BILL NUMBER: SB 402 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 29, 2000
AMENDED IN ASSEMBLY SEPTEMBER 7, 1999
AMENDED IN ASSEMBLY JUNE 28, 1999
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, Perata, and
Solis)
(Coauthors: Assembly Members Aroner, Cardoza, Firebaugh, Havice,
Keeley, Knox, Kuehl, Machado, Mazzoni, Rod Pacheco, Pescetti, Romero,
Scott, Thomson, Washington, and Wildman)
FEBRUARY 12, 1999
An act to add and repeal Section 1281.1 of, and to add and repeal
Title 9.5 (commencing with Section 1299) of 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 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 within the scope of arbitration, 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, 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.
The bill would authorize the chief law enforcement officer of an
employer to notify the arbitration panel of his or her intent to
remove from consideration any issue included as a part of a last best
offer of settlement on the basis that it would foreclose the ability
of that law enforcement officer to protect the public. An employee
organization would be authorized to take specified actions upon
receipt of such a notice.
This bill would provide that unless otherwise agreed to by the
parties, the costs of the arbitration proceeding and the expenses of
the arbitration panel, except those of the employer representative,
shall be borne by the employee organization.
The provisions of this bill would repeal on January 1, 2005.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
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. (a) 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.
(b) This section shall remain in effect only until January 1,
2005, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2005, deletes or extends
that date.
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 against public
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 resolving public sector
labor disputes that would otherwise lead to strikes by firefighters
or law enforcement officers.
It is the intent of the Legislature to protect the health and
welfare of the public by providing impasse remedies necessary to
afford public 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 all public
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 between public 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
between public 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 any public employer. The Legislature
further intends that this title shall not apply to any law
enforcement policy that pertains to how law enforcement officers
interact with members of the public or pertains to police-community
relations, such as policies on the use of police powers, enforcement
priorities and practices, or supervision, oversight, and
accountability covering officer behavior toward members of the
public, to any community-oriented policing policy or to any process
employed by an employer to investigate firefighter or law enforcement
officer behavior that could lead to 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 within the scope of arbitration.
(c) "Employer" means any local agency employing employees, as
defined in subdivision (a), or any entity acting as an agent of any
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 who is a peace
officer as defined in Section 830.1 of, subdivisions (b) and (d) of
Section 830.31 of, subdivisions (a), (b), and (c) of Section 830.32
of, subdivisions (a), (b), and (d) of Section 830.33 of, subdivisions
(a) and (b) of Section 830.35 of, subdivision (a) of Section 830.5
of, and subdivision (a) of Section 830.55 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) "Scope of arbitration" shall be limited to only those issues
that are within the scope of representation as defined in Section
3504 of the Government Code. The scope of arbitration shall not
include any issue that is protected by what is commonly referred to
as the "management rights" clause contained in Section 3504 of the
Government Code.
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 within the scope
of arbitration, 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 title 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 a 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 previously 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 previously 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
arbitration 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 within the scope of arbitration, 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 within the scope of arbitration.
(5) Comparison of wages, hours, and other terms and conditions of
employment within the scope of arbitration of other employees
performing similar services in corresponding fire or law enforcement
employment.
(6) The average consumer prices for goods and services, commonly
known as the Consumer Price Index.
(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.
(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 within the scope of arbitration.
1299.7. (a) Notwithstanding subdivision (g) of Section
1299.3, the chief law enforcement officer of an employer may, prior
to the commencement of the arbitration hearing, notify the
arbitration panel of his or her intent to remove from consideration
any issue included as a part of a last best offer of settlement, upon
the basis that it would foreclose his or her ability to protect the
public, including his or her ability to eradicate any existence of
law enforcement corruption, deploy law enforcement personnel during
an emergency, staff patrol cars, control weapons usage, or impose
discipline.
(b) Upon receipt of a notice from the chief law enforcement
officer of the employer, the employee organization may do any of the
following:
(1) Withdraw the last best offer of settlement that addresses the
issue noticed for removal from consideration.
(2) Serve notice of an intent to dispute the basis of the noticed
removal of the issue included as a part of the last best offer of
settlement.
(c) If the employee organization has withdrawn a last best offer
of settlement that addresses any issue noticed for removal from
consideration, the arbitration panel shall proceed to those issues
that have not been removed or withdrawn.
(d) An employee organization that intends to dispute the basis for
the noticed removal of any issue from consideration may seek a
hearing in a court of competent jurisdiction to determine de novo
whether the issue included as a part of a last best offer of
settlement would foreclose the ability of the chief law enforcement
officer to protect the public.
1299.8. (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.
1299.9. Unless otherwise provided in this title, Title 9
(commencing with Section 1280) shall be applicable to any arbitration
proceeding undertaken pursuant to this title.
1299.9.
1299.10. (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
2001 , to incorporate a procedure requiring the
submission of all unresolved disputes relating to wages, hours, and
other terms and conditions of employment within the scope of
arbitration 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 within the scope of arbitration to an impartial and
experienced neutral person or panel, for final and binding
determination.
(b) Unless otherwise agreed to by the parties, the costs of the
arbitration proceeding and the expenses of the arbitration panel,
except those of the employer representative, shall be borne by the
employee organization.
1299.10.
1299.11. This title shall remain in effect only until
January 1, 2005, and as of that date is repealed, unless a later
enacted statute, that is enacted before January 1, 2005, deletes or
extends that date.
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.