BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1050|
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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: (Verified8/17/16)
Associated Builders and Contractors of California
California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California Hospital Association
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
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application for a safety order variance.
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
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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
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
8/17/16 14:40:49
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