AB 501 Would Bring JPA’s Under EERA; But Is It Necessary?

AB 501 was introduced by Assemblymember Nora Campos (D-San Jose) on February 15, 2011.  AB 501 would expand the definition of “public school employer” under EERA to include a joint powers agency (JPA) if: 1) the JPA is separate from the contracting parties to the joint powers agreement; 2) the JPA has its own employees; and, 3) the JPA is designated under statute or provides services primarily performed by either a “school district, county board of education, or county superintendent of schools” or is comprised solely of school agencies.

This bill was just introduced so there is no legislative analysis available.  However, the impetus for this bill appears to be PERB’s decision in North Orange County Regional Occupational Program (1990) PERB Decision N. 857-E (“North Orange County”) issued in 1990.  In that case, PERB overturned prior precedent by holding that a JPA created by five school districts was not a “public school employer” for purposes of EERA.  In 1999, Assemblymember Hertzberg introduced AB 91 which would have overturned the North Orange County decision and brought JPAs under EERA’s jurisdiction.  That bill was vetoed by the Governor because of the potential costs to the state and school districts.

In 2007, Assemblymember Eng introduced AB 1463 which would have accomplished the same result as AB 91.  That bill did not make it out of the Legislature.  Now, Assemblymember Campos has introduced AB 501, which is nearly identical to the prior AB 1463.

In addition to overturning North Orange County, AB 501 would also likely overturn the Board's decision in Castaic Union School District (2010) PERB Decision No. Ad-384 ("Castaic") (Note: Castaic is currently on appeal) which held that school noon-duty aides are not "employees" within the meaning of EERA.  The Board's decision in Castaic was based on EERA section 3540.1 which states that an exclusive representative under EERA must represent either classified or certificated employees.  Since the noon-duty aides at issue were neither, Board held that they were not covered by EERA.  AB 501 would change section 3540.1 to remove the requirement that an employee be either a classified or certificated employee.

Comments:

1. According to the Assembly analysis of AB 1463, the result of the North Orange County decision was that JPAs became subject to the MMBA instead of EERA. The analysis stated that, “JPAs must comply with the MMBA which calls for a "meet and confer" process but does not provide all of the procedural elements of the EERA which could result in egregious labor abuses.  For example, it is possible for a JPA to lay off workers and hire them back with reduction in salary, hours, working conditions, and classification changes without regard to negotiated criteria under MMBA.”
2. The Senate analysis stated that because of the North Orange County decision, “JPAs were not required to engage in collective bargaining. JPAs, thus, are subject only to ‘meet and confer in good faith’ provisions, which are not subject to PERB oversight.”
3. First, it's interesting that both the Assembly and Senate analyses for AB 1463 assume that collective bargaining under the MMBA is different from that under EERA.  Both analyses suggest that the term “meet and confer” is a lesser requirement than that under EERA. I don’t know what gave them that idea but it’s certainly not true today. The requirement to “meet and confer” under the MMBA is no different than the requirement to “meet and negotiate” under EERA.  Both require collective bargaining as that term is generally understood.
4. Second, the Assembly analysis suggests that under the MMBA, an employer can abrogate a collective bargaining agreement by simply laying off employees and hiring them back under different terms and conditions.  I would like to see the support for that proposition because I'm not aware of any legal authority for that.
5. Third, one of the criticisms of the North Orange County decision has been that it allows school districts to “legally join together in a way that evades EERA and results in the loss of employees' statutory rights.” (San Jose/Evergreen Community College District (2005) PERB Decision No. 1928-E, dissent of Member Shek, p. 21, fn. 5; Clovis Unified School District (2002) PERB Decision N0. 1504-E, p. 15, fn 11.)  It’s certainly true that under North Orange County, JPAs are not subject to EERA.  But that does not mean employees of JPAs have no statutory right to collective bargaining. They are still subject to the MMBA.  More important, back in 1990, the MMBA was not subject to PERB.  However, today the MMBA is subject to PERB just like EERA.
6. Because the MMBA is now subject to PERB’s jurisdiction and provides employees with substantially the same right to collective bargaining, it’s not clear to me that the reasons given during former attempts to pass this bill are still valid today.