SB 1173: $50,000 Penalty for Violation of PECC

SB 1173 was introduced on February 20, 2020, by Senator Durazo. Currently, the Public Employee Communication Chapter (PECC) (Gov. Code, §3555 et. seq.) requires public employers to regularly provide a union with the “name, job title, department, work location, work, home, and personal cellular telephone numbers, personal email addresses on file with the employer, and home address …” of the union’s bargaining unit members. SB 1173 would give an employer 10 days to cure an allegation that it provided an inaccurate or incomplete list of employees to the union.

If the employer does not timely cure a violation, the union may file an unfair practice charge with PERB. If PERB finds a violation, it “shall” impose a penalty on the employer not to exceed $50,000. The penalty is paid to PERB upon appropriation by the Legislature. Further, PERB “shall” award attorneys’ fees and costs to the “prevailing charging party” bringing the unfair practice charge.

Comments

Not surprisingly, this bill is opposed by both the League of Cities and the California State Association of Counties, along with a host of other employer organizations. For starters, it’s not clear why such a radical bill is necessary as most employers are complying with the PECC and any problems appear to be isolated. I say this bill is radical because it introduces, for the first time, the notion of a “penalty” into California public sector labor law. Perhaps even more problematic, this bill gives PERB, for the first time, the statutory authority to award  attorneys’ fees, but only to a prevailing union. 

In terms of the language of the bill, my biggest objection is that it only allows an employer to “cure” a violation 3 times a year. This is fine if you’re an employer that provides information to the union every 120 days as allowed by the PECC. But many employers voluntarily provide information to the union more often than every 120 days. These employers are placed at a disadvantage compared to employers following the minimum time standards. It seems to me that if you are an employer providing information more often than necessary that you shouldn’t be penalized for that. Hopefully if this bill moves forward they will at least correct that flaw. But more important, I hope the attorneys’ fees provision is eliminated. As for the penalty, I think it should be tied to actual damages suffered by the union for the PECC violation. I am strongly opposed to PERB being allowed to impose penalties that are not tied to actual damages, especially when the damages appear likely to flow into PERB’s own coffers….

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PERB Docket at Lowest Level in Recent Memory

As of June 5, 2020, PERB’s Docket (the number of cases awaiting decision by the Board itself) stood at 22. Significantly, for the first time in recent memory the Board’s docket has no cases that have been at the Board level awaiting decision for longer than a year. As the Board notes, this is a tremendous improvement from only two years ago when the docket stood at 83 cases with 37 cases over a year old.

The Board attributes the decrease in the docket to increased productivity by the Board members in addition to structural changes such as the addition of a Board “bull pen” attorney who acts as an additional Legal Adviser to the Board. Either way, the Board’s ability to get its docket down to this level is truly impressive. I recall in the early 2000’s that the Board’s docket hovered around 150 cases with many older than a year, some older than 2 years, and even a few over 3 years. Hopefully the budget crisis facing the state won’t derail PERB’s continued efforts to keep its docket down.

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Governor Extends Factfinding Deadlines

On May 7, 2020, Governor Newsom issued Executive Order N-63-20 which extended the timelines of various statutes and regulations. With respect to PERB, the order “extended for a period of 60 days” the deadlines to request factfinding under the MMBA (Gov Code 3505.4(a)), EERA (Gov Code 3548.1) and HEERA (Gov Code 3591).

The order also suspended any statute or regulation that requires administrative hearings to be held in person as long as: 1) each participant can hear the proceeding and view any exhibits; 2) members of the public can observe the hearing electronically; and 3) the requirements of the ADA and Unruh Civil Rights Act are otherwise met.

Comments

Unfortunately, many public agencies throughout the State will be seeking economic concessions from labor unions in the coming months. Public agencies should remember that before they can impose any last, best, final offer they generally have to complete any required impasse proceedings. This order, while it remains in effect, means that those impasse proceedings could potentially extend 60 days.

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The Emergency Exception to Bargaining

General PERB Rule: The Calexico Emergency Exception

Given the coronavirus pandemic, I’ve gotten a lot of questions about whether there is an “emergency” exception to the duty to bargain over changes within the scope of representation. Yes, there is; it falls under the general “business necessity” defense. The Calexico emergency defense requires an employer to show an actual financial or other emergency that leaves no alternative to the action taken and allows no time for meaningful negotiations before taking action. (Calexico Unified School District (1983) PERB Decision No. 357, adopting proposed decision at p. 20 (“Calexico”); see also San Francisco Community College District (1979) PERB Decision No. 105; Compton Community College Dist. (1989) PERB Dec. No. 720; Oakland Unified School Dist. (1994) PERB Dec. No. 1045; County of San Bernardino (Office of the Public Defender) (2015) PERB Dec. No. 2423-M.) Notably, in all these cases PERB held that the employer did not meet the elements of the Calexico emergency defense. So while the language of the Calexico exception might appear broad, PERB has interpreted it very narrowly.

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Families First Coronavirus Response Act: Updates

Effective Date of FFCRA: The Families First Coronavirus Response Act (FFCRA) states that the law is effective no later than 15 days after enactment, which would be April 2, 2020. However, the Department of Labor (DOL) has apparently declared the law effective a day earlier, on April 1, 2020. (Click here.)

Posting Notice of FFCRA to Employees: The FFCRA requires that employers post a notice prepared by, or approved by, the DOL. The DOL has just released a set of posters. (Click here.) I am not aware of what the process is to get a poster “approved” by the DOL. So my advice to employers is to just post the one prepared by the DOL. The FFCRA does not specify a deadline to post the notice; my advice is to post the DOL poster as soon as possible.

Temporary Non-Enforcement by DOL: The DOL has also issued a bulletin stating that it will observe a temporary period of non-enforcement of the FFCRA from March 18 through April 17, 2020.  During these first 30 days, the DOL will not bring an enforcement action provided that the employer “has made reasonable, good faith efforts to comply with the Act” which requires that:

  1. The employer remedies any violations, including by making all affected employees whole as soon as practicable; 
  2. The violations of the Act were not “willful” based on FLSA law; and
  3. The DOL receives a written commitment from the employer to comply with the Act in the future.
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