Governor Brown signed a budget trailer bill, AB 119, on June 27, 2017, which stated, among its many provisions, that “the ability of an exclusive representative to communicate with the public employees it represents is necessary to ensure the effectiveness of state labor relations statutes, and the exclusive representative cannot properly discharge its legal obligations unless it is able to meaningfully communicate through cost-effective and efficient means with the public employees on whose behalf it acts.” (Gov. Code, § 3555.) To that end, the new bill requires public employers to provide the exclusive representative of represented employees mandatory access to new employees during the new employee orientation process as well as access to employee contact information.
Specifically, an employer must give the exclusive representative notice of an orientation at least 10 days in advance, with an exception allowing shorter notice when an employer needs to make an urgent hire. The employer must meet and confer with the exclusive representative over the structure, time, and manner of access. Failure to reach agreement results in compulsory interest arbitration.
The bill provides specific procedures for the arbitration process. (See new Gov. Code, § 3557.) 45 days after the first meeting of the parties to negotiate the structure, time, and manner of access, or 60 days after the initial request to negotiate, either party may demand arbitration. An arbitrator is selected via the State Mediation and Conciliation Service, unless the city or county objects to that procedure within 5 days of the request for arbitration, in which case it can request the Public Employment Relations Board to appoint a PERB Administrative Law Judge or other PERB employee to serve as arbitrator. The arbitrator’s decision, based on a number of specified factors, is binding and final.
Under the new law, either party may reopen an existing agreement to address the union access issue by requesting to meet and confer. The bill also allows agreements that provide for new employee orientations that vary from the requirements of the new law. In such a case, the bill’s provisions would not apply.
Additionally, the bill requires that public employers provide the exclusive representative with the contact information of employees. An employer must disclose the name, job title, department, work location, work, home, and personal cellular telephone numbers, personal email addresses, and the home address of a new hire within 30 days of the date of hire or by the first pay period of the month following hire. The law also requires employers to provide the exclusive representative a list of that information for all employees in the bargaining unit at least every 120 days, though a different interval may be agreed to. Employee contact information disclosed in this manner is not open to inspection under the Public Records Act.
There are several questions left unanswered by the language of the bill. For example, it does not specify whether newly hired employees have a choice in attending union orientation meetings. The bill addresses the employer’s obligation to provide access, but beyond that it is silent.
The bill also is silent regarding whether a new hire can object to their contact information being released to the exclusive representative. It is possible that new employees may not want their contact information shared, but, as the statute is currently worded, employers have no discretion in the matter and simply must disclose the information to the exclusive representative.
The bill also is not clear on how long an employer must provide access to new employees. For example, if the exclusive representative is unavailable for an orientation meeting, the bill does not address whether an employer has an obligation to reschedule, or schedule additional orientation meetings to accommodate. As the statute is currently worded, it seems likely the employer’s obligations are satisfied as long as they provide “access” to the orientations, whether the representative takes advantage of that access or not. Employers should address these types of details when they meet and confer and form the agreement regarding the structure, time, and manner of access provided.
Questions
If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
David Tyra
dtyra@kmtg.com | 916.321.4594