STATE OF CALIFORNIA

DEPARTMENT OF INDUSTRIAL RELATIONS

INDUSTRIAL WELFARE COMMISSION

Public Meeting and Hearing

August 24, 2001

Junipero Serra State Building

107 South Broadway

Los Angeles, California

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BILL DOMBROWSKI, Chair

LESLEE COLEMAN

HAROLD ROSE

BRIDGET BANE, Executive Officer

MARGUERITE C. STRICKLIN, Legal Counsel

DOUG McCONKIE, Analyst

TRACI PILGRIM, Analyst

Page

Proceedings 4

Approval of Minutes - April 24 and June 15, 2001 4

Wage Order 14 - Technical Aspects and 4

Statement as to the Basis

MARK SCHACHT, California Rural Legal Assistance 5

Foundation

Modifications to Wage Order 1-2001, Section 11 - 8

Collective Bargaining Meal Period Modification

ANN O'REGAN, New United Motor Manufacturing, Inc. 9

Wage Order 9 Meal Period and Rest Period Exemption 12

for Public Transit Workers

DLSE Opinion Letter on Deductions from Exempt 13

Employees' Salary

Public Hearing - Amendments to Wage Order 5 14

Adjournment 15

Certificate of Transcriber 16

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(Time noted: 10:00 a.m.)

COMMISSIONER DOMBROWSKI: I'll call the meeting to order.

Let the record show that Commissioner Coleman, Commissioner Rose, and Commissioner Dombrowski present, for a quorum.

The first item on the agenda, approval of the minutes for the public meeting held on April 24th and June 15th, 2001.

Do I have a motion?

COMMISSIONER COLEMAN: So moved.

COMMISSIONER ROSE: Second.

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

(Chorus of "ayes")

COMMISSIONER DOMBROWSKI: That is adopted -- approved.

Second, consideration of technical aspects of Wage Order 14 and approval of the Statement as to the Basis for the amendments to Wage Order 14 regarding the wages and working conditions of sheepherders.

Marguerite, could you give us a summary?

MS. STRICKLIN: The last time we discussed this issue, there was a question as to the definition of sheepherder. And the Commission made it clear that their intent at the time was to include in that definition the sheepherders defined in the meaning of the H-2A program and any successor provisions. And so, in the wage order, we have now clarified, both in the "Definitions" section and the "Meals and Lodging" section that that is what -- that will be the definition.

Also, in the "Penalties" section, there was language in parentheses that inadvertently stated that the general penalties for any violation of the wage order did not apply to sheepherders. That has been eliminated because that was not what the IWC had voted on. They added the additional penalty for violations of requiring employees to do non-sheepherding duties.

COMMISSIONER DOMBROWSKI: Any questions?

COMMISSIONER ROSE: None.

COMMISSIONER DOMBROWSKI: Mark Schacht.

MR. SCHACHT: Thank you, commissioner.

I just wanted to state that on behalf of the other employee members of the wage board, we have introduced AB 1675, which has passed the Assembly and is pending on the Senate floor and will go to the governor's desk before the term end of the Legislature in its first session. That bill contains a number of provisions that were a part of the amendment that was voted at, three to two, at that last meeting of the IWC. And I thought at the time that we would have been able to go through those issues individually if we had stayed a bit longer, that we would have been able to resolve some of our concerns and the industry's concerns about things like meals and rest periods and deductions for tools.

And I'm here to tell you that I'm not sure that actually could have happened. We've had a number of subsequent meetings with the industry, including most recently last week in the capitol, where other members of the -- employer members of the former wage board, and we met together for probably the third time to continue to discuss possible compromises on some of those issues. And at this point, I won't say that there is a -- that the industry is going to support the bill in the end, but we've had very serious discussions and we've made very serious changes to some of those provisions.

And I think, at the end of the day, the work that you did basically laid the groundwork for more substantial discussions between the two parties. And I think that's a reflection of the importance of this body to that kind of employer-employee discussion about these important labor-management issues. And we would like to thank you for all you've done to help further that process. And we'll keep you apprised as to the status of the bill. Possibly, at the point at which it goes to the governor, possibly more of you would want to support it. We'll probably contact you to discuss that with you.

COMMISSIONER DOMBROWSKI: Any questions?

(No response)

COMMISSIONER DOMBROWSKI: Anyone else want to comment on this item?

MS. BANE: Before the vote, Chairman, I would request that counsel explain and clarify to the Commission the changes. There were a few minor changes to the Statement of the Basis.

MS. STRICKLIN: The first, I've explained prior to the meeting. But for everyone's benefit, on Page 3, the end of the last full paragraph, there's an addition to -- beginning in the last sentence, it should read, "According to one recent but noted survey, approximately 10 percent of these employees are U.S. citizens, domestic workers."

On Page 4, the footnote, it originally referred to AB 1675 in a prior version, and that part has been eliminated because now the part --

(Pause)

MS. STRICKLIN: And then, again, on -- I believe that also on Page 3, also the first full paragraph, there's a reference to "300 to 400 sheepherders." That has been changed to "as low as 300 to 400." We don't exactly know, but do have an approximate numbers, and it possibly varies. So that is the lower end of the numbers you've heard for California.

And with that, that's all the changes we made since the last time.

COMMISSIONER DOMBROWSKI: Okay. Do I have a motion to approve?

COMMISSIONER ROSE: I move we approve the Statement as to the Basis for Wage Order 14.

COMMISSIONER DOMBROWSKI: Second?

COMMISSIONER COLEMAN: Second.

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

(Chorus of "ayes")

COMMISSIONER DOMBROWSKI: No opposition. That's a pass.

Item Number 3, staff wants to report on request that Section 11 of Wage Order 1 be modified to allow employees covered by a collective bargaining agreement to agree to a meal period after six hours of work.

MS. BANE: Mr. Chair and commissioners, we have done the research as requested, and it was alleged by employers at the prior hearing regarding Wage Order 1 that most of the public transit drivers in question were covered by collective bargaining agreements as to meal periods and rest periods. That is not correct, because as the law exists now, it is -- those issues are not bargainable under the Labor Code. And that has been clarified recently --

COMMISSIONER DOMBROWSKI: Are you on 3 or 4?

MS. BANE: I'm on 3. Oh, I'm sorry. We were talking about transit -- I'm talking about transit, and this is in regard to manufacturing.

COMMISSIONER DOMBROWSKI: Right.

MS. BANE: In regards to manufacturing as well as transit, which we will come to, those issues are not bargainable. And as far as any other issues regarding Wage Order 1, we are still conducting a staff investigation of requests from that industry and would like to report on that investigation at a later time.

COMMISSIONER DOMBROWSKI: Ann O'Regan.

MS. BANE: I'm sorry, Ms. O'Regan. I was confusing your issue.

MS. O'REGAN: Yes. Now I am a little unclear, though, as to what your finding was as to the ability to bargain over meal periods and rest periods. And we do have provisions in our collective bargaining agreement that address those issues, so we are subject to collective bargaining. And it would be something that would be agreed upon between the union and the employer so there would be ways to resolve, within a particular industry, any concerns about the proper period of time in which employees would have a meal period or break period.

As you may be aware, Wage Order 12 for the motion picture industry has a significant number of its employees covered by collective bargaining agreements, and you've allowed in that industry a six-hour period, also in the construction industry, which also has a significant number of employees covered by collective bargaining agreements. Essentially, you've waived the requirements under the meal period provisions entirely under those circumstances. So, there certainly is a precedent. It's in the wage orders themselves, what we're requesting under Wage Order 1.

MS. BANE: There is -- when you refer to Wage Order 16, there is a specific waiver, and there is also a specific provision which allows rest periods to be covered. But there are also -- in most of the wage orders, those two issues are not bargainable.

And I'm going to refer you to counsel. There has been recent legislation which has attempted to clarify some of the misunderstanding regarding this very issue.

MS. STRICKLIN: There has been, I guess within the past month, new legislation enacted. It's Senate Bill 1208, and it deals with both Sections 514, 554, and 515.

515(B), I think, the original language, left the impression that if there were a collective bargaining unit

-- I'll read the exact language to you so you can refer to it in your packet --

MS. BANE: 554.

MS. O'REGAN: Well --

MS. STRICKLIN: Excuse me.

MS. O'REGAN: I guess I want to step back for just a minute, because I think, just by looking -- irrespective of this new legislation, if one just looks at the current legislation, 512(B) --

MS. STRICKLIN: Um-hmm.

MS. O'REGAN: -- that's what we were seeking the exemption under for this change, where it says specifically, "Notwithstanding subdivision (A), the Industrial Welfare Commission may adopt working condition orders as to any meal period that's after six hours of work."

MS. STRICKLIN: That is true, but there would have to be an investigation and a finding by this Commission that within industries covered by Wage Order 1, or specifically yours, that the current provision in 512 would be detrimental to the health and safety of the employees. It's not something that would be dealt with between employer and employee in a collective bargaining agreement. They would comply with 512.

MS. O'REGAN: Wouldn't a wage board being convened on that permit for that kind of investigation?

MS. STRICKLIN: A wage board would, assuming that the IWC first conducted that investigation and made a finding that there was some detriment to the health and safety of employees to be bound by the five-hour period for meal periods.

MS. BANE: That is why I explained to the Commission that we would continue to investigate and report at a further date, because we assume that we may get a request for -- a petition, rather, for a wage board on this issue.

COMMISSIONER DOMBROWSKI: Can I suggest -- I mean, what we're saying is we need more evidence from employees that they are being harmed by this provision. And we haven't seen that yet.

What I -- what I would --

MS. O'REGAN: You want that to come from --

COMMISSIONER DOMBROWSKI: It can be in letters. I mean, it's -- it's a public -- it's some evidence. And what I would suggest is that you get with Bridget and Marguerite after we're done and kind of flesh this out to see what your options are.

MS. O'REGAN: Very good. Thank you.

COMMISSIONER DOMBROWSKI: Okay. Item Number 4, the staff investigation of the exemption for public transit workers from the meal periods and rest periods of Wage Order 9. Can I suggest -- there is some discussion in the Legislature to address this through legislation -- if this is okay with commissioners. Now, it's under serious negotiations.

Bridget, do you have anything you want to add?

MS. BANE: Only that at the last hearing of the IWC, there was a request from the chair to both sides of this issue who did speak on the issue at the meeting to present us, the staff, with information on how the meal period and rest period requirements, as they exist, affect public safety. So far, the staff has not received any such information. And we just want you to know that we are still investigating. And if we receive any information, we will bring it to the Commission, but we don't have it now.

COMMISSIONER DOMBROWSKI: Questions?

(No response)

COMMISSIONER DOMBROWSKI: Item 5 similarly, discussion of and possible actions regarding the opinion letter written by Miles Locker, which has subsequently been retracted by the Department. Again, there are discussions going on concerning possible courses of action, whether or not we need to take action, whether it's through legislation. So I would suggest that we just skip over that item again today.

Is there anyone who wants to bring any other business before the Commission?

(No response)

COMMISSIONER DOMBROWSKI: Okay. Before we go to the public hearing, I think we need a motion to adjourn.

COMMISSIONER COLEMAN: So moved.

COMMISSIONER ROSE: Second.

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

(Chorus of "ayes")

COMMISSIONER DOMBROWSKI: The meeting's adjourned.

I'll now call to order the public hearing, comment on proposed amendments to Wage Order 5 regarding overtime, meal periods, and rest periods. And I would ask either Bridget or Marguerite to summarize what we're -- where we are on this issue at this point.

MS. BANE: A wage board was convened and two meetings were held. And after these two meetings, there were amendments presented that were agreed upon by both sides on the wage board. And there was unanimous agreement to the amendments.

The amendments are laid out in the version of Wage Order 5 that is included in your packet. And if there are any questions regarding the amendments, then we would be glad to address them.

COMMISSIONER DOMBROWSKI: Procedurally, where are we? This is the first public hearing --

MS. BANE: Procedurally, this is the first public hearing. We have scheduled a second September the 18th in San Diego, and a third tentative in Sacramento in October.

COMMISSIONER DOMBROWSKI: So, just to refresh it, we have three public hearings, and then we will take a vote on whether to adopt those.

But, Marguerite, my memory is that if there's a 100 percent vote by the wage board, our options are relatively limited of amendments?

MS. STRICKLIN: Yes, they are. Unless you find again that the proposals are objectionable, then you would have to follow -- you have to approve their amendments. But the hearings are still required.

COMMISSIONER DOMBROWSKI: Having no comment, I guess I will ask for a motion to adjourn the public hearing.

COMMISSIONER COLEMAN: So moved.

COMMISSIONER ROSE: Second.

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

(Chorus of "ayes")

COMMISSIONER DOMBROWSKI: The meeting's adjourned. Thank you.

(Thereupon, at 10:20 a.m., the public

meeting and hearing was adjourned.)

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CERTIFICATE OF TRANSCRIBER

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I, Cynthia M. Judy, a duly designated 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 and Hearing of the Industrial Welfare Commission, held on August 24, 2001, in Los Angeles, California, and that the foregoing pages constitute a true, accurate, and complete transcription of the aforementioned tape, to the best of my ability.

Dated: August 29, 2001 ______________________________

CYNTHIA M. JUDY, Transcriber