Bills seek to permit union access to new public employees

MUNICIPAL MATTERS

Assembly Bill 119 and Senate Bill 104, both trailer bills to the California State Budget and introduced by the Committee on Budget and Committee on Budget and Fiscal Review, respectively, would require public employers within the state, including of cities, counties and special districts governed by the Meyers-Milias-Brown Act (Gov. Code Section 3500 et seq.), the trial courts, schools and higher education Institutions to provide recognized employee exclusive representative organizations access to employees during employee orientation.

Legislators have unsuccessfully pushed for access to employee orientation in the past. In 2016 the Senate failed to pass AB 2835, which would have provided an exclusive representative with up to 30 minutes for a presentation to new employees during the first half of employee orientation. Similarly, earlier this year, AB 52 proposed allowing loose participation of the employee organization during a mandatory employee orientation. That bill also failed.

AB 119 and SB 104 would introduce identical changes through the addition of Chapter 11.5, Sections 3555 through 3559, to the Government Code. These sections would specifically provide for the following:

• Public employers would be required to provide 10 days' notice to an exclusive representative or recognized employee organization in advance of an employee orientation;

• The exclusive representative would be allowed access to the employee orientations;

• The structure, time, and manner of that access shall be negotiated between the exclusive representative and employer.

While providing for access to orientations, the legislation specifically finds that providing meaningful access that is efficient and cost-effective, and in furtherance of assisting exclusive representatives in the discharge of their legal obligation to fairly represent their members, is a necessary component of harmonious public employment relations and is of statewide concern.

This legislation follows on the heels of Friedrichs v. California Teachers Association, 136 S. Ct 1083 (2016). There, exclusive employee organizations narrowly avoided the elimination of "agency shop" provisions as violative of the First Amendment. Prior to the death of Justice Antonin Scalia, Friedrichs was expected to result in the court's overruling or significantly limiting their prior decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977). Abood had upheld agency fees charged by unions for collective bargaining, contract administration and grievance representation in the public sector. Without Scalia, the court tied 4-4 in Friedrichs and denied a petition for rehearing. However, with the addition of Justice Neil Gorsuch, follow-up cases -- such as Ryan Yohn v. California Teachers Ass'n, 8:17-cv-00202 (C.D. Cal. Feb. 2, 2017), Kourosh Hamidi v. Service Employees International Union Local 1000, 2:14-cv-319-WBS (E.D. Cal. Feb. 8, 2017), and an Illinois case, Janus v. AFSCME, 851 F.3d 746 (7th Cir. 2017) -- are poised to present the same issues.

The California legislation could reduce the impact of a future case eliminating the agency fees allowed by Abood by providing a forum through which public-sector unions could present information to new employees and attempt to persuade them to join as full members.

AB 116 and SB 104 also outline the procedure that would be followed if an employer and employee organization are both unable to agree on any aspects of union access to employee orientations. This legislation specifically provides that if agreement is not reached within 45 days after a first meeting between the employee organization and employer, or within 60 days after a request to negotiate, whichever occurs first, either party may demand that the issue be resolved through mandatory, binding interest arbitration following which the arbitrator is required to render a decision allowing for reasonable access to employee orientations.

There have been previous attempts to introduce mandatory interest arbitration to the public sector in California, none of which have been successful. Bagley v. City of Manhattan Beach, 18 Cal. 3d 22 (1976), for example, held that the Government Code requires salaries to be set by the City Council through an ordinance or resolution, and that a local government ordinance or resolution delegating this authority could not be permitted absent some other statutory authority as it is a function of local government that is legislative in character, and an exercise of local government discretion. Other cases have prohibited the use of mandatory interest arbitration to resolve disputes finding that Article 11, Section 11 of the California Constitution does not allow a legislative body to delegate decisions involving control over money or property, nor the performance of municipal functions to private persons. County of Riverside v. Superior Court, 30 Cal. 4th 278, 285 (2003), so held, in connection with negotiations over economic issues with firefighters and peace officers, finding that compensating county employees is a municipal function.

The introduction of mandatory interest arbitration to the public sector over disagreements on employee orientations represents something of a new issue, as it does not involve compensation. However, the structure, time and manner of access at stake in negotiations over union access to orientation does involve logistical and administrative cost burdens on public sector employers that are ultimately paid for through expenditures of public funds.

Public sector employers, including general law cities, counties and special districts should be prepared for a wave of requests from employee organizations to negotiate over union access to employees during orientation in the short-term, and should be prepared to engage in such negotiations should these bills become law.