Last year, in the Friedrichs v. California Teachers Association decision, the United States Supreme Court split 4-4 over the legality of mandatory agency fees imposed on public employees who decline to join a union. This split allowed the Ninth Circuit’s decision allowing such fees to stand. Several weeks ago, the National Right To Work Foundation appealed a similar case, Janus v. AFSCME, to the Supreme Court. With Republican-appointed Justice Gorsuch now making up the ninth member of the Supreme Court, a decision in this case could make mandatory public sector agency fees illegal and consequently weaken public sector unions.
Perhaps anticipating this outcome, the California Legislature recently adopted a new bill that should benefit public employee unions. On June 19, 2017, the California Legislature adopted Assembly Bill ("AB") 119, which requires public employers to provide exclusive union representatives with access to new employee orientations and contact information for newly hired employees. The legislature explained that this bill would allow union representatives "to meaningfully communicate through cost-effective and efficient means with… public employees." (Gov. Code § 3555.) AB 119 amends the Government Code, including the Meyers-Milias-Brown Act ("MMBA") and the Trial Court Employment Protection and Governance Act. Once Governor Brown signs the bill, as he is expected to do, it will take effect "immediately."
Access to New Employee Orientations
Under AB 119, public employers must provide the exclusive representative of a bargaining unit with access to new employee orientations. (Gov. Code § 3556.) AB 119 defines a new employee orientation as "the onboarding process of a newly hired employee, whether in person, online, or through other means or mediums, in which employees are advised of their employment status, rights, benefits, duties and responsibilities, or any other employment-related matters." (§ 3555.5(a)(3).) Thus, this access obligation may encompass a range of meetings concerning a number of topics. Public employers must give unions 10 days advance notice about new employee orientations, but may provide less notice if an urgent and unforeseeable need "critical to the employer’s operations" arises. (§ 3555.)
Upon request by either party, the parties must negotiate the "structure, time, and manner" of this access. If the parties fail to reach agreement on these topics, the matter may proceed to compulsory interest arbitration. (§ 3557(a).) Specifically, if the parties fail to reach agreement on these points within 45 days after the first meeting or within 60 days of the initial request to negotiate (whichever comes first), either party may demand that the matter proceed to compulsory interest arbitration. (§ 3557(b)(1)(A).) Interest arbitration must begin either on the arbitrator’s earliest available date or on a mutually agreeable date and must be completed within 30 days. (Id.) The arbitrator must render a decision on the dispute within 10 days of the arbitral hearing, and the decision remains final and binding on the parties. (Id.) The arbitrator must "consider, weigh, and be guided by" eight criteria, including "the financial condition of the public agency," the access rights of "comparable public agencies" provided in labor agreements or otherwise, and the "ability of the exclusive representative to communicate" with its employees in other arenas. (§ 3557(b)(2)(A)-(H).) The parties must equally share the costs of arbitration. (§ 3557(b)(3).)
A public employer may object to these appointment procedures and opt for another route. If an employer notifies the Public Employment Relations Board ("PERB") within 5 days of a demand for interest arbitration of its objection, PERB will appoint an Administrative Law Judge ("ALJ") to serve as an arbitrator. However, the employer must bear the cost of the PERB ALJ on its own. (§ 3557(b)(4).)
Upon the bill’s effective date, either party to an existing memorandum of understanding ("MOU") may "reopen" its contract to address the union access issue by requesting to meet and confer. They may choose to execute a side letter agreement in lieu of reopening the MOU. The parties may mutually agree on "new employee orientations that vary from the requirements" of AB 119. (§ 3557(c).)
AB 119 also requires that public employers provide the union with "the name, job title, department, work location, work, home, and personal cellular telephone numbers, personal email addresses on file with the employer, and home address of any newly hired employee" within 30 days of the date of hire or by the first pay period of the month following hire. (§ 3558.) This requirement applies regardless of whether the newly hired employee was previously employed by the public employer. (Ibid.) The employer also must provide unions with this information for all employees in the appropriate bargaining unit every 120 days, absent agreement between the parties on another interval. (Id.) AB 119 explicitly provides that an employer’s disclosure of this confidential personnel and contact information to unions pursuant to these provisions generally does not transform these records into "public records" for purposes of the California Public Records Act. (§ 6254.3(a).)
Uncertainties and Concerns AB 119 contains several requirements that raise unanswered questions:
- While the law includes requirements addressing an employer’s initial obligations, it remains silent on employers’ subsequent obligations following union inaction or delay. The bill does not address whether an employer has an ongoing obligation to provide unions with subsequent access (or schedule additional orientation meetings) if the union misses a scheduled orientation meeting.
- AB 119 also does not specify whether newly hired employees have the choice to attend (or leave) union orientation meetings. Under California labor law, public employees have the right to choose not to join an employee organization. (See, e.g., Gov. Code § 3502.) The bill does not acknowledge this statutory right, nor does it include language specifying whether newly hired employees’ attendance is mandatory or optional.
- Further, AB 119 is not explicitly clear whether compulsory interest arbitration must be completed within 30 days of the arbitrator’s appointment or within 30 days of a party’s request. However, in the analogous arena of factfinding, California labor law generally ties deadlines to the hearing officer’s appointment rather than the initial request. (See, e.g., Gov. Code § 3505.5(a) (factfinding panel must render advisory decision within 30 days of appointment).)
- Finally, AB 119 does not indicate whether the costs arising from interest arbitration hearings constitute expenses reimbursable under the State Mandated Costs Claiming Program. Given that interest arbitration is compulsory under this bill, such expenses would appear to qualify as a state-mandated labor procedure or requirement, subject to reimbursement under the program.