HomeMy WebLinkAboutMINUTES - 05222007 - C.30 I
sEat f
r
TO: � BOARD OF SUPERVISORS _ Contra
FROM: JOHN CULLEN r Z Costa
EY, e
County Administrator
County
nJsr-a COl`� �
DATE: May 22, 2007 I
SUBJECT: OPPOSE POSITION ON AB 553 (Hernandez): Relating to the Public
Employees Relations Board
SPECIFIC REOUESTIS OR RECOMMENDAITION Si&BACKGROUND AND XST'FICATION
RECOMMENDATION:
OPPOSE Assembly Bill 553 (Hernandez). legislation that would eliminate local '
government's ability to seek injunctive relief in cases when a potential strike by
essential employees poses an imminent threat to the public health and safety. by
providing the Public Employment Relations Board (PERB) with exclusive authority to
determine whether to seek injunctive relief under those circumstances, as
recommended by the County Administrator.
FISCAL IMPACT: '
None.`
BACKGROUND:
CONTINUED ON ATTACHMENT: X YES SIGNATUR=.
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. fRECOMMENDAT°ON OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD CIiI':tJJ.ITT
�rPROVE OTHER
SIGNATUIRE'a_ Y
ACTION OF BOD N in Z.Z/O';� APPROVE AS RECOMMENDED O—OTHER
R oDEN Du�. �-/I-eHE-p
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VOTE OF SUP=RV SORS
I HERBY CERTIFY THAT THIS IS A TRUE
UNANA4OUS (_ABSENT AND CORRECT COPY OF AN AC-ION TAKEN I
yy��
AND ENTERED ON THE MINUTES OF THE BOARD i
AYES: =i IV 0 1 LACES: OF SUPERVISORS ON THE DATE SHOWN.
ABSENT: ABSTAIN:
ATTESTED OSLZ�(O
JOHN-U-LEN.CLERK OF THE BOARD OF
SJPERVISORSAN D COUNTY ADMIN i ST;BATOR
Conlact Person: L.DeLaney 5-1 Q9
CC: C.Chris:ia�.via CAD s office
S-M:archesi-Couity Counsel
S-Hl-ffmao.CAO I
B D=P-IV
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SUBJECT.- OPPOSE AB 553 (Hernandez): Relating to PERB I
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While existing law gives public employees the right to strike. the California Supreme j
Court has held that "strikes by public employees are not unlawful at common law unless !
or until it is clearly demonstrated that such a strike creates a substantial and imminent
j threat to the health or safety of the public." (County Sanitation Dist. No. 2 v. Los
Angeles County Employees Association (1985) 38 Cal. 3d 564, 592.) County
Sanitation "requires the courts to determine on a case-by-case basis whether the public �
interest overrides the basic right to strike." (ld.) j
AB 553 would give PERB the exclusive authority to determine, under the Meyers-
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Millias-Brown Act (MMBA), whether to petition a court for injunctive relief in matters j
"involving or growing out of relations between an employee organization and a public j
agency." AB 553 seeks legislative preemption with respect to an issue currently before j
three California District Courts of Appeals involving the City of San Jose (6 1h District).
and Counties of Contra Costa (First District) and Sacramento (V District). The same j
issue involving the County of Mendocino may also be appealed.
In each of those cases, local agencies petitioned the court for injunctive relief solely to I
preclude limited numbers of employees from engaging in work stoppages when those j
employees were necessary to prevent substantial or imminent threat to the health or I
safety of the public. In none of the cases did the local agency allege that the MMBA
had been violated. Nonetheless, the plaintiffs in each case alleged that PERB should
have exclusive authority, notwithstanding the absence of any allegation involving a I
violation of the MMBA, to make the initial determination whether to seek injunctive
relief. I
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Counties and cities have broad common law and statutory authority over issues of
public health and safety including fire, police, psychiatric emergency services, airport
operations, detention services, child protective services, waste water operations, landfill
operations and others. PERB has no such authority or expertise. The issues
presented for injunctive relief in these cases involve public health and safety; not issues
related to purported violations of the MMBA. Requiring local agencies to ask PERB to
make the decision as to whether injunctive relief should be sought inappropriately I
usurps county and city authority over matters relating to public health and safety.
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Furthermore, PERB is not equipped to act quickly enough to protect the public health
and safety. Unless a strike is already underway, it takes at least 3 to 5 days to work
through the PERB process just to be able to seek the same relief from Superior Court
that local agencies could seek in the first instance. In contrast. when a local agency
can seek relief directly. the court will hear the matter no later than 24 hours after an
application for a temporary restraining order is filed. In addition, courts routinely j
determine issues of necessity relating to public health and safety. !
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In conclusion, AB 553 would expand PERB authority into areas in which it has no I
existing authority or expertise: it would usurp county authority over matters involving I
public health and safety: and it would add unacceptable delays to seeking injunctive i
relief to protect the public health and safety. AB 553 is opposed by CSAC and the
League of California Cities. whose opposition letters are attached. I
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ADDENDUM to C.30 i
-May 22, 2007
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On this daw. the Board of Supervisors considered taking a position of opposition to Assembly i
Bill ;;3 (Hernandez). -which-would eliminate local gowernmerifs ability to seek injunctive relief
in cases when a potential strike by essential employees poses an imminent threat to the public
health and safety. by providing the Public Employment Relations Board(PERB) -with exclusive
authority°to determine-whether to seek iniunctive relief under those circumstances. i
This item was pulled from the Consent Calendar at the request of Rollie Katz. Public Employees
Union, Local 1. Speaking under public comment on the item, Mr. Katz urged the Board not to
oppose Assembly Bill 553.
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John Cullen. Count-Administrator. suggested that the Board should oppose AB 553. as CSAC
[the California State Association of Counties] and the California League of Cities have already-
done. in order to maintain the ability to make decisions about public health and safety. i
Supervisor Gioia noted that under current law. a court-supported injunction is still needed. but
that under this bill. counties -would have to also go to PERB as an additional step.
Silvan Marchesi. Count- Counsel. responded that ves. under AB ;;= the count--would have to
go to PERB and then PERB itself-would go to court. He added that if PERB decided not to go
forward to court.the count--would have no recourse.
Supervisor Bonilla noted that there is usually advance notice of a strike.
Kell-Flanagan. Deputy Count Counsel. responded that the courts require concrete proof that a
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strike is imminent. so even if the count_-is made aware through advance rumors it cannot uo to �
the courts with that information. v
Supervisor i=ilkema said she believes the Board's responsibility to make determinations about
what constitutes public safety needs to be preserved.
Supervisor Gioia said that. -while he strongly supports the rights of-workers to strike. adding an
additional step that would make it more difficult to get a court injunction could compromise the
ability-to act quickly when there is a need to preserve public safety. i
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Supervisor Bonilla said that ves. it is an extra step, but the matter-would ultimately still go to
court. She also said there is a natural sistem of checks because unions do not want to turn public
opinion by taking actions that would compromise vital services.
By a rote of 4-L with Supervisor Bonilla. District IV. opposed. the Board ofSuperivisors took the
follolring action:
OPPOSED Assembly Bill 55' (Hernandez). -which-would eliminate local government's ability to
seek injunctive relief in cases when a potential strike by essential employees poses an imminent
threat to the public health and safety by providing the Public Employment Relations Board
(PERB) with exclusive authorit_-to determine -whether to seek injunctive relief under those �
circumstances.
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Assemble Floor Alert
DATE: May 15. '_007 I
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TO: Members of the Assembl.
FROM: Stere Keil. California State Association of Counties
Anthom- Thomas. League of California Cties
RE: AB „= (Hernandez): Public Employment Relations Board— OPPOSE
Assembly Third Reading File
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The California State Association of Counties ICSACI. and the League of California Cities (LCC)
are opposed to AB 5 ; (Hernandez): Public Employment Relations Board.
Existing law-provides for a system of collective bargaining between local agencies and their i
employees in the Meyers Milias Brown act (MMBA) in Government Code Section 3500 et. Seq. i
In 2001. the MMBA was amended to add Section =509 to provide authority to the Public
Employment Relations Board (PERE) for exclusive jurisdiction over alleged violations of the i
MMBA.
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Existing law-also generally gives public employees the right to strike (County Sanitation Dist.
No. = r. Los Ano,eles Cowin-Etnpioi ees_-lssocian' n (1980 38 Cal. 'd _564.592.) In that
decision. however. the California Supreme Court held. in pan: "...strikes by public employees
are not unlawful at common law-unless or until it is clearl demonstrated that such a strike '.
creates a substantial and imminent threat to the health or safety of the public. This employment
... and also requires the courts to determine on a case-by case basis whether the public interest
overrides the basic right to strike.' The Count Sanitation decision did not limit its holding to
peace officers and firefighters who are forbidden to strike bv Labor Code Section 1962. but
identified additional examples of potentially essential public services. including emplox ees of
correction facilities. health care institutions, courts, and "other employees w-hol require unique
skills and training (emphasis added)."
AB ;;, would exclusiyel- authorize the PERB to determine. under the MMBA. whether to seek
from a court of competent jurisdiction injunctive relief involing employee strikes. work
stoppages, or lock-outs. This bill seeks to: expand PERB authority into areas in which it has no
existing authority or expertise: directly preempt existing litigation; usurp city and count-
authority over matters involving public health and safety: and add unacceptable delays to seeking
injunctive relief to protect the public health and safet.
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Mav 1 5. 200'
AB 5_53 (Hernandez)-Oppose
Page
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AB 553 seeks legislative preemption in litigation currently before three California District Courts
of Appeals involving: the Cit-, of San Jose W" District). and Counties of Contra Costa(First
District) and Sacramento (3" District'- litigation is pending appeal involving the Count- of
Mendocino. Sacramento and Contra Costa Counties have received favorable rulings: San Jose
and Mendocino Count-have received unfavorable rulings. In each of those cases. local agencies i
maintain that no violations of the NIMBA have been alleged when local agencies have sought i
injunctive relief to preclude limited numbers of employees from engaging in work stoppages
when those employees. due their unique skills and training. are necessary to prevent substantial i
or imminent threat to the health or safety of the public. In each of those cases the plaintiffs
allege the PERB should have authority. irrespective of lack of other violations to the MMBA, to
make administrative determination regarding whether injunctive relief may be sought.
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Counties and cities have broad common law and Statutory authority over issues of public health
and safer- including: tire, police, psychiatric emergency services. airport operations. detention
services. child protective services. waste water operations. landfill operations and others. PERB
has no such authority or expertise. The issues presented for injunctive relief in ole the issue of
public health and safety. not issues related to purported violations of NIMBA. Requiring
appro,,al of the PERB usurps count- and cit} authority_ over matters relating to public health and
safer_-. _ I
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PERB is not equipped to act quickly enough to protect the public health and safety. Based upon
Cal. Code of Regulations. Sections 3'_450 through 32.1:'0. A '_4-hour notice must be provided to
PERB and the alleged offending part-prior to seeking injunctive relief: the General Counsel to
PERB then commences an investigation. after notice to the parties- the General Counsel has
between 24 and 120 hours to make a recommendation to the PERB members on whether to seek i
an injunction. The PERB board then has -14 hours to make a decision on whether to pursue
injunctiv e relief. It takes between 3 to . days to work through the PERB process just to be able i
to seek the same relief from Superior Court that local agencies could seek in the first instance.
The Superior Court, by contrast. has vast experience in matters involving decisions about
injunctive relief and will hear the matter no later than 34 hours after filing an application for a
temporary restraining order. In addition. the courts routinely determine issues of necessity
relating to public health and safer_-.
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For the above reasons. we oppose AB _553 (Hernandez). If you have an% further questions.
please do not hesitate to contact Stere Keil (CSAQ at 3'_'--500 est. 52 1. or Anthon} Thomas
(LCC j at 658-82.9.
cc: The Honorable Ed Hernandez. Member of the Assemblx
Consultant. Assembh Republican Caucus
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LEAGUE
L �(�T T t 1400 K Street. Suite 400 • Sacramento: California 95814
ik V lJ 1_ Phone: 916.658.8200 Fax: 916.658.8240
I�Tti-
I � ,S mwv.cacities.org
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Apr:: 9, _007
Assembh Member Edx%ard Hernandez
State Capitol. Room 2112
Sacramento. CA 95814
Re: AB 553 (Hernandez) Public Emplo}went Relations Board
NOTICE OF OPPOSITION I
Dear Assembh Member Hernandez:
The League of California Cities is opposed to AB 553. This bill could eliminate local
government s ability-to seek injunctive relief for a potential strike, by providing the Public
Employment Relations Board(
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AMENDED I\ASSEMBLY MAY 8. 200:'
CALIFORNIA LEGISLATURE-2007-06 REGULAR SESSION
ASSEMBLY BILL -No. 553
Introduced by assembly Member Hernandez
Februan_ 21. 200-
An act to amend Section X509 of the Gox-ernment Code. relating to
the Public Employment Relations Board.
LEGISLATIVE COUNSEL'S DIGEST
AB 553. as amended. Hernandez. Public Employment Relations
Board.
The Meeers-Milias-Brown act delegates jurisdiction to the Public
Employment Relations Board to resolve disputes and enforce the
statutory duties and rights of local public agency° employers and j
employees. The act prescribes the powers and duties of the board with
regard to.among other things.elections,the processing of unfair practice
charges.and.in connection to an enumerated section of the Government i
Code. the authority of the board to petition the court for appropriate
temporarx relief or restraining orders. i
This bill would provide that. under the ale}ers-Milias-Brown act.
the Public Emplovm.nt Relations Board is authorize exclusneh
authori_ed to make a determination whether to seek from a court of
competent Jurisdiction injunctive relief involving or Brox ing out of
relations
elat:o__ L:twee' a strike,e, groin stoppege. Or' ocl ow ini o"'.Ing an
employee organization and a public agenc,,-. The bill Mould provide
that those changes are declaratory of existing la... as specified. i
Vo.e: majority. appropriation: no. Fiscal committee: no.
Sta:e-mandated local program: no.
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AB 553
The people of the Slate 01 California do enact as io"ou°s:
1 SECTIO\ 1. (a) The Legislature finds and declares that by
2 enacting this act it does not intend to restrict or expand the Public
Employment Relations Board'S jurisdiction or authoritc bl-vond I
4 that previously authorized by the Legislature.
lb) It is the intent of the Legislature that the amendments made
6 to Section 31 509 of the Government Code by this act are intended
to be technical and clarifying of existing la«•.
8 SEC. '_. Section 3509 of the Government Code is amended to
9 read:
10 3-509. (a) The powers and duties of the board described in
I 1 Section )541.3 shall also apple. as appropriate,to this chapter and
12 shall include the authorit,,- as set forth in subdivisions (b) and fe)
1'• to 0'1, inclusm e. Included among the appropriate po:verS of the
14 board are the power to order elections. to conduct an election the
15 board orders. and to adopt rules to apply in areas where a public
'_6 agency has no rule.
17 (b) A complaint alleging any violation of this chapter or of an
18 rules and regulations adopted by a public agency pursuant to
19 Section 3150' or 3150'.5 shall be processed as an unfair practic;-
_'0 charge by the board. The initial determination as to whether the
'-1 charge of unfair practice is Justified and. if so. the appropriate
2'. remedy necessary to effectuate the purposes of this chapter. shall
33be a matter within the exclusive jurisdiction of the board. The i
board shall apply and interpret unfair labor practices consistent
with existing judicial interpretations of this chapter.
-6 l c The board shall enforce and apply rules adopted by a public �
agency-concerning unit determinations,representation.recognition.
28 and elections.
9 ("d) The determination whether to seek from a court of competent
30 jurisdiction injunctive relief involving or growing out of- a
1 he n a Strike. u-ork stoppage, or.lackortt inl-oh ing an employee
organization and a public agency is within the exclusive jurisdiction
33 of the board.
I �e) Notwithstanding subdivisions Jai to1-e J). inclusive. the
?D employee relations commissions established by. and in effect for.
36 the County of Los Angeles and the Cin' of Los Anaeles pursuant i
to Section 350- shall have the power and responsibility to take
8 actions on recognition.unit determinations.elections,and all unfair
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—3— AB 553
1 practices. and to issue determinations and orders as the emplox ee I
relations commissions deem necessarv. consistent with and
3 pursuant to the policies of this chapter.
4 (f) This section shall not apply to employees designated as I
management employees under Section 3507.5.
6 (g The board shall not find it an unfair practice for an employee
organization to violate a rule or regulation adopted by a public
4 aeencr•if that rule or regulation is itself in violation of this chapter.
9 This subdivision shall not be construed to restrict or expand the
10 board's jurisdiction or authority as set forth in subdivisions (a) to
1 i (-c 1 Idi. inclusive.
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REQUEST TO SPEAK FORM (3 Minute Limit) I wish to speak on agenda Item
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Complete this form and place it in the upright box near the Date:
speaker's podium. and ivait to be called by the Chair.
My comments will e:- ❑ General,.,,'
enerali I
Personal inforinatiott is optional. Ibis speaker's card-will be � `• I
incorporated into the pt_ record of this ineeting. ❑ For
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Name iPRINT): U 1 't { 7 PQ) Against
To eircare r-c r pante rs atntctntced con Ecth.t act n:m'a ant to include Its phonetic scellrng
❑ I wish to speak on the subject of.
Address: V L
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City: 1 I�/� ✓ L -- - I
Phone: —7,
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I am speaking for: ❑ Myself �
/ ❑ I do not want to speak but would like to
Organization: Ut `% leave comments for the Board to consider
(ase the back of this forrrt) i
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