SB 1173: $50,000 Penalty For Violation Of PECC

SB 1173 was introduced on February 20, 2020, by Senator Durazo. Currently, the Public Employee Communication Chapter (PECC) (Gov. Code, §3555 et. seq.) requires public employers to regularly provide a 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 the union’s bargaining unit members. SB 1173 would give an employer 10 days to cure an allegation that it provided an inaccurate or incomplete list of employees to the union.

If the employer does not timely cure a violation, the union may file an unfair practice charge with PERB. If PERB finds a violation, it “shall” impose a penalty on the employer not to exceed $50,000. The penalty is paid to PERB upon appropriation by the Legislature. Further, PERB “shall” award attorneys’ fees and costs to the “prevailing charging party” bringing the unfair practice charge.

Comments

Not surprisingly, this bill is opposed by both the League of Cities and the California State Association of Counties, along with a host of other employer organizations. For starters, it’s not clear why such a radical bill is necessary as most employers are complying with the PECC and any problems appear to be isolated. I say this bill is radical because it introduces, for the first time, the notion of a “penalty” into California public sector labor law. Perhaps even more problematic, this bill gives PERB, for the first time, the statutory authority to award attorneys’ fees, but only to a prevailing union.

In terms of the language of the bill, my biggest objection is that it only allows an employer to “cure” a violation 3 times a year. This is fine if you’re an employer that provides information to the union every 120 days as allowed by the PECC. But many employers voluntarily provide information to the union more often than every 120 days. These employers are placed at a disadvantage compared to employers following the minimum time standards. It seems to me that if you are an employer providing information more often than necessary that you shouldn’t be penalized for that. Hopefully if this bill moves forward they will at least correct that flaw. But more important, I hope the attorneys’ fees provision is eliminated. As for the penalty, I think it should be tied to actual damages suffered by the union for the PECC violation. I am strongly opposed to PERB being allowed to impose penalties that are not tied to actual damages, especially when the damages appear likely to flow into PERB’s own coffers….