Bill Text: CA AB1536 | 2013-2014 | Regular Session | Introduced
Bill Title: Public transportation employees: strikes: prohibition.
Spectrum: Partisan Bill (Republican 11-0)
Status: (Introduced - Dead) 2014-03-27 - In committee: Set, first hearing. Hearing canceled at the request of author. [AB1536 Detail]
Download: California-2013-AB1536-Introduced.html
BILL NUMBER: AB 1536 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Olsen
(Coauthors: Assembly Members Bigelow, Conway, Mansoor, Melendez,
Morrell, Patterson, Wagner, Waldron, and Wilk)
(Coauthor: Senator Huff)
JANUARY 21, 2014
An act to amend Sections 3610 and 3611 of, to amend the heading of
Chapter 3 (commencing with Section 3610) of Division 4.5 of Title 1
of, to repeal Section 3616 of, and to repeal and add Sections 3612,
3613, 3614, and 3615 of, the Government Code, relating to public
transportation employees.
LEGISLATIVE COUNSEL'S DIGEST
AB 1536, as introduced, Olsen. Public transportation employees:
strikes: prohibition.
Existing law prescribes procedures governing disputes between
exclusive bargaining representatives of public transportation
employees and local agencies, and authorizes the Governor, when it
appears a strike will significantly disrupt transportation services
and endanger public health, safety, and welfare, to appoint a board
to investigate issues in connection with these labor negotiations and
make a report. Existing law prohibits a strike during the period of
investigation and permits the Governor, upon receiving a report from
a board of investigation, to request the Attorney General to petition
a court to enjoin the strike, as specified.
This bill would repeal those provisions that authorize the
Governor to appoint a board to investigate when it appears a strike
will significantly disrupt transportation services, prohibit a strike
during the period of investigation, and that authorize the Governor
to request the Attorney General to petition a court to enjoin the
strike. The bill would instead prohibit a state or local public
transportation employee or public transportation employee
organization from engaging in, causing, instigating, encouraging, or
condoning a strike. The bill would also provide that a person who, on
behalf of a public transportation employer, exercises authority,
supervision, or direction over a public transportation employee shall
not have the power to, and shall not purport to, authorize, approve,
condone, or consent to a strike by a public transportation employee.
The bill would establish a process for a public transportation
employee to object to a determination by the chief executive officer
of the public transportation employer that he or she violated these
provisions by filing a sworn affidavit under penalty of perjury, thus
expanding the definition of a crime. The bill would require the
chief executive officer, if he or she determines that the objection
raises a question of fact that if resolved in favor of the employee
would establish that the employee did not commit the violation, to
appoint an officer to conduct a hearing on the matter at which the
employee would bear the burden of proving by a preponderance of the
evidence that he or she did not commit the violation, as specified.
The bill would require the Public Employment Relations Board to hold
a hearing to determine whether an employee organization violated
these provisions, and would require the employer and the employee
organization to be permitted to be represented by counsel.
The bill would provide that a public transportation employee who
violates these provisions is subject to removal or other disciplinary
action, and would authorize the chief financial officer of the
employer to deduct from the compensation of a public transportation
employee found to have violated these provisions an amount equal to
twice his or her daily rate of pay for each day or part thereof that
it was determined that he or she violated these provisions. The bill
would also require the board, if it determines that an employee
organization violated these provisions, to order forfeiture of
specified rights granted by state law to recognized employee
organizations.
The bill would also require the chief executive officer of the
employer, within 60 days of the end of a strike, to prepare a written
report, to be made public, that contains specified information
regarding the circumstances surrounding the strike, the names of
those public transit employees who the chief executive officer has
reason to believe were responsible for causing, instigating, or
encouraging the strike, and the sanctions imposed or proceedings
pending against those employees.
Because the bill would expand the definition of a crime and
require local officers to perform additional duties, the bill would
impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: 2/3 majority . Appropriation:
no. Fiscal committee: no yes .
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The heading of Chapter 3 (commencing with Section 3610)
of Division 4.5 of Title 1 of the Government Code is amended to
read:
CHAPTER 3. PROHIBITION OF PUBLIC TRANSPORTATION
LABOR DISPUTES EMPLOYEE STRIKES
SEC. 2. Section 3610 of the Government Code is amended to read:
3610. The definitions set forth in this section shall govern the
construction and meaning of the terms used in this chapter:
(a) "Local agency" means any city, county, special district, or
other public entity in the state. It includes a charter city or a
charter county.
(b) "Public transit transportation
employee" means an employee of any transit
transportation district of the state, an employee of
the Golden Gate Bridge, Highway and Transportation District, and an
employee state or of any local agency
who is employed to work for transit service provided by that
agency.
SEC. 3. Section 3611 of the Government Code is amended to read:
3611. Notwithstanding any other law, the following provisions
shall govern disputes between exclusive bargaining representatives of
public transit transportation
employees and local agencies:
(a) The disputes shall not be subject to any fact-finding
procedure otherwise provided by law.
(b) Each party shall exchange contract proposals not less than 90
days before the expiration of a contract, and shall be in formal
collective bargaining not less than 60 days before that expiration.
(c) Each party shall supply to the other party all reasonable data
as requested by the other party.
(d) At the request of either party to a dispute, a conciliator
from the California State Mediation and Conciliation Service shall be
assigned to mediate the dispute and shall have access to all formal
negotiations.
The provisions of this section shall not apply to any local agency
subject to the provisions of Chapter 10 (commencing with Section
3500) of Division 4.
SEC. 4. Section 3612 of the Government Code is repealed.
3612. (a) Whenever in the opinion of the Governor, a threatened
or actual strike or lockout will, if permitted to occur or continue,
significantly disrupt public transportation services and endanger the
public's health, safety, or welfare, and upon the request of either
party to the dispute, the Governor may appoint a board to investigate
the issues involved in the dispute and to make a written report to
him or her within seven days. The report shall include a statement of
the facts with respect to the dispute, including the respective
positions of the parties, but shall not contain recommendations. The
report shall be made available to the public.
(b) Any strike or lockout during the period of investigation of
the board appointed pursuant to this section is prohibited.
SEC. 5. Section 3612 is added to the Government Code, to read:
3612. Notwithstanding any other provision, a public
transportation employee or public transportation employee
organization shall not engage in, cause, instigate, encourage, or
condone a strike.
SEC. 6. Section 3613 of the Government Code is repealed.
3613. The board of investigation shall be composed of no more
than five members, one of whom shall be designated by the Governor as
chairperson. Members of the board shall receive one hundred dollars
($100) for each day actually spent by them in the work of the board
and shall receive their actual and necessary expenses incurred in the
performance of their duties.
The board may hold public hearings to ascertain the facts with
respect to the causes and circumstances of the dispute. For the
purpose of any hearing or investigation, the board may summon and
subpoena witnesses, require the production of papers, books,
accounts, reports, documents, records, and papers of any kind and
description, to issue subpoenas, and to take all necessary means to
compel the attendance of witnesses and procure testimony.
SEC. 7. Section 3613 is added to the Government Code, to read:
3613. (a) A public transportation employee who violates Section
3612 or subdivision (c) is subject to removal or other disciplinary
action.
(b) A public transportation employee who is absent from work
without permission, or who abstains wholly or in part from the full
performance of his or her duties in his or her normal manner without
permission, on the date or dates when a strike occurs, shall be
presumed to have engaged in the strike on that date or dates.
(c) A person who, on behalf of a public transportation employer,
exercises authority, supervision, or direction over a public
transportation employee shall not have the power to, and shall not
purport to, authorize, approve, condone, or consent to a strike by a
public transportation employee.
(d) If it appears that a violation of Section 3612 or subdivision
(c) may have occurred, within 60 days thereof the chief executive
officer of the employer shall, on the basis of any investigation or
affidavits as he or she may deem appropriate, determine whether or
not a violation has occurred and the date or dates of the violation.
If the chief executive officer determines that a violation has
occurred, he or she shall further determine, on the basis of any
further investigation and affidavits as he or she may deem
appropriate, the names of employees who committed the violation and
the date or dates thereof. The determination shall not be deemed to
be final until the completion of the procedures provided for in this
section.
(e) The chief executive officer shall notify each employee that he
or she has been determined, pursuant to subdivision (d), to have
committed a violation of Section 3612 or subdivision (c), the date or
dates of the violation, and of his or her right to object to the
determination pursuant to subdivision (h). The chief executive
officer shall also notify the chief financial officer of the names of
those employees and of the total number of days, or part thereof, on
which it has been determined that a violation occurred. Notice to
each employee shall be by personal service or by certified mail to
his or her last address filed with his or her employer.
(f) No compensation shall be paid by a public transportation
employer to a public transportation employee with respect to any day
or part thereof when the employee is engaged in a strike against the
employer. The chief financial officer of the employer shall withhold
that compensation upon receipt of the notice provided by subdivision
(e). Notwithstanding the failure to have received the notice, no
public transportation employee or officer having knowledge that the
employee has engaged in a strike shall deliver or caused to be
delivered to the employee any cash, check, or payment that, in whole
or in part, represents such compensation.
(g) No earlier than 30 days, nor later than 90 days, following the
date of a determination pursuant to subdivision (d), the chief
financial officer of the employer shall deduct from the compensation
of an employee found to have violated Section 3612 or subdivision (c)
an amount equal to twice his or her daily rate of pay for each day
or part thereof that it was determined that he or she violated
Section 3612 or subdivision (c). In computing the deduction, credit
shall be allowed for amounts already withheld from the employee's
compensation due to his or her absence from work or other withholding
of services. If the employee's annual compensation is paid over a
period of time that is less than 52 weeks, the period of time between
the last day of the last payroll period of the employment term in
which the violation occurred and the first day of the first payroll
period of the next succeeding employment term shall be disregarded
and not counted in computing the 30-to-90-day period.
(h) (1) A public transportation employee who has been determined
pursuant to subdivision (d) to have committed a violation of Section
3612 or subdivision (c) may object to the determination by filing
with the chief executive officer of the public transportation
employer, within 20 days of the date on which notice was served or
mailed to him or her pursuant to subdivision (e), his or her sworn
affidavit under penalty of perjury, supported by available
documentary proof, containing a short and plain statement of the
facts upon which he or she relies to show that the determination is
incorrect.
(2) If the chief executive officer determines that the affidavit
and supporting proof establishes that the employee did not commit the
violation, he or she shall sustain the objection. If the chief
executive officer determines that the affidavit and supporting proof
fails to establish that the employee did not commit the violation, he
or she shall dismiss the objection and notify the employee.
(3) If the chief executive officer determines that the affidavit
and supporting proof raises a question of fact that, if resolved in
favor of the employee, would establish that the employee did not
commit the violation, he or she shall appoint an officer to conduct a
hearing at which the employee shall bear the burden of proof. If the
hearing officer determines, based upon a preponderance of the
evidence, that the employee did not commit the violation, the chief
executive officer shall notify the employee of that determination. If
the hearing officer determines that the employee failed to establish
that he or she did not commit the violation, the chief executive
officer shall notify the employee of that determination.
(4) If the chief executive officer sustains the employee's
objection or the hearing officer determines that the employee did not
violate this subdivision, the chief executive officer shall notify
the chief financial officer who shall thereupon cease all further
deductions from the employees's compensation and refund any
deductions previously made from the employee's compensation pursuant
subdivision (g).
SEC. 8. Section 3614 of the Government Code is repealed.
3614. Upon receiving a report from a board of investigation, the
Governor may request the Attorney General to, and he or she shall,
petition any court of competent jurisdiction to enjoin the strike or
lockout or the continuing thereof, for a period of 60 days. The court
shall issue an order enjoining the strike or lockout, or the
continuation thereof, if the court finds that the threatened or
actual strike or lockout, if permitted to occur or continue, will
significantly disrupt public transportation services and endanger the
public's health, safety, or welfare.
SEC. 9. Section 3614 is added to the Government Code, to read:
3614. (a) A public transportation employee organization that is
determined to have violated Section 3612 shall, in accordance with
the provisions of this section, forfeit the rights granted to
recognized employee organizations by Chapter 10 (commencing with
Section 3500) of Division 4 or Chapter 10.3 (commencing with Section
3512) of Division 4.
(b) If circumstances indicate that an employee organization may
have violated Section 3612, the chief executive officer of the public
transportation employer shall notify the chief legal officer of the
public transportation employer and the Public Employment Relations
Board. The chief executive officer of the employer shall provide the
board and the chief legal officer of the public transportation
employer the facilities, assistance, and data to enable those
entities to carry out their duties under this section.
(c) The chief legal officer of the public transportation employer,
or the board on its own motion, shall initiate proceedings before
the board to determine whether the violation occurred. Proceedings
against a public transportation employee organization under this
section shall be commenced by serving the employee organization with
a written notice and a copy of the charges. If the proceedings are
initiated by the board, a copy of the notice and charges shall also
be served upon the public transportation employer. The employee
organization shall have eight days to answer the charges. The board
shall promptly hold a hearing at which the employer and the employee
organization shall be permitted to be represented by counsel and to
summon witnesses in their behalf. Compliance with the technical rules
of evidence shall not be required.
(d) In determining whether an employee organization has violated
Section 3612, the board shall consider whether the employee
organization called the strike or tried to prevent it, and whether
the employee organization made a good faith effort to end the strike.
(e) (1) If the board determines that an employee organization
violated Section 3612, the board shall order forfeiture of the rights
granted to recognized employee organizations by Chapter 10
(commencing with Section 3500) of Division 4 or Chapter 10.3
(commencing with Section 3512) of Division 4 for a specified period
of time in its discretion determines, or for an indefinite period of
time, subject to restoration upon application to the board.
(2) In fixing the duration of the forfeiture, the board shall
consider all the relevant facts and circumstances, including, but not
limited to, the extent of any intentional violation of Section 3612;
the impact of the strike on the public health, safety, and welfare
of the community; and the financial resources of the employee
organization. The board may also consider whether the employee
organization or the public transportation employer, or a
representative thereof, refused to submit to mediation and
fact-finding procedures and whether, if alleged by the employee
organization, the public transportation employer, or a representative
thereof, engaged in acts of extreme provocation so as to detract
from the responsibility of the employee organization for the strike.
(3) Notice of an application for reinstatement of rights forfeited
pursuant to this subdivision shall be send to all interested parties
and supported by proof of good faith compliance with the
prohibitions of Section 3612 since the date of the violation. That
proof may include, but is not limited to, the successful negotiation
of a contract covering the employees in the unit affected by the
violation.
(f) After three years, an employee organization that forfeited the
rights granted to recognized employee organizations by Chapter 10
(commencing with Section 3500) of Division 4 or Chapter 10.3
(commencing with Section 3512) of Division 4 pursuant to this section
may have those rights reinstated by the Legislature.
SEC. 10. Section 3615 of the Government Code is repealed.
3615. If the charter or establishing legislation of the local
agency establishes a time period for the negotiating or meeting and
conferring process which is shorter than 60 days, the provisions of
this chapter shall not be applicable to any disputes which may arise
between the exclusive bargaining representative of public transit
employees and the local agency.
SEC. 11. Section 3615 is added to the Government Code, to read:
3615. Within 60 days of the end of a strike, the chief executive
officer of the public transportation employer shall prepare a written
report, which shall be made public, that contains the following
information:
(a) The circumstances surrounding the commencement of the strike.
(b) The efforts made to terminate the strike.
(c) The names of public transportation employees who the chief
executive officer of the public transportation employer has reason to
believe were responsible for causing, instigating, or encouraging
the strike.
(d) The sanctions imposed or proceedings pending against those
public transportation employees related to the varying degrees of
actual or suspected individual responsibility.
SEC. 12. Section 3616 of the Government Code is repealed.
3616. Except as expressly provided by subdivision (b) of Section
3612 and Section 3614, nothing in this chapter shall be construed to
grant or deprive employees of a right to strike.
SEC. 13. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.
