BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 950


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          Date of Hearing:   June 22, 2016


           ASSEMBLY COMMITTEE ON PUBLIC EMPLOYEES, RETIREMENT, AND SOCIAL  
                                      SECURITY


                                  Rob Bonta, Chair


          SB  
          950 (Nielsen) - As Amended April 27, 2016


          SENATE VOTE:  39-0


          SUBJECT:  Excluded employees:  arbitration


          SUMMARY:  Establishes the Excluded Employee Arbitration Act  
          which would authorize binding arbitration on behalf of an  
          excluded state employee for alleged violations of working  
          conditions, as specified, whose grievance has not been resolved  
          after the fourth level of review.  Specifically, this bill:  





          1)Creates the Excluded Employee Arbitration Act which authorizes  
            an employee organization that represents an excluded employee  
            to request binding arbitration when the following conditions  
            are met:



             a)   The excluded employee has filed a grievance with the  
               California Department of Human Resources (CalHR) alleging a  








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               violation of Title 2, California Code of Regulations.



             b)   The grievance has not been resolved satisfactorily at  
               the fourth level of review.



             c)   In cases where there is no fourth level of review, the  
               employee organization requests arbitration in writing to  
               CalHR within 21 days of a decision rendered at the third  
               level of review.



          2)Defines arbitration as the binding ruling that resolves an  
            excluded employee grievance at the fifth level of the excluded  
            employee grievance process.



          3)Requires CalHR and the employee organization, following a  
            request for arbitration, to designate a standing panel of at  
            least 20 arbitrators to be made available for resolving  
            arbitrations authorized by this bill.



          4)Provides that if fewer than three arbitrators are available,  
            then the employee organization or the employer may obtain the  
            names of an additional five arbitrators from the California  
            State Mediation and Conciliation Service within the Department  
            of Industrial Relations.

          5)Sets forth a process whereby the employee organization and the  
            employer may consecutively strike any arbitrator from the  
            arbitration panel until the name of one arbitrator is agreed  
            upon, or, if no agreement is made, the last remaining person  








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            on the panel shall be designated the arbitrator.  The name of  
            that arbitrator shall be submitted in writing to CalHR.





          6)Provides that if the employee organization does not submit its  
            choice of an arbitrator within 45 days after requesting  
            arbitration, the request for arbitration shall be considered  
            withdrawn.



          7)Requires the arbitrator to issue a decision for each grievance  
            heard during the arbitration.  The decision shall be based  
            solely on the written record in the grievance, the grievance  
            response, and the oral presentations made at the arbitration.   


          8)Makes the arbitrator's decision legally binding.





          9)Requires the arbitrator to issue a written decision within 45  
            days of the conclusion of the hearing.



          10)Requires the arbitrator to order that the non-prevailing  
            party pay the cost of the arbitration.  The arbitrator is  
            prohibited from ordering the excluded employee to pay the cost  
            of arbitration and specifies that the cost of arbitration  
            cannot be passed on to the excluded employee.

          11)Codifies the intent of the Legislature that:  (1) state  
            excluded employees shall have the right to arbitration as a  








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            fifth step to the excluded employee grievance procedure; (2)  
            the present grievance procedure leaves too many grievances  
            unresolved; and (3) this lack of resolution has caused more  
            cases to be filed in California's courts, which should have  
            been resolved at a lower level.





          EXISTING LAW:   


          1)Establishes the Ralph C. Dills Act (Dills Act) which sets  
            forth a framework that governs labor relations between the  
            state and state employees.



          2)Excepts from the Dills Act's definition of state employee:  
            managerial employees, confidential employees, supervisory  
            employees, and other employees, as defined.



          3)Establishes the Bill of Rights for State Excluded Employees  
            which defines excluded employees as those employees excepted  
            from the Dills Act.



          4)Provides that the purpose of the Bill of Rights for State  
            Excluded Employees includes informing excluded employees of  
            their rights and terms and conditions of employment and also  
            serves to promote harmonious personnel relations among those  
            representing state management in the conduct of state affairs.











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          5)Prohibits excluded employees from holding office in employee  
            organizations representing rank and file employees or  
            participating in any employee representational matters on  
            behalf of non-excluded employees.



          6)Provides that excluded employee organizations shall have the  
            right to represent their excluded members in their employment  
            relations, including grievances, with the State of California.



          7)Authorizes supervisory employees to form, join and participate  
            in the activities of supervisory organizations of their own  
            choosing for purposes of representation on all matters of  
            supervisory employee relations, as provided, or to refrain  
            from so doing.  They also have the right to represent  
            themselves individually in their employment relations with the  
            state employer.



          8)Authorizes CalHR to adopt reasonable rules and regulations for  
            the administration of employer-employee relations.



          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee, CalHR indicates that it would incur increased  
          staffing costs representing itself and other departments in  
          arbitration as a result of the bill. The number of additional  
          grievances/arbitrations that would result is unknown; however,  
          CalHR estimates a cost of $40,000 per arbitration (General  
          Fund). However, the bill's costs would be partially offset to  
          the extent that CalHR were to win arbitration proceedings. 











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          COMMENTS:  Current law authorizes CalHR to adopt reasonable  
          rules and regulations for the administration of  
          employer-employee relations.  CalHR has adopted regulations that  
          set out a Grievance and Appeal Procedure for excluded employees.





          Under Title 2, Section 599.859 of the California Code of  
          Regulations, supervisory employee organizations or individual  
          supervisors may pursue resolution of disagreements over issues  
          with their employer that fall within the jurisdiction of CalHR  
          through a grievance procedure that typically includes an  
          informal review and four formal levels of review by the employer  
          according to the following timeline:





            Informal Level:  Within 5 work days of the incident, an  
            informal discussion between the excluded employee and the  
            employee's supervisor or manager.





            Level 1:  If unsatisfied with the informal review, the  
            employee may file a formal grievance within 10 work days of  
            the incident and the employer's designee for the first level  
            of review must respond within 10 working days.





            Level 2:  The employee may appeal the employer's Level 1  








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            decision within 10 work days of receipt of the employer's  
            response and the employer's designee for the second level of  
            review must respond within 15 work days.





            Level 3:  The employee may appeal the employer's Level 2  
            decision within 10 work days of receipt of the employer's  
            response and the employer's designee for the third level of  
            review must respond within 15 work days.





            Level 4:  The employee may appeal the employer's Level 3  
            decision to CalHR within 10 work days of receipt of the  
            employer's response and CalHR's designee for the fourth level  
            of review must responds within 20 work days.





            Upon denial at the fourth level of review, the employee or the  
            employee organization representing the employee may pursue a  
            claim with the State Personnel Board, the Department of Fair  
            Employment and Housing, or the State Superior Court depending  
            on the issue in dispute.





          According to the sponsor, "This bill would improve the excluded  
          employee grievance process to make it effective.  Currently, the  
          excluded employee grievance system is virtually illusory for  








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          excluded employees and is functioning at an unenforceable level.  
           Of all the grievances filed, 99% are denied because there is no  
          consequence for the state agency to not follow the rules, and  
          there is no objective oversight.  As it stands now, the state  
          agencies will deny all grievances because it's in their best  
          interest and there is nowhere for the excluded employee to go,  
          it is a closed system.  To combat this, excluded employee  
          organizations have been going to Superior Court of the State  
          Personnel Board.  This is very costly for the state and the  
          employee organizations and takes years to resolve.  This means  
          that a simple low-cost or no-cost grievance can and has cost the  
          stat thousands of dollars because they do not want to admit when  
          they are wrong."





          Prior/Related Legislation:





          AB 526 (Evans) of 2007 would have permitted an excluded employee  
          to request mediation after the fourth level of review.  This  
          bill was held on suspense in the Assembly Appropriations  
          Committee.





          AB 1584 (Evans) of 2006 would have permitted an excluded  
          employee to request mediation after the fourth level of review.   
          This bill was held in the Senate Appropriations Committee. 











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          AB 1258 (Matthews) of 2003 would have established arbitration  
          procedures for supervisory employees of the Department of  
          Corrections and the Department of the Youth Authority.  This  
          bill died at the Assembly Desk without committee referral.





          AB 2802 (Strom-Martin) of 2002 would have established  
          arbitration procedures for supervisory employees of the  
          Department of Corrections and the Department of the Youth  
          Authority.  The bill was held on suspense in the Assembly  
          Appropriations Committee.       





          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Correctional Supervisors Organization (Co-Sponsor) 


          Association of California State Supervisors (Co-Sponsor)


          Association for Los Angeles Deputy Sheriffs
          California Association of Code Enforcement Officers










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          California College and University Police Chiefs Association


          California Narcotic Officers Association 


          Civil Justice Association of California


          Los Angeles County Professional Peace Officers Association


          Los Angeles Police Protective League
          Professional Engineers in California Government


          Riverside Sheriffs Association


          Opposition


          None on file




          Analysis Prepared by:Karon Green / P.E.,R., & S.S. / (916)  
          319-3957