Several bills affecting PERB are awaiting action by the Governor:
- SB 1085: Requires public employers to grant reasonable leaves of absence to employees to serve as stewards or officers of the union. The union must reimburse the public employer for all compensation paid to the employee.
- AB 2305: Brings peace officer unions under PERB’s jurisdiction. I previously wrote about the status of this bill here and here.
- AB 2886: Brings the Orange County Transportation Authority and the San Joaquin Regional Transit District under PERB’s jurisdiction.
- AB 3034: Brings the supervisory units of the San Francisco Bay Area Rapid Transit District under PERB’s jurisdiction.
The Governor has until September 30, 2018, to sign or veto these bills.
Yesterday, the Governor signed SB 846 which protects unions and public employers against lawsuits seeking the payment of agency fees collected prior to the Janus decision. (Click here for the SacBee article on this bill.) The law adds Government Code section 1159 which provides that it is a “complete defense” to such lawsuits if the fees were collected pursuant to state law – which they all were. According to the Legislature, public employees who paid agency fees prior to June 27, 2018—the date of the Janus decision—had no legitimate expectation of receiving that money under any available cause of action. Therefore unions and public employers have no obligation to refund fees taken before that date.
The law applies to all actions currently pending as well as any future actions. The Legislature also stated that the new law is clarifying of existing law rather than a change to it. Because the new law was part of a budget appropriations bill, it is intended to take effect immediately.
The impact of this bill remains to be seen. All the lawsuits that have been filed so far have been filed in federal court and allege a violation of the U.S. Constitution. It’s unclear to me whether this bill would have any effect on those federal lawsuits.
[Note: The initial version of this post incorrectly referred to the bill as AB 846. It’s SB 846.]
AB 2305 passed the Legislature on August 27, 2018, and currently awaits action by the Governor. I previously wrote about this bill here. In short, AB 2305 would eliminate the carve-out for peace officer unions and bring them under the jurisdiction of PERB, while continuing the carve-out for peace officer individuals. It will be interesting to see what the Governor does since he previously vetoed AB 530, a similar version of the bill.
When I first wrote about this bill, one of my complaints was that the supporters of this bill were characterizing it as a codification of existing law based on PERB’s decision in Santa Clara County Correctional Peace Officers Association v. County of Santa Clara (2018) PERB Dec. No. 2431-M. I strongly disagreed. I’m glad that the Senate Rules Committee addressed this issue in its analysis of this bill. The analysis noted:
According to the author, this bill merely codifies this decision. However, PERB’s decision to exercise jurisdiction is grounded in the fact that the employee organization represented mixed units of employees. This bill seems to go a step further and extend PERB jurisdiction to peace officer unions consisting exclusively of peace officers.
I absolutely agree with the Senate’s analysis that this bill goes “further” than the Santa Clara decision. Indeed, in the Legislative Counsel’s digest for SB 739, which brought most of the MMBA under PERB’s jurisdiction, it expressly states:
The provisions of this bill would not apply to any recognized employee organization representing peace officers, as defined in a specified provision of existing law.
Thus, I hope everyone recognizes that if this bill goes into law, it represents a change going forward and is not a codification of existing law.
On August 20, 2018, the Labor & Employment Law Section of the California Lawyers Association (formerly the State Bar of California) is holding a webinar on Janus. It’s titled “Janus v AFSCME: How Unions and Employers are Responding to the Decision” and will be held from 12 noon to 1:00 p.m. You can register by clicking here.
I am honored to be one of the presenters for the webinar, along with two of the best-known lawyers in the field: Felix De La Torre, General Counsel for the Public Employment Relations Board and Kerianne Steele with Weinberg, Roger & Rosenfeld.
A lot of interesting things are going in the aftermath of Janus and the three of us are looking forward to sharing that with you on Monday!
Boling v PERB (Cal. Supreme Court Case No. S242034)
In 2012, San Diego Mayor Jerry Sanders helped launch the “Citizens Pension Reform Initiative” (CPRI) in an effort to address the unsustainability of the City’s pension obligations. CPRI supporters gathered enough signatures to qualify the CPRI for the ballot. In November 2012, over 65% of the citizens of San Diego voiced their support for pension reform by voting for the CPRI.
The unions then filed unfair practice charges against the City arguing that Mayor Sanders was acting in his official capacity in supporting the CPRI and therefore the City had an obligation to bargain the initiative with the unions, which it failed to do. The City lost at PERB but prevailed at the Court of Appeal. Today, the California Supreme Court issued a decision overturning the appellate decision and remanding this case for further proceedings.
The key issue in this case was whether Mayor Sanders’ involvement in Proposition B turned it into an action by the City, which in turn required the City to meet and confer with the unions. The Supreme Court held that since Mayor Sanders was the city’s chief executive and empowered by the city charter to make policy recommendations in labor relations matter, he was required to meet and confer with the unions prior to advocating for Proposition B. The Supreme Court reached this holding even though it was undisputed that Proposition B actually met the support requirements for a citizen’s initiative. According to the Supreme Court, “Allowing public officials to purposefully evade the meet-and confer requirements of the MMBA by officially sponsoring a citizens’ initiative would seriously undermine the policies served by the statute: fostering full communication between public employers and employees, as well as improving personnel management and employer-employee relations.”
But the Supreme Court said that, “The line between official action and private activities undertaken by public officials may be less clear in other circumstances… Whether an official played such a major role will generally be a question of fact, on which PERB’s conclusion is entitled to deference.”
- [Disclosure: I helped represent the City in this case before PERB.] This decision is disappointing but not unexpected given the questions at oral argument. Without a doubt, this is a big victory for PERB. The Supreme Court decision gives tremendous deference to PERB’s factual and legal findings. Such deference will continue to make it very difficult to overturn any PERB decision in the appellate courts.
- With respect to the merits of the case, because the Supreme Court deferred to PERB’s determination that Mayor Sanders was acting on behalf of the City, it was an easy call to require the City to bargain with the unions. One of the questions left unanswered is what, if anything, Mayor Sanders could have done to separate his advocacy of Proposition B from his official duties. The Supreme Court did leave open the possibility that government officials can separate their official actions from their private activities. However, the Court did not provide any guidance on what a government official would have to do to make such a distinction clear.
- In terms of a remedy, the Supreme Court remanded this case back to the court of appeal for consideration.