Employee's Challenge to SEIU Reorganization Dismissed

Service Employees International Union Local 1292 (PERB Dec. No. 1956-M) (Issued on 5/09/08)

This case arose out of the implementation of SEIU’s “California Unite to Win” plan. With respect to local government employees, the plan called for the merger of dozens of existing locals into large regional locals. In Northern California, ten locals were merged into SEIU Local 1021 (“ten to one”).

Lisa Marriott was an employee of Tehama County. Her exclusive representative was a Joint Council which consisted of IUOE Local 39 and SEIU Local 1292. Marriott belonged to a group of employees serviced primarily by SEIU Local 1292. In her unfair practice charge, Marriott alleged that with a single exception, no one from Tehama County was allowed to vote on SEIU’s proposed reorganization plan. According to Marriott, SEIU Local 1292 had only 850 unit members and was serviced by locally based representatives. Under the plan, employees in SEIU Local 1292 were to be placed in SEIU Local 1021, which contained 54,000 employees. Marriott alleged that the new SEIU Local 1021 did not maintain locally based representatives, and instead, provided services from its Sacramento offices. Because she and her fellow employees were not allowed to vote on the reorganization plan, Marriott alleged that SEIU committed an unfair practice.

According to PERB, Marriott’s charge raised two issues: (1) Can Marriott challenge SEIU's consolidation of her local union with several other of SEIU' s local unions under the MMBA? (2) Does the MMBA give Marriott the right to challenge SEIU's failure to afford union members in her bargaining unit the right to vote in its decision to consolidate several of its local unions? PERB answered both questions with a qualified yes.

First, PERB held that a local union member “may challenge a parent union's consolidation decision, but only when that decision has a substantial affect on the employer-employee relationship.” Relying on existing precedent, PERB noted that its practice and policy was to not interfere in the internal affairs between an employee organization and its members unless it is shown that there was a significant impact the member's relationship with his or her employer. Here, the Board found that Marriott failed to establish any substantial affect on her relationship with her employee. Marriott’s allegation that SEIU Local 1021 could not properly service its members in Tehama County was too speculative, according to PERB.

PERB answered the second issue in a similar manner: “We also hold that an employee may only challenge the parent union's failure to afford its members the opportunity to vote for or against a consolidation of local unions under the MMBA, if the employee can demonstrate that such consolidation had a substantial impact on the employer-employee relationship.” Again, PERB held that Marriott failed to demonstrate that her inability to vote on the reorganization plan had a substantial impact on her relationship with her employer. For these reasons, PERB dismissed the charge.

Comments

PERB approached this case from the perspective of whether Marriott—as an individual employee—had standing to challenge SEIU’s reorganization. On this issue, PERB’s decision is undoubtedly correct.

However, the more interesting issue—and the one not answered by PERB—is whether SEIU’s reorganization raised a question concerning representation (QCR) such that an employer could have required a unit-wide vote before recognizing the newly chartered locals. Several charges have been brought on this issue against SEIU around the state. To my knowledge, all the charges have been dismissed on the grounds that the reorganization did not change the basic identity of the exclusive representative; in other words, the reorganization did not raise a QCR. None of these dismissals were appealed to the Board so no precedential decision on this issue is expected. In practice, to my knowledge every local agency confronted with this issue has chosen to recognize the new regional locals.

Union’s Right to Information Does Not Extend to Extra-Contractual Forums

Carmichael Recreation & Park District (PERB Dec. No. 1953-M) (Issued on 4/17/08)

It is well-established under PERB precedent that a union is entitled to information "necessary and relevant" to represent employees in its role as the exclusive representative. There has been some confusion over the years as to whether the union’s right to information extends to extra-contractual forums. For example, many unions will agree to represent employees in disciplinary matters before personnel boards and/or civil service commissions. These forums are typically non-contractual and the employee’s right to a hearing is not controlled by the union.

When a union does voluntarily assume representation of an employee in such a forum, does it have the same right to information as if it was representing the employee in a contractual forum (e.g. a grievance arbitration)? In San Bernardino City Unified School District (1998) PERB Dec. No. 1270 (San Bernardino), PERB answered this question in the negative. In San Bernardino, PERB held that a union is not entitled to witness lists and other documents requested as part of an extra-contractual dismissal hearing.

The holding in San Bernardino, however, has always been somewhat in doubt because it contained no discussion of a directly contrary prior board decision, Los Angeles Unified School District (1994) PERB Dec. No. 1061 (Los Angeles). Los Angeles involved an almost identical issue – whether the union’s right to information extended to an extra-contractual disciplinary hearing before the District Personnel Board. There, the Board issued three separate decisions. The lead opinion held that the union’s right to information did not extend to extra-contractual disciplinary hearings. The concurring opinion held that it did, but found no violation as the employer had allowed the union to view the requested materials. The dissent would have found a right to information and a violation. Although the Board in Los Angeles dismissed the complaint, it was clear that 2 of the 3 Board members believed that the union’s right to information extended to extra-contractual forums.

In this most recent case, Carmichael Recreation & Park District, the Board adopted the ALJ’s proposed decision holding that the union’s right to information did not extend to its representation of an employee in a Skelly hearing, which was extra-contractual. The Board based its holding on San Bernardino. Interestingly, although the Board did mention Los Angeles, it did so only in passing in a footnote. Even more interesting is that the footnote on Los Angeles merely noted that the Board had dismissed a similar complaint. There was no mention that a majority of the Board in Los Angeles had actually reached a holding contrary to the Board’s subsequent decision in San Bernardino.

In any event, the Board in Carmichael Recreation & Park District clearly was aware of both the San Bernardino and Los Angeles decisions. Although the Board did not expressly overturn Los Angeles, it seems fairly clear that to the extent Los Angeles holds that a union’s right to information extends to extra-contractual forums, it is no longer good law.

PERB Recognizes Doctrine of Judicial Estoppel

Trustees of the California State University (PERB Dec. No. 1949-H) (Issued on 3/24/08)

The doctrine of “judicial estoppel” prevents a party from advocating a position in a legal proceeding that is contrary to a position taken previously in the same or some earlier proceeding. In the area of labor & employment law, judicial estoppel is often applied in situations involving disabled employees. A typical example involves an employee who claims he or she cannot perform the functions of a job when applying for disability benefits but asserts a contrary position when applying for a reasonable accommodation or other job benefit. Depending on the specific facts of the situation, the courts have applied the doctrine of judicial estoppel to prevent the employee from asserting contrary positions.

This case involved a long-standing dispute between CSU and APC over merit pay. The dispute was submitted to arbitration in which APC prevailed. APC then had the award confirmed in superior court. After CSU made payments to unit employees, APC filed an “Acknowledgement of Satisfaction of Judgment” confirming that the judgment had been satisfied in full.

Thereafter, APC filed an unfair practice charge with PERB alleging that CSU should have increased employee base salaries instead of making one-time payments. In rejecting APC’s contentions, PERB relied on the doctrine of judicial estoppel. In short, PERB found APC’s unfair practice charge to be inconsistent with APC’s acknowledgement in superior court that the judgment had been satisfied in full. Accordingly, PERB dismissed the complaint.

PERB Chair to Speak at Bar Luncheon

Karen Neuwald, Chair of the Public Employment Relations Board, will be speaking on "What's New at PERB" at the March 25th luncheon of the Labor & Employment Law Section of the Sacramento County Bar Association.

The luncheon is at 11:45 am. at the Firehouse Restaurant in Sacramento. Cost is $18 for members of the Sacramento County Bar Association or $23 for nonmembers. Contact Melissa Strand at 916-321-4500 or mstrand@kmtg.com for reservations.

Court: PERB Has Jurisdiction Over Essential Employee Strikes

City of San Jose v. Operating Engineers Local No. 3 (6th District Court of Appeal, Case No. H030272) (Issued on 3/4/08)

This is the first Court of Appeal decision addressing whether PERB or the superior courts have initial jurisdiction over “essential employee” strikes that threaten public health and safety. Cases involving this identical issue are also pending before the First and Third District Courts of Appeal.

This case involved the City of San Jose. In May 2006, the City and Operating Engineers Local No. 3 failed to reach agreement on a new labor contract. On May 30, the Union notified the City that it could go on strike in as soon as three days. The City responded that it would seek an injunction against the strike. On May 31, the Union filed an unfair practice charge with PERB alleging that the City’s threat to seek injunctive relief violated its members’ right to strike under the MMBA. On June 2, the City asked the superior court to enjoin 67 “essential” employees from striking, claiming that a strike by those employees would violate the common law prohibition against strikes that threaten public health and safety. Both the Union and PERB opposed the City’s request on the grounds that PERB has exclusive initial jurisdiction over enjoining a potentially unlawful strike. The superior court denied the injunction, finding that the City failed to exhaust administrative remedies because PERB had exclusive initial jurisdiction over the strike.

The Court of Appeal framed the issue as whether the “MMBA arguably prohibits or arguably protects” the threatened strike by the Union and the City’s alleged interference with the strike. In finding the strike arguably prohibited by the MMBA, the court broadly states that any illegal strike “may run afoul of the MMBA.” Conversely, the court then finds that because the strike may be legal, it is arguably protected by the MMBA.

Having determined that PERB has exclusive initial jurisdiction over strikes because they are arguably prohibited and/or protected by the MMBA, the court then considers whether an exception exists where the strike involves "essential" employees. In rejecting any exception, the court cites PERB’s expertise in administering the statewide public employment labor relations scheme as support for recognizing its jurisdiction over essential employee strikes. The court also rejected the City's argument that PERB’s procedures for deciding requests for injunctive relief take too long. The court rejected this argument primarily because by the time the City requested injunctive relief from the court in this case, PERB had already filed papers with the court.

Comments
* Under the court’s broad reasoning, PERB arguably has jurisdiction over all employee strikes under the MMBA since any strike can be prohibited and/or protected by the MMBA. The Court did not address the fact that a strike could violate the common law prohibition on strikes separate and apart from the MMBA.
* The potential delay caused by PERB's involvment will continue to be a key issue in these cases. Here, PERB was only able to beat the City to court because the Union gave the City three days’ notice of the strike. However, the MMBA arguably does not require a union to give the employer any notice before striking.
* As mentioned above, this identical issue is pending before the 1st and 3rd DCA's. If either rules the other way, expect the Supreme Court to weigh in...

Court Holds Employee Parking Location is Within the Scope of Representation; Overturns PERB Decision

Cal. Faculty Assn. v. PERB (3rd District Court of Appeal, Case No. C054725) (Issued on 2/28/08)

The Memorandum of Understanding (MOU) between the California Faculty Association (CFA) and the California State University (CSU) contains a provision on parking fees. Upon payment of the negotiated parking fee, members of the unit—primarily faculty members—were historically allowed to park in any campus parking lot. In 2001 and 2002, CSU built additional parking structures at its Northridge and Sacramento campuses. Because CSU self-funds parking, it asked all its employee unions to agree to higher parking fees to fund construction of the new parking structures. While some unions agreed, CFA refused to re-open its MOU to negotiate higher parking fees. In response, CSU prohibited CFA members from parking in the new structures. CFA then filed an unfair practice charge alleging that it was an unfair practice to prohibit its members from parking in the new structures where previously they were allowed to park in any campus parking lot. The PERB administrative law judge hearing the matter agreed and found that CSU had committed an unfair practice.

The Board, however, declined to adopt the ALJ’s proposed decision. Instead, the Board found that the location where employees are allowed to park on campus does not involve the ‘employment relationship,’ and therefore is not a matter within the scope of representation. As a result, the Board held that CSU had no duty to bargain its decision to bar CFA members from parking in the new structures. CFA then challenged PERB’s decision in the court of appeal.

In finding the Board’s decision “clearly erroneous,” the court relied heavily on Ford Motor Co. v. NLRB (1979) 441 U.S. 488 (Ford) and the Board’s own precedent in Statewide University Police Association v. Regents of the University of California (1983) PERB Dec. No. 356-H (Regents). In Ford, the Supreme Court held that where an employer chooses to make available a system of in-plant feeding facilities for his employees, the prices at which food is offered and other aspects of this service may reasonably be considered among those subjects about which management and union must bargain. In Regents, the Board held that parking fees—as opposed to location—was also within the scope of representation. The court found these two cases persuasive and questioned why the Board was “deviating from its own precedents without explanation.” Accordingly, the court held that the location of employee parking is a subject within the scope of representation. (The court then remanded the case to the Board for a determination as to the other elements necessary to establish an unlawful unilateral change).

Comments

Although CFA prevailed in court, it may find this to be a Pyrrhic victory. Based on the facts set forth in the decision, what CSU proposed seemed reasonable. Parking had always been self-funded. CSU wanted to build additional parking structures—which would benefit employees—but needed parking fees to increase to pay for the construction. Apparently, all the other unions agreed to the fee increases except CFA. Eventually, CFA’s MOU will expire. When it does it’s a safe bet that one of CSU’s proposals will be an increase in fees. Quite possible, those new fees may be higher for CFA than what it could have negotiated in 2001 and 2002.

No Safe Harbor for Employer Who Rescinded Unilateral Change

County of Sacramento (PERB Dec. No. 1943-M) (Issued on 2/14/08)

In January 2006, the County of Sacramento notified two of its unions that it was considering changing its Retiree Health Insurance Program (RHIP). The RHIP is a non-vested County benefit that provides a monetary allowance to retirees to offset the cost of health insurance. The County’s proposal called for limiting the number of current employees who would be eligible for the RHIP upon retirement. The unions demanded to bargain over the County’s decision to change the RHIP’s eligibility requirements. The County refused on the ground that the decision to change the RHIP was not within the scope of bargaining.

In March 2006, the County approved and implemented the proposed RHIP changes. However, in September 2006, prior to the effective date of the eligibility changes for current employees, the County rescinded the RHIP changes and agreed to begin “discussions” with the unions. The unions subsequently brought an unfair practice charge which went to a hearing before an Administrative Law Judge (ALJ). The ALJ held that the unfair practice charge was moot because the County had rescinded the RHIP changes.

On exceptions filed by the unions, the Board reversed the ALJ’s proposed decision. Citing to Amador Valley Joint Union High School District (1978) PERB Decision No. 74, the Board held:

“That the later reversal or recission [sic] of a unilateral action or subsequent negotiation on the subject of a unilateral action does not excuse a violation. . . . The fact that the County reversed its position and restored the status quo before the new policy went into effect, does not cure the unlawful unilateral change.”

Analysis

There are several aspects of the Board’s decision in County of Sacramento that are problematic, especially for employers. The first involves what the Board will consider an unlawful unilateral “change.” Past Board decisions have uniformly held that to be unlawful, a unilateral change must not be merely an isolated breach of the contract or past practice, but constitute a change in policy. (Sonoma County Office of Education (1997) PERB Decision No. 1225.) In other words, the change must have “a generalized effect or continuing impact upon bargaining members’ terms and conditions of employment.” (See Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant Joint Union High School District (1982) PERB Decision No. 196.)

Here, it is difficult to see what generalized effect the County’s actions had on bargaining unit members since the County rescinded the changes to the RHIP before the changes ever became effective. True, the County did not waiver from its position that the changes were outside of scope of bargaining. However, once the County rescinded the changes, it never took action on its position; in other words, there was no longer any “change.”

In finding an unlawful unilateral change despite the rescission, the Board cited to Amador Valley Joint Union High School District (1978) PERB Decision No. 74 and Marin Community College District (1980) PERB Decision No. 145 for the proposition that an unlawful unilateral change can exist even where the change is rescinded. True enough, those cases do hold that discontinuing an unfair practice does not render the prior violation moot. However, a strong argument can be made that Amador only applies where the rescission of the unilateral change does not undo the actual harm that has already occurred. Where there has been no actual harm—as the case in Sacramento County—early PERB cases have recognized a “safe harbor” type doctrine (sometimes also referred to as the “de minimus” doctrine). For example, in Muroc Unified School District (1978) PERB Decision No. 80, the Board held that a unilateral change is not unlawful where: 1) it is promptly rescinded, and 2) employees are either not harmed or made whole. (See Oakland Unified School District (1983) PERB Decision No. 367; County of Monterey (2004) PERB Decision No. 1663-M, adopting ALJ's proposed decision at p. 27.)

At first blush, the Muroc line of cases seem to conflict with Amador. However, Amador and its line of cases can be best understood as holding that even small changes are unlawful when made unilaterally. In contrast, Muroc applies in situations where a change has been promptly rectified so that it can be said that there has been no change at all.

Here, based on the facts set forth in the decision, it seems to this practitioner that the Muroc line of cases should have been applied instead of Amador. Sacramento County rescinded the proposed RHIP changes before they ever became effective and it appears no employee suffered any harm. Under these facts, it seems the County should have been allowed to utilize the “safe harbor” doctrine in Muroc.