BILL NUMBER: SB 402 AMENDED BILL TEXT AMENDED IN SENATE MAY 28, 1999 AMENDED IN SENATE MAY 18, 1999 AMENDED IN SENATE APRIL 20, 1999 AMENDED IN SENATE APRIL 8, 1999 INTRODUCED BY Senator Burton and Assembly Member Villaraigosa (Principal coauthors: Senators Baca, Karnette, and Ortiz) (Principal coauthors: Assembly Members Shelley and Wiggins) (Coauthors: Senators Dunn, Escutia, Figueroa, Hayden,and Perata)Perata, and Solis) (Coauthors: Assembly Members Aroner , Cardoza , Firebaugh, Havice, Keeley, Knox, Kuehl, Machado, Mazzoni, Pescetti, Romero, Scott, Thomson, and Washington) FEBRUARY 12, 1999 An act to add Section 1281.1 to, and to add Title 9.5 (commencing with Section 1299) to Part 3 of, the Code of Civil Procedure, relating to public employment relations. LEGISLATIVE COUNSEL'S DIGEST SB 402, as amended, Burton. Employer-employee relations: law enforcement officers and firefighters. Existing law provides that employees of the fire departments and fire services of the state, counties, cities, cities and counties, districts, and other political subdivisions of the state have the right to self-organization, to form, join, or assist labor organizations, and to present grievances and recommendations regarding wages, salaries, hours, and working conditions to the governing body, but do not have the right to strike or to recognize a picket line of a labor organization while in the course of the performance of their official duties. This bill would provide that if an impasse has been declared after the representatives of an employer and firefighters or law enforcement officers have exhausted their mutual efforts to reach agreement over wages, hours, and other terms and conditions of employment, if the parties are unable to agree to the appointment of a mediator, or if a mediator is unable to effect settlement of a dispute between the parties, the employee organization may request, by written notification to the employer, that their differences be submitted to an arbitration panel. Each party would designate one member of the panel, and those members would designate the chairperson of the panel pursuant to specified procedures. The arbitration panel would meet with the parties within 10 days after its establishment or any additional periods to which the parties agree, and make inquiries and investigations, hold hearings, and take any other action, including further mediation, that the panel deems appropriate. Five days prior to the commencement of the arbitration panel's hearings, each of the parties would be required to submit a last best offer of settlement on the disputed issues as a package. The panel would decide the disputed issues by selecting the last best offer package that most nearly complies with specified factors. There would then be a waiting period of 5 days prior to public disclosure, or a longer period if agreed to, during which the parties could mutually amend the decision. At the end of that period, the arbitration panel's decision, as amended by the parties, would be disclosed, and would be binding upon the parties. By requiring local agencies to utilize arbitration to reach agreement on terms and conditions of employment, this bill would impose a state-mandated local program. This bill would authorize a local agency to make its provisions inapplicable to that local agency by obtaining voter approval of an ordinance making the bill inapplicable. This bill would provide that it shall become operative on January 1, 2001. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement, including the creation of a State Mandates Claims Fund to pay the costs of mandates that do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000. This bill would provide that no reimbursement shall be made from the State Mandates Claims Fund for costs mandated by the state pursuant to this act, but would recognize that local agencies and school districts may pursue any available remedies to seek reimbursement for these costs. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:noyes . THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1281.1 is added to the Code of Civil Procedure, to read: 1281.1. For the purposes of this article, any request to arbitrate made pursuant to subdivision (a) of Section 1299.4 shall be considered as made pursuant to a written agreement to submit a controversy to arbitration. SEC. 2. Title 9.5 (commencing with Section 1299) is added to Part 3 of the Code of Civil Procedure, to read: TITLE 9.5. ARBITRATION OF FIREFIGHTER AND LAW ENFORCEMENT OFFICER LABOR DISPUTES 1299. The Legislature hereby finds and declares that strikes taken by firefighters and law enforcement officers againstprivate andpublic employers are a matter of statewide concern, are a predictable consequence of labor strife and poor morale that is often the outgrowth of substandard wages and adverse working conditions, and are not in the public interest. The Legislature further finds and declares that the dispute resolution procedures contained in this title provide the appropriate method for resolvingprivate orpublic sector labor disputes that would otherwise lead to strikes by firefighters or law enforcement officers.The Legislature recognizes that strikes by firefighters and law enforcement officers against their private employers, including but not limited to aerospace, ambulance, chemical processing, hazardous materials response, oil recovery and refining, prison, railroad, security service, and other industries that employ those firefighters and law enforcement officers, threatens the health and welfare of the public in a manner analogous to strikes by firefighters and law enforcement officers against their governmental employers.It is the intent of the Legislature to protect the health and welfare of the public by providing impasse remedies necessary to affordprivate andpublic employers the opportunity to safely alleviate the effects of labor strife that would otherwise lead to strikes by firefighters and law enforcement officers. It is further the intent of the Legislature that, in order to effectuate its predominant purpose, this title be construed to apply broadly to allprivate andpublic employers, including, but not limited to, charter cities, counties, and cities and counties in this state. It is not the intent of the Legislature to alter the scope of issues subject to collective bargaining betweenprivate orpublic employers and employee organizations representing firefighters or law enforcement officers. The provisions of this title are intended by the Legislature to govern the resolution of impasses reached in collective bargaining betweenprivate orpublic employers and employee organizations representing firefighters and law enforcement officers over issues that remain in dispute over their respective interests. However, the provisions of this title are not intended by the Legislature to be used as a procedure to determine the rights of any firefighter or law enforcement officer in any grievance initiated as a result of a disciplinary action taken by anyprivate orpublic employer. The Legislature further intends that this title shall not be construed to apply to any community-oriented policing policy or to any process employed by an employer to impose discipline against any firefighter or law enforcement officer, nor to contravene any provision of a charter that governs an employer that is a city, county, or city and county, which provision prescribes a procedure for the imposition of any disciplinary action taken against a firefighter or law enforcement officer. 1299.2. This title shall apply to all employers of firefighters and law enforcement officers. 1299.3. As used in this title: (a) "Employee" means any firefighter or law enforcement officer represented by an employee organization defined in subdivision (b). (b) "Employee organization" means any organization recognized by the employer for the purpose of representing firefighters or law enforcement officers in matters relating to wages, hours, and other terms and conditions of employment. (c) "Employer" means the state or any local agency, a person, firm, partnership, corporation, limited liability company, association, or any entity acting as an agent of an employer, either directly or indirectly.employing employees, as defined in subdivision (a), or any entity acting as an agent of the state or local agency, either directly or indirectly. (d) "Firefighter" means any person who is employed to perform firefighting, fire prevention, fire training, hazardous materials response, emergency medical services, fire or arson investigation, or any related duties, without respect to the rank, job title, or job assignment of that person. (e) "Law enforcement officer" means any person whomay exercise the powers of arrest, have the authority and responsibility for maintaining custody of prisoners, or who otherwise may exercise police powers on behalf of his or her employeris a peace officer as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code , without respect to the rank, job title, or job assignment of that person. (f) "Local agency" means any governmental subdivision, district, public and quasi-public corporation, joint powers agency, public agency or public service corporation, town, city, county, city and county, or municipal corporation, whether incorporated or not or whether chartered or not. (g) "State" means the Governor or his or her designated representatives. 1299.4. (a) If an impasse has been declared after the parties have exhausted their mutual efforts to reach agreement over wages, hours, and other terms and conditions of employment, if the parties are unable to agree to the appointment of a mediator, or if a mediator agreed to by the parties is unable to effect settlement of a dispute between the parties after his or her appointment, the employee organization may, by written notification to the employer, request that their differences be submitted to an arbitration panel. (b) Within three days after receipt of the written notification, each party shall designate a person to serve as its member of an arbitration panel. Within five days thereafter, or within additional periods to which they mutually agree, the two members of the arbitration panel appointed by the parties shall designate an impartial and experienced person to act as chairperson of the arbitration panel. In the event that the two members of the arbitration panel are unable to agree upon a chairperson, the mediator referred to in subdivision (a) may be designated chairperson. (c) In the event that the mediator is unable or unwilling to serve as chairperson, the two members of the arbitration panel shall jointly request from the American Arbitration Association a list of seven impartial and experienced persons who are familiar with matters of employer-employee relations. The two panel members may as an alternative, jointly request a list of seven names from the California State Mediation and Conciliation Service, or a list from either entity containing more or less than seven names, so long as the number requested is an odd number. If after five days of receipt of the list, the two panel members cannot agree on which of the listed persons shall serve as chairperson, they shall, within two days, alternately strike names from the list, with the first panel member to strike names being determined by lot. The last person whose name remains on the list shall be chairperson. (d) During the course of the dispute resolution process initiated pursuant to subdivision (a), any employee subject to this chapter who willfully engages in a strike against his or her employer that endangers public safety shall be dismissed from his or her employment and may not be reinstated or returned to employment except as anew employee. No employer shall have the power to grant amnesty to any employee charged with engaging in a strike against that employer.new employee. 1299.5. (a) The arbitration panel shall, within 10 days after its establishment or any additional periods to which the parties agree, meet with the parties or their representatives, either jointly or separately, make inquiries and investigations, hold hearings, and take any other action including further mediation, that the arbitration panel deems appropriate. (b) For the purpose of its hearings investigations, or inquiries, the arbitration panel may subpoena witnesses, administer oaths, take the testimony of any person, and issue subpoenas duces tecum to require the production and examination of any employer's or employee organization's records, books, or papers relating to any subject matter in dispute. 1299.6. (a) The arbitration panel shall direct that five days prior to the commencement of its hearings, each of the parties shall submit the last best offer of settlement as to each of the issues made in bargaining as a proposal or counterproposal on those issues not tentatively agreed to by the parties prior to any arbitration request made pursuant to subdivision (a) of Section 1299.4. The arbitration panel, within 30 days after the conclusion of the hearing, or any additional period to which the parties agree, shall separately decide on each of the disputed issues submitted by selecting, without modification, the last best offer that most nearly complies with the applicable factors described in subdivision (c). This subdivision shall be applicable except as otherwise provided in subdivision (b). (b) The arbitration panel shall direct that five days prior to the commencement of its hearings, each of the parties shall submit as a package, the last best offer of settlement made in bargaining as a proposal or counterproposal on those issues not tentatively agreed to by the parties prior to any arbitration request made pursuant to subdivision (a) of Section 1299.4. The arbitration panel, within 30 days after the conclusion of the hearing, or any additional period to which the parties agree, shall decide on the disputed issues submitted by selecting, without modification, the last best offer package that most nearly complies with the applicable factors described in subdivision (c). This subdivision shall be applicable in lieu of subdivision (a) only if the employer, in the same written notification specified in subdivision (a) of Section 1299.4, receives written notice from the employee organization that it has elected to be subject thereto. (c) The arbitration panel, unless otherwise agreed to by the parties, shall limit its findings to issues within the scope of representation and shall base its findings, opinions, and decisions upon those factors traditionally taken into consideration in the determination of wages, hours, and other terms and conditions of employment, including but not limited to the following factors, as applicable: (1) The stipulations of the parties. (2) The interest and welfare of the public. (3) The financial condition of the employer and its ability to meet the costs of the award. (4) The availability and sources of funds to defray the cost of any changes in wages, hours, and other terms and conditions of employment. (5) Comparison of wages, hours, and other terms and conditions of employment of other employees performing similar services in corresponding fire or law enforcement employment.(5)(6) The average consumer prices for goods and services, commonly known as the Consumer Price Index.(6)(7) The peculiarity of requirements of employment, including, but not limited to, mental, physical, and educational qualifications; job training and skills; and hazards of employment.(7)(8) Changes in any of the foregoing that are traditionally taken into consideration in the determination of wages, hours, and other terms and conditions of employment. 1299.7. (a) The arbitration panel shall mail or otherwise deliver a copy of the decision to the parties. However, the decision of the arbitration panel shall not be publicly disclosed, and shall not be binding, for a period of five days after service to the parties. During that five-day period, the parties may meet privately, attempt to resolve their differences and, by mutual agreement, amend or modify the decision of the arbitration panel. (b) At the conclusion of the five-day period, which may be extended by the parties, the arbitration panel's decision, as may be amended or modified by the parties pursuant to subdivision (a), shall be publicly disclosed and shall be binding on all parties. 1299.8. Unless otherwise provided in this title, Title 9 (commencing with Section 1280) of this part shall be applicable to any arbitration proceeding undertaken pursuant to this title. 1299.9. (a) The provisions of this title shall not apply to any employer that is a city, county, or city and county, governed by a charter that was amended prior to January 1, 2000, to incorporate a procedure requiring the submission of all unresolved disputes relating to wages, hours, and other terms and conditions of employment to an impartial and experienced neutral person or panel for final and binding determination, provided however that the charter amendment is not subsequently repealed or amended in a form that would no longer require the submission of all unresolved disputes relating to wages, hours, and other terms and conditions of employment to an impartial and experienced neutral person or panel, for final and binding determination. (b) The provisions of this title shall not apply to any employer that is a local agency if the governing board of the local agency submits to the voters at a general or special election in 2000, a proposed ordinance that provides that this title does not apply to the local agency and that ordinance is approved by a majority of the votes cast on the measure in the election. (c) This title shall become operative on January 1, 2001. SEC. 3. The Legislature finds and declares that the duties of local agency employer representatives under this act are substantially similar to the duties required under present collective bargaining procedures and therefore the costs incurred by the local agency employer representatives in performing those duties are not reimbursable as state-mandated costs. SEC. 4. No reimbursement shall be made from the State Mandates Claims Fund pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code for costs mandated by the state pursuant to this act. It is recognized, however, that a local agency or school district may pursue any remedies to obtain reimbursement available to it under Part 7 (commencing with Section 17500) and any other provisions of law.