Bill Text: CA SB857 | 2011-2012 | Regular Session | Chaptered


Bill Title: Public employment: unlawful strike damages.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Passed) 2011-10-07 - Chaptered by Secretary of State. Chapter 539, Statutes of 2011. [SB857 Detail]

Download: California-2011-SB857-Chaptered.html
BILL NUMBER: SB 857	CHAPTERED
	BILL TEXT

	CHAPTER  539
	FILED WITH SECRETARY OF STATE  OCTOBER 7, 2011
	APPROVED BY GOVERNOR  OCTOBER 7, 2011
	PASSED THE SENATE  SEPTEMBER 1, 2011
	PASSED THE ASSEMBLY  AUGUST 25, 2011
	AMENDED IN ASSEMBLY  JULY 7, 2011
	AMENDED IN ASSEMBLY  JUNE 13, 2011
	AMENDED IN SENATE  APRIL 25, 2011
	AMENDED IN SENATE  MARCH 24, 2011

INTRODUCED BY   Senator Lieu
   (Coauthor: Assembly Member Williams)

                        FEBRUARY 18, 2011

   An act to amend Sections 3509, 3514.5, 3541.3, 3563.3, 71639.1,
and 71825 of the Government Code, and to amend Section 99561 of the
Public Utilities Code, relating to public employment.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 857, Lieu. Public employment: unlawful strike damages.
   Existing law establishes the Public Employment Relations Board
(PERB). Under existing law, PERB has the power and duty to
investigate an unfair practice charge and to determine whether the
charge is justified and the appropriate remedy for the unfair
practice.
   This bill would specify that PERB has no authority, in an action
to recover damages due to an unlawful strike, to award
strike-preparation expenses as damages, or to award damages for
costs, expenses, or revenue losses incurred during, or as a
consequence of, an unlawful strike. The bill would state that its
provisions are declaratory of existing law and that it is not
intended to modify existing law that authorizes a court to award
damages for otherwise unlawful conduct committed during a strike.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 3509 of the Government Code is amended to read:

   3509.  (a) The powers and duties of the board described in Section
3541.3 shall also apply, as appropriate, to this chapter and shall
include the authority as set forth in subdivisions (b) and (c).
Included among the appropriate powers of the board are the power to
order elections, to conduct any election the board orders, and to
adopt rules to apply in areas where a public agency has no rule.
   (b) A complaint alleging any violation of this chapter or of any
rules and regulations adopted by a public agency pursuant to Section
3507 or 3507.5 shall be processed as an unfair practice charge by the
board. The initial determination as to whether the charge of unfair
practice is justified and, if so, the appropriate remedy necessary to
effectuate the purposes of this chapter, shall be a matter within
the exclusive jurisdiction of the board, except that in an action to
recover damages due to an unlawful strike, the board shall have no
authority to award strike-preparation expenses as damages, and shall
have no authority to award damages for costs, expenses, or revenue
losses incurred during, or as a consequence of, an unlawful strike.
The board shall apply and interpret unfair labor practices consistent
with existing judicial interpretations of this chapter.
   (c) The board shall enforce and apply rules adopted by a public
agency concerning unit determinations, representation, recognition,
and elections.
   (d) Notwithstanding subdivisions (a) to (c), inclusive, the
employee relations commissions established by, and in effect for, the
County of Los Angeles and the City of Los Angeles pursuant to
Section 3507 shall have the power and responsibility to take actions
on recognition, unit determinations, elections, and all unfair
practices, and to issue determinations and orders as the employee
relations commissions deem necessary, consistent with and pursuant to
the policies of this chapter.
   (e) Notwithstanding subdivisions (a) to (c), inclusive, consistent
with, and pursuant to, the provisions of Sections 3500 and 3505.4,
superior courts shall have exclusive jurisdiction over actions
involving interest arbitration, as governed by Title 9 (commencing
with Section 1280) of Part 3 of the Code of Civil Procedure, when the
action involves an employee organization that represents
firefighters, as defined in Section 3251.
   (f) This section shall not apply to employees designated as
management employees under Section 3507.5.
   (g) The board shall not find it an unfair practice for an employee
organization to violate a rule or regulation adopted by a public
agency if that rule or regulation is itself in violation of this
chapter. This subdivision shall not be construed to restrict or
expand the board's jurisdiction or authority as set forth in
subdivisions (a) to (c), inclusive.
  SEC. 2.  Section 3514.5 of the Government Code is amended to read:
   3514.5.  The initial determination as to whether the charges of
unfair practices are justified, and, if so, what remedy is necessary
to effectuate the purposes of this chapter, shall be a matter within
the exclusive jurisdiction of the board, except that in an action to
recover damages due to an unlawful strike, the board shall have no
authority to award strike-preparation expenses as damages, and shall
have no authority to award damages for costs, expenses, or revenue
losses incurred during, or as a consequence of, an unlawful strike.
Procedures for investigating, hearing, and deciding these cases shall
be devised and promulgated by the board and shall include all of the
following:
   (a) Any employee, employee organization, or employer shall have
the right to file an unfair practice charge, except that the board
shall not do either of the following: (1) issue a complaint in
respect of any charge based upon an alleged unfair practice occurring
more than six months prior to the filing of the charge; (2) issue a
complaint against conduct also prohibited by the provisions of the
agreement between the parties until the grievance machinery of the
agreement, if it exists and covers the matter at issue, has been
exhausted, either by settlement or binding arbitration. However, when
the charging party demonstrates that resort to contract grievance
procedure would be futile, exhaustion shall not be necessary. The
board shall have discretionary jurisdiction to review a settlement or
arbitration award reached pursuant to the grievance machinery solely
for the purpose of determining whether it is repugnant to the
purposes of this chapter. If the board finds that the settlement or
arbitration award is repugnant to the purposes of this chapter, it
shall issue a complaint on the basis of a timely filed charge, and
hear and decide the case on the merits; otherwise, it shall dismiss
the charge. The board shall, in determining whether the charge was
timely filed, consider the six-month limitation set forth in this
subdivision to have been tolled during the time it took the charging
party to exhaust the grievance machinery.
   (b) The board shall not have authority to enforce agreements
between the parties, and shall not issue a complaint on any charge
based on alleged violation of such an agreement that would not also
constitute an unfair practice under this chapter.
   (c) The board shall have the power to issue a decision and order
directing an offending party to cease and desist from the unfair
practice and to take such affirmative action, including, but not
limited to, the reinstatement of employees with or without back pay,
as will effectuate the policies of this chapter.
  SEC. 3.  Section 3541.3 of the Government Code is amended to read:
   3541.3.  The board shall have all of the following powers and
duties:
   (a) To determine in disputed cases, or otherwise approve,
appropriate units.
   (b) To determine in disputed cases whether a particular item is
within or without the scope of representation.
   (c) To arrange for and supervise representation elections that
shall be conducted by means of secret ballot elections, and certify
the results of the elections.
   (d) To establish lists of persons broadly representative of the
public and qualified by experience to be available to serve as
mediators, arbitrators, or factfinders. In no case shall these lists
include persons who are on the staff of the board.
   (e) To establish by regulation appropriate procedures for review
of proposals to change unit determinations.
   (f) Within its discretion, to conduct studies relating to
employer-employee relations, including the collection, analysis, and
making available of data relating to wages, benefits, and employment
practices in public and private employment, and, when it appears
necessary in its judgment to the accomplishment of the purposes of
this chapter, recommend legislation. The board shall report to the
Legislature by October 15 of each year on its activities during the
immediately preceding fiscal year. The board may enter into contracts
to develop and maintain research and training programs designed to
assist public employers and employee organizations in the discharge
of their mutual responsibilities under this chapter.
   (g) To adopt, pursuant to Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2, rules and regulations to
carry out the provisions and effectuate the purposes and policies of
this chapter.
   (h) To hold hearings, subpoena witnesses, administer oaths, take
the testimony or deposition of any person, and, in connection
therewith, to issue subpoenas duces tecum to require the production
and examination of any employer's or employee organization's records,
books, or papers relating to any matter within its jurisdiction.
Notwithstanding Section 11425.10, Chapter 4.5 (commencing with
Section 11400) of Part 1 of Division 3 of Title 2 does not apply to a
hearing by the board under this chapter, except a hearing to
determine an unfair practice charge.
   (i) To investigate unfair practice charges or alleged violations
of this chapter, and take any action and make any determinations in
respect of these charges or alleged violations as the board deems
necessary to effectuate the policies of this chapter, except that in
an action to recover damages due to an unlawful strike, the board
shall have no authority to award strike-preparation expenses as
damages, and shall have no authority to award damages for costs,
expenses, or revenue losses incurred during, or as a consequence of,
an unlawful strike.
   (j) To bring an action in a court of competent jurisdiction to
enforce any of its orders, decisions, or rulings, or to enforce the
refusal to obey a subpoena. Upon issuance of a complaint charging
that any person has engaged in or is engaging in an unfair practice,
the board may petition the court for appropriate temporary relief or
restraining order.
   (k) To delegate its powers to any member of the board or to any
person appointed by the board for the performance of its functions,
except that no fewer than two board members may participate in the
determination of any ruling or decision on the merits of any dispute
coming before it, and except that a decision to refuse to issue a
complaint shall require the approval of two board members.
   (l) To decide contested matters involving recognition,
certification, or decertification of employee organizations.
   (m) To consider and decide issues relating to rights, privileges,
and duties of an employee organization in the event of a merger,
amalgamation, or transfer of jurisdiction between two or more
employee organizations.
   (n) To take any other action as the board deems necessary to
discharge its powers and duties and otherwise to effectuate the
purposes of this chapter.
  SEC. 4.  Section 3563.3 of the Government Code is amended to read:
   3563.3.  The board shall have the power to issue a decision and
order directing an offending party to cease and desist from the
unfair practice and to take such affirmative action, including, but
not limited to, the reinstatement of employees with or without back
pay, as will effectuate the policies of this chapter, except that in
an action to recover damages due to an unlawful strike, the board
shall have no authority to award strike-preparation expenses as
damages, and shall have no authority to award damages for costs,
expenses, or revenue losses incurred during, or as a consequence of,
an unlawful strike.
  SEC. 5.  Section 71639.1 of the Government Code is amended to read:

   71639.1.  (a) As used in this article, "board" means the Public
Employment Relations Board established pursuant to Section 3541.
   (b) The powers and duties of the board described in Section 3541.3
shall also apply, as appropriate, to this article and shall include
the authority as set forth in subdivisions (c) and (d). Included
among the appropriate powers of the board are the power to order
elections, to conduct any election the board orders, and to adopt
rules to apply in areas where a trial court has no rule.
   (c) A complaint alleging any violation of this article or of any
rules and regulations adopted by a trial court pursuant to Section
71636 shall be processed as an unfair practice charge by the board.
The initial determination as to whether the charge of unfair practice
is justified and, if so, the appropriate remedy necessary to
effectuate the purposes of this article, shall be a matter within the
exclusive jurisdiction of the board, except that in an action to
recover damages due to an unlawful strike, the board shall have no
authority to award strike-preparation expenses as damages, and shall
have no authority to award damages for costs, expenses, or revenue
losses incurred during, or as a consequence of, an unlawful strike.
The board shall apply and interpret unfair labor practices consistent
with existing judicial interpretations of this article and Section
71639.3. The board shall not issue a complaint in respect of any
charge based upon an alleged unfair practice occurring more than six
months prior to the filing of the charge, except that if the rules
and regulations adopted by a trial court require exhaustion of a
remedy prior to filing an unfair practice charge or the charging
party chooses to exhaust a trial court's remedy prior to filing an
unfair practice charge, the six-month limitation set forth in this
subdivision shall be tolled during such reasonable amount of time it
takes the charging party to exhaust the remedy, but nothing herein
shall require a charging party to exhaust a remedy when that remedy
would be futile.
   (d) The board shall enforce and apply rules adopted by a trial
court concerning unit determinations, representation, recognition,
and elections.
   (e) This section does not apply to employees designated as
management employees under Section 71637.1.
   (f) The board shall not find it an unfair practice for an employee
organization to violate a rule or regulation adopted by a trial
court if that rule or regulation is itself in violation of this
article.
  SEC. 6.  Section 71825 of the Government Code is amended to read:
   71825.  (a) As used in this section, "board" means the Public
Employment Relations Board established pursuant to Section 3541.
   (b) The powers and duties of the board described in Section 3541.3
shall also apply, as appropriate, to this chapter and shall include
the authority as set forth in subdivisions (c) and (d). Included
among the appropriate powers of the board are the power to order
elections, to conduct any election the board orders, and to adopt
rules to apply in areas where a regional court interpreter employment
relations committee has no rule.
   (c) A complaint alleging any violation of this chapter or of any
rules and regulations adopted by a regional court interpreter
employment relations committee pursuant to Section 71823 shall be
processed as an unfair practice charge by the board. The initial
determination as to whether the charge of unfair practice is
justified and, if so, the appropriate remedy necessary to effectuate
the purposes of this chapter, shall be a matter within the exclusive
jurisdiction of the board, except that in an action to recover
damages due to an unlawful strike, the board shall have no authority
to award strike-preparation expenses as damages, and shall have no
authority to award damages for costs, expenses, or revenue losses
incurred during, or as a consequence of, an unlawful strike. The
board shall apply and interpret unfair labor practices consistent
with existing judicial interpretations of this chapter and
subdivision (b) of Section 71826. The board shall not issue a
complaint in respect of any charge based upon an alleged unfair
practice occurring more than six months prior to the filing of the
charge, except that if the rules and regulations adopted by a
regional court interpreter employment relations committee require
exhaustion of a remedy prior to filing an unfair practice charge or
the charging party chooses to exhaust a regional court interpreter
employment relations committee's remedy prior to filing an unfair
practice charge, the six-month limitation set forth in this
subdivision shall be tolled during such reasonable amount of time it
takes the charging party to exhaust the remedy, but nothing herein
shall require a charging party to exhaust a remedy when that remedy
would be futile.
   (d) The board shall enforce and apply rules adopted by a regional
court interpreter employment relations committee concerning unit
determinations, representation, recognition, and elections.
   (e) This section does not apply to employees designated as
management employees.
   (f) The board shall not find it an unfair practice for an employee
organization to violate a rule or regulation adopted by a regional
court interpreter employment relations committee if that rule or
regulation is itself in violation of this chapter.
  SEC. 7.  Section 99561 of the Public Utilities Code is amended to
read:
   99561.  This chapter shall be administered by the Public
Employment Relations Board. In administering this chapter the board
shall have all of the following rights, powers, duties, and
responsibilities:
   (a) To determine in disputed cases, or otherwise approve,
appropriate units.
   (b) To determine in disputed cases whether a particular item is
within or without the scope of representation.
   (c) To arrange for, and supervise, representation elections that
shall be conducted by means of secret ballot elections, and to
certify the results of the elections.
   (d) To establish lists of persons broadly representative of the
public and qualified by experience to be available to serve as
mediators, arbitrators, or factfinders. In no case shall the lists
include persons who are on the staff of the board.
   (e) To establish by regulation appropriate procedures for review
of proposals to change unit determinations.
   (f) To adopt, pursuant to Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code,
rules and regulations to carry out the provisions and effectuate the
purposes and policies of this chapter.
   (g) To hold hearings, subpoena witnesses, administer oaths, take
the testimony or deposition of any person, and, in connection
therewith, to issue subpoenas duces tecum to require the production
and examination of any employer's or employee organization's records,
books, or papers relating to any matter within its jurisdiction,
except for those records, books, or papers confidential under
statute. Notwithstanding Section 11425.10 of the Government Code,
Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3
of Title 2 of the Government Code does not apply to a hearing by the
board under this section, except a hearing to determine an unfair
practice charge.
   (h) To investigate unfair practice charges or alleged violations
of this chapter, and to take any action and make any determinations
in respect of these charges or alleged violations as the board deems
necessary to effectuate the policies of this chapter, except that in
an action to recover damages due to an unlawful strike, the board
shall have no authority to award strike-preparation expenses as
damages, and shall have no authority to award damages for costs,
expenses, or revenue losses incurred during, or as a consequence of,
an unlawful strike.
   (i) To bring an action in a court of competent jurisdiction to
enforce any of its orders, decisions, or rulings or to enforce the
refusal to obey a subpoena. Upon issuance of a complaint charging
that any person has engaged in or is engaging in an unfair practice,
the board may petition the court for appropriate temporary relief or
restraining order.
   (j) To delegate its powers to any member of the board or to any
person appointed by the board for the performance of its functions,
except that no fewer than two board members may participate in the
determination of any ruling or decision on the merits of any dispute
coming before it, and except that a decision to refuse to issue a
complaint shall require the approval of two board members.
   (k) To decide contested matters involving recognition,
certification, or decertification of employee organizations.
   (  l  ) To consider and decide issues relating to rights,
privileges, and duties of an employee organization in the event of a
merger, amalgamation, or transfer of jurisdiction between two or
more employee organizations.
   (m) To take any other action as the board deems necessary to
discharge its powers and duties and otherwise to effectuate the
purposes of this chapter.
  SEC. 8.  The amendments made by this act do not constitute a change
in, but are declaratory of, existing law. These amendments are not
intended to modify existing law holding that a court of competent
jurisdiction may, upon a showing by clear and convincing evidence,
award costs, expenses, or lost revenue resulting from independently
unlawful, tortious activity, such as vandalism, property damage, mass
picketing, or the unlawful blocking of ingress or egress from the
struck facility.      
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