STATE OF CALIFORNIA
DEPARTMENT OF INDUSTRIAL RELATIONS
INDUSTRIAL WELFARE COMMISSION

WAGE BOARD REPORT:
WAGE ORDER 9 - PUBLIC TRANSIT DRIVERS

April 9, 2003

Workforce Investment Building
750 N Street, Conference Room A
Sacramento, California

WAGE BOARD REPORT: WAGE ORDER 9 - PUBLIC TRANSIT DRIVERS

On April 9, 2003, the Wage Board convened at the Workforce Investment Building, Sacramento. The following persons were in attendance:

Wage Board Members

Call to Order

Chairperson C. Allen Pool called the meeting to order at 10:13 a.m., and all participants introduced themselves. Five employer representatives and one employer alternate were present; four employee representatives and one employee alternate were present. One employee representative was absent, so Alternate Peter Cooper sat as a voting member.

Chairperson's Remarks

Chairperson Pool welcomed the wage board members and reviewed the charge to the wage board. He said the two issues to be addressed were: 1) whether meal and rest break requirements in Wage Order 9 should apply to public drivers of commercial vehicles; and 2) whether an exemption should be allowed for employees covered by collective bargaining agreements.

Joint Employee/Employer Proposal

Employee Representative Barry Broad distributed a copies of proposed amendments to Wage Order 9 (Attachment 1) and the text of AB 98 (Attachment 2). Employee Representative Broad made a motion, seconded by Employee Willie Representative Pelote, to adopt the proposed amendments.

Employee Representative Broad explained that the proposed amendments were the joint product of negotiations with Employer Representative Doug Barton and represented a fair compromise for both sides. He said Section I of the proposal contains amended wage order language, and Section II contains recommended language to be included in the "Statement of Basis" for Wage Order 9.

Employee Representative Broad summarized the key changes being proposed. He noted the amendments would make the meal and rest break provisions of Wage Order 9 applicable to commercial drivers employed by governmental entities, effective either on July 1, 2004, or following the expiration of date of valid collective bargaining agreements applicable to such drivers, but in no event later than July 1, 2005. He said the amendments to Sections 11 and 12 create an exception in cases where collective bargaining agreements expressly provide for meal and rest periods, final and binding arbitration of disputes, premium pay for overtime, and a regular hourly pay rate of not less than 30 percent more than the state minimum wage.

Employer Representative Barton confirmed that both sides worked diligently to arrive at a mutually satisfactory resolution of all issues. He noted that public transit is a unique industry, and local transit agencies need enough flexibility to develop schedules appropriate for their employees and customers. Because the public transit industry is almost completely unionized, the proposed amendments recognize the importance of allowing management and workers to negotiate issues within the collective bargaining context.

Mr. Barton drew attention to the proposed language at the end of Section 1(B) regarding possible invalidation of the collective bargaining exemption by the IWC or a court. He said the purpose of AB 98 is to remove all possible ambiguity and clarify the IWC's authority to grant exemptions for public transit employees covered by collective bargaining agreements.

Employee Representative Broad stated that as one of the people who worked on AB 60, the bill that restored the 8-hour day to California, he believed the IWC retains the ability to create a collective bargaining exemption. He noted that although there may be some ambiguity in AB 60, the law clearly gives the IWC authority to maintain existing exemptions; he observed that one such exemption pertained to collective bargaining agreements. He added that he and Mr. Barton agreed to move AB 98 forward as a companion piece to ensure any ambiguity is removed.

Employer Representative Barton said he agreed with Mr. Broad's interpretation that the law permits the IWC to provide a collective bargaining agreement exemption.

Employer Representative Marlene Heyser expressed concern that the proposed language requires employers and employees to come to agreement regarding meal and rest period provisions in collective bargaining agreements. She noted meal and rest periods are currently a mandatory subject of bargaining, but not an issue on which both sides have to agree. She also expressed concern that the proposed language is vague and ambiguous.

Employer Representative Brenda Diederichs agreed with Ms. Heyser. She observed that the proposed language ignores the reason for providing an exemption in the first place, which is to give both sides at the bargaining table flexibility in addressing issues of concern. She expressed concern that mandating items in a collective bargaining agreement could jeopardize the transit industry in California. Ms. Diederichs expressed her opinion that employees should have a choice as to whether or not to organize, but the proposed language would eliminate that choice. She added that she was not sure how many public transit agencies were unionized, and she expressed reservations about the potential impact on nonunion workplaces.

Ms. Diederichs noted offering specific meal and rest breaks may be impractical for many public transit agencies. She pointed out that in order to serve the needs of customers, transit has to operate 24 hours a day every day of the week. Some transit districts require long shifts or split shifts rather than straight runs, and the proposed amendments could have the effect of elongating shifts in some cases.

Ms. Diederichs also expressed concern about the monetary impacts of the proposed amendments. She estimated it will cost over $10 million per year for the Los Angeles County Metropolitan Transit Authority to implement the new provisions. She noted increasing the costs of labor could inflate fares charged to customers, many of whom are poor and elderly people. Ms. Diederichs pointed out this course of action has major social implications that need to be addressed.

Ms. Diederichs added that in reviewing the past twenty years of bargaining history in her agency, meal and rest breaks did not appear to be a major issue. Instead, employees are most concerned about issues like recovery time and straight runs. She questioned the need to enact provisions that do not address the most important concerns.

Ms. Diederichs also expressed her opinion that the proposed amendments were ambiguous and subject to differing interpretations.

Employer Representative Barton said he understood Ms. Diederich's concerns, but felt the proposed collective bargaining exemption allowed for maximum flexibility. He pointed out that the proposed language does not mandate any particular way of addressing meal and rest periods, so individual agencies have the ability to develop schedules best suited for their needs. He acknowledged that the proposed amendments might be more restrictive for nonunion workplaces, but added that nonunion situations represent a very small minority of the entire public transit industry.

Mr. Barton noted the issue of restroom breaks has been a recurring problem for many years. He said the proposed language recognizes the desire of unions to offer straight runs for employees, but it also provides flexibility for employers. He emphasized that the only commitment mandated in the amendments is that the issue needs to be addressed within the specified timeframe.

Mr. Barton disagreed with Ms. Diederichs' and Ms. Heyser's criticisms that the proposed language was ambiguous. He pointed out that the recommended language for the "Statement of Basis" is very clear.

Employer Representative Diederichs observed that the proposed amendments require that collective bargaining agreements "expressly" provide for meal and rest breaks. She noted some collective bargaining agreements address these issues in other provisions, and she questioned whether the proposed amendments would mean that new sections would need to be added. Ms. Diederichs commented that this requirement could be confusing to people who are new at the bargaining process.

Employee Representative Broad disagreed with Ms. Diederich's interpretation. He recommended simply stating in collective bargaining agreements what the district's arrangements are.

Mr. Broad said about 30 percent of public transit in California is being performed by private contractors who are already subject to meal and rest period standards, and there have been no reports of major problems. He cited Foothill as an example of a very efficient transit district. He suggested using San Mateo as a model for developing a collective bargaining provision that works well. Mr. Broad pointed out the proposed timeframes in the amendments give districts plenty of time to negotiate new language. He expressed his opinion that the proposed amendments would not be so burdensome for transit employers.

Employer Representative Heyser stated that her district, unlike Foothill, guarantees employees that 65 percent of runs will be straight runs. She noted this is a huge difference between privately operated and public districts. Ms. Heyser recommended inserting language in the wage order clarifying that no minimum time is required for meal and rest breaks negotiated in collective bargaining agreements.

Employee Representative Withington called for a vote on the question.

Employer Representative Pia Harris-Ebert said she supported the proposal as a way of providing maximum flexibility for both sides. However, because her district's collective bargaining agreement expires on July 1, 2005, she asked for a bit more time for implementation.

Employee Representative Withington again called for a vote on the question.

Employee Representative Broad offered to change the July 1, 2005, date to August 1, 2005. Ms. Harris-Ebert said August 1, 2005, would be acceptable to her.

Employee Representative Peter Cooper noted that every industry has some unique features. He added that he considered the proposed amendments both fair and flexible. He joined in calling for a vote on the pending motion.

Employee Representative Pelote accepted the Mr. Broad's amendment to change the deadline date to August 1, 2005.

Vote: 8 - 2, motion carried (Employer Representatives Diederichs and Heyser opposed).

Adjournment

There being no further business, Employee Representative Broad made a motion, seconded by Employer Representative Pelote, that the meeting be adjourned. The motion was carried unanimously. At 10:53 a.m., the wage board meeting was adjourned.

Respectfully submitted,

C. Allen Pool
Chairperson

Attachments:
1. Broad/Barton Proposal
2. AB 98