includes a requirement that the employer notify employees of the  
          variance being sought and gives employees an opportunity to  
          engage in the hearing process. 


          The focus of this bill is on the permanent variance process and  
          what constitutes notification to employees - more specifically,  
          which employees need to be notified of the variance request. The  
          law requires the Board to conduct hearings on requests for  
          permanent variances after employees or employee representatives  
          are properly notified and given an opportunity to appear. The  
          Board regulations provide that "affected employees" and  
          authorized employee representative may elect to participate as  
          parties at any time before commencement of the variance hearing.  
           (California Code of Regulations, Title 8, Section 406(a)).  The  
          regulations define "affected employee" to mean: "[A]n employee  
          of the employer seeking the variance who is exposed, as a result  
          of his or her assigned duties, to the condition or hazards  
          covered by the standard for which the variance is sought."   
          (California Code of Regulations, Title 8, Section 403(l)).


          The "employees of the employer seeking the variance," however,  
          may not actually be the workers that will be performing the  
          duties associated with the request because not all affected  
          workers are technically employees of the employer.  For example,  







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          in the installation of an elevator, the employees that will be  
          impacted by a variance from a safety order will be the employees  
          of the contractor or elevator manufacturer who are brought in to  
          perform the work.  


          The author argues that this lack of notification prevents  
          workers who are actually doing the work from participating in  
          the variance hearing or even be notified that a variance has  
          been requested. This bill helps ensure that a permanent variance  
          request pertaining to conveyances receives a thorough hearing by  
          requiring that the applicant notify the union representing  
          elevator workers in the region where the building is being  
          constructed or modified and those workers who will be performing  
          the tasks, or their authorized representative, of the request  
          for a variance. 


          Prior Legislation


          AB 578 (Low, 2015) was similar to this bill, but not identical.   
          AB 578 was broader in its approach and included notification  
          requirements for both permanent and temporary variance requests.  
          AB 578 was vetoed by the Governor who stated, "While this bill  
          is intended to provide an opportunity for affected workers to be  
          notified of variances and raise concerns during a relevant  
          hearing, it is unclear what workers would be affected, and why  
          the current process at the Occupational Safety and Health  
          Standards Board is not sufficient. In fact the board routinely  
          works with stakeholders to provide timely written notice of  
          variance requests and permits those parties to intervene in the  
          proceedings. I believe that process is one that provides  
          adequate opportunity for interested and affected workers to be  
          heard."




          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No


          According to the Senate Appropriations Committee, the Department  







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          of Industrial Relations indicates that it would incur first-year  
          costs of $166,000 and ongoing costs of $160,000 to implement the  
          provisions of this bill (special fund).




          SUPPORT:   (Verified8/12/16)


          International Union of Elevator Constructors (source)
          California Labor Federation, AFL-CIO
          California State Association of Electrical Workers
          California State Pipe Trades Council
          Coalition of California Utility Employees
          State Building and Construction Trades Council
          Western States Council of Sheet Metal Workers


          OPPOSITION:   (Verified8/12/16)


          Associated Builders and Contractors of California
          California Chamber of Commerce
          California Manufacturers and Technology Association
          Professional Association of Specialty Contractors


          ARGUMENTS IN SUPPORT:      According to proponents, this bill  
          seeks to correct an oversight in the Board variance application  
          process with respect to requests for an elevator, or other  
          public conveyances variance. They argue that with these variance  
          requests, the building owner is not required to notify those  
          employees who will be installing the conveyance for which a  
          variance application has been filed. They note that  
          approximately 90% of all permanent variance applications are for  
          elevators and other public conveyances, and approximately 95% of  
          these installations are done by the men and women of the  
          International Union of Elevator Constructors. This bill, they  
          argue, simply requires that the variance applicant provide  
          notice to these workers, or their representatives, of the  
          application for a safety order variance. 









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          The author and proponents believe that this bill will help  
          guarantee that a variance request receives a thorough and fair  
          hearing, while making certain that the Board has all of the  
          relevant facts before making a decision on a variance request.   
          They argue that this bill ensures that those workers who will be  
          the ones actually doing the work will be notified as part of the  
          application process and will be allowed to participate in the  
          variance hearing.  


          ARGUMENTS IN OPPOSITION:      According to opponents, this bill  
          is substantially similar to AB 578 (Low) from last year, which  
          Governor Brown vetoed, indicating that it was unclear which  
          employees would be affected by the new notice requirements and  
          questioned why the existing process was not sufficient to  
          protect workers' rights.  Opponents of this bill are opposed  
          unless amended arguing that this bill creates expansive new  
          notification requirements for conveyance variance applicants and  
          such an expansion creates a number of compliance and enforcement  
          issues.


          First, they argue, the tasks and personnel who will perform them  
          are not determined until the variance is granted and the  
          associated work is undertaken, while the notice requirements are  
          imposed at the beginning of the process. Second, the workers who  
          perform tasks pursuant to an elevator variance are not limited  
          to elevator mechanics - administrative, management and other  
          functions are often required by the variance, complicating the  
          proposed notification requirements further. And third, they  
          argue that expanding the notification requirements and granting  
          party status to such a broad spectrum opens the door to abuse by  
          periphery interests and could cause additional delays in the  
          process. 


          Opponents are proposing an amendment that would strike the  
          notification requirement "to those workers who will be  
          performing the tasks pursuant to the proposed variance or their  
          authorized representative" as well as strike the language  
          granting these workers party status.  They argue that these  
          proposed amendments address the notification to the union  
          without subjecting employers to the onerous requirement of  
          searching out the identity and contact information for personnel  







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          of contracted conveyance companies. Further, they argue that the  
          proposed amendments would prevent potential abuse of an  
          expansion of parties and keep potential delays in the process  
          under control. 


          ASSEMBLY FLOOR:  62-7, 5/26/15
          AYES:  Achadjian, Alejo, Baker, Bonilla, Bonta, Brown, Burke,  
            Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper,  
            Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia,  
            Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,  
            Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey,  
            Levine, Linder, Lopez, Low, Maienschein, McCarty, Medina,  
            Mullin, Nazarian, Obernolte, O'Donnell, Perea, Quirk, Rendon,  
            Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark  
            Stone, Thurmond, Ting, Wagner, Waldron, Weber, Williams, Wood,  
            Atkins
          NOES:  Bigelow, Beth Gaines, Gallagher, Grove, Jones, Patterson,  
            Wilk
          NO VOTE RECORDED:  Travis Allen, Bloom, Brough, Chávez, Dahle,  
            Hadley, Harper, Mathis, Mayes, Melendez, Olsen

          Prepared by:Alma Perez-Schwab / L. & I.R. / (916) 651-1556
          8/15/16 20:26:52


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