State bill would claim power to enforce union-elections from federal board

The state legislature is attempting to make a California agency the guarantor of unionization rights. Assembly Bill 288 makes an argument for the Public Employment Relations Board to conduct union elections for as long as the National Labor Relations (NLRB) Board is unable to function. 

The State Senate Judiciary Committee passed Assembly Bill 288 on July 8, to be reviewed by the Appropriations Committee.

Bill author and Assemblymember Tina McKinnor (D-Inglewood), said the Public Employment Relations Board (PERB) needs to step in since the NLRB does not have enough President-appointed members to have a quorum.

“We need to make sure that PERB can hear these cases because if there’s no form for workers to resolve unfair labor practices, then where do they stand? What do we do for them? We can’t just leave them out in the cold because the NLRB doesn’t have a quorum. We also can’t have loss of union protections, like bargaining rights, organizing protections, and reinstatement after retaliation. We can’t have our workers unprotected, because employers will take advantage of that,” McKinnor told the Judiciary Committee.

PERB oversees relations between public employees and their employers. The bill would establish three situations in which private workers in the state can bring their unionization petition before the PERB:

• When the National Labor Relations Act is narrowed or repealed to remove the worker from protection
• When the NLRB does not have quorum, funding or staffing
• When the NLRB does not schedule a union election within six months after being petitioned to do so, or when the NLRB does not resolve challenges or objections to the election after six months

The California Chamber of Commerce is the sole listed opposition against the bill. In a letter to the state, the organization said that only the NLRB can conduct judicial elections.

“The present lack of a quorum at the NLRB and hypothetical scenarios about what may happen does not allow AB 288 to escape preemption. The NLRA is still law, and it continues to be enforced by the NLRB’s regional offices. Those offices are continuing to process elections, certifications, petitions, and unfair labor practice charges,” their opposition reads.

The Senate Judiciary Committee’s analysis says that the bill supplements, instead of preempts, federal law.

“AB 288 is not so much about replacing or making substantive law regarding employees’ rights and protected concerted activity, as it is about ensuring that the rights already guaranteed to employees can be enforced. It aims to have the state step in only where the NLRB has failed its statutory duties in the administration of the NLRA and labor law. It arguably then only would act to supplement the NLRB, not replace it. If the NLRB functioned as it is meant to under the NLRA, AB 288 would not be needed. Unfortunately, in these times, whether the NLRB will continue to function at all is uncertain,” the analysis reads.

The bill is supported by 66 organizations, including the United Nurses Associations Of California/Union Of Health Care Professionals, California Nurses Association, California Professional Firefighters,  SEIU Local 1000 and the SEIU California State Council.

AB 288 passed the Senate Judiciary Committee 11-1, along party lines. The two Republican senators on the committee either voted no or did not vote. The bill passed the State Assembly on June 2, with 68 yes votes. Eight Republicans voted yes with 60 Democrats. Two Republicans voted no, and nine Republicans did not vote.