ASSEMBLY THIRD READING

ATR Bill Id:AB 3096

Author:(Chiu)

As Amended Ver:March 10, 2020

Majority vote

SUMMARY:

Authorizes a claim to brought before the Public Employment Relations Board (PERB) by an employee organization against the University of California (UC) for certain violations, and attaches financial liability to the UC for the violation, among other provisions.

Major Provisions

1. Permits an employee organization to bring a claim before the PERB alleging that the UC violated the Higher Education Employer-Employee Relations Act (HEERA) relating to public employee communications.
2. Establishes that the UC must be liable to the employee organization for a penalty of $1,000 per each affected employee, and for attorney's fees and costs incurred in bringing the claim.

COMMENTS:

1. The Role of the PERB Under the HEERA, Generally

The initial determination of an unfair practice charge and appropriate remedies under the HEERA are within the exclusive jurisdiction of the PERB. Any employee, union, or employer may file an unfair practice charge for a violation of the act.

The PERB has no authority to enforce agreements, and it is prohibited from issuing complaints on charges alleging a violation of such agreements unless the charge also would constitute an unfair practice charge. However, when the PERB finds that an unfair practice has been committed, it may issue remedies, including cease and desist orders or certain affirmative remedies (e.g., reinstatement of employees with or without backpay), to the extent that it effectuates the provisions established by the HEERA.

The PERB also is vested with a broad range of other rights and responsibilities, including authority to determine appropriate bargaining units; determine in disputed cases whether a certain item is within the scope of representation; arrange for and supervise elections and certify the election results of union representation; establish a list of individuals available to serve as mediators, arbitrators, or factfinders; establish procedural rules and regulations to effectuate the purposes of the act; hold hearings and order investigations as needed to enforce the HEERA; bring actions to courts of law to enforce its orders, decisions or rulings, and take any other actions necessary to discharge its powers and duties. Thus, the decisions of the PERB serve to give meaning to the provisions of the HEERA.

When a violation of the HEERA, or a decision of the PERB can be undermined without repercussion, the purposes for which the HEERA was established, the meaning of its provisions, and enforcement by the PERB are frustrated. As such, there likely is a need for additional measures to ensure compliance as intended by the Legislature when the statute was established.

1. Other Important Information

Please see the policy committee analysis for a full discussion of this bill.

According to the Author:

"For the last two years, the UC has repeatedly sent out anti-union communications to existing bargaining units and workers attempting to collectively bargain at campuses across the state. For example, in May 2017, UC Davis sent a bulletin to Skilled Crafts employees that warned that organizing efforts on other campuses led to a freeze in salaries. This kind of intimidation is an obvious and flagrant violation of the law but has little downside to the UC. If the PERB finds there is an unfair labor practice, usually months after the fact, the UC is only required to post a notice of violation. There is no financial penalty to deter the behavior in the first place.

"If employers are allowed to successfully convince employees not to become union members, or drop their membership altogether, through intimidation or misleading information, they undermine the right of all Californians to freely decide union membership. Such a personal choice should be freely made, without coercion and on what should be a level playing ground between employers and unionized employees.

"AB 3096 will impose a $1,000 penalty per violation, per affected employee. By creating a financial penalty for the dissemination of anti-union communications, the UC should think carefully before intentionally discouraging union activity in the public sector."

Arguments in Support:

Generally, supporters state that currently, there are no financial penalties for a violation of the HEERA. Even when an employee organization succeeds in petitioning the PERB to grant an unfair labor practice charge, the PERB can only issue a cease-and-desist order requiring the UC to post notice of the violation. By the time of the notice, the damage is already done. This bill seeks to encourage compliance with existing law.

Arguments in Opposition:

Generally, the opponent states that this bill would penalize colleges in the UC system who try to have honest discussions with their employees about the consequences of union monopoly bargaining, and that union organizers would be free to tell workers whatever they think would gain them monopoly bargaining privilege and employers would be fined a thousand dollars plus legal fees per worker merely for giving honest information to workers.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, this bill would result in "[a]nnual Fund (General Fund) costs for [the] PERB in the range of $20,000 in the first two years and unknown costs each year thereafter. This cost estimate assumes this bill results in one additional case on behalf of a group of affected employees per year." In addition, the bill would result in "[p]otential costs to the UC in the millions of dollars. This bill imposes a $1,000 penalty per affected employee, meaning a single communication to just a subset of UC's 110,000 represented employees could result in hundreds of thousands of dollars, possibly millions of dollars, in penalties. These costs only materialize if [the] PERB finds that [the] UC's communications to employees deterred or discouraged them from becoming or remaining members of a union."

VOTES:

ASM PUBLIC EMPLOYMENT AND RETIREMENT: 5-2-0

YES: Rodriguez, Cooley, Cooper, O'Donnell, Reyes

NO: Voepel, Fong

ASM APPROPRIATIONS: 11-5-2

YES: Gonzalez, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, McCarty, Robert Rivas

NO: Bigelow, Megan Dahle, Diep, Fong, Voepel

ABS, ABST OR NV: Bauer-Kahan, Petrie-Norris

UPDATED:

VERSION: March 10, 2020

CONSULTANT: Michael Bolden / P.E. & R. / (916) 319-3957 FN: 0002850

Date of Hearing: June 2, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 3096

Author:(Chiu) – As Amended Ver:March 10, 2020

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill authorizes an employee organization to bring a claim before the Public Employment Relations Board (PERB) against the University of California (UC) for deterring or discouraging employees and job applicants from becoming or remaining members of a union or from authorizing dues or fee deductions. UC may be liable for a penalty of $1,000 per each affected employee as well as attorney’s fees and costs.

FISCAL EFFECT:

1. Annual Fund (GF) costs for PERB in the range of $20,000 in the first two years and unknown costs each year thereafter. This cost estimate assumes this bill results in one additional case on behalf of a group of affected employees per year.
2. Potential costs to the UC in the millions of dollars. This bill imposes a $1,000 penalty per affected employee, meaning a single communication to just a subset of UC’s 110,000 represented employees could result in hundreds of thousands of dollars, possibly millions of dollars, in penalties. These costs only materialize if PERB finds that UC’s communications to employees deterred or discouraged them from becoming or remaining members of a union.

COMMENTS:

1. Purpose. According to the author, this bill will deter future anti-union activity at UC by creating a financial penalty for the dissemination of anti-union communication. As an example of the reason for this bill, the author points to a May 2017 incident when the University of California, Davis sent a bulletin to skilled crafts employees warning them how organization efforts at other campuses led to a salary freeze.
2. A note of caution on PERB workload. This bill is one of two bills pending in this committee that increases PERB’s workload. The other bill is AB 2850 (Low), which places some Bay Area Rapid Transit (BART) employment disputes under the jurisdiction PERB.

These bills will each result in additional new cases and could worsen PERB’s persistent workload and budgetary challenges. PERB remains the best-equipped institution to resolve public employment disputes, but a growing number of cases and limited resources have led to significant backlog and delays. In response, PERB began a Case Processing Efficiency Initiative in 2017 to improve and streamline internal processes. Moreover, recent budget actions increased PERB’s budget from $10.4 million in 2017-18 to an estimated $13.1 million by 2019-20. This committee has reached out to stakeholders to ask if PERB’s backlog has improved and has received mixed responses.

While Legislature and the administration have taken action intended to reduce PERB’s backlog of cases, this problem is likely to persist in the near term. As state and local governments grapple with significant revenue shortfalls, the number of employment disputes is likely to increase.

Analysis Prepared by: Luke Reidenbach / APPR. / (916) 319-2081

Date of Hearing: May 5, 2020

ASSEMBLY COMMITTEE ON PUBLIC EMPLOYMENT AND RETIREMENT

Freddie Rodriguez, Chair

ABPCA Bill Id:AB 3096 (

Author:Chiu) – As Amended Ver:March 10, 2020

SUBJECT: Deterring union membership: University of California: violations

SUMMARY: Authorizes a claim to brought before the Public Employment Relations Board (PERB) by an employee organization against the University of California (UC) for certain violations, and attaches financial liability to the UC for the violation, among other provisions. Specifically, this bill:

1. Permits an employees to bring a claim before the PERB alleging that the UC violated the Higher Education Employer-Employee Relations Act (HEERA), as provided.
2. Establishes that the UC must be liable to the employee organization for a penalty of $1,000 per each affected employee, and for attorney’s fees and costs incurred in bringing the claim.

EXISTING LAW:

1. Provides, pursuant to the California Constitution, the liberty of speech to every person, and the right of the people to instruct their representatives, petition government for redress of grievances, and to assembly freely to consult for the common good.^[1]
2. Establishes the UC as a public trust, administered by the Regents of the UC with full powers of organization and government.
3. Governs collective bargaining in the private sector under the federal National Relations Labor Relations Act (NLRA) but leaves it to the states to regulate collective bargaining in their respective public sectors.

While the NLRA and the decisions of its National Labor Relations Board often provide persuasive precedent in interpreting state collective bargaining law, public employees have no collective bargaining rights absent specific statutory authority establishing those rights.

1. Provides several statutory frameworks under California law to provide public employees collective bargaining rights, govern public employer-employee relations, and limit labor strife and economic disruption in the public sector through a reasonable method of resolving disputes regarding wages, hours and other terms and conditions of employment between public employers and recognized public employee organizations or their exclusive representatives. These include the HEERA which provides for public employer-employee relations for specified employees of the UC, California State University, and Hastings College of Law.
2. Provides, pursuant to the HEERA, that employees may join and participate in employee organizations for purposes of meeting and conferring on all employment relations issues and generally, establishes the scope of representation by an exclusive representative of the employees.
3. Establishes the Public Employment Relations Board (PERB), a quasi-judicial administrative agency charged with administering certain statutory frameworks governing employer-employee relations, resolving disputes, and enforcing the statutory duties and rights of public agency employers and employee organizations, but provides the City and County of Los Angeles a local alternative to PERB oversight.

FISCAL EFFECT: Unknown. This bill is flagged as fiscal by Legislative Counsel.

COMMENTS: According to the author, “For the last two years, the UC has repeatedly sent out anti-union communications to existing bargaining units and workers attempting to collectively bargain at campuses across the state. For example, in May 2017, UC Davis sent a bulletin to Skilled Crafts employees that warned that organizing efforts on other campuses led to a freeze in salaries. This kind of intimidation is an obvious and flagrant violation of the law but has little downside to the UC. If the PERB finds there is an unfair labor practice, usually months after the fact, the UC is only required to post a notice of violation. There is no financial penalty to deter the behavior in the first place.

“If employers are allowed to successfully convince employees not to become union members, or drop their membership altogether, through intimidation or misleading information, they undermine the right of all Californians to freely decide union membership. Such a personal choice should be freely made, without coercion and on what should be a level playing ground between employers and unionized employees.

“AB 3096 will impose a $1,000 penalty per violation, per affected employee. By creating a financial penalty for the dissemination of anti-union communications, the UC should think carefully before intentionally discouraging union activity in the public sector.”

1. The Rights and Obligations of the UC and Employees Pursuant to the HEERA

The HEERA makes it unlawful for a higher education employer to interfere with the exercise of statutory rights conferred by the HEERA; deny unions rights conferred upon them by the act; refuse or fail to bargain with the exclusive representative; interfere with, dominate, or discriminate among unions; refuse to participate in good faith in the impasse procedure provided by the act, and consult with any other employee group, as provided, on matters within the scope of representation where the employees are represented by an exclusive representative or where a request for recognition or certification by a union is active.

As to the exclusive representative, the HEERA prohibits a union from causing or attempting to cause the employer to commit an unfair practice; interfering with an employee’s exercise of rights conferred by the act; refusing or failing to bargain with the employer; refusing to participate in good faith in the established impasse procedure, as provided by the act; failing to fairly and impartially represent all employees in a unit for which the union is the exclusive representative; levying excessive or discriminatory fees on employers covered by a memorandum of understanding, and exacting or attempting to exact payment from the employer for services not performed.

In sum, the HEERA confers both rights and obligations on the UC and the exclusive representative relating to employment relations, and neither may infringe on the rights of the other, nor employees.

1. The Role of the PERB Under the HEERA, Generally

The initial determination of an unfair practice charge and appropriate remedies under the HEERA are within the exclusive jurisdiction of the PERB. Any employee, union, or employer may file an unfair practice charge for a violation of the act.

The PERB has no authority to enforce agreements, and it is prohibited from issuing complaints on charges alleging a violation of such agreements unless the charge also would constitute an unfair practice charge. However, when the PERB finds that an unfair practice has been committed, it may issue remedies, including cease and desist orders or certain affirmative remedies (e.g., reinstatement of employees with or without backpay, to the extent that it effectuates the provisions established by the HEERA.

The PERB also is vested with a broad range of other rights and responsibilities, including authority to determine appropriate bargaining units; determine in disputed cases whether a certain item is within the scope of representation; arrange for and supervise elections and certify the election results of union representation; establish a list of individuals available to serve as mediators, arbitrators, or factfinders; establish procedural rules and regulations to effectuate the purposes of the act; hold hearings and order investigations as needed to enforce the HEERA; bring actions to courts of law to enforce its orders, decisions or rulings, and take any other actions necessary to discharge its powers and duties. Thus, the decisions of the PERB serve to give meaning to the provisions of the HEERA.

When a violation of the HEERA, or a decision of the PERB can be undermined without repercussion, the meaning of the HEERA’s provisions and enforcement by the PERB are frustrated. As such, there likely is a need for additional measures to ensure compliance as intended by the Legislature when the statute was established.

1. Comments by Supporters

Generally, supporters state that currently, there are no financial penalties for a violation of the HEERA. Even when an employee organization succeeds in petitioning the PERB to grant an unfair labor practice charge, the PERB can only issue a cease-and-desist order requiring the UC to post notice of the violation. By the time of the notice, the damage is already done. This bill seeks to encourage compliance with existing law.

1. Comments by Opponents

Generally, the opponent states that this bill would penalize colleges in the UC system who try to have honest discussions with their employees about the consequences of union monopoly bargaining, and that union organizers would be free to tell workers whatever they think would gain them monopoly bargaining privilege and employers would be fined a thousand dollars plus legal fees per worker merely for giving honest information to workers.

1. Prior or Related Legislation

Assembly Bill 1926 (Gonzalez) prohibits the University of California (UC) from engaging in certain conduct or activity relating to public employer-employee relations, among other provisions. This bill is currently pending in the Assembly Committee on Public Employment and Retirement.

REGISTERED SUPPORT / OPPOSITION:

Support

California Teamsters Public Affairs Council (Sponsor)

California Conference Board of the Amalgamated Transit Union

California Conference of Machinists

California Professional Firefighters

California State Council of Service Employees International Union

California Teachers Association

Communications Workers of America, District 9

Engineers and Scientists of California, IFPTE Local 20, AFL-CIO

Professional and Technical Engineers, IFPTE Local 21, AFL-CIO

UNITE-HERE, AFL-CIO

Utility Workers Union of America

Opposition

National Right to Work Committee

Analysis Prepared by: Michael Bolden / P.E. & R. / (916) 319-3957

1. See Sections 2(a) and 3(a) of Article I of the California Constitution, respectively. ↑