California Legislature—2013–14 Regular Session

Assembly Bill No. 1536

Introduced by Assembly Member Olsen

(Coauthors: Assembly Members Bigelow, Conway, Mansoor, Melendez, Morrell, Patterson, Wagner, Waldron, and Wilk)

(Coauthor: Senator Huff)

January 21, 2014

An act to amend Sections 3610 and 3611 of, to amend the heading of Chapter 3 (commencing with Section 3610) of Division 4.5 of Title 1 of, to repeal Section 3616 of, and to repeal and add Sections 3612, 3613, 3614, and 3615 of, the Government Code, relating to public transportation employees.

LEGISLATIVE COUNSEL’S DIGEST

AB 1536, as introduced, Olsen. Public transportation employees: strikes: prohibition.

Existing law prescribes procedures governing disputes between exclusive bargaining representatives of public transportation employees and local agencies, and authorizes the Governor, when it appears a strike will significantly disrupt transportation services and endanger public health, safety, and welfare, to appoint a board to investigate issues in connection with these labor negotiations and make a report. Existing law prohibits a strike during the period of investigation and permits the Governor, upon receiving a report from a board of investigation, to request the Attorney General to petition a court to enjoin the strike, as specified.

This bill would repeal those provisions that authorize the Governor to appoint a board to investigate when it appears a strike will significantly disrupt transportation services, prohibit a strike during the period of investigation, and that authorize the Governor to request the Attorney General to petition a court to enjoin the strike. The bill would instead prohibit a state or local public transportation employee or public transportation employee organization from engaging in, causing, instigating, encouraging, or condoning a strike. The bill would also provide that a person who, on behalf of a public transportation employer, exercises authority, supervision, or direction over a public transportation employee shall not have the power to, and shall not purport to, authorize, approve, condone, or consent to a strike by a public transportation employee.

The bill would establish a process for a public transportation employee to object to a determination by the chief executive officer of the public transportation employer that he or she violated these provisions by filing a sworn affidavit under penalty of perjury, thus expanding the definition of a crime. The bill would require the chief executive officer, if he or she determines that the objection raises a question of fact that if resolved in favor of the employee would establish that the employee did not commit the violation, to appoint an officer to conduct a hearing on the matter at which the employee would bear the burden of proving by a preponderance of the evidence that he or she did not commit the violation, as specified. The bill would require the Public Employment Relations Board to hold a hearing to determine whether an employee organization violated these provisions, and would require the employer and the employee organization to be permitted to be represented by counsel.

The bill would provide that a public transportation employee who violates these provisions is subject to removal or other disciplinary action, and would authorize the chief financial officer of the employer to deduct from the compensation of a public transportation employee found to have violated these provisions an amount equal to twice his or her daily rate of pay for each day or part thereof that it was determined that he or she violated these provisions. The bill would also require the board, if it determines that an employee organization violated these provisions, to order forfeiture of specified rights granted by state law to recognized employee organizations.

The bill would also require the chief executive officer of the employer, within 60 days of the end of a strike, to prepare a written report, to be made public, that contains specified information regarding the circumstances surrounding the strike, the names of those public transit employees who the chief executive officer has reason to believe were responsible for causing, instigating, or encouraging the strike, and the sanctions imposed or proceedings pending against those employees.

Because the bill would expand the definition of a crime and require local officers to perform additional duties, the bill would impose a state-mandated local program.

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.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Vote:  begin delete ²⁄₃ end delete begin insert majority end insert . Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

SECTION 1.  

The heading of Chapter 3 (commencing with
Section 3610) of Division 4.5 of Title 1 of the Government Code
is amended to read:

 

Chapter  3. begin insert Prohibition of end insert Public Transportation begin delete Labor
Disputes end delete begin insert Employee Strikes end insert

 

SEC. 2.  

Section 3610 of the Government Code is amended to
read:

3610.  

The definitions set forth in this section shall govern the
construction and meaning of the terms used in this chapter:

(a) “Local agency” means any city, county, special district, or
other public entity in the state. It includes a charter city or a charter
county.

(b) “Public begin delete transit end delete begin insert transportation end insert employee” means an employee
of any begin delete transit end delete begin insert transportation end insert district of the begin delete state, an employee of
the Golden Gate Bridge, Highway and Transportation District, and
an employee end delete begin insert state or end insert of any local begin delete agency who is employed to work
for transit service provided by that end delete agency.

SEC. 3.  

Section 3611 of the Government Code is amended to
read:

3611.  

Notwithstanding any other law, the following provisions
shall govern disputes between exclusive bargaining representatives
of public begin delete transit end delete begin insert transportation end insert employees and local agencies:

(a) The disputes shall not be subject to any fact-finding
procedure otherwise provided by law.

(b) Each party shall exchange contract proposals not less than
90 days before the expiration of a contract, and shall be in formal
collective bargaining not less than 60 days before that expiration.

(c) Each party shall supply to the other party all reasonable data
as requested by the other party.

(d) At the request of either party to a dispute, a conciliator from
the California State Mediation and Conciliation Service shall be
assigned to mediate the dispute and shall have access to all formal
negotiations.

The provisions of this section shall not apply to any local agency
subject to the provisions of Chapter 10 (commencing with Section
3500) of Division 4.

SEC. 4.  

Section 3612 of the Government Code is repealed.

begin delete

3612.  

(a) Whenever in the opinion of the Governor, a
threatened or actual strike or lockout will, if permitted to occur or
continue, significantly disrupt public transportation services and
endanger the public’s health, safety, or welfare, and upon the
request of either party to the dispute, the Governor may appoint a
board to investigate the issues involved in the dispute and to make
a written report to him or her within seven days. The report shall
include a statement of the facts with respect to the dispute,
including the respective positions of the parties, but shall not
contain recommendations. The report shall be made available to
the public.

(b) Any strike or lockout during the period of investigation of
the board appointed pursuant to this section is prohibited.

end delete

SEC. 5.  

Section 3612 is added to the Government Code, to
read:

3612.  

Notwithstanding any other provision, a public
transportation employee or public transportation employee
organization shall not engage in, cause, instigate, encourage, or
condone a strike.

SEC. 6.  

Section 3613 of the Government Code is repealed.

begin delete

3613.  

The board of investigation shall be composed of no more
than five members, one of whom shall be designated by the
Governor as chairperson. Members of the board shall receive one
hundred dollars ($100) for each day actually spent by them in the
work of the board and shall receive their actual and necessary
expenses incurred in the performance of their duties.

The board may hold public hearings to ascertain the facts with
respect to the causes and circumstances of the dispute. For the
purpose of any hearing or investigation, the board may summon
and subpoena witnesses, require the production of papers, books,
accounts, reports, documents, records, and papers of any kind and
description, to issue subpoenas, and to take all necessary means
to compel the attendance of witnesses and procure testimony.

end delete

SEC. 7.  

Section 3613 is added to the Government Code, to
read:

3613.  

(a) A public transportation employee who violates
Section 3612 or subdivision (c) is subject to removal or other
disciplinary action.

(b) A public transportation employee who is absent from work
without permission, or who abstains wholly or in part from the
full performance of his or her duties in his or her normal manner
without permission, on the date or dates when a strike occurs, shall
be presumed to have engaged in the strike on that date or dates.

(c) A person who, on behalf of a public transportation employer,
exercises authority, supervision, or direction over a public
transportation employee shall not have the power to, and shall not
purport to, authorize, approve, condone, or consent to a strike by
a public transportation employee.

(d) If it appears that a violation of Section 3612 or subdivision
(c) may have occurred, within 60 days thereof the chief executive
officer of the employer shall, on the basis of any investigation or
affidavits as he or she may deem appropriate, determine whether
or not a violation has occurred and the date or dates of the violation.
If the chief executive officer determines that a violation has
occurred, he or she shall further determine, on the basis of any
further investigation and affidavits as he or she may deem
appropriate, the names of employees who committed the violation
and the date or dates thereof. The determination shall not be
deemed to be final until the completion of the procedures provided
for in this section.

(e) The chief executive officer shall notify each employee that
he or she has been determined, pursuant to subdivision (d), to have
committed a violation of Section 3612 or subdivision (c), the date
or dates of the violation, and of his or her right to object to the
determination pursuant to subdivision (h). The chief executive
officer shall also notify the chief financial officer of the names of
those employees and of the total number of days, or part thereof,
on which it has been determined that a violation occurred. Notice
to each employee shall be by personal service or by certified mail
to his or her last address filed with his or her employer.

(f) No compensation shall be paid by a public transportation
employer to a public transportation employee with respect to any
day or part thereof when the employee is engaged in a strike against
the employer. The chief financial officer of the employer shall
withhold that compensation upon receipt of the notice provided
by subdivision (e). Notwithstanding the failure to have received
the notice, no public transportation employee or officer having
knowledge that the employee has engaged in a strike shall deliver
or caused to be delivered to the employee any cash, check, or
payment that, in whole or in part, represents such compensation.

(g) No earlier than 30 days, nor later than 90 days, following
the date of a determination pursuant to subdivision (d), the chief
financial officer of the employer shall deduct from the
compensation of an employee found to have violated Section 3612
or subdivision (c) an amount equal to twice his or her daily rate
of pay for each day or part thereof that it was determined that he
or she violated Section 3612 or subdivision (c). In computing the
deduction, credit shall be allowed for amounts already withheld
from the employee’s compensation due to his or her absence from
work or other withholding of services. If the employee’s annual
compensation is paid over a period of time that is less than 52
weeks, the period of time between the last day of the last payroll
period of the employment term in which the violation occurred
and the first day of the first payroll period of the next succeeding
employment term shall be disregarded and not counted in
computing the 30-to-90-day period.

(h) (1) A public transportation employee who has been
determined pursuant to subdivision (d) to have committed a
violation of Section 3612 or subdivision (c) may object to the
determination by filing with the chief executive officer of the
public transportation employer, within 20 days of the date on which
notice was served or mailed to him or her pursuant to subdivision
(e), his or her sworn affidavit under penalty of perjury, supported
by available documentary proof, containing a short and plain
statement of the facts upon which he or she relies to show that the
determination is incorrect.

(2) If the chief executive officer determines that the affidavit
and supporting proof establishes that the employee did not commit
the violation, he or she shall sustain the objection. If the chief
executive officer determines that the affidavit and supporting proof
fails to establish that the employee did not commit the violation,
he or she shall dismiss the objection and notify the employee.

(3) If the chief executive officer determines that the affidavit
and supporting proof raises a question of fact that, if resolved in
favor of the employee, would establish that the employee did not
commit the violation, he or she shall appoint an officer to conduct
a hearing at which the employee shall bear the burden of proof. If
the hearing officer determines, based upon a preponderance of the
evidence, that the employee did not commit the violation, the chief
executive officer shall notify the employee of that determination.
If the hearing officer determines that the employee failed to
establish that he or she did not commit the violation, the chief
executive officer shall notify the employee of that determination.

(4) If the chief executive officer sustains the employee’s
objection or the hearing officer determines that the employee did
not violate this subdivision, the chief executive officer shall notify
the chief financial officer who shall thereupon cease all further
deductions from the employees’s compensation and refund any
deductions previously made from the employee’s compensation
pursuant subdivision (g).

SEC. 8.  

Section 3614 of the Government Code is repealed.

begin delete

3614.  

Upon receiving a report from a board of investigation,
the Governor may request the Attorney General to, and he or she
shall, petition any court of competent jurisdiction to enjoin the
strike or lockout or the continuing thereof, for a period of 60 days.
The court shall issue an order enjoining the strike or lockout, or
the continuation thereof, if the court finds that the threatened or
actual strike or lockout, if permitted to occur or continue, will
significantly disrupt public transportation services and endanger
the public’s health, safety, or welfare.

end delete

SEC. 9.  

Section 3614 is added to the Government Code, to
read:

3614.  

(a) A public transportation employee organization that
is determined to have violated Section 3612 shall, in accordance
with the provisions of this section, forfeit the rights granted to
recognized employee organizations by Chapter 10 (commencing
with Section 3500) of Division 4 or Chapter 10.3 (commencing
with Section 3512) of Division 4.

(b) If circumstances indicate that an employee organization may
have violated Section 3612, the chief executive officer of the public
transportation employer shall notify the chief legal officer of the
public transportation employer and the Public Employment
Relations Board. The chief executive officer of the employer shall
provide the board and the chief legal officer of the public
transportation employer the facilities, assistance, and data to enable
those entities to carry out their duties under this section.

(c) The chief legal officer of the public transportation employer,
or the board on its own motion, shall initiate proceedings before
the board to determine whether the violation occurred. Proceedings
against a public transportation employee organization under this
section shall be commenced by serving the employee organization
with a written notice and a copy of the charges. If the proceedings
are initiated by the board, a copy of the notice and charges shall
also be served upon the public transportation employer. The
employee organization shall have eight days to answer the charges.
The board shall promptly hold a hearing at which the employer
and the employee organization shall be permitted to be represented
by counsel and to summon witnesses in their behalf. Compliance
with the technical rules of evidence shall not be required.

(d) In determining whether an employee organization has
violated Section 3612, the board shall consider whether the
employee organization called the strike or tried to prevent it, and
whether the employee organization made a good faith effort to end
the strike.

(e) (1) If the board determines that an employee organization
violated Section 3612, the board shall order forfeiture of the rights
granted to recognized employee organizations by Chapter 10
(commencing with Section 3500) of Division 4 or Chapter 10.3
(commencing with Section 3512) of Division 4 for a specified
period of time in its discretion determines, or for an indefinite
period of time, subject to restoration upon application to the board.

(2) In fixing the duration of the forfeiture, the board shall
consider all the relevant facts and circumstances, including, but
not limited to, the extent of any intentional violation of Section
3612; the impact of the strike on the public health, safety, and
welfare of the community; and the financial resources of the
employee organization. The board may also consider whether the
employee organization or the public transportation employer, or
a representative thereof, refused to submit to mediation and
fact-finding procedures and whether, if alleged by the employee
organization, the public transportation employer, or a representative
thereof, engaged in acts of extreme provocation so as to detract
from the responsibility of the employee organization for the strike.

(3) Notice of an application for reinstatement of rights forfeited
pursuant to this subdivision shall be send to all interested parties
and supported by proof of good faith compliance with the
prohibitions of Section 3612 since the date of the violation. That
proof may include, but is not limited to, the successful negotiation
of a contract covering the employees in the unit affected by the
violation.

(f) After three years, an employee organization that forfeited
the rights granted to recognized employee organizations by Chapter
10 (commencing with Section 3500) of Division 4 or Chapter 10.3
(commencing with Section 3512) of Division 4 pursuant to this
section may have those rights reinstated by the Legislature.

SEC. 10.  

Section 3615 of the Government Code is repealed.

begin delete

3615.  

If the charter or establishing legislation of the local
agency establishes a time period for the negotiating or meeting
and conferring process which is shorter than 60 days, the provisions
of this chapter shall not be applicable to any disputes which may
arise between the exclusive bargaining representative of public
transit employees and the local agency.

end delete

SEC. 11.  

Section 3615 is added to the Government Code, to
read:

3615.  

Within 60 days of the end of a strike, the chief executive
officer of the public transportation employer shall prepare a written
report, which shall be made public, that contains the following
information:

(a) The circumstances surrounding the commencement of the
strike.

(b) The efforts made to terminate the strike.

(c) The names of public transportation employees who the chief
executive officer of the public transportation employer has reason
to believe were responsible for causing, instigating, or encouraging
the strike.

(d) The sanctions imposed or proceedings pending against those
public transportation employees related to the varying degrees of
actual or suspected individual responsibility.

SEC. 12.  

Section 3616 of the Government Code is repealed.

begin delete

3616.  

Except as expressly provided by subdivision (b) of
Section 3612 and Section 3614, nothing in this chapter shall be
construed to grant or deprive employees of a right to strike.

end delete

SEC. 13.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for certain
costs that may be incurred by a local agency or school district
because, in that regard, this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.

However, if the Commission on State Mandates determines that
this act contains other costs mandated by the state, reimbursement
to local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.