News Alert: SB 866 On Its Way to Governor

SB 866 appears to be a fast-track omnibus bill responding to the anticipated decision in Janus v AFSCME. The bill was first introduced as a run-of-the-mill budget bill on January 10, 2018. However, it was amended on June 13, 2018, to make some very significant changes to the law. These changes apply to virtually all employers covered by PERB, including schools and community colleges, the State of California, University of California, California State University, Judicial Council and trial courts, cities, and counties. The changes in law include the following related to the dues deduction process: Continue reading

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PERB: Must Assert Defenses to Information Requests Early

State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S (Issued on 6/12/18)

This case involves a very common scenario.  An employee is subject to discipline and requests a hearing. In preparation for the hearing the union submits several information requests, including a request for a list of employees disciplined for similar conduct in the past and the penalties imposed in each case. In making such a request, the union is obviously exploring whether the penalty imposed by the employer was disparate in some fashion. As is common, the employer in this case refused to provide this information based on several grounds, including a right to privacy by the other employees and the undue burden of compiling such a list. In rejecting the employer’s defenses, PERB set forth some guidance that all employers should be aware of going forward. Continue reading

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PERB Adopts Heightened Version of Purple Communications

Napa Valley CCD (2018) PERB Decision No. 2563-E (Issued on 5/25/18)

This precedential decision involves an appeal from a dismissal.  The central issue was whether charging party, an employee, engaged in protected activity by sending e-mails to co-workers. To answer this question the Board had to decide whether the employee had the right to send e-mails via the employer’s e-mail system. This question provided PERB an opportunity to consider whether to follow the National Labor Relations Board (“NLRB”) decision in Purple Communications, Inc. (2014) 361 NLRB No. 126 (“Purple Communications”). Continue reading

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AB 3034: Expands PERB Jurisdiction to Include BART Supervisors

AB 3034 was introduced on February 16, 2018, by Assembly Member Low.  AB 3034 would place the supervisory employees of the San Francisco Bay Area Rapid Transit District under the MMBA and under PERB’s jurisdiction. Currently, most transit employees are covered under various statutory sections of the Public Utilities Code, and therefore are not under PERB’s jurisdiction. One exception is the Transit Employer Employee Relations Act (TEERA) which places the supervisory employees of the Los Angeles County Metropolitan Transportation Authority under PERB’s jurisdiction. AB 3034 accomplishes the same result as the TEERA for BART supervisors. However, instead of creating an entirely new public sector collective bargaining statute, AB 3034 places BART supervisors under the MMBA.

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Trying to Predict the Impact of Janus

The Illinois Economic Policy Institute has released a study on the anticipated impact of Janus v AFSCME, based on the widely-held assumption that the Supreme Court will hold that agency fees are unconstitutional. The report—entitled “After Janus: The Impending effects on Public Sector Workers from a Decision Against Fair Share”—can be found here. The report attempts to predict the impact of Janus by examining the statistical differences in union membership and hourly wages between states with “right-to-work” (RTW) laws and states without RTW laws.

According to the report, as of March 2018, 27 states have RTW laws and 23 states have collective bargaining laws that require “fair share” or “agency” fees.  More than half of all state and local government union members live in just six states: California, New York, New Jersey, Illinois, Ohio, and Pennsylvania. Nationally, California alone accounts for almost 20% of all state and local government union members.

Among the conclusions of the report are:

  • Union membership is expected to decrease by 8.2% nationwide. In California, union membership is expected to decrease by 8.9%.
  • Average hourly pay is expected to decrease by 3.6% both nationally and in California. This translates into a reduction of approximately $2,079 per worker in California.

Comments:

  1. A Sacramento Bee article discussing this report described the Illinois Economic Policy Institute as a “left-leaning think tank.” So you have to consider the findings in the report in light of that potential bias.
  2. But with respect to the predicted decrease in union membership of 8.9%, that’s lower than the number I had in my head. In California, it’s not at all uncommon for public sector unions to have agency fee payers constitute 25%-50% of a bargaining unit. On top of that, there are undoubtedly some individuals who became union members only because they would have to pay agency fees anyway. Without agency fees, some of these individuals might drop their membership. So if public sector union membership only declines by 8.9% in California, I actually think that’s a better good result for the unions. I think it could be a lot worse than that.
  3. As for the predicted decrease in wages, it’s clear when you read the report that the “decrease” is really a “wage gap” between RTW states and non-RTW states. So it’s not that public employee salaries are going to go down necessarily; rather, salaries won’t go up as much as they would might otherwise without the Janus decision.
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