STATE OF CALIFORNIA

DEPARTMENT OF INDUSTRIAL RELATIONS

INDUSTRIAL WELFARE COMMISSION

Public Meeting

November 22, 2002

State Capitol, Senate Room 3191

Sacramento, California

--o0o--

BILL DOMBROWSKI, Chair

DOUG BOSCO

LESLEE COLEMAN

TIM CREMINS

BRIDGET BANE, Executive Officer

DOUG McCONKIE, Analyst

MARGUERITE STRICKLIN, Legal Counsel

DAVID ZAHEDI, Analyst

Page

Proceedings 4

Consideration of Wage Board Report from Minimum Wage

Wage Board 4

Consideration of Petition to Amend Wage Order 9 6

DOUGLAS BARTON, Hanson Bridgett Marcus Vlahos Rudy 8

RICK RAMACIER, Central Contra Costa Transit 23

Authority

P. SUE ZUHLKE, Orange County Transportation 27

Authority

MINDY JACKSON, El Dorado County Transit Authority 30

BOB NAYLOR, Los Angeles County Metropolitan 38

Transportation Authority

MARK WATTS, Santa Clara Valley Transportation 39

Authority, San Diego North County Transit

District

BARRY BROAD, Teamsters, Amalgamated Transit Union, 40

Machinists Union

JAMES P. JONES, United Transportation Union 43

PETER COOPER, California Labor Federation 44

TONY WITHINGTON, Amalgamated Transit Union 44

MATTHEW McKINNON, California Conference of 46

Machinists

New Business 47

Adjournment 48

Certificate of Reporter/Transcriber 49

--o0o--

(Time noted: 10:04 a.m.)

COMMISSIONER DOMBROWSKI: All right. I'm going to call the meeting to order.

Let the record show we have Commissioners Dombrowski, Coleman, Bosco, and Cremins present. Commissioner Rose could not make the meeting.

In regards to Item Number 1, consideration of the wage board report, I'd like Bridget to give the Commission just a brief summary of what was done at the wage board.

MS. BANE: The wage board was convened. There were ten members of the wage board and three alternates, five members on the employers' side, five members on the employees' side. There was one meeting held, on September 5th, 2002, in Sacramento. The chair was Daniel Altemus. The meeting lasted approximately an hour and a hour.

There were motions made by employees that are listed in the report by Mr. Altemus. I will read the brief list of motions that were made by the employees' side.

There was a motion made for a minimum wage increase of $12.00 per hour on January 1st of -- I think it should read "to" $12.00 per hour -- to take effect on January 1, 2003, equal to the Santa Cruz living wage. The vote was five to five, deadlocked, on that.

The employees' side moved for an increase up to $8.92 per hour on January 1, 2003. There was a five-to-five vote on that, deadlocked.

The employees' side made a motion to raise the minimum wage to $9.00 per hour by 2005 in increments between now and 2005. The vote was five to five, deadlocked, on that.

The employers' side made a motion that there should be different minimum wages for different industries in the state and there should be a new wage order for the hospitality sector. That was deadlocked, five to five.

The employees' side made a motion for a $1.00 increase in the minimum wage on July 1, 2003. That was deadlocked, five to five.

The employers' side made a motion that there be no increase in the minimum wage. That was deadlocked, five to five.

There was one motion that passed unanimously. The employers' side made a motion to increase the percentage of the meal and lodging credits proportionately with any increase in the minimum wage. That would only be triggered on the event of the passage of a minimum wage increase.

COMMISSIONER DOMBROWSKI: Okay.

In deference to Commissioner Rose, I would ask if we could just put Item 1 over to the January 10th meeting. Without objection --

COMMISSIONER BOSCO: Second.

COMMISSIONER DOMBROWSKI: Okay. All -- everybody in favor of that? Is that okay? All right. Let's do that.

Item Number 2, the staff report regarding petition requesting IWC amend Wage Order Number 9, on the transportation industry, to include public transit drivers under meal and rest period requirements.

I'm getting a little confused by some late cards here.

Mindy Jackson, I think you have a panel that you wanted to bring up.

MR. BROAD: (Not using microphone) Why don't we do like pros and cons?

COMMISSIONER DOMBROWSKI: I'm sorry.

MR. BROAD: (Not using microphone) Why don't we do a pro and con deal? You get the cons first.

(Laughter)

COMMISSIONER DOMBROWSKI: Well, I think I am getting the cons first, aren't I?

(Laughter)

COMMISSIONER BOSCO: How did the cons get into the building?

(Laughter)

MR. BROAD: (Not using microphone) I had a few thoughts for you.

COMMISSIONER DOMBROWSKI: Mindy, come on up with your group.

Let's see. I think Mark -- Mark Watts, you want in this; Bob Naylor --

MR. BARTON: The list I have -- I'm Doug Barton, and I'll start off.

COMMISSIONER DOMBROWSKI: Okay.

MR. BARTON: And then Rick -- following me will be Rick Ramacier. Sue Zuhlke will be next.

COMMISSIONER DOMBROWSKI: Wait, wait. Let me get -- number my -- okays. You said next will be Rick. Got it.

MR. BARTON: After me will be Rick.

COMMISSIONER DOMBROWSKI: Okay.

MR. BARTON: Then Sue Zuhlke.

COMMISSIONER DOMBROWSKI: Okay.

MR. BARTON: And then Monica Colondras.

COMMISSIONER DOMBROWSKI: Okay. Okay.

MR. BARTON: Mindy Jackson.

COMMISSIONER DOMBROWSKI: Great.

MR. BARTON: Mark Watts.

COMMISSIONER DOMBROWSKI: Okay.

MR. BARTON: And Robert Naylor.

COMMISSIONER DOMBROWSKI: Got it.

Just identify yourself for the record, and go ahead.

MR. BARTON: Yes. Thank you.

My name is Douglas Barton. I'm an attorney with the Hanson Bridgett law firm, and I've had a specialty in labor and employment law for my entire legal career, which is, unfortunately, 34 years now. And for most of that, I've had a subspecialty of public transit, and I have, as a consequence, been actively engaged in collective bargaining issues on behalf of public transit entities since 1979.

I submitted a letter on the last occasion that we were together with you on these proposed amendments to Order Number 9. And I understand that's part of this record, and I won't try to recapitulate that. I do want to give you some of the points that I made on that occasion because I think they are still germane.

What I stressed last time and I'd like to remind the Commission is that public transit is a very unusual sort of public undertaking. It actually has roots in the private sector, but ultimately, it was a failing activity in the private sector. And as the consequence, it pretty soon became a public sector activity over the last several decades, and especially here in San Francisco in the last couple of decades. And with that transition from private to public sector came, of course, a lot of public accountability.

And what I -- the point of departure for my remarks last time which I'd just like to re-emphasize this time is that I would ask the Commission to think carefully as to whether it's really necessary to go down this road of extending to this aspect of public service regulation concerning meal breaks and -- meal periods and rest breaks.

The -- I believe it is still the case that aside from the minimum wage aspects of your orders, which, of course, are always exceeded in the public sector, the IWC orders do not reach into the public sector. And I think there is a good reason for that. And that is that the transition to public responsibility for what is now public transit, there is a great deal of attention paid to the kind of public safety concerns which are supposed to be the primary underpinning -- employee safety and public safety -- excuse me -- are supposed to be the underpinnings of the need for Industrial Welfare Commission regulation of working conditions.

Each local entity has public officials in charge of its board, and they are highly accountable. They meet in public. They're concerned about safety. And what I urged you to consider last time, and do again, is that that's where that responsibility ought to continue to lie, not just because local is sometimes better because you're closer to the action, but also because this is a very unusual kind of public activity. It's not the only one that's unusual. There are other things in the public sector that are quite unusual. And you don't try to regulate firefighting and police work and emergency communications dispatchers and things of that nature. Public transit, like them, but in its own unique way, has very unusual service needs that require work to be laid out in unusual ways. And there are things that need to balanced: balancing the need to serve the public with the buses where the passengers want to have buses, and at a reasonable cost, and at the same time, be attentive to the needs of the employees.

And the conditions that are highlighted in the letters that are put before you by Barry Broad's office to some extent are certainly there. It's certainly the case that there are unpredictable aspects of public transit. There can be wheelchairs that don't open quickly, and there can be disabled passengers, as a result, or there can be detours or whatever that may delay a schedule and may delay a scheduled break as a result. But legislating a one-size-fits-all approach or a standard for meal periods and rest breaks, following what is basically a model that is -- that has grown up in the private sector, and forcing that upon public transit has a highly distorting effect on the way in which these public transit districts operate. And that can only mean that if you put those requirements in place, and the underlying realities are the same, so that rest stops -- rest intervals are delayed, that you could have penalty time without changing the underlying conditions in which the operators work.

And those underlying realities are the subject of ongoing interaction between labor unions that represent the employees and management at these districts. It's an ongoing struggle to deal with these changing realities that occur in that workplace, where it is common because it's the way the work is -- the way the service needs to be laid out, that the days are long, and oftentimes there will be a long break in the middle. The public transit unions try to shorten those days up or at least give choices when runs are bid so that more senior operators will get better and better choices as they advance along the seniority list. But these issues are continually dealt with, but are rarely resolved in a way which would comply with the standards of Order Number 9.

And what we have said before and will repeat again is that since just about every public transit entity has its operators organized, represented by unions, that's where this ought to be left to be worked out in an individualized way which is reflective of the needs and priorities of the public, employees, and district management as it tries to harmonize the needs of both. And if you seek to impose this, if you respond to the request to impose these kinds of standards -- I realize what you would do is a wage board -- but the wage board has to come up with one uniform solution. And you've got numerous transit entities with very differing service areas, different service needs, that would then be forced into whatever that wage board comes up with, which is typically one -- something that follows the traditional order, so that they would not have the opportunity to individualize without paying the substantial penalties, which, at this point in particular, it would be particularly hard for us to deal with in this difficult economic time. It wouldn't make sense to do this at any time, but in this particular time, when most transit entities are in deficit, to do something in the name of safety, which really doesn't change the underlying realities, but does add cost, is particularly untimely and unwise.

The governor recognized that. The governor referenced the serious cost issues in his veto message. And I do think that in these circumstances, and given the unusual characteristics of this industry, it's not a good thing to do. And you should resist the temptation just to pass it to a wage board because, as we all know from the deadlock on the last item, of course, it could deadlock. But these issues cannot be accommodated by the single standard that is characteristic of one of your wage orders.

If you think for just a moment about some of these other public -- sorry.

COMMISSIONER CREMINS: I apologize. Without any disrespect to you or your testimony, I've got an emergency.

MR. BARTON: Yes.

COMMISSIONER CREMINS: And I had a commitment to make a motion for a wage board. I'm wondering if I could get that now. I've got a problem with my son at school. I've got to go get --

MR. BARTON: Sure. Oh, sure.

COMMISSIONER CREMINS: But really, no prejudice or disrespect to any of your testimony.

MR. BARTON: Sure.

COMMISSIONER CREMINS: Could I get a motion to take this to a wage board? Is that out of order, Mr. Chair?

COMMISSIONER DOMBROWSKI: You can make the motion.

COMMISSIONER CREMINS: I make the motion to take this to a wage board.

COMMISSIONER BOSCO: Second.

COMMISSIONER DOMBROWSKI: Okay. We have a motion and a second. Any discussion?

COMMISSIONER CREMINS: Again, I apologize.

COMMISSIONER DOMBROWSKI: I'd like to just make a remark. I'm going to vote for the wage board. And I'm a little confused, because the Transit Association, in their letters, did come up with some suggestions that I thought provided a starting point for a wage board discussion. And I'm not committing one way or the other on what's going to happen when the wage board comes back, but I do think that I'm going to vote in favor of at least taking it to that forum and continuing the discussions and negotiations that both parties have had.

MR. BARTON: I wonder if the Commission would be willing to withhold the vote until we have a chance to comment upon that. Would that be difficult?

COMMISSIONER CREMINS: I would continue to stay with motion to take it to a wage board. You know, and I think that's the proper forum to deal with issues if you have disagreement. And I -- again, I was -- like Mr. Dombrowski, I was a bit confused. I thought there was -- we were at a point in discussion where it should logically go to a wage board.

MR. BARTON: What is included in the packet is something that developed as a result of the decision of the unions that are advocating -- the unions that have made the -- filed the petition to seek a legislative solution. And they expressed confidence that they would get that through the Legislature, which they did. Facing that, the industry sought to see if there was a solution that could be worked out. It couldn't be. And we never thought it was a good idea, for the reasons stated.

So we really do -- I'm sorry -- I sympathize with you --

COMMISSIONER CREMINS: I apologize also.

MR. BARTON: -- and with your parenting responsibility. I have those myself.

COMMISSIONER CREMINS: Okay.

MR. BARTON: I really do -- I really wish that we'd have an opportunity -- I wonder if it might be possible to put this over to another meeting before the Commission has to vote. I do think there are a number of people who would like to address the issue.

COMMISSIONER CREMINS: Oh, I'm not asking testimony to be cut off. I'm just asking for a motion now.

COMMISSIONER DOMBROWSKI: Commissioner Bosco.

COMMISSIONER BOSCO: Yeah. I think that this is a little bit awkward. First of all, Mr. Rose isn't here, and then Mr. Cremins has a -- as I understand it, your son had an accident this morning --

COMMISSIONER CREMINS: Got hit in the head, yes.

COMMISSIONER BOSCO: -- so it puts, obviously, the cart before the horse, since ordinarily we'd hear the testimony and then decide what to do.

But I can only speak for myself, that, first of all, I am not willing to believe that this is an irresolvable problem. I think that the $21 billion state deficit may. I think capturing Osama Bin Laden might be. But I cannot believe that, especially with the intelligence of the group that is right here -- and I served in the Legislature with Mr. Naylor and have a lot of respect for his bearing on things -- I cannot believe that your group and the unions can't figure out a way to let people have a little bit of time for lunch and to go to the bathroom, which almost every other worker in the entire United States enjoys that luxury.

And sometimes necessity is the mother of invention. And it might just be that establishing a wage board will put the type of -- will instill the type of ingenuity in your minds to go ahead and come up with a solution to this, because, I suspect if you don't, that we on this board, who may not even be as insightful, will have to do it for you.

MR. BARTON: Commissioner Bosco, I wonder if I just might comment upon that. It really isn't the case that bus operators don't have a chance to get something to eat or to take breaks. What is the case is they cannot and usually don't take them in the prescribed intervals that are typical of a wage order. And the needs do vary, so that localized solutions, which are, in fact, worked out, are the way to resolve those issues. We don't disagree with for a moment that everyone needs a chance to get a bite to eat and an opportunity to go to the restroom or otherwise have a respite. There isn't a transit district in this state that doesn't provide for that.

COMMISSIONER BOSCO: Well, maybe given that kind of a basic need, you know, it might be that you can figure out, with the wage board mechanism, how to do something that may not work everywhere, but can overall suffice for the state. I mean, the wage board will have equal numbers of your -- representing you and your adversaries in this. And I think the only additional factor that will be involved in it is that, you know, the train will be on the track and moving, and everybody's going to have to either come up with a solution or, as I say, we will. I'm not sure how that'll turn out, but I would encourage you to do it.

I'm only one vote on this, but --

COMMISSIONER DOMBROWSKI: Leslee.

COMMISSIONER COLEMAN: Yeah. And we've heard a lot of thoughtful testimony, I think, on this issue, on both sides. And I certainly agree with Mr. Bosco that workers are entitled to reasonable breaks.

Having worked on several transit initiatives in Silicon Valley to bring about $4 billion of money to our area to operate buses and other public transit, my biggest concern is the economic impact that a statewide solution might have, where locally negotiated solutions are, as you say, sometimes in the best interests of both the workers and the transit riders, which we know are, in most -- in many cases, low income themselves. And I wouldn't want to put the agencies in a position that their deficits grow even further.

And so, as a transit advocate, I have a lot of concerns about this, so I will not be supporting the motion.

COMMISSIONER DOMBROWSKI: Okay. We have a motion on the table.

Call the roll.

MS. BANE: Mr. Cremins.

COMMISSIONER CREMINS: This is a motion to --

COMMISSIONER DOMBROWSKI: Wage board.

COMMISSIONER CREMINS: -- for a wage board?

COMMISSIONER DOMBROWSKI: Yeah.

COMMISSIONER CREMINS: Aye.

MS. BANE: Mr. Bosco.

COMMISSIONER BOSCO: Aye.

MS. BANE: Ms. Coleman.

COMMISSIONER COLEMAN: No.

MS. BANE: Mr. Dombrowski.

COMMISSIONER DOMBROWSKI: Aye.

MS. BANE: The motion for a wage board passes, three to one.

COMMISSIONER DOMBROWSKI: We would like to have nominees submitted to the IWC so that we can name the wage board at the January 10th meeting. So, you have a January 10th deadline for nominees.

Pending how many names you submit, I would -- I would -- I would guess that we would probably have five members from each side, with two alternates from each side, so a total of seven nominees is probably a good number.

I'm sorry.

MR. BROAD: (Not using microphone) Can I ask --

COMMISSIONER DOMBROWSKI: A question?

MR. BROAD: (Not using microphone) for clarification?

COMMISSIONER DOMBROWSKI: Um-hmm.

MR. BROAD: (Not using microphone) Our petition

-- just for the record, I'm Barry Broad, on behalf of the Teamsters, Amalgamated Transit Union, and Machinists -- was to extend -- have the wage board extend these provisions to commercial drivers in the public sector. There's -- there has never been any controversy about truck drivers or school bus drivers or any of the other drivers. The controversy is limited to these public transit agencies, but -- and so, therefore, that's been the discussion. But we do want -- that's what we've asked, and that's why I want to clarify that it was to consider extension to public commercial drivers in the public sector.

COMMISSIONER DOMBROWSKI: Well, is that what Commissioner Cremins was --

COMMISSIONER CREMINS: Yeah. Well, I think my motion was to open -- I'll use the term open Wage Order 9. If you want to put some conditions on to narrow the focus of the wage board discussions, I think we can -- I think we can do that.

MR. BROAD: (Not using microphone) Well, that was -- we were only limiting it to that (inaudible) --

COMMISSIONER CREMINS: That's all you want. All right. All right.

MR. BROAD: (Not using microphone) But it's more than just public transit.

COMMISSIONER DOMBROWSKI: Then would you accept staff drafting a narrowing of the wage board focus?

MR. BROAD: (Not using microphone) Yeah. That would be (inaudible). Okay.

COMMISSIONER CREMINS: And again, I apologize.

COMMISSIONER DOMBROWSKI: Okay.

MS. BANE: We will take the petition and craft the charge with counsel, based upon the petition, which comes from Mr. Broad. And --

COMMISSIONER DOMBROWSKI: Procedure?

MS. BANE: Procedurally, I think that even though we are -- the motion has passed for a wage board, that -- I have talked to counsel, and Marguerite has indicated that testimony needs to continue so that that testimony could then be forwarded to the wage board.

COMMISSIONER DOMBROWSKI: Okay.

COMMISSIONER CREMINS: Thank you. I apologize.

COMMISSIONER DOMBROWSKI: I hope it's okay.

COMMISSIONER BOSCO: Good luck.

(Commissioner Cremins departs.)

MR. BARTON: I will continue, but I have to confess a little snap was taken out of my sails --

(Laughter)

COMMISSIONER DOMBROWSKI: I apologize.

MR. BARTON: Whatever. But, you know, what we were talking about --

COMMISSIONER COLEMAN: It's like seeing the end of the movie.

MR. BARTON: Yeah. It's kind of that way.

(Laughter)

MR. BARTON: Let's have a motion to reconsider it.

The final point I wanted to make before turning it over to my colleagues is to just invite the Commission to consider that there are these public sector occupations that I referenced -- communications dispatcher, firefighter, police officer -- and they all have private sector analogs. And you've got all kinds of people in the private sector that are going to come out of your wage orders that deal with phones and dispatching people and things of that nature, but it won't take -- it won't take more than a moment's reflection to realize that an emergency dispatch communication operator's duties are very different in the public interest and have substantial public safety concerns and shouldn't come under a wage order designed for private industry. And the firefighters or firefighter analogs that may come under one of your wage orders, I mean -- it should be one or another. Police officers, there are private security people that come under particular Industrial Welfare Commission orders. And I think it -- I think it illustrates, when you think of those analogies, why it just doesn't make sense to being going down this road, taking a transportation wage order that's designed for the private sector and extending it into this very unusual and important public undertaking and public responsibility. And that's the other point that I wanted to make here.

If you have any questions of me, I could entertain them. But you'd like to -- probably just like to hear from the next speakers.

COMMISSIONER DOMBROWSKI: Oh -- I might have broken my microphone.

Just in case you're -- you can also submit all the written testimony for the record, if you choose. So that goes to the wage board as well.

MR. RAMACIER: I'm Rick Ramacier. I'm the general manager for the Central Contra Costa Transit Authority. We operate 130 fixed-route buses in suburban Contra Costa County, and then we also operate a paratransit service of another forty-some-odd vehicles.

The unique perspective that we have is that our fixed-route system is operated by in-house employees who belong to a union, the Amalgamated Transit Union. Our paratransit service is contracted through Laidlaw. The employees there are in the same union, only that union is to the Laidlaw Company and not to the CCCTA. Laidlaw pays their folks differently than we do. And one of the things you'll hear about, either -- probably through the wage board, is that, "The private sector is doing this; why can't the public sector?"

For the last thirty years, public transit operators have negotiated with their unions all kinds of different ways of compensating the bus operators. And typically, at least in our agency, and I think in other agencies, if you were to hear from other agencies, this has never been a top priority of most of the local unions. Our union, at the last go-around, was interested in raising the base wage. In fact, they gave up some things that they were enjoying so we could put that money into the base wage, which benefits every driver, no matter what kind of piece of work they have.

Some pieces of work lend themselves to structured breaks and some don't. Our senior operators like what are called a.m. straights, where they come to work when the bus rolls out in the morning at five a.m., and then they come back at one or two in the afternoon and they go home. They don't -- they don't want to extend their day.

When you look at the pay rates, the pay rates in the public sector are much higher than what Laidlaw pays, typically, or their competitors. The benefits that our drivers receive are greater than the paratransit drivers receive. So, yes, they're receiving Wage Order Number 9, the benefit of that, but they're not receiving a whole host of other things that the public sector drivers are receiving in lieu of that.

If we put a driver out there for a long extended-period day, we've got to pay what's called penalty pay and premium pays. Those are things that are in every union agency contract.

Our union has already told me that when their contract is up in a year and a half, their single and only issue is that we deal with retirement. They don't feel it's sufficient. They have sent me signals that they'll give up everything that they would be interested in and tell their membership, "If we can get what we want in retirement, we won't expect a lot out of the agency," because they know we're in financial trouble, and they want to work with us.

Relative to right now, the issue of people going to the bathroom and lunches and so forth, let me just tell you how it works at CCCTA, briefly. And I don't think we're unique. I don't think we're unique in California; I don't think we're unique in this country. Through the scheduling process, we know that people need to use the restroom, so we try to write our bus schedules such that there's what we call layovers or breaks in time where you don't -- you can leave your bus, near places where we know operators are going to go to the bathroom. We have a committee, made up of an operator, a transit supervisor that supervises the operators, and a guy who writes the schedules, and they identify sites throughout our service area where the clean bathrooms are, the accessible bathrooms are, and we try to accommodate, through our scheduling, the use of those bathrooms.

We offer to our drivers, our union officials and drivers who are not union officials, to come to the staff and tell us when there's problems with the schedules that we need to address, where they're not getting breaks, because the last thing we want as an employer is for our employees not to get breaks and not to be able to eat. It would be bad practice. It's a very competitive market. Throughout this downturn in the economy, it's been striking that we have struggled to maintain full ranks of drivers. We continue to struggle to recruit enough people to come drive a bus at County Connection, even though we're paying about $15, $16 an hour. So it's in our best interests to keep the people we have. And we're not going to keep them if their working conditions aren't very good. So we try to accommodate those working conditions as best we can.

The way it works in the transit schedule, without getting into the details, because it is complex, if Wage Order Number 9 is simply amended, without any forethought to what are in existing union contracts, many of us will experience a tremendous increase in costs. And we're not sure how we're going to absorb that. We're on the cusp right now of cutting more service and laying off employees because of the economic turndown. This tossed upon us, without any ability to go to our unions and ask for something back in return, will only add costs.

Moreover, I'm not sure our union wants to give anything back for this. When I talk to them locally, they say, "This is not our top interest. Well, we're not going to get in the way of our lobbyists up in Sacramento because they have a job to do and maybe they've got other clients that want this." But at our local agency, this is not a top priority. They would rather get more retirement benefits. They would rather build the base wage.

And those are some of the things I would hope you'd keep in mind. As Doug Barton has said, this is a unique industry. And I would really hope that you would understand that. None of the transit operators in California want to operate a system that doesn't allow people to go to the bathroom and eat. It's simply not the case.

COMMISSIONER DOMBROWSKI: Can you try to get something in writing from these people that we could submit to the wage board so that they hear that perspective?

MR. RAMACIER: Yes. I'd be happy to.

COMMISSIONER DOMBROWSKI: Okay.

MS. ZUHLKE: Good morning. My name is Sue Zuhlke, and I'm with the Orange County Transportation Authority. I appreciate your going ahead and taking testimony, although you've already made your motion, which is unusual for most public meetings.

The petition before you to amend Wage Order Number 9 to make applicable the rest and meal break requirements on public employers asserts that the reasons for the amendments are that the current policy has significant negative impacts and that private employees performing similar work -- or, excuse me -- public employees performing similar work to the private employees should be treated equally. I beg to say that these assertions are not accurate.

Within OCTA's coach operator agreement, the Authority provides an average recovery time of at least 15 percent of all regular runs on a base-wide basis. This recovery time allows the operators to take restroom breaks, to eat, and to make up for lost time due to unusually heavy traffic or construction. If there is not sufficient recovery time, our agreement also allows for the operators to come to us and look at the recovery time, to allow them to eat and take restroom breaks. And the system works. The mediation system recently -- four runs were tight, of this nature -- our drivers came to us, and those runs have been amended so that they can take their restroom breaks.

During the last negotiation, there were 112 proposals submitted from our union. Only one dealt with breaks. And this had to do with the recovery time. Generally, the recovery time -- it was 12 percent, and they wanted it increased to 15 percent, which we did do.

The petitioner also requests that you accept this amendment because it is an issue of equity for the public and private employees and that private transit employees and public transit employees are the same. They're not the same. I provided the Commission with a comparison between Foothill Transit, who employs First Transit as a private operator, versus Orange County Transportation Authority's benefits and salaries. These -- in no way are these agencies are the same. The base rate at 60 months, public employers, or OCTA, is paying 82 percent more than what the private counterpart is paying. Now, I am curious if -- how well the private agencies are applying these rest and meal breaks as well.

The petitioner last year had legislation introduced, which was vetoed by the governor. When the governor vetoed it, stating that it would cost too much, the petitioner will say that there are no additional costs. But there obviously are, because we do have collective bargaining agreements, we have runs that are made in a certain way, and we have to pay for those runs. For OCTA alone, it'll cost $2.3 million annually to provide these breaks. What we might have to do in our next negotiations is actually start splitting runs so that lunches are not being paid for, because under the current collective bargaining agreement for OCTA, we will be paying for lunches, which the private sector does not enjoy.

Thank you.

MR. BARTON: Monica Colondras was going to speak, but I think she's prepared to accept your invitation to submit her comments in writing.

And Mindy Jackson.

MS. JACKSON: Good morning. My name is Mindy Jackson. I'm the transit director for El Dorado County Transit Authority. And I agree with, and our agency is set up much like those of my colleagues, so I won't reiterate the way we do our scheduling.

But I would like to point out that there are at least 56 of the 58 counties that have some type of rural transit operation. And these lifeline services within the communities are unique in that they're much longer runs. They have to be, between communities on public highways, state highways, and county roads. So to schedule those meal breaks would be a definite operational problem for our drivers and the passengers we serve. The proposed change would definitely increase -- impact us fiscally. We would probably have to, at least in our situation, reduce the current level of service to cover the cost of this type of change.

You know, our employees do get meal breaks and restroom breaks built into their pieces of work. As a matter of fact, this was brought to our bargaining, our local bargaining, in, I believe, '91-92. The contract was written for several of the runs to have scheduled breaks. And after it was put into place, the drivers that were actually impacted came back and asked for us to take it out of the contract because they would rather finish their runs and get to the place where they could drop their passengers and continue on their day. So that was interesting that that was brought up specifically.

I would just like that, from a rural transit perspective, because each rural transit service is unique, this issue should be left to the local bargaining.

That's all.

COMMISSIONER BOSCO: I'd like to ask a question of the lady from Orange County Transportation Authority.

MS. ZUHLKE: Yes, sir.

COMMISSIONER BOSCO: And could you give me your name again?

MS. ZUHLKE: Sue Zuhlke.

COMMISSIONER BOSCO: Okay. The recovery time, what -- when you say that's -- 15 percent is built into the schedule, what is anticipated that happens in the recovery time? I mean --

MS. ZUHLKE: It allows the operator to make up for lost time between runs. You know, once they finish a run, they've got to start the next run. If they're -- if they get stuck because they're having, you know, a heavy load or there's been traffic or construction, it allows for make-up time there. It also allows for restroom breaks and for meal periods.

Additionally, our contract requires that we not preclude any run from allowing the driver to have restroom breaks. So if need be, they have a list of clean facilities throughout their run. They can pull over and utilize those facilities.

COMMISSIONER BOSCO: And then how would they have lunch, say? Say if I have a route that takes me from -- I don't know what the schedules are -- from ten to four, and around noon or one o'clock, I get hungry. How would I have a sandwich or whatever?

MS. ZUHLKE: They would have to base that during their recovery times, just as the current wage order requires, you know, a meal break about halfway through their schedule. You know, we often get hungry before then. We may not be able to eat at that time. So they would have to do it within their recovery time. Obviously, for safety purposes, they need to keep their hands on the wheels and not eat while they're driving.

COMMISSIONER BOSCO: So what do they do?

MS. ZUHLKE: They eat during their recovery times at the end of their runs.

COMMISSIONER BOSCO: Well, what do they -- get out of the bus or sit there and eat or what?

MS. ZUHLKE: Various drivers do it different ways. There are drivers that bring their lunch and actually pull off to the side and eat their lunch in the bus. There are restaurants around their routes where they'll stop into McDonald's or, you know, other places. They find time along the route of their line.

COMMISSIONER BOSCO: And would this happen while there's people on the bus riding or --

MS. ZUHLKE: No, sir. It's at the end of their run when they have let everybody off the bus.

COMMISSIONER BOSCO: I see.

MS. ZUHLKE: Because there would also be safety issues, you know, leaving a bus full of people.

COMMISSIONER BOSCO: So they'd have to eat at the end or maybe the very beginning of their run, but not during it.

MR. BARTON: If I may just clarify, I think you're thinking end of run is end of day.

MS. ZUHLKE: Yeah.

MR. BARTON: But there will be a turnaround point in their run.

COMMISSIONER BOSCO: Okay. Oh, all right.

MS. ZUHLKE: Right.

MR. RAMACIER: If I could just give you an illustration, in our system each route serves a BART station. At that BART station, there's a bus bay. The bus pulls in, and that's where we build our recovery time in it. And so there's actually an opportunity for the driver to get out of the bus and use the restrooms at the BART station. We don't build the recovery time into the middle of the run. And the run is -- as we use this term, when we say a run, we're typically talking about you start at Point A and Point B, and that might take 45 minutes or it might take an hour, whatever it might take. And then the bus turns around and goes back. And it's at those turnaround points that we build the recovery time in, when you build in the time for the drivers to get off the bus.

COMMISSIONER BOSCO: Thank you.

MR. NAYLOR: Mr. Chairman, members, I'm --

COMMISSIONER COLEMAN: If I could --

MR. NAYLOR: Oh, I'm sorry.

COMMISSIONER COLEMAN: Oh, just a quick question.

So, just to help me understand operationally, how would it be different if this wage order applied? Can you explain what the difference would look like?

MS. ZUHLKE: Currently, the way our collective bargaining agreements work, we have 65 percent of our runs that are considered straight runs. There are no time for lengthy breaks, as far as unpaid meal breaks. In the private sector world, meal breaks are unpaid. The way our collective bargaining agreement works, there is no layover time that's unpaid. And we would have to actually pay for these breaks.

In fact, the legislation that was introduced by the -- or sponsored by the petitioner included that, yes, you know, "We'll work with the agencies that have collective bargaining agreements, but you pay for all those meal and rest breaks." So they're -- they're asking for a lot more than just some time off for these individuals to eat and use the restroom, which are things that they already have.

COMMISSIONER COLEMAN: But the wage order doesn't require payment. It requires the break.

MS. ZUHLKE: Correct. Correct.

COMMISSIONER COLEMAN: Okay. So, I mean -- so, if I'm on a bus in one of these straight runs, how would it work if Wage Order 9 was in place?

MS. ZUHLKE: We would actually have to rerun all of our routes such that the recovery time at the end or the middle of day, because the wage order -- all of the wage orders require the meal break to be about halfway through the shift. Okay. So there would have to be some -- the routes would have to be rescheduled so that basically, somewhere in the middle of the shift, there would be a 30-minute meal break.

That's great if you don't have a collective bargaining agreement that requires all of that time to be paid. That's where we're falling in. Our collective bargaining agreement goes through, I believe, 2004, April 30th of 2004. So we would be paying those meal breaks through that point.

Now, to go back to the union and say that we're going to, you know, have split runs everywhere and have unpaid time, I think, you know, they would object to that, and we would have more problems during negotiations.

MR. BARTON: If I might just comment, that was part of what I had mentioned in the last session, is very commonly, in transit agreements, and at the request of the transit unions, they have a certain percentage of runs to be straight runs. And that is to reflect the preference that the unions have expressed and, in fact, insisted upon, that the goal is to have them, a lot of them, then, that they bid for, and then conclude as quickly as they can, using the turnaround point as occasions for rest breaks and meal periods. And what's so constricting about a standard sort of wage order is that it describes a meal period no less than five hours after the start of the run. But that day is oftentimes longer than ten hours. And sometimes there will be an unpaid break in the middle of it, but sometimes it'll be straight runs, because that's what the unions want.

And so, it just -- that's just another illustration of why this sort of standardized traditional wage order just doesn't make --

COMMISSIONER BOSCO: Well, could I -- I'm sorry, Mr. Chairman -- it's my understanding, and perhaps, Marguerite, if you could correct me if I'm wrong, that we're establishing a wage board to address these issues and to, hopefully, come up with some solution that people can live with. But we're starting from a blank page, I think. I mean, we're not obligated to do so-called -- what you call standard wage orders. I mean, we -- as I understand it, we can direct anything to be done once the wage board reports to us, or the wage board itself, if it acts with unanimity, can do that.

So I think, you know, we may have jumped the gun a little bit today ourselves, but you may be also, in assuming that somehow, you know, that you're just going to get some form that's already been filled out.

MR. BARTON: Well, the difficulty, though, Mr. Bosco, is that if -- it's not just a matter of having something which is transit-specific, but there -- I thought I heard you say that that would be your expectation, on behalf of the Commission, if we go ahead with the wage board -- but it's the individual differences. I mean, you're not going to have an order that provides 65 or more variations to deal with different needs of the particular --

COMMISSIONER BOSCO: Well, we may not. But we may have an order that provides for rural systems and urban systems. I mean, it may not be 65, but it might be ten. I mean, I'm just encouraging you to not act -- we are doing the wage board, we've already decided that -- but not to act like somehow, you know, you can't, as reasonable people, come up with a solution to it. I mean, I'm not naïve. I know that there's going to be some tough bargaining here. But, you know, most of us, I think, admire the work that the public transit agencies do. I mean, you know, we all pay taxes and we all ride those forms of transportation. So we're -- I don't think we're looking at all of you as if, you know, somehow the die has been cast. But we are saying that probably the time has come now to really use all of your ingenuity and figure this thing out, and work with the unions and -- because otherwise, it'll just go on or it'll come back to the Legislature again and the governor will be put in the position that he was too, you know. So I'm going to say that.

COMMISSIONER DOMBROWSKI: Mr. Naylor.

MR. NAYLOR: Mr. Chairman, I won't prolong this. I'm Bob Naylor. I'm here for the Los Angeles County Metropolitan Transportation Authority. I served with Doug Bosco and have great admiration for him.

Our point is these problems are extensively bargained about collectively with each local transit operator, and we just want to be able to continue to do that without an overlay that constrains our ability to bargain.

MR. WATTS: Mr. Chairman, Mark Watts, representing both Santa Clara Valley Transportation Authority and the San Diego North County Transit District.

I had a quick question first, for you, Mr. Chairman. Is material that's forwarded to the wage board limited to what's provided today, or would we have an opportunity to continue to submit?

COMMISSIONER DOMBROWSKI: No, you can submit.

MR. WATTS: Great. Thank you.

And then, secondly, I think, you know, the governor's recognition of the economic impact of this proposal and the sentiments expressed by Commissioner Coleman underscore that there is -- this is a very, very unfortunate time to be dealing with this. If you've read the papers in Santa Clara Valley, you know the conditions we're operating under and the economic environment there, looking at potential major route reductions and service curtailments. So I hope that's taken into consideration as you go through the wage board deliberations.

COMMISSIONER DOMBROWSKI: All right. Any other questions?

(No response)

COMMISSIONER DOMBROWSKI: Thank you.

MR. BARTON: Thank you.

MS. ZUHLKE: Thank you.

MS. BANE: Mr. Chairman, for the record, I believe that submissions of materials to the wage board, once we set the wage board and a meeting, have to be done 15 days prior. But we will notify anyone who has spoken today of that requirement.

COMMISSIONER DOMBROWSKI: Fifteen days prior to what?

MS. BANE: To the wage board meeting --

COMMISSIONER DOMBROWSKI: Okay.

MS. BANE: -- once we set all of that.

COMMISSIONER DOMBROWSKI: Okay. Well, so that definitely puts it after January 10th.

MS. BANE: Definitely.

COMMISSIONER DOMBROWSKI: All right.

Go ahead.

MR. BROAD: Mr. Chairman and members, Barry Broad, on behalf of the Teamsters, the Amalgamated Transit Union, and the Machinists Union.

I won't take a lot of your time, except to say that, frankly, we believe that this can get worked out in about a half an hour in the wage board, if reasonable minds kind of come together. We're not trying to break the bank. We're perfectly prepared to accommodate the scheduling needs in public transit. That's -- and we've made that clear from the beginning. We're not -- we understand these are difficult budget times for these public agencies. We're certainly not intending to create a labor standard here which results in, you know, 15 percent of our members being laid off. That -- we have no interest in doing that.

Nevertheless, we're only here because what's happened in recent years is that commercial drivers, particularly public transit drivers, conditions have changed. They used to get this recovery time, and they actually got the recovery time. And it wasn't perfect, because you had to grab a sandwich for five minutes or ten minutes before the passengers came on, or you had to run to the bathroom. The bathrooms are not always clean. This is not an ideal situation. But people were basically getting taken care of. What has occurred as there's been greater pressures in the last five to ten years, there's -- transit ridership has actually increased dramatically in California -- is that these recovery times have become more fictional than real. So, as traffic increases and there's more passengers, the ten -- and you heard one of them say they went from, you know, 10 percent to 15 percent -- and that's a reflection of this -- there's no longer ten minutes left at the end of the run. In reality, there's no time at all. It's getting used up.

And so what we really need to do is -- all we're saying is schedule the recovery time and make it real. You have to look at the route, and you have to say, "We're really going to give the person their ten minutes."

Now, we're prepared to create all kinds of flexibility here that isn't in the private sector rule, you know, which would allow things you can't do, creating combinations of the meal and rest breaks at different times, at the beginning and the end. A lot can be done in collective bargaining. But really, these kind of workers whose work is touched by a significant public safety interest shouldn't have to bargain for the basic right, and they shouldn't be deprived of it because of the very nature of traffic or this and that.

About 30 percent of the public transit work in this state is done by private contractors on contract with public agencies. And you've heard a little bit about that. They somehow manage to follow the rule that we have, which is, after all, two ten-minute breaks and a thirty-minute unpaid meal break. They manage to follow that. They've always followed that. They've followed that for the last fifty years, and the world has not come to an end.

We're willing to do substantially more flexibility in this wage board process. And we think we can really get there, if everybody wants to get there, and bring something -- and probably get something agreed to by a unanimous wage board and be done with the issue.

We never really thought the Legislature was the appropriate to bring this thing. It was probably not the smartest thing we did. We got a definite message back from the governor, "Go back to the IWC, do it there, that's where it really needs to be done." And that's -- and that, I think, is good advice, especially since he has the veto. And so we're heeding that advice.

And I do think we can get there. We got pretty close in our negotiations over the legislation, closer than maybe they think. I don't think this is a thing that's going to bring down the world. We can make it work, and we'd like an opportunity to do that.

Thank you.

MR. JONES: Mr. Chairman, members, James Jones, with the United Transportation Union. We will embrace everything Mr. Broad said. We agree fully.

One thing that I would want to comment on, the opponents made the comment that, you know, this one size that they're going to superimpose over them will be costly and it'll be unworkable. We fully agree that one size does not fit all. As Mr. Broad said, we're going to be very flexible, very, very -- very, very mindful of the needs of the operators. Our drivers out in the L.A. CMTA in Los Angeles, the largest single transit district in the state, have all of the complex problems facing them in the course of a day's work in the tour of duty. And despite that, we know that we can work out some kind of an arrangement that will be able to fit the particular needs of a large transit operation like MTA, and some of our smaller operators, where we -- as an example, Santa Cruz -- where there's a significantly smaller amount of drivers. So we can fashion a situation to allow for an umbrella understanding of what the -- of what should be applied to all the drivers in public transit, but fashion it in such a way that it will meet the needs and requirements of large and small.

And as Mr. Broad indicated, we were very, very close to negotiations. And I think it is much closer than either side thought. But unfortunately, for a variety of reasons, we didn't get there. We'd like to return there. I think the wage board will accomplish that.

Thank you.

MR. COOPER: Peter Cooper, California Labor Federation. We're in support of the petition, and we believe these workers should be afforded the rights that other workers already have.

MR. WITHINGTON: Good morning. Tony Withington, Amalgamated Transit Union. I am the chair of the California Conference Board, which is the statewide legislative group for the Amalgamated Transit Union, representing local unions throughout the State of California.

I am also a union president, and I've been a bus driver for 28 years. And over the 28 years, I have watched what has gone on, with traffic, with the congestion of passenger loads, and where computerized scheduling has come in. And that is where the problems have begun. What happens is, is that they schedule a break, but because of unrealistic scheduling -- and a computer doesn't understand -- it puts in the numbers you put in there -- and, you know, so what happens is you schedule five, eight, seven minutes. And if it's not realistic, you get to the end of the line, and it does a couple things. One, it makes the passengers unhappy because you're never on time. So that has an effect to the transit agencies' riderships, and they should really take that into effect.

In saying that, all we would really like to do is work this out so that drivers get a chance to go to the bathroom and get something to eat without being under the stress of not being able to do that.

And it's a safety issue that's really -- you know, you think about it, you drive a couple hours in heavy traffic, and when you get to where you're going, don't you like to get out of your car for a few minutes? And this is basically what we're talking about. And although the transit industry is saying they're addressing these concerns, we wouldn't be here today if they were.

Thank you.

MR. McKINNON: Hi. My name is Matt McKinnon, executive secretary-treasurer of the California Conference of Machinists. In this industry, the vast majority of the folks we represent are mechanics, who are different -- under a different wage order. However, we do represent a few bus drivers.

And I just want to push back on a couple of -- couple of questions. I don't think it is good public policy to finance transit off the backs of workers' breaks or rest periods. I don't think that makes sense. I don't think that's an appropriate discussion. If workers in California get breaks and get lunch breaks in any number of industries -- and I guess that leads to sort of the second point, that this is somehow a unique industry. We represent airline workers. We represent people that make glass out of molten metal, where you can't shut off the equipment. We represent people that run machine tools that are worth millions of dollars that idle time is a problem for. I'm sure you've heard discussion from nurses and medical professionals. There are all sorts of occupations in this state where meals and break times are difficult to schedule. But it's just sort of a fundamental that we want workers to take time to rest, and that we want workers to take time to eat.

In the case of our members who drive buses, we want them to take time to go to the bathroom. That's the issue for them. That's the complaint, and it happens again and again. And I understand that I raise ire that I just don't understand transit. But I understand dozens of industries that our union represents members in, and it isn't easy to have breaks and lunch times in dozens of industries.

So just because people wave the banner that this will cost more transit dollars, believe me, an aircraft manufacturing plant, it costs more money to make airplanes because you have breaks and lunch time. Of course it does. It needs to be worked out. It's just a fundamental right that's good public policy. We need to see it happen.

Thank you for encouraging a wage board. And I am sure we'll work out something in the process. We have in the past. We have in other industries.

Thanks.

COMMISSIONER DOMBROWSKI: Does anyone else wish to testify on this issue?

(No response)

COMMISSIONER DOMBROWSKI: Does anyone else wish to bring up any new business?

(No response)

COMMISSIONER DOMBROWSKI: Do I have a motion to adjourn?

COMMISSIONER BOSCO: I move we adjourn.

COMMISSIONER DOMBROWSKI: Second?

COMMISSIONER COLEMAN: Second.

COMMISSIONER DOMBROWSKI: All in favor, say "aye."

(Chorus of ayes.)

COMMISSIONER DOMBROWSKI: We are adjourned.

(Thereupon, at 11:05 a.m., the public

meeting was adjourned.)

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CERTIFICATE OF REPORTER/TRANSCRIBER

--o0o--

I, Cynthia M. Judy, a duly designated reporter and transcriber, do hereby declare and certify under penalty of perjury under the laws of the State of California that I transcribed the tape recorded at the Public Meeting of the Industrial Welfare Commission, held on November 22, 2002, in Sacramento, California, and that the foregoing pages constitute a true, accurate, and complete transcription of the aforementioned tape, to the best of my ability.

Dated: November 23, 2002 ______________________________

CYNTHIA M. JUDY

Reporter/Transcriber