BILL ANALYSIS Ó
SB 950
Page 1
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withdrawn.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