Monday, April 23, 2007

AB 553 - SEIU Attempts a Power Play

AB 553 would dramatically expand PERB’s jurisdiction under the MMBA to cover all public employee strikes, even those that do not otherwise constitute an unfair practice. Currently, there are categories of strikes that fall outside of PERB’s jurisdiction. For example, the MMBA itself divests PERB of jurisdiction over strikes involving local agency peace officers or employees of the City or County of Los Angeles, even if the strike would otherwise be an unfair practice. PERB also lacks jurisdiction over strikes that do not constitute unfair practices but are illegal under other California laws, such as the Labor Code § 1962 prohibition of strikes by firefighters. Most importantly, California common law prohibits a public employee strike when the strike “creates a substantial and imminent threat to the health or safety of the public.”

If enacted, AB 553 would arguably give jurisdiction over requests to enjoin strikes that threaten public health and safety. This is a concern for local agencies throughout California because local courts are often in the best position to quickly determine whether a strike threatens public health and safety. Additionally, it is unclear whether PERB could actually seek to enjoin a strike that threatens public health and safety as PERB has never held such strikes to be unfair practices and PERB has no jurisdiction to enforce California common law. It is also unclear whether PERB’s decision not to seek an injunction would bar a local agency from subsequently applying directly to a court to enjoin a strike that threatens public health and safety.

The language of AB 553 is also broad enough that public employee strikes against the City or County of Los Angeles would likely fall under PERB’s jurisdiction. However, since PERB has no jurisdiction to determine unfair practices involving the City or County of Los Angeles, it is unclear how a strike against these public agencies could ever be enjoined by PERB. In addition, AB 553 would also apply to peace officer strikes, even though most peace officers are not otherwise under PERB’s jurisdiction.

A hearing on AB 553 has been set for May 2, 2007.