BILL ANALYSIS                                                                                                                                                                                                    �



                                                                  SB 857
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          Date of Hearing:   August 17, 2011

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                Felipe Fuentes, Chair

                      SB 857 (Lieu) - As Amended:  July 7, 2011 

          Policy Committee:                              PERSSVote:4-1

          Urgency:     No                   State Mandated Local Program: 
          No     Reimbursable:              

           SUMMARY  

          This bill would prohibit an employer's recovery of damages 
          resulting from expenses incurred in anticipation of, or in 
          preparation for, an employee strike and states that this bill is 
          declarative of existing law.  

           FISCAL EFFECT  

          This bill will not have a significant fiscal effect.

           COMMENTS  

           1)Purpose.   According to the author, "In February of 2010, PERB 
            was hearing an unfair labor practice case between the 
            University of California system and the California Nurses 
            Association (CNA).  Largely made up of Schwarzenegger 
            appointees, PERB created out of whole-cloth a right which had 
            previously not existed: strike damages due to the threat of a 
            strike."  The author argues this decision flies in the face of 
            previous case law, specifically City and County of San 
            Francisco v. United Assn. of Journeymen, etc. (1986) 42 Cal.3d 
            810.

           2)Background  .  In this 2010 decision, PERB held it had the 
            authority to award damages as restitution to an employer which 
            suffered pre-strike preparation damages. ((California Nurses 
            Association v. Regents of the University of California) (2010) 
            PERB Decision No. 2094-H.)  PERB found that the failure by CNA 
            to exhaust their remedies before striking violated state law.  
            PERB awarded damages to UC for costs incurred in preparation 
            of the one-day strike.  PERB stated it had the power to award 
            strike damages because no Supreme Court decision had held that 








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            PERB has no authority to award damages as restitution for an 
            employer for unlawful strike activity.  The Court of Appeals 
            has declined to overturn the PERB decision (Cal. Nurses Assn. 
            v. Regents of the Univ. of Cal. (2010).  The case is still 
            active at PERB with regards to the damages. 

           3)Support.   The California Nurses Association (CNA), a supporter 
            of this bill and plaintiff in the case at issue, writes:

               "CNA strongly supports 857 because of our contentious 
               labor relations with the UC since having a 2005 strike 
               enjoined and the fact that the UC has spent over $3.5 
               million on a notorious union-busting law firm . . . 
               �which] is being used in efforts to strip workers of 
               fundamental rights and/or to shackle unions with costly 
               and time-consuming litigation when workers exercise these 
               rights.  In 2005, UC nurses planned to strike over UC's 
               failure to bargain in good faith over CNA's proposals for 
               safe staffing to provide and protect patient care in the 
               UC Medical Centers. . . . Later that year the contract 
               was settled.  Nevertheless, UC pursued charges against 
               CNA, and has claimed $9 million in damages."
               
           4)Opposition  .  Opponents argue SB 857 would remove the authority 
            of PERB to award damages resulting from an unlawful strike, 
            and as a result would encourage more unlawful strikes, costing 
            state and local governments significant amounts at a time when 
            they can least afford such costs.  UC states this bill would 
            perhaps be most problematic in its effects on the UC medical 
            centers, where modifying operations and hiring replacement 
            staff during strikes is particularly costly, and impacts 
            patient service. 

            "If the law is rewritten as proposed in SB 857 to ensure that 
            there will be no significant negative consequences for 
            violations of unlawful strike laws, there is little to no 
            incentive for unions to exercise caution in their approach to 
            a strike."




           Analysis Prepared by  :    Roger Dunstan / APPR. / (916) 319-2081 










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