SB 270 was introduced by Senator Durazo on January 28, 2021. Senator Durazo introduced a nearly identical bill, SB 1173, in the last legislative session. SB 1173 initially passed the Senate, and then passed the Assembly with amendments. However, the Senate was unable to concur in the Assembly amendments before the legislative session ended. The language of SB 1173 is now in SB 270.
The Public Employee Communication Chapter (Gov. Code, §3555 et. seq.) requires an employer to provide a union with employee contact information. Under SB 270, when an employer has provided an inaccurate or incomplete list, a union must give notice to an employer of the deficiency and provide the employer an opportunity to cure the defect. If the employer doesn’t cure within 10 days, the union can file an unfair practice charge with PERB. An employer may utilize this opportunity to cure only three times in any 12-month period.
If PERB finds a violation, it “shall” impose a penalty on the employer not to exceed $10,000. To determine the penalty amount, PERB must consider the employer’s annual budget, the severity of the violation, and any prior history of violations. The penalty is paid to the State general fund. Further, PERB “shall” award attorneys’ fees and costs to the “prevailing party.” Notably, a prior version of SB 1173 provided that attorneys’ fees and costs would only be awarded to a “prevailing charging party.”
- I was opposed to SB 1173 because it introduced the notion of a “penalty” into California public sector labor law. I also objected to the introduction of an award of attorneys’ fees and costs to a prevailing union. Because SB 270 maintains the concept of a monetary penalty I continue to oppose it. However, I will note that the author has made changes to the bill regarding the penalty. As introduced, the penalty was up to $50,000 and would go to PERB. It is now up to $10,000 and goes to the State general fund. Also, the bill does not take effect until July 1, 2022, which provides some time for employers to make sure they are in compliance. Those are all good changes. But I still fundamentally believe the introduction of monetary penalties is unnecessary and bad public policy.
- Regarding monetary penalties, I should clarify that I am not opposed to them if they are tied to actual damages. But PERB already has the authority to award such damages so a change in law is not necessary.
- SB 1173 initially provided that attorneys’ fees and costs could only be awarded to a “prevailing charging party” (i.e. a union). In the Assembly, SB 1173 was amended to provide attorneys’ fees and cost to a “prevailing party.” According to the subsequent Senate analysis, the intent of the Assembly amendments was to, “Clarify that PERB shall award attorney’s fees and costs to a prevailing party, as specified, including to an employer should it prevail.” I applaud this change. As initially introduced attorneys’ fees could only be awarded to the union which I thought was unfair.
- Even though attorneys’ fees and costs are now available to prevailing employers, I still don’t like it. Both unions and employers are institutional entities and should be able to bear their own fees and costs. Moreover, I suspect that some unions may now oppose the attorneys’ fees provision because of the financial exposure to them if they lose. I hope so because I would like to see the attorneys’ fees provision deleted from this bill.
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