By Hector Gonzalez
Special to The Lookout

January 11, 2016 -- A hotly debated provision in Santa Monica's proposed new minimum wage law that exempts unions is against U.S. labor laws and provides grounds for a future lawsuit if the language stays in the final ordinance, said a spokesman for Fair Wage Santa Monica.

In an email to The Lookout over the weekend, Ruben Gonzalez said his group will present to the City Council at its meeting Tuesday a 20-page legal complaint letter from the group's attorney, J. Michael Connolly.

“The point of the letter, first and foremost, is to let the City Council know that if they pass the ordinance with this provision, they're significantly at risk for the entire law being thrown out,” said Gonzalez. “We're trying to educate them so they make the right choice and remove these provisions from the ordinance.”

Keeping the provision in the final draft might trigger further action by his group, he added.

“I think the letter makes clear that if the proposal passes with these provisions included that filing a lawsuit is one of the things we can consider,” he said.

City officials could not be reached for comment over the weekend.

Santa Monica already has a $15.37 an hour minimum wage for City employees and contractors as well as hotel workers included under the City's Development Agreements for hotels.

On Tuesday, Council members are scheduled to hear a first reading of an ordinance to raise Santa Monica's minimum wage for all employees to $15 an hour by 2020, but the proposal exempts employees covered by collective bargaining agreements negotiated through their union reps.

In September, Council members asked staff to make several changes to the proposal after looking at an initial draft of the ordinance, but the exemption for collective bargaining was the one provision on which all seven Council members were unanimously behind.

“We're rock solid on that issue,” then-Mayor Kevin McKeown said (“Santa Monica Council Sends Minimum Wage Law Back for Tweaking,” September 30, 2015).

Neither Los Angeles' nor the County of Los Angeles' new minimum wage laws included an exemption for unions. Santa Monica took flak over its collective bargaining provision from the Employment Policies Institute, which took out a full-page ad in the Los Angeles Times in September showing labor unions pulling the strings at Santa Monica City Hall.

But during the Council's debate on the proposed ordinance at its meeting that month, Councilwoman Sue Himmelrich, who at first was strongly against the exemption, said she ended up siding with her colleagues supporting the provision.

She said conversations with union workers changed her mind.

“What I learned was that most people who work in these low-wage jobs would prefer to have a union negotiating on their behalf for better benefits in different aspects of their lives,” she said.

In a letter to Mayor Tony Vazquez accompanying Fair Wage Santa Monica's complaint, Connolly said the special exemption “will doom” the ordinance in court, because it “strong arms” employers into entering into collective bargaining agreements.

“Under the National Labor Relations Act, a federal court will invalidate any local law that pressures an employer or employee to enter a collective bargaining agreement. That is exactly what the proposed ordinance does,” said Connolly.

Gonzalez said the exemption is unfair to unionized workers who won't be covered by the minimum wage law as now written.

“If you're a worker in a union shop, you're at risk of getting a sub-minimum wage in final collective bargaining agreement, because you don't get treated with the same basic commitment from the City,” he said.

In its complaint, Fair Wage Santa Monica also claims the ordinance prevents non-union businesses from cutting employee benefits or hours to make up for having to pay more under the new minimum wage, contains no bankruptcy exceptions for businesses that go bust from having to pay higher wages, and imposes “severe” civil and criminal penalties for “even vague and ambiguous” violations.

“If you exempt collective bargaining, then there's no enforcement,” said Gonzalez. “They're not protecting workers by having this exemption. The whole point to the loophole for collective bargaining is to allow an organizing tool for a union. Unions can go to employers and say, 'You can avoid having to pay the minimum wage if you let us come in and start a union.'”

Melanie Luthern, spokeswoman for Unite Here Local 11, one of the largest collective bargaining units in the City, said that argument twists reality.

She said the proposed protection for collective bargaining has broad community support (Union Says Petition Drive Against Santa Monica New Minimum Wage Law is Front for Political Conservatives, January 7, 2016).

Luthern claimed Fair Wage Santa Monica has no real community support and is backed by conservative business groups.

In October, Fair Wage Santa Monica, which Connolly said is a grass roots organization of residents and businesses, launched a petition campaign against the exemption. In December, Gonzalez announced the group had collected 6,000 signatures.

The exemption is certain to be debated again Tuesday at a public hearing on the minimum wage proposal. Both Gonzalez and union officials say they plan to attend.

“On Tuesday, the community of Santa Monica will be at City Hall to stand with workers, and at that time, we all welcome the opportunity to educate anyone who has been misled by this deceptive campaign,” Luthern said.