Set Another Place at Employee Orientations … for the Union

07.05.2017

On June 27, 2017, Governor Jerry Brown reassured public employee unions by signing Assembly Bill 119 into law, granting unions a greater right of access to new employees for recruitment purposes. Passage of AB 119 precedes the United States Supreme Court’s anticipated review of Janus v. AFSCME, which, with Republican-appointed Justice Gorsuch as the ninth member of the Court, could make mandatory public sector agency fees illegal and consequently weaken public sector unions.

AB 119 requires public employers to give exclusive representatives access to new employee orientations and expanded contact information for newly hired employees. It also imposes ongoing requirements. The Legislature explained that this bill allows union representatives "to meaningfully communicate through cost-effective and efficient means with … public employees." (Gov. Code, § 3555.) AB 119 amends the Government Code and applies to certain public sector employers, including public school districts and community college districts governed by the Educational Employment Relations Act (EERA).

Access to New Employee Orientations
Under AB 119, public employers must give the representative of a bargaining unit access to new employee orientations. (Gov. Code, § 3556.) A new employee orientation is "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." (Gov. Code, § 3555.5(a)(3).) Thus, this access obligation may encompass a range of meetings concerning a number of topics. Employers must give unions 10 days’ advance notice of orientations, but may provide less notice if an urgent and unforeseeable need "critical to the employer’s operations" arises. (Gov. Code, § 3556.)

Upon request by either party, the parties must negotiate the "structure, time, and manner" of this access. (Gov. Code, § 3557(a).) If they fail to reach agreement within 45 days of the first meeting or within 60 days of the request to negotiate (whichever comes first), either party may demand that the matter proceed to compulsory interest arbitration. (Gov. Code, § 3557(b)(1)(A).) Arbitration must begin on the arbitrator’s earliest available date or on a mutually agreeable date and must be completed within 30 days. The arbitrator must render a decision within 10 days of the hearing, and the decision is final and binding. The arbitrator must "consider, weigh, and be guided by" eight criteria, including the financial condition of the agency, the access rights of "comparable public agencies," and the union’s ability to communicate with employees in other arenas. (Gov. Code, § 3557(b)(2)(A)-(H).) The parties equally share the costs of arbitration. (Gov. Code, § 3557(b)(3).)

The arbitrator is appointed by the State Mediation & Conciliation Service, unless the employer objects by notifying the Public Employment Relations Board within 5 days of the demand for arbitration. If the employer objects, PERB will appoint an Administrative Law Judge to serve as arbitrator, in which case the employer must bear the cost of the ALJ. (Gov. Code, § 3557(b)(4).)

Upon the bill’s effective date, either party may reopen an existing contract to address the union access issue by requesting to meet and confer, or the parties may execute a side letter agreement. Alternatively, the parties may mutually agree on new employee orientations that vary from the requirements of AB 119. (Gov. Code, § 3557(c).)

Contact Information
AB 119 also requires employers to 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. (Gov. Code, § 3558.) This requirement applies regardless of whether the newly hired employee was previously employed by the employer. The employer must provide unions with this information for all employees in the bargaining unit every 120 days, unless the parties agree on another interval. AB 119 provides that an employer’s mandated disclosure of this confidential personnel and contact information to unions does not transform these records into "public records" for purposes of the California Public Records Act. (Gov. Code, § 6254.3(a).)

Uncertainties and Concerns
Despite its scope, AB 119 raises some unanswered questions:

• While the law addresses an employer’s initial obligations, it remains silent on subsequent obligations following union inaction or delay. For example, the law does not address whether an employer has an ongoing obligation to provide access (or schedule additional orientation meetings) if the union misses a scheduled orientation meeting.
• AB 119 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 § 3543.) The bill does not acknowledge this statutory right, nor does it specify whether newly hired employees’ attendance is mandatory or optional.
• AB 119 is not 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. In the analogous arena of fact-finding, the law generally ties deadlines to the hearing officer’s appointment rather than the initial request. (See, e.g., Gov. Code, § 3548.3 [fact-finding 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.

Our team of attorneys can assist your school district or community college district in addressing the impact of AB 119.