County of Imperial (PERB Dec. No. 1916M) (Issued 6/28/07)
At issue in this case was a local rule requiring that in a representation election, a majority of the employees in the bargaining unit must vote in order for the vote to be valid. PERB held that the rule was “unreasonable” under the MMBA. In reaching its decision, PERB compared the language of MMBA section 3507.l (a) and 3502.5(d). The former section states that a majority of votes cast in representation elections is required, not that a majority of employees must vote. In the latter section - governing rescission elections - the language expressly requires a majority of unit employees to vote. Because the Legislature expressly required majority participation in certain elections and not others, PERB held that a local rule setting different requirements was unreasonable.
This case is one of the first PERB cases finding a local rule to be “unreasonable” under the MMBA. The holding here can be interpreted to set the statutory language of the MMBA as a baseline for evaluating reasonableness. Local rules that deviate or frustrate the MMBA’s statutory provisions will almost certainly be found unreasonable. For example, MMBA section 3507.1 now allows for the establishment of majority support through ‘card check.’ A local rule that ignores ‘card check’ or requires some other kind of election can be expected to be found unreasonable.
Monday, July 30, 2007
Tuesday, July 3, 2007
Retirement Health Benefits for Current Employees Negotiable
Madera Unified School District (PERB Dec. No. 1907E) (Issued 5/25/07)
Under the statutes administered by PERB, it has been generally understood that retirement benefits for current employees are within the scope of representation and thus must be negotiated. Benefits affecting current retirees, however, have been understood to be a permissive topic of bargaining.
In this case, the union alleged that the employer unilaterally changed the way it calculated its monetary contribution towards health care for retirees. The Board agent dismissed the charge on the ground that the alleged change did not affect any current employees and any changes to the benefits of current retirees were not within the scope of representation – they were rather a permissive subject of bargaining.
The Board generally affirmed the Board agent’s analysis that only benefits for current employees are within the scope of representation. However, the Board held that any changes to retiree benefits are still negotiable to the extent they affect what current employees will receive in the future.
The Board’s decision is potentially problematic in several respects. First, the Board’s holding has the potential to swallow the rule that benefits for retirees are a permissive subject of bargaining. This is because almost any change to the current benefits of retirees arguably affects the future benefits of current employees.
The decision also raises an interesting question regarding remedies. Consider what would have happened had the Board found a violation. By its own admission, the Board would have no jurisdiction to order a remedy for current retirees, who were the only individuals affected by the alleged conduct. The Board could only order a remedy as to current employees; but here they suffered no harm. Presumably, the Board could order the change rescinded as it applied to the future benefits of current employees. In order words, the Board could order the employer to restore the promised benefit for current employees. However, how would the Board ever enforce such a promise? The employer’s promise would not become actionable until the current employee retired; but once that occurred, the Board would again lose jurisdiction!
This is not to say, of course, that employers can freely renege on promised benefits. There are certainly other avenues of enforcement. The point is that this issue is not one that lends itself to PERB enforcement.
Under the statutes administered by PERB, it has been generally understood that retirement benefits for current employees are within the scope of representation and thus must be negotiated. Benefits affecting current retirees, however, have been understood to be a permissive topic of bargaining.
In this case, the union alleged that the employer unilaterally changed the way it calculated its monetary contribution towards health care for retirees. The Board agent dismissed the charge on the ground that the alleged change did not affect any current employees and any changes to the benefits of current retirees were not within the scope of representation – they were rather a permissive subject of bargaining.
The Board generally affirmed the Board agent’s analysis that only benefits for current employees are within the scope of representation. However, the Board held that any changes to retiree benefits are still negotiable to the extent they affect what current employees will receive in the future.
The Board’s decision is potentially problematic in several respects. First, the Board’s holding has the potential to swallow the rule that benefits for retirees are a permissive subject of bargaining. This is because almost any change to the current benefits of retirees arguably affects the future benefits of current employees.
The decision also raises an interesting question regarding remedies. Consider what would have happened had the Board found a violation. By its own admission, the Board would have no jurisdiction to order a remedy for current retirees, who were the only individuals affected by the alleged conduct. The Board could only order a remedy as to current employees; but here they suffered no harm. Presumably, the Board could order the change rescinded as it applied to the future benefits of current employees. In order words, the Board could order the employer to restore the promised benefit for current employees. However, how would the Board ever enforce such a promise? The employer’s promise would not become actionable until the current employee retired; but once that occurred, the Board would again lose jurisdiction!
This is not to say, of course, that employers can freely renege on promised benefits. There are certainly other avenues of enforcement. The point is that this issue is not one that lends itself to PERB enforcement.
Right of Individual Representation Restored Under EERA
On June 28, 2007, the Governor signed AB 1194 (Karnette) which restores language in EERA section 3543 granting individuals a protected right of representation. In 2000, for reasons never explained (in reality, it was most likely a careless drafting error), the Legislature deleted the following language from EERA when it approved unrelated amendments:
Public school employees shall also have the right to refuse to join or participate in the activities of employee organizations and shall have the right to represent themselves individually in their employment relations with the public school employer, except that once the employees in an appropriate unit have selected an exclusive representative and it has been recognized pursuant to Section 3544.1 or certified pursuant to Section 3544.7, no employee in that unit may meet and negotiate with the public school employer.
Based on the deletion of this critical language, PERB held in Woodland Joint Unified School District (2004) PERB Dec. No. 1722E, that the Legislature must have intended to eliminate the individual right of representation under EERA. Even if the Legislature did not so intend, PERB held that because of the change in statutory language, it was the Legislature's responsibility to correct the error. Accordingly, PERB held that prior cases recognizing such a right (See Pleasant Valley School District (1988) PERB Dec. No. 708) were no longer valid in light of the change to section 3543.
Sponsored by the California Teachers Association, AB 1194 was intended to restore the individual right of representation under EERA and to statutorily abrogate PERB’s decision in Woodland Joint Unified. Under AB 1194, the following language has been added to section 3543:
Public school employees shall have the right to represent themselves individually in their employment relations with the public school employer, except that once the employees in an appropriate unit have selected an exclusive representative and it has been recognized pursuant to Section 3544.1 or certified pursuant to Section 3544.7, no employee in that unit may meet and negotiate with the public school employer.
Note that AB 1194 does not completely restore the language that was deleted in 2000. Not surprisingly, CTA did not see fit to restore the individual right to “refuse to join or participate in the activities of employee organizations . . .”
Public school employees shall also have the right to refuse to join or participate in the activities of employee organizations and shall have the right to represent themselves individually in their employment relations with the public school employer, except that once the employees in an appropriate unit have selected an exclusive representative and it has been recognized pursuant to Section 3544.1 or certified pursuant to Section 3544.7, no employee in that unit may meet and negotiate with the public school employer.
Based on the deletion of this critical language, PERB held in Woodland Joint Unified School District (2004) PERB Dec. No. 1722E, that the Legislature must have intended to eliminate the individual right of representation under EERA. Even if the Legislature did not so intend, PERB held that because of the change in statutory language, it was the Legislature's responsibility to correct the error. Accordingly, PERB held that prior cases recognizing such a right (See Pleasant Valley School District (1988) PERB Dec. No. 708) were no longer valid in light of the change to section 3543.
Sponsored by the California Teachers Association, AB 1194 was intended to restore the individual right of representation under EERA and to statutorily abrogate PERB’s decision in Woodland Joint Unified. Under AB 1194, the following language has been added to section 3543:
Public school employees shall have the right to represent themselves individually in their employment relations with the public school employer, except that once the employees in an appropriate unit have selected an exclusive representative and it has been recognized pursuant to Section 3544.1 or certified pursuant to Section 3544.7, no employee in that unit may meet and negotiate with the public school employer.
Note that AB 1194 does not completely restore the language that was deleted in 2000. Not surprisingly, CTA did not see fit to restore the individual right to “refuse to join or participate in the activities of employee organizations . . .”
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