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We've launched a new version of this blog, the same features and information, but at a new address.  As of August 2011, updates will be made at CAPERB.com (instead of the site you're reading now). 
Visit CAPERB.com, read articles, archives, find out more about Tim Yeung.
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AB 455 Vetoed

On July 25, 2011, Governor Brown vetoed AB 455.  AB 455 would have given unions the power to appoint half the members of civil service commisions and personnel boards.  The Governor provided the following veto message:

To the Members of the Califomia State Assembly:

I am returning Assembly Bill 455 without my signature.  This bill prescribes how all local merit or personnel commission members should be appointed.  It requires that half of the members be selected by the employer and half by largest employee bargaining unit.  While intended to create more balanced commissions and address concerns relating to individual commissions, this measure imposes a top down, one-size-fits-all solution on all merit and personal commissions statewide.  This measure seeks to impose a level of state control that is inconsistent with my administration's efforts to realign state services and to increase local control. Concerns relating to specific commissions should be addressed on a case-by-case basis at the local level. 

AB 455: Gives Unions Power to Appoint Half of Civil Service Commission Members

AB 455 was introduced by Assemblymember Campos on February 15, 2011 and amended on March 31, 2011.  AB 455 has passed both the Assembly and Senate and was ordered enrolled on July 5, 2011. It now awaits signature from the Governor.  AB 455 would add section 3507.7 to the MMBA, which would provide:

(a) When a public agency has established a personnel commission or merit commission to administer personnel rules or a merit system, the governing board of the public agency shall appoint one-half of the members of the commission, and one-half of the members of the commission, nominated by the recognized employee organization, shall be appointed by the governing board of the public agency. Whenever multiple bargaining units are represented by different recognized employee organizations, the employee organization representing the largest number of employees shall be the one empowered to designate commission members pursuant to this section.
(b) The commission members selected under subdivision (a) shall elect jointly one additional member of the commission, who will act as chairperson of the commission.

Comments:

1. According to the legislative analysis, the author of the bill states that it is needed because, “… despite the importance of merit and personnel commissions to employment relations, the MMBA is silent as to how these commissions should be composed.” This is true, however, the silence is by design. The preamble to the MMBA expressly states that, “Nothing contained herein shall be deemed to supersede the provisions of existing state law and the charters, ordinances, and rules of local public agencies that establish and regulate a merit or civil service system …” (Gov. Code, § 3500, subd. (a).) Thus, the MMBA was never intended to regulate civil service commissions. That function was reserved to the public agencies.
2. The practical effect of AB 455 would be to require civil service commissions to use a form of “tripartite” arbitration. Under the system created by AB 455, the jointly elected chair of the commission essentially becomes an arbitrator. Whether there are three, five, seven, or nine members of the commission basically becomes irrelevant. It is the chairperson who will get the deciding vote. Faced with such a situation, many cities and counties may find it easier (and cheaper) just to use an arbitrator in civil service proceedings instead of a civil service commission. This is probably exactly what the unions hope to gain.
3. As with several other union-sponsored bills before the legislature, this one poses significant “home rule” issues for charter cities and counties. My personal opinion (and again, I’m a management lawyer) is that this bill cannot trump the constitutional home rule provisions governing charter cities and counties. However, that will be an issue to be litigated in the event the Governor signs AB 455.
4. One last note, this bill as written would apply to both the City of Los Angeles and Los Angeles County. Both the city and county of Los Angeles are not subject to PERB, although both are subject to the MMBA. The language and placement of this bill in the MMBA means that both the city and county of Los Angeles are covered by it. I don’t know whether this was intended by the author or a drafting oversight. However, my friends in Los Angeles are usually extremely protective of their governance structure and I’m surprised this bill made it through the legislature without Los Angeles trying to get an exemption.

Supreme Court Grants Review on Whether Right to Privacy Prevents Release of Non-Member Employee Addresses to Union

County of Los Angeles v. Los Angeles County Employee Relations Commission (Supreme Court Case No. S191944) (Reviewed granted on 6/16/11)

I discussed this case in a couple of prior blog posts. (Click here and here for prior posts.) The Court of Appeal decision held that under California’s right to privacy, non-union members of a bargaining unit (i.e. agency fee payers) have a reasonable expectation of privacy that their personal information will remain confidential. The Court held that before the home addresses of non-union members can be released, the employer must provide these employees with notice and an opportunity to object to the disclosure of their personal information.

On June 16, 2011, the Supreme Court granted review of this case. The specific issues that the Court granted review on are:

(1) Under the state Constitution (Cal. Const., art. I, § 1), do the interests of non-union-member public employees in the privacy of their personal contact information outweigh the interests of the union representing their bargaining unit in obtaining that information in furtherance of its duties as a matter of labor law to provide fair and equal representation of union-member and non-union-member employees within the bargaining unit? (2) Did the Court of Appeal err in remanding to the trial court with directions to apply a specific notice procedure to protect such employees' privacy rights instead of permitting the parties to determine the proper procedure for doing so?

DPA Director Ron Yank to Speak at IRANC Luncheon on July 14

If you're going to be in Sacramento on July 14, 2011, please come hear Department of Personnel Administration (DPA) Director Ron Yank speak at a luncheon sponsored by the Industrial Relations Association of Northern California (IRANC). As DPA Director, Ron Yank is Governor Jerry Brown’s Chief Labor Negotiator. Prior to becoming DPA Director, Mr. Yank was a well-known labor lawyer at Carroll Burdick & McDonough LLP where he represented employees and unions in all areas labor relations.

Here are the details:

• Date: Thursday, July 14, 2011
• Time: 11:30 A.M. Registration & Networking; Noon – Lunch & Speaker; 1:00 P.M. Adjourn
• Location: Firehouse Restaurant, Golden Eagle Room, 1112 Second Street, Old Sacramento, CA 95814
• Menu: Choice of 1) Pork Tenderloin Puttanesca; 2) Salmon Nantua; or 3) French Onion Steak Sandwich
• Cost: Reservation by July 5 = $20.00 Members, $30.00 Non Members; After July 5 or at the Door = $25.00 Members, $35.00 Non Members

RSVP by Tuesday, July 5 to Marcia Mooney (916) 928-0399 or email mmooney@local39.org with lunch choice.  Make checks payable to IRANC and mail to 1017 L Street #159, Sacramento, CA 95814-3805.

SB 931: Prohibits Public Funds for “Union Avoidance” Campaigns

SB 931 was introduced by Senator Vargas on February 18, 2011 and amended on April 25, 2011. SB 931 would prohibit public agencies from using public funds to pay for what is sometimes euphemistically called a “union avoidance” campaign. Specifically, this bill would add language to EERA, HEERA, Dills, and the MMBA providing that:

“Public agencies shall not use public funds to pay outside consultants or legal advisors for the purpose of counseling the public employer about ways to minimize or deter the exercise of rights guaranteed under this chapter.”

The bill was amended on April 25th to clarify that:

“Nothing in this section shall be construed to apply to payments for representation of a public sector employer before any court, administrative agency, or tribunal of arbitration, or for payments for engaging in collective bargaining on behalf of the employer with respect to wages, hours, or other terms and conditions of employment.”

Comments:

1. SB 931 is the public sector progeny of AB 1889 which passed the Legislature and was signed by Governor Davis in 2000. AB 1889 prohibited government contractors receiving more than $50,000 in state funds (or $10,000 in certain situations) from using those funds “to assist, promote, or deter union organizing.” Private sector employers challenged the constitutionality of AB 1889 and the case eventually reached the United States Supreme Court. In Chamber of Commerce of U.S. v. Brown (2008) 554 U.S. 60, the Supreme Court held that the provisions of AB 1889 that applied to private sector employers (Gov. Code §§16645.2 and 16645.7) were invalid because they were preempted by the National Labor Relations Act.
2. One interesting note about AB1889 is that buried within the bill is a provision that applies to public employers. Specifically, Government Code section 16645.6 provides that:  “(a) A public employer receiving state funds shall not use any of those funds to assist, promote, or deter union organizing. (b) Any public official who knowingly authorizes the use of state funds in violation of subdivision (a) shall be liable to the state for the amount of those funds.”  In Chamber of Commerce of U.S. v. Brown, the Court only addressed the two provisions of AB 1889 that applied to private sector employers. Thus—as far as I can tell—Government Code section 16645.6 remains good law. However, because Government Code section 16645.6 is not incorporated into any of the acts administered by PERB, it cannot be enforced through PERB.
3. AB 931 goes beyond Government Code section 16645.6 by incorporating its provisions directly into EERA, HEERA, Dills, and the MMBA. Thus, a violation of AB 931 can be enforced by PERB.
4. However, AB 931 also goes beyond Government Code section 16645.6 in its scope. Section 16645.6 only applies to “state funds” received by public employers. In contrast, AB 931 applies to a public employer’s “public funds,” which presumably would mean all funds possessed by a public employer. In my opinion, the scope of AB 931 raises serious constitutional questions as applied to charter cities and counties and other public entities with constitutional spending authority. While the State can generally put restrictions on the use of its own money, it is a different thing to put restrictions on the use of someone else’s money. Not all money received by public employers are “state funds.” So to the extent a public employer receives non-State money, it’s not clear to me that the State can be restrictions on the use of those non-State funds in this manner.
5. According to the Legislative analysis, the sponsor of this bill is the American Federation of State, County and Municipal Employees. Other unions in support include the California Conference of Machinists and the California Nurses Association. Those in opposition include the California State Association of Counties and the League of California cities.

SB 259 Would Open Door to Unionizing Student Research Assistants

SB 259 was introduced by Senator Hancock on February 10, 2011.  SB 259 would amend the Higher Education Employer-Employee Relations Act (HEERA) to cover student employees whose employment is contingent upon their status as students, without any other conditions.  Currently, HEERA section 3562(e) defines “employee” to include student employees if the employment is contingent on their status as students and “only if the services they provide are unrelated to their educational objectives, or that those educational objectives are subordinate to the services they perform and that coverage under this chapter would further the purposes of this chapter.”  SB 259 eliminates the latter requirement.

According to the Legislative analysis, the genesis of this bill is PERB’s decision in Regents of the UC & Association of Student Employees, UAW, et al (1998) (PERB Order No. 1301-H) in which PERB held that University of California Teaching Assistants (TAs), Readers, and Tutors had bargaining rights under HEERA, but that Research Assistants (RAs) did not. This bill would grant RAs bargaining rights under HEERA by deleting the statutory language that student employees only have bargaining rights if their employment is unrelated to their educational objectives.