BILL ANALYSIS Ó SB 950 Page 1 SENATE THIRD READING SB 950 (Nielsen) As Amended June 29, 2016 Majority vote SENATE VOTE: 39-0 ------------------------------------------------------------------ |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+----------------------+--------------------| |Public |6-0 |Waldron, Cooley, | | |Employees | |Cooper, Cristina | | | | |Garcia, O'Donnell, | | | | |Wagner | | | | | | | |----------------+-----+----------------------+--------------------| |Judiciary |10-0 |Mark Stone, Wagner, | | | | |Alejo, Chau, Chiu, | | | | |Gallagher, | | | | | | | | | | | | | | |Cristina Garcia, | | | | |Holden, Maienschein, | | | | |Ting | | | | | | | |----------------+-----+----------------------+--------------------| |Appropriations |20-0 |Gonzalez, Bigelow, | | SB 950 Page 2 | | |Bloom, Bonilla, | | | | |Bonta, Calderon, | | | | |Chang, Daly, Eggman, | | | | |Gallagher, Eduardo | | | | |Garcia, Holden, | | | | |Jones, Obernolte, | | | | |Quirk, Santiago, | | | | |Wagner, Weber, Wood, | | | | |McCarty | | | | | | | | | | | | ------------------------------------------------------------------ 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 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 SB 950 Page 3 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 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. A request that is withdrawn will not prevent the employee from pursuing other grievance procedures available by law. 7)Specifies that a party to the arbitration has the right to have a certified shorthand reporter transcribe the proceeding SB 950 Page 4 and the transcription will be the official record of the proceeding. 8)Requires the arbitrator to apply California law to the facts and 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. 9)Makes the arbitrator's decision legally binding. 10)Requires the arbitrator to issue a written decision within 45 days of the conclusion of the hearing. 11)Requires the arbitrator to order that the non-prevailing party pay the cost of the arbitration, including the cost of a certified shorthand reporter. 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. 12)Codifies the intent of the Legislature that: a) state excluded employees shall have the right to arbitration as a fifth step to the excluded employee grievance procedure; b) the present grievance procedure leaves too many grievances unresolved; and c) 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 SB 950 Page 5 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. 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. SB 950 Page 6 8)Authorizes CalHR to adopt reasonable rules and regulations for the administration of employer-employee relations. FISCAL EFFECT: According to the Assembly Appropriations Committee: Unknown fiscal impact. While the additional costs of this new arbitration to CalHR are approximately $40,000 General Fund (GF) per arbitration, there is considerable uncertainty about the total cost to the state. Specifically, the fiscal effect of this bill is dependent on the following factors: 1)Case outcomes. The costs of arbitration would be offset in instances when CalHR wins arbitration proceedings and is therefore compensated for its costs. 2)The impact of arbitration on other parts of the formal grievance procedure. The new arbitration process could create competing incentives within the grievance process. Currently, CalHR processes an average 150 grievances per year for excluded employees. It can be assumed a number of these would have been elevated to arbitration if such an option were available to employees, since arbitration is perceived as producing better outcomes for workers. Even a handful of additional cases that are elevated to arbitration would result in GF costs in excess of $150,000. However, this bill may also result in savings that are difficult to calculate in advance. The threat of arbitration could mean that an agreement between the employee and employer is reached earlier in the formal grievance process, thereby reducing administrative costs. Moreover, to the extent that arbitration is pursued instead of taking a case to court, CalHR could see significant reduction in litigation costs. SB 950 Page 7 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 California Code of Regulations Title 2, Section 599.859, 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 five 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 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 SB 950 Page 8 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 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. The bill was held on suspense in the Assembly Appropriations Committee. AB 1584 (Evans) of 2006 would have permitted an excluded SB 950 Page 9 employee to request mediation after the fourth level of review. The bill was held in the Senate Appropriations Committee. 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. The 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. Analysis Prepared by: Karon Green / P.E.,R., & S.S. / (916) 319-3957 FN: 0003994