Keene looking to deliver for UPS drivers

Assemblymen Rick Keene, R-Chico, and Paul Koretz, D-West Hollywood, have
gotten key Republican support for a labor bill disliked by many business
groups. Keene’s bill would allow flexible mealtime provisions to unionized
transportation companies. A wide variety of businesses have long sought
these provisions, but if AB 2593 passes, it will mainly affect one company:
United Parcel Service (UPS).

Keene and Koretz seem to have little in common. But Koretz has a long
history of supporting labor, while Keene used to be labor. Now the vice
chair of the Assembly Budget Committee, Keene worked for UPS from 1977 to
1987, five of those years as a delivery driver.

“I didn’t really have to work out in those days,” Keene said. He estimates
he got in and out of his truck about 200 times a day.

Keene said that he considered UPS a good employer, and that he only left
before starting his second year of law school. His experience with the
challenges drivers face trying to meet their schedules led the company to
approach him in January to carry a bill to allow the driver’s union to
negotiate a more flexible meal schedule.

Many other industries would like the same rights that the bill would give to
UPS, but their employers lack a union to negotiate with.

“When you don’t have a collective-bargaining process, there is no one to
negotiate with,” said Barry Broad, lobbyist for the California Teamsters,
who are supporting the bill.

Jason Schmeltzer, a lobbyist for the California Manufacturers and Technology
Association, said that the law could have “unintended consequences.” Even
though the bill is written specifically for the transportation industry, the
way courts have interpreted labor law in the past, it could likely have
wider implications. He said AB 2593 could allow organized labor to sue the Schwarzenegger administration.

By specifically giving a right to an industry, the law would imply that
other industries do not have the same rights, Schmeltzer said. This would
add to the already “murky” area of employment law, and open up employers to
lawsuits. The Manufacturers and several other business groups are seeking
amendments to clarify the rights for other industries, Schmeltzer said, but
labor would kill the bill if they got them.

“Our objection is not to UPS trying to solve this problem,” Schmeltzer said.
“What we’re saying is please don’t complicate this situation for other
employers.”

Current law said workers must take a half-hour meal break before the sixth
hour of work. Keene’s bill would allow the teamster’s union to negotiate a
different arrangement on behalf of drivers. Keene said flex time is
necessary because the company has been forced, by California law, to fire
nearly 200 drivers in recent years for skipping their meal break when they
got behind on deliveries.

The language of the bill is almost the same as a bill Koretz carried two
years ago, AB 3018. Gov. Arnold Schwarzenegger vetoed that bill. In his veto
message, he said that the law would affect both unionized and non-unionized
employees, and could create an unequal and confusing situation for
employers.

Schwarzenegger promised to deliver uniform flex-time rules via the Labor and
Workforce Development Agency. The administration distributed a draft to
business and labor groups last summer. But he pulled these rules in January
after labor groups contended that he did not have the right to set these
rules by executive fiat.

This landed the issue back in the Legislature. Keene’s bill passed the
Assembly in June, and was supposed to land in the Senate this week. He said
he and Koretz have been talking to senators to clear up confusion around the
bill, and also are working with the governor’s office to avoid another veto.
Last week, they added an amendment that specified that the bill would only
affect the transportation industry.

This isn’t enough for business groups. They pointed to the recent Bearden
vs. Borax case and a legal analysis prepared by attorney Richard Simmons on
behalf of the California Restaurant Association, which is opposing the bill.
That case–first ruled on in 2000 and recently confirmed by the California
Court of Appeal–found that the authority of state agencies was limited by an
earlier law, SB 88. In other words, the court said, legislative rulings
trump the authority of the Industrial Welfare Commission (IWC) and other
regulatory agencies.

“The enactment of AB 2593 could have serious, negative implications for
employees and employers in other industries,” Simmons wrote in his
conclusion, because it could “limit the rulemaking authority of any state
agency.”

In the meantime, Koretz has moved forward with efforts to provide flexible
working hours to workers on an industry-by-industry basis. For instance,
last year he was able to get flexible work hours for motion-picture workers
with his bill, AB 1734. He said he is insistent that companies that would
like to take advantage of flex time need to have unions.

“I believe that it needs to be done in a manner–such as through collective
bargaining–in which employees are protected against coercion and being
forced to give up their breaks,” Koretz said.

Broad said that he hopes Schwarzenegger has learned that he needs to work
with the Legislature on this issue–even if much of the business community
has not.

“They’ve got some fantasy that the administration will be able to regulate
this,” Broad said.