On June 28, 2007, the Governor signed AB 1194 (Karnette) which restores language in EERA section 3543 granting individuals a protected right of representation. In 2000, for reasons never explained (in reality, it was most likely a careless drafting error), the Legislature deleted the following language from EERA when it approved unrelated amendments:
Public school employees shall also have the right to refuse to join or participate in the activities of employee organizations and shall have the right to represent themselves individually in their employment relations with the public school employer, except that once the employees in an appropriate unit have selected an exclusive representative and it has been recognized pursuant to Section 3544.1 or certified pursuant to Section 3544.7, no employee in that unit may meet and negotiate with the public school employer.
Based on the deletion of this critical language, PERB held in Woodland Joint Unified School District (2004) PERB Dec. No. 1722E, that the Legislature must have intended to eliminate the individual right of representation under EERA. Even if the Legislature did not so intend, PERB held that because of the change in statutory language, it was the Legislature's responsibility to correct the error. Accordingly, PERB held that prior cases recognizing such a right (See Pleasant Valley School District (1988) PERB Dec. No. 708) were no longer valid in light of the change to section 3543.
Sponsored by the California Teachers Association, AB 1194 was intended to restore the individual right of representation under EERA and to statutorily abrogate PERB’s decision in Woodland Joint Unified. Under AB 1194, the following language has been added to section 3543:
Public school employees shall have the right to represent themselves individually in their employment relations with the public school employer, except that once the employees in an appropriate unit have selected an exclusive representative and it has been recognized pursuant to Section 3544.1 or certified pursuant to Section 3544.7, no employee in that unit may meet and negotiate with the public school employer.
Note that AB 1194 does not completely restore the language that was deleted in 2000. Not surprisingly, CTA did not see fit to restore the individual right to “refuse to join or participate in the activities of employee organizations . . .”
Tuesday, July 3, 2007
Monday, June 18, 2007
Washington’s ‘Paycheck Protection’ Law is Constitutional
Davenport v. Washington Ed. Assn. (US 05-1589 and 05-1657) (Decided by Supreme Court on 6-14-07)
Washington State allows public-sector unions to charge nonmembers an agency fee equivalent to membership dues and to have the employer collect that fee through payroll deductions. An initiative approved by state voters requires a union to obtain the nonmembers’ affirmative authorization before using their fees for election-related purposes. The issue before the Supreme Court was whether requiring unions to obtain affirmative authorization violated the Constitution. The Supreme Court held that it does not violate the First Amendment for a State to require its public-sector unions to receive affirmative authorization from a nonmember before spending that nonmember’s agency fees for election-related purposes.
Washington State allows public-sector unions to charge nonmembers an agency fee equivalent to membership dues and to have the employer collect that fee through payroll deductions. An initiative approved by state voters requires a union to obtain the nonmembers’ affirmative authorization before using their fees for election-related purposes. The issue before the Supreme Court was whether requiring unions to obtain affirmative authorization violated the Constitution. The Supreme Court held that it does not violate the First Amendment for a State to require its public-sector unions to receive affirmative authorization from a nonmember before spending that nonmember’s agency fees for election-related purposes.
Wednesday, June 6, 2007
AB 553 - Passes Assembly
AB 553 - which purports to give PERB exclusive initial jurisdiction over public employee strikes - has passed the Assembly and is on its way to the Senate.
Friday, May 11, 2007
Is There an Implied Right of Access under the MMBA? Answer Still Unknown.
City of Porterville (PERB Dec. No. 1905M) (Issued 5/10/07)
All the statutes administered by PERB have differences in statutory language. Despite these differences, PERB has generally interpreted the statutes the same absent clear legislative intent to the contrary. Thus, a decision regarding the right to representation under EERA would also be applicable under HEERA, Dills, MMBA, etc.
One area where there has been some confusion is the right of unions to access employer facilities. EERA and HEERA provide for such a right by statute. The Dills Act does not; but PERB has interpreted the Dills Act to include an “implied” right of access. The MMBA also fails to include statutory language granting access rights but does provide that such rights can be subject to local rule. The question then arises - if a local entity does not have a local rule on a union's right to access employer facilities, does the MMBA grant an implied right of access? The Board intentionally avoided this question in Fresno Irrigation District (PERB Dec. No. 1565M) (that decision was subsequently overturned by the court of appeal).
The question arose again in this matter. Here, the issue was whether the employer violated the MMBA by denying union access to its facilities. In the proposed decision, the ALJ held that, “the MMBA inferentially includes a right of access for employee representatives . . .” Thus, the ALJ answered in the affirmative the question that was explicitly deferred by the Board in Fresno Irrigation District.
The Board then rejected the ALJ’s proposed decision. Without stating whether it agreed, the Board noted the employer’s argument that access rights under the MMBA must be determined by local rule. The Board also stated that the fact that access rights are subject to local rules under the MMBA “gives the City a measure of discretion in drafting its own access policy.” Unfortunately, the Board never addressed whether an implied right of access exists under the MMBA. Also unanswered is how much discretion the Board will give to an employer’s local rule on union access.
Until a more definitive answer is provided by the Board, employers under the MMBA would be wise to generally conform their local rules on access to the scope of the right under EERA, HEERA and the Dills Act. Any attempt by a local entity to enact local rules that are more restrictive should be narrowly tailored and supported by business necessity. Because this area of law is in flux, it would be wise for local entities to consult with counsel before making changes.
All the statutes administered by PERB have differences in statutory language. Despite these differences, PERB has generally interpreted the statutes the same absent clear legislative intent to the contrary. Thus, a decision regarding the right to representation under EERA would also be applicable under HEERA, Dills, MMBA, etc.
One area where there has been some confusion is the right of unions to access employer facilities. EERA and HEERA provide for such a right by statute. The Dills Act does not; but PERB has interpreted the Dills Act to include an “implied” right of access. The MMBA also fails to include statutory language granting access rights but does provide that such rights can be subject to local rule. The question then arises - if a local entity does not have a local rule on a union's right to access employer facilities, does the MMBA grant an implied right of access? The Board intentionally avoided this question in Fresno Irrigation District (PERB Dec. No. 1565M) (that decision was subsequently overturned by the court of appeal).
The question arose again in this matter. Here, the issue was whether the employer violated the MMBA by denying union access to its facilities. In the proposed decision, the ALJ held that, “the MMBA inferentially includes a right of access for employee representatives . . .” Thus, the ALJ answered in the affirmative the question that was explicitly deferred by the Board in Fresno Irrigation District.
The Board then rejected the ALJ’s proposed decision. Without stating whether it agreed, the Board noted the employer’s argument that access rights under the MMBA must be determined by local rule. The Board also stated that the fact that access rights are subject to local rules under the MMBA “gives the City a measure of discretion in drafting its own access policy.” Unfortunately, the Board never addressed whether an implied right of access exists under the MMBA. Also unanswered is how much discretion the Board will give to an employer’s local rule on union access.
Until a more definitive answer is provided by the Board, employers under the MMBA would be wise to generally conform their local rules on access to the scope of the right under EERA, HEERA and the Dills Act. Any attempt by a local entity to enact local rules that are more restrictive should be narrowly tailored and supported by business necessity. Because this area of law is in flux, it would be wise for local entities to consult with counsel before making changes.
Monday, April 23, 2007
Board Still Considering Regs on Revocation of Proof of Support
On April 12, 2007, the Board heard public comments on the proposed regulations concerning proof of support and revocation of proof of support. Union supporters turned out in force and were unanimously opposed to the regulations. Most speakers objected to even the concept of allowing an employee to change his or her mind and revoke proof of support. So employees beware - signing that union authorization card is a lot like joining a fitness club - once you join, you're stuck with it until you die.
After the close of the public comment period, the Board took the matter under submission to consider the comments. The Board has one year from the publication of the notice to take action, so the Board possible could adopt the regulations at its next meeting. If the Board decides to make substantial modifications, it must issue a new notice and provide another opportunity for written comments.
After the close of the public comment period, the Board took the matter under submission to consider the comments. The Board has one year from the publication of the notice to take action, so the Board possible could adopt the regulations at its next meeting. If the Board decides to make substantial modifications, it must issue a new notice and provide another opportunity for written comments.
AB 220: FFBOR Tabled
AB 220 would enact the Fire Fighters Bill of Rights, similar to the existing Peace Officers Bill or Rights.
AB 220 was placed on suspense on April 18, 2007.
AB 220 was placed on suspense on April 18, 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.
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.
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