By Scott Tiedemann and Dalisai Nisperos
Scott Tiedemann is the Managing Partner of Liebert Cassidy Whitmore, California's largest public sector labor, employment and education law firm. He is the author of the CPER Pocket Guide to the Firefighters Procedural Bill of Rights, as well as a chapter on that topic in California Public Sector Employment Law. Dalisai Nisperos is an Associate in the San Francisco Office of Liebert Cassidy Whitmore. She represents and advises public sector agencies in all aspects of labor, employment, and education law. Ms. Nisperos earned her J.D. from the University of Pennsylvania Law School and her B.A. from the University of California, Berkeley.
Immediately after the Supreme Court issued its decision in Janus v. AFSCME,1 (discussed elsewhere in this issue), Governor Brown signed into law Senate Bill 866, as urgency legislation that applies to all public employers in California effective June 27, 2018. Among other things, S.B. 866 amends the Government Code and creates new state law regulating: organization membership dues and membership-related fees; employer communications with employees about their rights to join or support, or refrain from joining or supporting unions; and union access to employee orientations, by making such orientations confidential.
The Government Code now requires public agencies to honor union requests to deduct union membership dues and initiation fees (distinct from agency fees) from employee wages, and requires agencies to rely on union certifications that the union has and will maintain member dues deduction authorizations.2Additionally, if an employee requests to "cancel or change deductions," the agency must refer the employee to the union.3 Unions, not the public employer, are responsible for processing these requests.
Additionally, SB 866 adds § 3553 to the Government Code, which defines a "mass communication" as a "written document, or script for an oral or recorded presentation or message, that is intended for delivery to multiple public employees." A public agency that chooses to send mass communications to its employees or applicants concerning the right to "join or support an employee organization, or to refrain from joining or supporting an employee organization" must first meet and confer with the union about the content of the mass communication. If the employer and exclusive representative do not come to an agreement about the content of the communication, the employer may still choose to send its communication, but must simultaneously send a communication of reasonable length provided by the exclusive representative.
Senate Bill 866 requires that new employee orientations be confidential. In addition to existing law that provides exclusive representatives with mandatory access to new employee orientations (following the passage of AB 119 in 2017) the newly enacted Government Code § 3556 requires that the "date, time, and place of the orientation shall not be disclosed to anyone other than the employees, the exclusive representative, or a vendor that is contracted to provide services for the purposes of the orientation."
Although SB 866 makes changes to the Government Code affecting all public sector employers, it does not apply to all employers in the same manner. Thus, public school employers, community college districts, and other public agencies should familiarize themselves with SB 866 and its impact on their entity in light of the Janus decision.
SEIU v. County of San Bernardino, PERB Decision No. 2556-M (2018)
The Public Employment Relations Board (PERB) approved an Administrative Law Judge (ALJ) decision finding that the County of San Bernardino violated the Meyers-Milias-Brown Act (MMBA) and the County's Employee Relations Ordinance (ERO) by: (1) prohibiting non-employee representatives of SEIU from accessing non-work areas of County facilities; and (2) photographing County employee meetings with SEIU organizers. The County offered two defenses: SEIU had no right of access, because it was not a recognized employee organization, and the photographing did not interfere with employee rights.
The County's ERO permitted recognized employee organizations access to County work locations, but was silent about access by unrecognized employee...
