Governor Signs AB 355: Adds OCTA to PERB Jurisdiction

The Governor has signed AB 355 which adds the Orange County Transportation Authority (OCTA) to PERB’s jurisdiction. Last year Governor Brown vetoed AB 2886 which would have added the OCTA and the San Joaquin Regional Transit District to PERB’s jurisdiction. In his veto message, Governor Brown noted that PERB’s jurisdiction has steadily increased over the years while its funding has not. According to Governor Brown, until PERB is able to handle its workload its jurisdiction should not be further expanded.

Now that Governor Newsom has signed AB 355 it will be interesting to see whether other transit agencies will also seek to be added to PERB’s jurisdiction.

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PERB To Consider New Forms of “Proof of Support”

PERB has published revised draft regulatory packages in three areas: 1) e-filing, including proof of support; 2) continuances; and 3) the recusal of PERB Board members and staff. The draft regulatory packages can be found here. PERB is requesting that stakeholders provide comments at its meeting on October 10, 2019, or preferably provide comments in advance of the meeting.

Of particular interest to stakeholders are the proposed modifications to PERB Regulation 32700 regarding proof of support. Based on the initial draft regulation and the public comments made in response to that draft, it was widely anticipated that PERB would open the door to submitting electronic signatures as proof of support instead of requiring “original” signatures. As I stated in my comments to PERB at the time, I have no objection to such a change provided that there are standards for the use of electronic signatures. In the revised regulation, PERB addresses this concern by citing to the standards set forth in the Uniform Electronic Transactions Act.

However, I was surprised that the revised regulation goes much further than simply allowing electronic signatures. One of the most drastic changes is that PERB proposes to allow as proof of support the following:

Records showing that the proof of support contains the employee’s name and a cellular phone number, email address, or home address, that the employee organization sent a confirmation transmission to the cellular phone number, email address, or home address provided, indicating the language to which the employee agreed or the nature of the support demonstrated, and that the employee organization has submitted to the Board any responses to such confirmation transmissions that the employee organization received by the time of submission.

The exact intent of this language is not entirely clear to me. My assumption is that this language is meant to apply to a situation, for example, where an union emails a membership form to an employee and the employee emails a response stating, “sign me up!” but does not actually return a signed form. While the employee’s intent in this example might be clear, the language of the regulation is so broad it could open the door to much more debatable situations.

For example, what if in response to an email containing a membership form the employee responds, “Thanks. Looks great.” Is that enough to constitute proof of support from that employee? In my opinion such a response is potentially vague and should not be a substitute for a universally accepted signature. Given that the regulation will now allow electronic signatures, I see no reason why an employee shouldn’t be required to return a document with at least an electronic signature or the image of one. I’m hoping that other stakeholders will agree with me.

In addition to the above, I also provided comments to PERB on other aspects of the proposed revised regulations. My comments can be found here.

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PERB Gains Jurisdiction Over Some Child Care Workers

Governor Newsom has signed AB 378, the California Child Day Care Facilities Act, which allows child care workers who care for families that receive child care subsidies from the state to unionize. In a Sacramento Bee article, supporters of AB 378 claim that over 40,000 child care workers will be covered by this new law.

AB 378 represents the first expansion of PERB’s jurisdiction beyond public employees. Many “perbs” in other states already cover both public employees and some private sector employees excluded by the National Labor Relations Act. PERB now joins these other states.

Notably, AB 378 appears designed to permit bargaining between unions and the State of California, and not between unions and the employers of the child care workers. Also, the scope of representation is limited. For example, the scope of representation does not include wages and hours, but does include reimbursement rates from the State, payment procedures and “other economic matters.”

Relevant to public employers is that the California Child Day Care Facilities Act makes it an unfair practice for any public agency to discriminate against a child care worker for protected activities. The same prohibition applies to the employers of child care workers. The law also requires employers of covered child care workers to allow union access to employee orientations and contains restrictions on the issuance of “mass communications” to employees regarding their right to unionize.

There are also many other aspects of this new law that I will try to cover in future posts. Suffice to say, the fact that PERB now has jurisdiction over some private sector employees represents a new chapter in PERB’s history.

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PERB’s End of Fiscal Year Numbers for 2018-19

Overview: PERB issued 92 decisions

PERB’s annual report for fiscal year 2018-19 is not due until October 15, 2019. But for the first time in my memory, PERB has provided a “PERB Fiscal Year in Review 2018-19” on its website. It’s worth a read. However, based on my tracking of PERB cases I have some addition numbers that might be of interest to practitioners.

PERB issued a total of 92 decisions this past fiscal year. The prior year PERB issued 61 decisions. That’s an increase of over 50%. In addition, according to PERB’s news release there are only 45 cases pending on the Board’s docket. That’s a tremendous improvement from years past.

Here are some additional statistics:

Decisions by Statute (Including Non-Precedential Decisions):

EERA: 47
MMBA: 25
HEERA: 8
Dills Act: 7
Trial Court: 4
Court Interpreter: 0
LA Met: 1

Decisions by Precedence:

Precedential: 74
Non-Precedential: 18

Decisions by Type:

Appeals from Dismissals: 21
Exceptions to ALJ Decisions: 51
Approval of Settlement/Withdrawal: 2
Administrative Appeal (AA): 8
Reconsideration: 4
Judicial Review: 1
Unit Modification: 3
Injunctive Relief: 2

Decisions by Outcome:

Dismissals Affirmed: 19
Dismissals Overturned/Partially Overturned: 3
ALJ Decisions Affirmed: 36
ALJ Decisions Overturned/Partially Overturned: 14
Miscellaneous (Admin Decisions, Judicial Review, Settlements, Recon’s, Unit Mod’s, IR): 20

Decisions by Board Member:

[Board Member: # Precedential + # Non-Precedential = Total #]
Banks: 21+5=26
Shiners: 17+6=23
Winslow: 16+1=17
Krantz: 19+2=21
Paulson: 1+3=4
Per Curium: 1

Other Interesting Facts:

  1. The Board’s affirmance rate of ALJ decisions was 72% (36 out of 50). Of the 14 ALJ decisions that were not adopted, 12 had originally gone in favor of the employer. Thus, in the 28% of decisions that the Board rejected, 85% of those decisions went against the employer. In only 2 cases did the Board overturn a finding that initially went against the employer.
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PERB: We Have Jurisdiction Over Cops

County of Orange (2019) PERB Decision No. 2657-M (Issued on 7/15/19)

The saga continues. In this most recent case PERB provides its most comprehensive explanation yet for why it believes it has jurisdiction over “employee organizations” comprised of Penal Code 830.1 peace officers under the Meyers-Milias-Brown Act (MMBA). There is a very long history to this issue. (Click here for one of my prior post). The dispute essentially involves the interpretation of MMBA section 3511 which states: “The changes made to Sections 3501, 3507.1, and 3509 of the Government Code by legislation enacted during the 1999–2000 Regular Session of the Legislature shall not apply to persons who are peace officers as defined in Section 830.1 of the Penal Code.” For years, I believe everyone understood that this meant Penal Code 830.1 peace officers were not under PERB’s jurisdiction. Period. There was no distinction between peace officers as individuals versus the unions representing peace officers.

Then in 2015, PERB issued its decision in County of Santa Clara (2015) PERB Decision No. 2431-M, in which it held that PERB has jurisdiction over “mixed” units containing both peace officers and non-peace officers. From that decision, PERB’s jurisprudence has morphed into its current position that PERB has jurisdiction over unions representing bargaining units comprised entirely of peace officers. If you have read my prior posts on this issue you know I think PERB is absolutely wrong.

In the recent County of Orange case, PERB addressed a lot of different arguments on this issue. But there was one argument that really stood out to me. The County had cited to some court cases involving peace officer unions as evidence that the courts, and not PERB, have jurisdiction over such cases. PERB replied that, “We put little weight on the fact that courts have heard disputes brought by employee organizations that represent peace officers, where no party briefed jurisdictional issues and the courts did not address jurisdiction. It is axiomatic that cases are not authority for propositions not considered.” PERB is correct that cases are not authority for issues that were not raised or litigated. But here’s the rub. If you go back to the original County of Santa Clara decision, PERB cited two cases—County of Calaveras (2012) PERB Decision No. 2252-M and County of Yolo (2013) PERB Decision No. 2316-M—for the notion that PERB previously took jurisdiction over units involving peace officers. However, the issue of jurisdiction over peace officers was never raised or even discussed in both those cases. Thus, under PERB’s reasoning in County of Orange it should not have relied on the two cases cited in County of Santa Clara.

In any event, for me it all comes down to this: from the day PERB took over jurisdiction of the MMBA on July 1, 2001 until—at earliest—the County of Santa Clara decision in 2015 no one asserted that there was a distinction between peace officers as individuals and peace officer unions under MMBA section 3511. This means that for about 14 years none of the labor attorneys in California were able to figure out what PERB now says is the clear intent of the Legislature. Obviously, I don’t buy it.

Unfortunately, because the County of Orange prevailed on the merits of this case it has no reason to appeal. However, this doesn’t mean that another MMBA employer can’t challenge PERB’s position in the future. It’s my hope that someone out there will do just that…

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