PERB Advisory Committee Meeting on October 11, 2018

The Public Employment Relations Board (PERB) has announced a meeting of its Advisory Committee for October 11, 2018 at 11 am.  The location will be at the PERB headquarters in Sacramento at 1031 18th Street, First Floor, Room 103, Sacramento, CA.

According to the meeting agenda the Advisory Committee meeting is “an opportunity for the Board, its staff, its constituents and the public to openly discuss the topics outlined below relating to PERB’s mission in the administration of the eight collective bargaining statutes over which PERB has jurisdiction.”  There is no formal “membership” for the Advisory Committee; all members of the public are welcome.

The scheduled agenda items are: 1) Potential new or revised regulations governing pre-hearing matters, including but not limited to, subpoenas, document production, and motions; and 2) Potential new or revised regulations governing filing of exceptions with the Board itself.

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Governor Vetoes AB 2305, 2886 and 3034

On Friday, September 28, the Governor vetoed AB 2305, 2886, and 3034.  These bills would have expanded PERB’s jurisdiction by adding, respectively: peace officer unions; the Orange County Transportation Authority and the San Joaquin Regional Transit District; and the supervisory units of the San Francisco Bay Area Rapid Transit District. Here is the Governor’s veto message:

These bills expand the Public Employment Relations Board’s jurisdiction to cover labor disputes involving several local public agencies. Over the years, the Legislature has expanded the Board’s jurisdiction, but the necessary funding for the increased workload has not kept pace. This has resulted in significant backlogs at the Board – both labor and employers have complained about this problem. This Administration has recently increased the Board’s funding to help correct this problem. The Board’s jurisdiction should not be expanded again until the Board’s ability to handle its previously expanded caseload is established.

I must admit, I was surprised by the veto. However, the Governor is correct that beginning with the MMBA in 2001, the Legislature has not only added more employees to PERB’s jurisdiction, but also added many new laws for PERB to enforce. All this has helped to create a backlog at PERB where today, the oldest case before the Board was docketed on October 8, 2014, which means the case was probably filed in 2013. Even if that case is an anomaly, there are 6 cases on the Board’s docket from 2015, and 14 cases from 2016.  This fiscal year, the Governor gave PERB an additional 7 positions.  That should certainly help.  But I’m skeptical that 7 positions alone will do the job unless there are also other changes in how PERB’s processes its cases…

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PERB Bills Awaiting Action by Governor

Several bills affecting PERB are awaiting action by the Governor:

  1. 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.
  2. AB 2305: Brings peace officer unions under PERB’s jurisdiction. I previously wrote about the status of this bill here and here.
  3. AB 2886: Brings the Orange County Transportation Authority and the San Joaquin Regional Transit District under PERB’s jurisdiction.
  4. 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.

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Gov Signs Law Prohibiting Lawsuits for Pre-Janus Damages

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.]

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AB 2305 Awaits Action by Governor

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.

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