FAQs on AB 119 – California’s New Employee Orientation Law (Part II)

This is Part II of my FAQ’s related to AB 119.  (Click here for Part 1.) The basics of the bill have been covered in many other places so my focus here is on some of the more technical aspects of the bill.

How does the bargaining process work? AB 119 provides that an employer shall provide the exclusive representative access to the employer’s new employee orientations. The details of this access are left to negotiations between the parties. Either party may request to begin negotiations. (GC 3557(a).) If negotiations are unsuccessful, the bill provides that any remaining disputes are to be resolved through compulsory interest arbitration. (Ibid.)

What is compulsory interest arbitration? It’s basically binding arbitration.

How is compulsory interest arbitration triggered? The parties can agree to proceed to compulsory interest arbitration at any time. However, the earliest a party can unilaterally request arbitration is: 1) 45 days after the first meeting of the parties; or 2) 60 days after the initial request to negotiate.

How much discretion does the arbitrator have? The arbitrator can approve either party’s final proposal in its entirety, or a combination of the two. (GC 3555.5(b)(2).) Note: In my initial post I stated that arbitration is conducted “baseball” style where the arbitrator must select either party’s proposal.  I got some comments on that. The language isn’t the clearest but I agree that the arbitrator can take elements from both party’s proposals, and likely can craft something not proposed by either party although that’s not entirely clear to me. So I agree that it’s not traditional baseball arbitration.

Will the arbitrator select one party’s final package in its entirety or proceed issue-by-issueThe bill doesn’t specify exactly but does say that the arbitrator can craft a decision using elements of either party’s proposal, which suggests that arbitration can be conducted on an “issue-by-issue” basis.

What if the union requests arbitration before the employer has submitted its final proposal? A quirk in the law is that a party can request arbitration after a certain period of time even if impasse has not been reached, and even if the other party has not made its final proposal.  What if the union demands arbitration before the employer has made its final proposal?  It’s unclear, but my recommendation is that the employer should then make its final proposal as soon as possible.

Can I modify my final proposal at the end of arbitration? The idea behind binding interest arbitration is that the hearing is in many respects a continuation of the bargaining process. Particularly with baseball-style arbitration, it’s not uncommon that at the end of the hearing, each party will modify its final proposal based upon the hearing. For example, perhaps testimony at hearing convinces the employer that 10 minutes is not enough time for the union.  Therefore, the employer might modify its final proposal to 15 minutes of time. Similarly, the union might realize that 30 minutes is too much time and modify its final proposal to 20 minutes.  However, none of this is written into the statute. To the contrary, the statute says that a party “shall not submit any proposal to compulsory interest arbitration that was not the parties’ final proposal during the parties’ negotiations.” (GC 3557(b).) This suggests that you can’t modify your proposal at the end of hearing. However, I think having the ability to modify your proposal in baseball arbitration is a good thing; and I believe that most labor advocates will agree with me. In my opinion, this issue can be something that is discussed with the arbitrator at the beginning of the process.

How long does arbitration take? The bill says that arbitration shall commence on: 1) the arbitrator’s earliest available date, or 2) any other dates agreed to by the parties, but shall be completed “within not less than 30 days.”  One thing I like about AB 119, that I wish was in the factfinding statute, is the requirement that arbitration begin on the arbitrator’s earliest available date. Note, it doesn’t say the earliest available date of the parties.  This means that if the arbitrator is available, and the parties cannot mutually decide on another date, the parties must arguably appear even if it means finding another representative.

What does completing arbitration “within not less than 30 days” mean? I have no idea. I think this is a typo.  Either “not less than” should have been stricken or “less” should be “more.”  As it is written, the language suggests that the arbitration process must take more than 30 days; in other words, you can’t finish it quicker than 30 days.  But this can’t be the intent.  The intent obviously is that the arbitration process be finished within 30 days.

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