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Chapter 4. Labor Relations of California Government Code >> Title 23. >> Chapter 4.
No individual provider shall be subject to punitive action
or denied promotion, or threatened with any such treatment, for the
exercise of lawful action as an elected, appointed, or recognized
representative of any employee bargaining unit.
(a) Notwithstanding Section 110002, any other provision of
this title, or any other law, rule, or regulation, an agency shop
agreement may be negotiated between the employer and a recognized
public employee organization that has been recognized as the
exclusive or majority bargaining agent, in accordance with this
title. As used in this title, "agency shop" means an arrangement that
requires an employee, as a condition of continued employment, either
to join the recognized employee organization or to pay the
organization a service fee in an amount not to exceed the standard
initiation fee, periodic dues, and general assessments of the
organization, to be determined by the organization in accordance with
applicable law.
(b) In addition to the procedure prescribed in subdivision (a), an agency shop arrangement between the Statewide Authority and a recognized employee organization that has been recognized as the exclusive or majority bargaining agent shall be placed in effect, without a negotiated agreement, upon (1) a signed petition of 30 percent of the employees in the applicable bargaining unit requesting an agency shop agreement and an election to implement an agency fee arrangement, and (2) the approval of a majority of employees who cast ballots and vote in a secret ballot election in favor of the agency shop agreement. The petition may be filed only after the recognized employee organization has requested the Statewide Authority to negotiate on an agency shop arrangement and, beginning seven working days after the Statewide Authority received this request, the two parties have had 30 calendar days to attempt good faith negotiations in an effort to reach agreement. An election that shall not be held more frequently than once a year shall be conducted by the State Mediation and Conciliation Service in the event that the Statewide Authority and the recognized employee organization cannot agree within 10 days from the filing of the petition to select jointly a neutral person or entity to conduct the election. In the event of an agency fee arrangement outside of an agreement that is in effect, the recognized employee organization shall indemnify and hold the Statewide Authority harmless against any liability arising from a claim, demand, or other action relating to the Statewide Authority's compliance with the agency fee obligation.
(c) An individual provider who is a member of a bona fide religion, body, or sect that has historically held conscientious objections to joining or financially supporting public employee organizations shall not be required to join or financially support a public employee organization as a condition of employment. The employee may be required, in lieu of periodic dues, initiation fees, or agency shop fees, to pay sums equal to the dues, initiation fees, or agency shop fees to a nonreligious, nonlabor charitable fund exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, chosen by the employee from a list of at least three of these funds, designated in a memorandum of understanding between the employer and the recognized employee organization, or if the memorandum of understanding fails to designate the funds, then to a fund of that type chosen by the employee. Proof of the payments shall be made on a monthly basis to the employer as a condition of continued exemption from the requirement of financial support to the public employee organization.
(d) An agency shop provision in a memorandum of understanding that is in effect may be rescinded by a majority vote of all the employees in the unit covered by the memorandum of understanding, provided that: (1) a request for that type of vote is supported by a petition containing the signatures of at least 30 percent of the employees in the unit, (2) the vote is by secret ballot, and (3) the vote may be taken at any time during the term of the memorandum of understanding, but in no event shall there be more than one vote taken during that term.
(e) A recognized employee organization that has agreed to an agency shop provision or is a party to an agency shop arrangement shall keep an adequate itemized record of its financial transactions and shall make available annually, to the employer with which the agency shop provision was negotiated, and to the employees who are members of the organization, within 60 days after the end of its fiscal year, a detailed written financial report thereof in the form of a balance sheet and an operating statement, certified as to accuracy by its president and treasurer or corresponding principal officer, or by a certified public accountant. An employee organization required to file financial reports under the federal Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. Sec. 401 et seq.) covering employees governed by this title, or required to file financial reports under Section 3546.5, may satisfy the financial reporting requirement of this section by providing the employer with a copy of the financial reports.
(b) In addition to the procedure prescribed in subdivision (a), an agency shop arrangement between the Statewide Authority and a recognized employee organization that has been recognized as the exclusive or majority bargaining agent shall be placed in effect, without a negotiated agreement, upon (1) a signed petition of 30 percent of the employees in the applicable bargaining unit requesting an agency shop agreement and an election to implement an agency fee arrangement, and (2) the approval of a majority of employees who cast ballots and vote in a secret ballot election in favor of the agency shop agreement. The petition may be filed only after the recognized employee organization has requested the Statewide Authority to negotiate on an agency shop arrangement and, beginning seven working days after the Statewide Authority received this request, the two parties have had 30 calendar days to attempt good faith negotiations in an effort to reach agreement. An election that shall not be held more frequently than once a year shall be conducted by the State Mediation and Conciliation Service in the event that the Statewide Authority and the recognized employee organization cannot agree within 10 days from the filing of the petition to select jointly a neutral person or entity to conduct the election. In the event of an agency fee arrangement outside of an agreement that is in effect, the recognized employee organization shall indemnify and hold the Statewide Authority harmless against any liability arising from a claim, demand, or other action relating to the Statewide Authority's compliance with the agency fee obligation.
(c) An individual provider who is a member of a bona fide religion, body, or sect that has historically held conscientious objections to joining or financially supporting public employee organizations shall not be required to join or financially support a public employee organization as a condition of employment. The employee may be required, in lieu of periodic dues, initiation fees, or agency shop fees, to pay sums equal to the dues, initiation fees, or agency shop fees to a nonreligious, nonlabor charitable fund exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, chosen by the employee from a list of at least three of these funds, designated in a memorandum of understanding between the employer and the recognized employee organization, or if the memorandum of understanding fails to designate the funds, then to a fund of that type chosen by the employee. Proof of the payments shall be made on a monthly basis to the employer as a condition of continued exemption from the requirement of financial support to the public employee organization.
(d) An agency shop provision in a memorandum of understanding that is in effect may be rescinded by a majority vote of all the employees in the unit covered by the memorandum of understanding, provided that: (1) a request for that type of vote is supported by a petition containing the signatures of at least 30 percent of the employees in the unit, (2) the vote is by secret ballot, and (3) the vote may be taken at any time during the term of the memorandum of understanding, but in no event shall there be more than one vote taken during that term.
(e) A recognized employee organization that has agreed to an agency shop provision or is a party to an agency shop arrangement shall keep an adequate itemized record of its financial transactions and shall make available annually, to the employer with which the agency shop provision was negotiated, and to the employees who are members of the organization, within 60 days after the end of its fiscal year, a detailed written financial report thereof in the form of a balance sheet and an operating statement, certified as to accuracy by its president and treasurer or corresponding principal officer, or by a certified public accountant. An employee organization required to file financial reports under the federal Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. Sec. 401 et seq.) covering employees governed by this title, or required to file financial reports under Section 3546.5, may satisfy the financial reporting requirement of this section by providing the employer with a copy of the financial reports.
(a) Nothing in this title shall affect the right of an
employee to authorize a dues or service fees deduction from his or
her salary or wages pursuant to Article 6 (commencing with Section
1150) of Chapter 1 of Division 4 of Title 1.
(b) Either the Controller or the State Department of Social Services shall deduct the payment of dues or service fees to a recognized employee organization as required by an agency shop arrangement between the recognized employee organization and the Statewide Authority.
(c) Agency fee obligations, including, but not limited to, dues or agency fee deductions on behalf of a recognized employee organization, shall continue in effect as long as the employee organization is the recognized bargaining representative, notwithstanding the expiration of any agreement between the employer and the recognized employee organization.
(b) Either the Controller or the State Department of Social Services shall deduct the payment of dues or service fees to a recognized employee organization as required by an agency shop arrangement between the recognized employee organization and the Statewide Authority.
(c) Agency fee obligations, including, but not limited to, dues or agency fee deductions on behalf of a recognized employee organization, shall continue in effect as long as the employee organization is the recognized bargaining representative, notwithstanding the expiration of any agreement between the employer and the recognized employee organization.
If a predecessor agency is party to any memorandum of
understanding or agreement with any bargaining unit that includes
individual providers that contains an agency shop provision as of the
effective date of this title, the predecessor agency and the
employer shall be obligated to honor the terms of the agency shop
provision, including indemnification provisions, if any, for the
duration of the memorandum of understanding or agreement, and until
the adoption of a successor memorandum of understanding or agreement.
However, upon the request of a recognized employee organization, an
agency shop provision in effect on the county implementation date may
be reopened for the sole purpose of renegotiating the terms of that
provision in accordance with this title. The implementation of this
title shall not be a cause for a new agency shop election.
Recognized employee organizations shall have the right to
represent their members in their employment relations with the
employer. Employee organizations may establish reasonable
restrictions regarding who may join and may make reasonable
provisions for the dismissal of individuals from membership. Nothing
in this section shall prohibit an employee from appearing on his or
her own behalf in his or her employment relations with the Statewide
Authority.
(a) The scope of representation shall include all matters
relating to wages, benefits, and other terms and conditions of
employment. The scope of representation shall exclude the following
functions performed by, or on behalf of, a county:
(1) Determining an applicant's eligibility for IHSS benefits.
(2) Assessing, approving, and authorizing an IHSS recipient's initial and continuing need for services.
(3) Enrolling providers and conducting provider orientation.
(4) Conducting criminal background checks on all potential providers.
(5) Providing assistance to IHSS recipients in finding eligible providers through the establishment of a provider registry, as well as providing orientation to recipients.
(6) Pursuing overpayment recovery recollection.
(7) Performing quality assurance activities.
(8) Providing assistance to IHSS recipients through the establishment of emergency backup services.
(9) Performing any other function or responsibility required pursuant to statute or regulation to be performed by the county.
(b) The scope of representation shall also exclude the IHSS recipient's right to hire, fire, and supervise the individual provider.
(1) Determining an applicant's eligibility for IHSS benefits.
(2) Assessing, approving, and authorizing an IHSS recipient's initial and continuing need for services.
(3) Enrolling providers and conducting provider orientation.
(4) Conducting criminal background checks on all potential providers.
(5) Providing assistance to IHSS recipients in finding eligible providers through the establishment of a provider registry, as well as providing orientation to recipients.
(6) Pursuing overpayment recovery recollection.
(7) Performing quality assurance activities.
(8) Providing assistance to IHSS recipients through the establishment of emergency backup services.
(9) Performing any other function or responsibility required pursuant to statute or regulation to be performed by the county.
(b) The scope of representation shall also exclude the IHSS recipient's right to hire, fire, and supervise the individual provider.
(a) Except in cases of emergency as provided in this
section, the Statewide Authority shall give reasonable written notice
to each recognized employee organization affected by any rule,
practice, or policy directly relating to matters within the scope of
representation proposed to be adopted by the Statewide Authority and
shall give each recognized employee organization the opportunity to
meet with the Statewide Authority.
(b) In cases of emergency when the Statewide Authority determines that any rule, policy, or procedure must be adopted immediately without prior notice or meeting with a recognized employee organization, the Statewide Authority shall provide notice and an opportunity to meet at the earliest practicable time following the adoption of the rule, policy, or procedure.
(b) In cases of emergency when the Statewide Authority determines that any rule, policy, or procedure must be adopted immediately without prior notice or meeting with a recognized employee organization, the Statewide Authority shall provide notice and an opportunity to meet at the earliest practicable time following the adoption of the rule, policy, or procedure.
(a) Consistent with Section 12300.5 of the Welfare and
Institutions Code, the Statewide Authority shall meet and confer in
good faith regarding matters within the scope of representation with
representatives of recognized employee organizations and shall
consider fully those presentations as are made by the employee
organization on behalf of its members prior to arriving at a
determination of policy or course of action.
(b) The process should include adequate time for the resolution of impasses pursuant to any impasse resolution procedure set forth in this title.
(b) The process should include adequate time for the resolution of impasses pursuant to any impasse resolution procedure set forth in this title.
The Statewide Authority and employee organizations shall
not interfere with, intimidate, restrain, coerce, or discriminate
against employees because of the exercise of their rights under
Section 110002.
(a) The Statewide Authority shall grant exclusive
recognition to employee organizations designated or selected pursuant
to rules established by the board for employees of the Statewide
Authority or an appropriate unit thereof, subject to the right of an
employee to represent himself or herself. The board shall establish
reasonable procedures for petitions and holding elections and
determining appropriate units consistent with Section 110008. In a
representation election, a majority of the votes cast by the
employees in the appropriate bargaining unit shall be required.
(b) A bargaining unit in existence as of the effective date of this title shall remain in existence unless changed pursuant to subdivision (a).
(b) A bargaining unit in existence as of the effective date of this title shall remain in existence unless changed pursuant to subdivision (a).
If an agreement is reached by the representatives of the
Statewide Authority and a recognized employee organization or
recognized employee organizations, they shall jointly prepare a
written memorandum of the understanding, which shall not be binding,
and present it to the Legislature for determination by majority vote.
(a) If, after a reasonable period of time, representatives
of the Statewide Authority and the recognized employee organization
fail to reach agreement, the dispute shall be referred to mediation
before a mediator mutually agreeable to the parties. If the parties
are unable to agree upon the mediator, either party may request the
board to appoint a mediator in accordance with rules adopted by the
board.
(b) The costs of mediation shall be divided one-half to the Statewide Authority and one-half to the recognized employee organization or recognized employee organizations.
(b) The costs of mediation shall be divided one-half to the Statewide Authority and one-half to the recognized employee organization or recognized employee organizations.
(a) If the parties are unable to effect settlement of the
controversy within 30 days after the appointment of a mediator, the
parties shall submit their differences to a factfinding panel. Within
five days after receipt of the written request, each party shall
select a person to serve as its member of the factfinding panel. The
board shall, within five days after the selection of panel members by
the parties, select a chairperson of the factfinding panel.
(b) Within five days after the board selects a chairperson of the factfinding panel, the parties may mutually agree upon a person to serve as chairperson in lieu of the person selected by the board.
(c) The panel shall, within 10 days after its appointment, meet with the parties or their representatives, either jointly or separately, and may make inquiries and investigations, hold hearings, and take any other steps it deems appropriate. For the purpose of the hearings, investigations, and inquiries, the panel shall have the power to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence. Any state agency, as defined in Section 11000, or any political subdivision of the state, shall furnish the panel, upon its request, with all records, papers, and information in their possession relating to any matter under investigation by or in issue before the panel.
(d) In arriving at their findings and recommendations, the factfinders shall consider, weigh, and be guided by all the following criteria:
(1) State and federal laws that are applicable to the employer.
(2) Local rules, regulations, or ordinances.
(3) Stipulations of the parties.
(4) The interests and welfare of the public and the financial ability of the employer.
(5) Comparison of the wages, benefits, and terms and conditions of employment of the employees involved in the factfinding proceeding with the wages, benefits, and terms and conditions of employment of other employees performing similar services in comparable counties.
(6) The consumer price index for goods and services, commonly known as the cost of living.
(7) The overall compensation presently received by the employees, including direct wage compensation, vacations, holidays, and other excused time, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received.
(8) Any other facts, not confined to those specified in paragraphs (1) to (7), inclusive, which are normally or traditionally taken into consideration in making the findings and recommendations.
(b) Within five days after the board selects a chairperson of the factfinding panel, the parties may mutually agree upon a person to serve as chairperson in lieu of the person selected by the board.
(c) The panel shall, within 10 days after its appointment, meet with the parties or their representatives, either jointly or separately, and may make inquiries and investigations, hold hearings, and take any other steps it deems appropriate. For the purpose of the hearings, investigations, and inquiries, the panel shall have the power to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence. Any state agency, as defined in Section 11000, or any political subdivision of the state, shall furnish the panel, upon its request, with all records, papers, and information in their possession relating to any matter under investigation by or in issue before the panel.
(d) In arriving at their findings and recommendations, the factfinders shall consider, weigh, and be guided by all the following criteria:
(1) State and federal laws that are applicable to the employer.
(2) Local rules, regulations, or ordinances.
(3) Stipulations of the parties.
(4) The interests and welfare of the public and the financial ability of the employer.
(5) Comparison of the wages, benefits, and terms and conditions of employment of the employees involved in the factfinding proceeding with the wages, benefits, and terms and conditions of employment of other employees performing similar services in comparable counties.
(6) The consumer price index for goods and services, commonly known as the cost of living.
(7) The overall compensation presently received by the employees, including direct wage compensation, vacations, holidays, and other excused time, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received.
(8) Any other facts, not confined to those specified in paragraphs (1) to (7), inclusive, which are normally or traditionally taken into consideration in making the findings and recommendations.
(a) If the dispute is not settled within 30 days after the
appointment of the factfinding panel, or, upon agreement by both
parties within a longer period, the panel shall make findings of fact
and recommend terms of settlement, which shall be advisory only. The
factfinders shall submit, in writing, any findings of fact and
recommended terms of settlement to the parties before they are made
available to the public. The Statewide Authority shall make these
findings and recommendations publicly available within 10 days after
their receipt.
(b) The costs for the services of the panel chairperson, whether selected by the board or agreed upon by the parties, shall be equally divided between the parties, and shall include per diem fees, if any, and actual and necessary travel and subsistence expenses. The per diem fees shall not exceed the per diem fees stated on the chairperson's résumé on file with the board. The chairperson's bill showing the amount payable by the parties shall accompany his or her final report to the parties and the board. The chairperson may submit interim bills to the parties in the course of the proceedings, and copies of the interim bills shall also be sent to the board. The parties shall make payment directly to the chairperson.
(c) Any other mutually incurred costs shall be borne equally by the Statewide Authority and the employee organization. Any separately incurred costs for the panel member selected by each party shall be borne by that party.
(d) Nothing in this chapter shall be construed to prohibit the mediator appointed pursuant to Section 110029, upon mutual agreement of the parties, from continuing mediation efforts on the basis of the findings of fact and recommended terms of settlement made pursuant to Section 110031.
(b) The costs for the services of the panel chairperson, whether selected by the board or agreed upon by the parties, shall be equally divided between the parties, and shall include per diem fees, if any, and actual and necessary travel and subsistence expenses. The per diem fees shall not exceed the per diem fees stated on the chairperson's résumé on file with the board. The chairperson's bill showing the amount payable by the parties shall accompany his or her final report to the parties and the board. The chairperson may submit interim bills to the parties in the course of the proceedings, and copies of the interim bills shall also be sent to the board. The parties shall make payment directly to the chairperson.
(c) Any other mutually incurred costs shall be borne equally by the Statewide Authority and the employee organization. Any separately incurred costs for the panel member selected by each party shall be borne by that party.
(d) Nothing in this chapter shall be construed to prohibit the mediator appointed pursuant to Section 110029, upon mutual agreement of the parties, from continuing mediation efforts on the basis of the findings of fact and recommended terms of settlement made pursuant to Section 110031.
After the applicable mediation procedure has been
exhausted, fact finding has been completed and made public, and no
resolution has been reached by the parties, the Statewide Authority
may declare an impasse and implement any or all of its last, best,
and final offer. Any proposal in the Statewide Authority's last,
best, and final offer that, if implemented, would conflict with
existing statutes or require the expenditure of funds shall be
presented to the Legislature for approval. The unilateral
implementation of the Statewide Authority's last, best, and final
offer shall not deprive a recognized employee organization of the
right each year to meet and confer on matters within the scope of
representation, whether or not those matters are included in the
unilateral implementation, prior to the adoption of the annual budget
or as otherwise required by law.
The Statewide Authority shall allow a reasonable number of
representatives of recognized employee organizations reasonable time
off without loss of compensation or other benefits when formally
meeting and conferring with representatives of the employer on
matters within the scope of representation.
The Statewide Authority shall not do any of the following:
(a) Impose or threaten to impose reprisals on individual providers, to discriminate or threaten to discriminate against individual providers, or otherwise to interfere with, restrain, or coerce individual providers because of their exercise of rights guaranteed by this title.
(b) Deny to employee organizations the rights guaranteed to them by this title.
(c) Refuse or fail to meet and negotiate in good faith with a recognized employee organization. For purposes of this subdivision, knowingly providing a recognized employee organization with inaccurate information regarding the financial resources of the Statewide Authority, whether or not in response to a request for information, constitutes a refusal or failure to meet and negotiate in good faith.
(d) Dominate or interfere with the formation or administration of any employee organization, contribute financial or other support to any employee organization, or in any way encourage individual providers to join any organization in preference to another.
(e) Refuse to participate in good faith in any applicable impasse procedure.
(a) Impose or threaten to impose reprisals on individual providers, to discriminate or threaten to discriminate against individual providers, or otherwise to interfere with, restrain, or coerce individual providers because of their exercise of rights guaranteed by this title.
(b) Deny to employee organizations the rights guaranteed to them by this title.
(c) Refuse or fail to meet and negotiate in good faith with a recognized employee organization. For purposes of this subdivision, knowingly providing a recognized employee organization with inaccurate information regarding the financial resources of the Statewide Authority, whether or not in response to a request for information, constitutes a refusal or failure to meet and negotiate in good faith.
(d) Dominate or interfere with the formation or administration of any employee organization, contribute financial or other support to any employee organization, or in any way encourage individual providers to join any organization in preference to another.
(e) Refuse to participate in good faith in any applicable impasse procedure.
All of the following proceedings are exempt from the
Bagley-Keene Open Meeting Act (Article 9 (commencing with Section
11120) of Chapter 1 of Part 1 of Division 3 of Title 2) and the Ralph
M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of
Division 2 of Title 5), unless the parties agree otherwise:
(a) Any meeting, negotiation, or discussion between the Statewide Authority or its designated representative and a recognized or certified employee organization.
(b) Any meeting of a mediator with either party or both parties to the meeting and negotiation process described in subdivision (a).
(c) Any hearing, meeting, or investigation conducted by a factfinder or arbitrator in connection with the activities described in subdivision (a).
(d) Any executive session of the Statewide Authority or between the Statewide Authority and its designated representative, including, but not limited to, the Department of Human Resources, for the purpose of discussing its position regarding any matter within the scope of representation and its designated representatives.
(a) Any meeting, negotiation, or discussion between the Statewide Authority or its designated representative and a recognized or certified employee organization.
(b) Any meeting of a mediator with either party or both parties to the meeting and negotiation process described in subdivision (a).
(c) Any hearing, meeting, or investigation conducted by a factfinder or arbitrator in connection with the activities described in subdivision (a).
(d) Any executive session of the Statewide Authority or between the Statewide Authority and its designated representative, including, but not limited to, the Department of Human Resources, for the purpose of discussing its position regarding any matter within the scope of representation and its designated representatives.
(a) The Statewide Authority may adopt reasonable rules and
regulations for all of the following:
(1) Registering employee organizations.
(2) Determining the status of organizations and associations as employee organizations or bona fide associations.
(3) Identifying the officers and representatives who officially represent employee organizations and bona fide associations.
(4) Any other matters that are necessary to carry out the purposes of this title.
(b) The board shall establish procedures whereby recognition of employee organizations formally recognized as majority representatives pursuant to a vote of the employees may be revoked by a majority vote of the employees only after a period of not less than 12 months following the date of recognition.
(c) The Statewide Authority shall not unreasonably withhold recognition of employee organizations.
(d) Employees and employee organizations may challenge a rule or regulation of the Statewide Authority as a violation of this title. This subdivision shall not be construed to restrict or expand the board's jurisdiction or authority as set forth in subdivisions (a) to (c), inclusive, of Section 3541.3.
(1) Registering employee organizations.
(2) Determining the status of organizations and associations as employee organizations or bona fide associations.
(3) Identifying the officers and representatives who officially represent employee organizations and bona fide associations.
(4) Any other matters that are necessary to carry out the purposes of this title.
(b) The board shall establish procedures whereby recognition of employee organizations formally recognized as majority representatives pursuant to a vote of the employees may be revoked by a majority vote of the employees only after a period of not less than 12 months following the date of recognition.
(c) The Statewide Authority shall not unreasonably withhold recognition of employee organizations.
(d) Employees and employee organizations may challenge a rule or regulation of the Statewide Authority as a violation of this title. This subdivision shall not be construed to restrict or expand the board's jurisdiction or authority as set forth in subdivisions (a) to (c), inclusive, of Section 3541.3.
The provisions of this title are severable. If any
provision of this title or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
