• Testifying or serving as the union representative in a PERB proceeding; and
• Testifying or serving as the union representative in a personnel or merit commission hearings

Comments:

1. Practically, this bill should have limited impact on MMBA jurisdictions.  The vast majority of public employers already provide for paid time off if an employee is subpoenaed to testify in a judicial or quasi-judicial proceeding.  The big change would be having to give the union representative in a hearing paid time off.  The reality is that in most proceedings each side is only allowed one representative.  So in most cases I would expect the “reasonable” number to be one.
2. As originally introduced, the bill would have extended release time rights to employees “participating” in a PERB hearing or personnel-type hearing.  That would have been problematic as “participating” is a very vague term.  Fortunately, the bill was amended to remove that language.

PERB has scheduled oral argument in this case for June 13, 2013, at 2:00 p.m. at the PERB offices in Sacramento.  This will be the first oral argument heard by PERB in a case since 2002, when PERB heard oral argument in the Turlock Joint Elementary School District (PERB Decision No. 1490) case.  Pursuant to the notice from PERB, here is the issue for oral argument:

In light of Government Code section 3511, does PERB have the authority to issue a remedial order applicable to a (mixed) bargaining unit that includes non-peace officer and peace officer classifications? If so, what is the source and scope of PERB’s authority; and what is the relevance of the peace officer exclusion as set forth in Government Code section 3511 as it applies to mixed units?

In the proposed decision, the ALJ found that the City of Lompoc improperly imposed a salary reduction as part of its last, best, and final offer.  The remedy was to make the employees whole.  However, because the bargaining unit was a mixed-unit containing both peace officers and non-peace officers, the ALJ only extended the make-whole remedy to the non-peace officers in the bargaining unit.  The ALJ held that PERB did not have the authority to make whole the peace officers in the bargaining unit because of Government Code section 3511.  The union filed exceptions to the proposed decision and now the Board has requested oral argument on that issue.

Comments:

1. This jurisdiction issue is very interesting.  I grappled with it in the County of Sonoma (2010) PERB Decision No. 2100-M case.  There, the Board largely bypassed the issue of jurisdiction over a mixed-unit since the complaint was dismissed.
2. But here’s my objection to the union’s argument.  Allowing PERB to have jurisidiction over 830.1 peace officers in a mixed-unit gives these peace officers an unfair advantage.  They can read the tea leaves and if they feel they have a better chance in front of the courts, they can file a writ in court and bypass PERB.  On the other hand, if they feel PERB is a better forum they can have the non-peace officers in the unit file an unfair practice charge with PERB and the peace officers can tag along.  So it would allow peace officers a choice of forum while all other employees would be subject to PERB’s exclusive jurisdiction.
3. There are other implications too.  For example, if PERB declares that it has jurisdiction over peace officers in a mixed-unit, would that give employers the right to file unfair practice charges against them and drag them before PERB?  Bear in mind that the cops lobbied to be excluded from PERB’s jursidiction when SB 739 was enacted.  So I think this definitely falls into the category of “be careful what you wish for…”

1. Cases on Board’s Docket:  The Board was asked the average length of time from docketing (i.e. when all briefs have been submitted) to decision; and whether the Board was satisfied with that number.  During fiscal year 2011-12, the Board issued 100 decisions which took an average of 280.3 days from docketing to decision.  In the current fiscal year the Board has issued 48 decisions which took an average of 218.3 days.  The Board had about 60 decisions on its docket in 2011-12, but has brought that number down to about 45.  There are now about 10 cases over a year old on the Board’s docket, down from about 19.  The Board said it was not satisfied with the current numbers and is working on bringing them down further.  The Board’s goal is that no case will take longer than 6 months from docketing to decision.
2. Training Conference:  PERB used to sponsor training conferences for stakeholders.  The Board said it still aspired to do that, but that its resources are currently stretched too thin.  The Board said that maybe in a year or two it would be able to reconsider.
3. ALJ Travel:  The Board was asked if it will consider allowing ALJ’s to travel to hearings if the parties agree to split the costs.  The concern is that travel time constitutes “down time” for an ALJ but the Board will still consider allowing ALJ’s to travel on a case-by-case basis.
4. Factfinder List:  The Board was asked if there was a list of factfinders that it uses and how one gets on the list.  The Board said that there is a list.  There is an application that a prospective factfinder must submit.  The application requires 6 references, including ones from both union-side and management-side practitioners.  The application is then considered by a panel of neutrals for addition to PERB’s factfinder list.
5. On-Line Docketing System:  The Board was asked if PERB would consider an on-line docketing system such as PACER used by the federal courts.  The Board has not considered this but will look into it.  The Board is currently looking into at least placing its docket of cases on its website.
6. SMCS and Informal Conferences:  The Board was asked whether it had considered using State Mediation and Conciliation Service mediators to conduct PERB informal (settlement) conferences.  The Board said that SMCS was already short-staffed.  Moreover, the Board was not in favor of allowing outside volunteer mediators to conduct informal (settlement) conferences as the Board believes knowledge of PERB law is crucial and that having a PERB agent conduct the informal (settlement) conference is the most effective way to achieve settlements.

432.9. (a) A state or local agency shall not ask an applicant for employment to disclose, orally or in writing, information concerning the conviction history of the applicant, including any inquiry about conviction history on any employment application until the agency has determined the applicant meets the minimum employment qualifications, as stated in any notice issued for the position.

Comments:

1. My assumption is that the intent of the bill is to prevent public employers from automatically rejecting applicants because of a criminal conviction.  However, it is unclear what effect this bill will actually have because it does not prohibit the consideration of a conviction in the final hiring decision.
2. This bill is consistent with the “ban the box” movement sponsored by the National Employment Law Project.  The goal is to provide applicants a better chance of being evaluated based on qualifications by removing the question on most job applications about an individual’s conviction history.
3. In June 2010, the State Personnel Board removed questions about convictions on the standard state application.  Now, applicants applying for a classification to which a criminal record is pertinent must complete a separate supplemental questionnaire.
4. It should be noted that this bill only applies to the state and local entities (city, counties, special districts) and not other private or public sector employers.  Assemblymember Dickinson is from the Sacramento area, so his focus is probably on state employees.  Given the SPB’s unilateral action in June 2010, I’m curious as to what prompted Assemblymember Dickinson to sponsor this bill now.
5. While I’m generally supportive of the goals of this bill—to ensure that people are judged on qualifications—I’m not entirely convinced this bill is necessary.  So I’m looking forward to the legislative analysis…

• Prohibits employers from proposing a negotiating ground rule that limits the ability of union negotiators to communicate directly with the employer’s governing body (i.e. city council, board of supervisors);
• Eliminates requirement that a tentative agreement (TA) on a MOU be approved by the governing body.  Instead, the employer would be bound to a TA upon ratification by the union;
• Makes contractual arbitration subject to the California Arbitration Act; requires procedural defenses to arbitration to be submitted to the arbitrator; and mandates arbitration even where the conduct arguably constitutes an unfair practice;
• Requires changes to local rules to be subject to “meeting and conferring” with affected unions instead of “consultation.”  Requires any impasse to be resolved through factfinding.

Comments:

1. Ground Rules:  Assemblymember Bonta provided a fact sheet to support the amendments to AB 537.  With respect to ground rules, Assemblymember Bonta correctly notes that ground rules often include a prohibition on negotiators going directly to the other parties’ principals.  This means that union negotiators can’t go directly to the City Council (or other governing body) and that management negotiators can’t bargain directly with union members.  Assemblymember Bonta calls the restrictions on union negotiators a “gag order” that “frustrates” the bargaining process.  Tellingly, AB 537 does not allow management negotiators to communicate directly to union members.  Because this provision is so one-sided, I hope that this particular provision is rejected.
2. Ratification of MOU:  I think this amendment is likely unconstitutional as applied to charter cities and counties.  The Legislature can’t force a charter city of county to delegate authority over employee compensation (and other matters) to anyone other than the governing body.  (See County of Riverside v. Superior Court (2003) 30 Cal.4th 278 (holding that Legislature cannot force charter cities and counties to submit to binding interest arbitration).)  A larger objection to this amendment is that it is completely unnecessary.  Assemblymember Bonta asserts that it’s a problem when a union ratifies a TA and then the governing body rejects it.  I agree.  But how often does that really occur?  I’m sure it has occasionally but I can name many more instances where the union membership rejected a TA rather than the other way around.  The reality is that a management negotiator is in communication with the governing body throughout negotiations.  So the vast majority of the time when a management negotiator TA’s a MOU, it is virtually certain to be approved by the governing body.  That’s why it’s almost a universal practice to require the union membership to ratify the agreement first.  The reality is that someone – either the union or governing body – has to vote first.  It just makes more sense to have the union ratify first since it is the bigger unknown.  So I think this amendment is really a solution looking for a problem.
3. Arbitration:  Making arbitration explicitly subject to the California Arbitration Act isn’t really a big deal.  That’s really already the case.  Forcing parties to subject procedural defenses to an arbitration largely codifies existing law and practice.  That said, I don’t like this latter provision because sometimes it’s crystal clear that an arbitration is untimely; and in those cases it’s a waste of time to have to go to arbitration.  However, the bigger issue is the requirement to force a dispute to arbitration even where the conduct constitutes an unfair practice subject to PERB’s jurisdiction.  The explicit goal of this bill is to overrule the holding in IAFF Local 230 v. City of San Jose (2011) 195 Cal.App.4th 1179 where the court declined to require arbitration where the conduct arguably constituted an unfair practice subject to PERB’s exclusive jurisdiction.  The irony here is that in City of San Jose v. Operating Engineers (2010) 49 Cal.4th 597, the unions were the ones who asserted that PERB should have exclusive jurisdiction over conduct that arguably constitutes an unfair practice.  Indeed, SEIU—who is a co-sponsor of AB 537—was one of the unions that submitted an amicus brief in the City of San Jose case urging the Court to give PERB exclusive initial jurisdiction!  So part of me is happy that the unions have come around to see management’s position.  But the troubling part is that the language of this bill is so unclear that it may allow a party to go to arbitration while simultaneously litigating the same issue before PERB.  That would be even worse.  I don’t have an objection to arbitration.  Indeed, I generally prefer arbitration to going to PERB.  But I really object to a union getting two bites at the apple by being allowed to do both for the same dispute.
4. Local Rules.  Currently, the MMBA says that changes to local rules are subject to “consultation.”  Those of us in the labor community know that “consulting” is different than “meeting and conferring.”  However, there have been two appellate cases interpreting this particular use of “consultation” to be the same as “meeting and conferring.”  (See IAFF Local 1974 v. City of Pleasanton (1976) 56 Cal.App.3d 959; Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802.)  So this amendment would codify the holding of those cases.  I oppose this because I believe those cases got it wrong.  But because of those cases, this amendment really doesn’t change existing law.  The more significant change is the requirement that any impasse over local rules be submitted to factfinding.  Based on recent litigation involving PERB, I believe that this provision is consistent with PERB’s current interpretation of the factfinding statute.  But this would make it clear by putting it into the statute.