On April 12, 2007, the Board heard public comments on the proposed regulations concerning proof of support and revocation of proof of support. Union supporters turned out in force and were unanimously opposed to the regulations. Most speakers objected to even the concept of allowing an employee to change his or her mind and revoke proof of support. So employees beware - signing that union authorization card is a lot like joining a fitness club - once you join, you're stuck with it until you die.
After the close of the public comment period, the Board took the matter under submission to consider the comments. The Board has one year from the publication of the notice to take action, so the Board possible could adopt the regulations at its next meeting. If the Board decides to make substantial modifications, it must issue a new notice and provide another opportunity for written comments.
Monday, April 23, 2007
AB 220: FFBOR Tabled
AB 220 would enact the Fire Fighters Bill of Rights, similar to the existing Peace Officers Bill or Rights.
AB 220 was placed on suspense on April 18, 2007.
AB 220 was placed on suspense on April 18, 2007.
AB 553 - SEIU Attempts a Power Play
AB 553 would dramatically expand PERB’s jurisdiction under the MMBA to cover all public employee strikes, even those that do not otherwise constitute an unfair practice. Currently, there are categories of strikes that fall outside of PERB’s jurisdiction. For example, the MMBA itself divests PERB of jurisdiction over strikes involving local agency peace officers or employees of the City or County of Los Angeles, even if the strike would otherwise be an unfair practice. PERB also lacks jurisdiction over strikes that do not constitute unfair practices but are illegal under other California laws, such as the Labor Code § 1962 prohibition of strikes by firefighters. Most importantly, California common law prohibits a public employee strike when the strike “creates a substantial and imminent threat to the health or safety of the public.”
If enacted, AB 553 would arguably give jurisdiction over requests to enjoin strikes that threaten public health and safety. This is a concern for local agencies throughout California because local courts are often in the best position to quickly determine whether a strike threatens public health and safety. Additionally, it is unclear whether PERB could actually seek to enjoin a strike that threatens public health and safety as PERB has never held such strikes to be unfair practices and PERB has no jurisdiction to enforce California common law. It is also unclear whether PERB’s decision not to seek an injunction would bar a local agency from subsequently applying directly to a court to enjoin a strike that threatens public health and safety.
The language of AB 553 is also broad enough that public employee strikes against the City or County of Los Angeles would likely fall under PERB’s jurisdiction. However, since PERB has no jurisdiction to determine unfair practices involving the City or County of Los Angeles, it is unclear how a strike against these public agencies could ever be enjoined by PERB. In addition, AB 553 would also apply to peace officer strikes, even though most peace officers are not otherwise under PERB’s jurisdiction.
A hearing on AB 553 has been set for May 2, 2007.
If enacted, AB 553 would arguably give jurisdiction over requests to enjoin strikes that threaten public health and safety. This is a concern for local agencies throughout California because local courts are often in the best position to quickly determine whether a strike threatens public health and safety. Additionally, it is unclear whether PERB could actually seek to enjoin a strike that threatens public health and safety as PERB has never held such strikes to be unfair practices and PERB has no jurisdiction to enforce California common law. It is also unclear whether PERB’s decision not to seek an injunction would bar a local agency from subsequently applying directly to a court to enjoin a strike that threatens public health and safety.
The language of AB 553 is also broad enough that public employee strikes against the City or County of Los Angeles would likely fall under PERB’s jurisdiction. However, since PERB has no jurisdiction to determine unfair practices involving the City or County of Los Angeles, it is unclear how a strike against these public agencies could ever be enjoined by PERB. In addition, AB 553 would also apply to peace officer strikes, even though most peace officers are not otherwise under PERB’s jurisdiction.
A hearing on AB 553 has been set for May 2, 2007.
Tuesday, April 3, 2007
More On What Constitute a "Reasonable" Local Rule
Further thoughts on City and County of San Francisco (PERB Dec. No. 1890M):
The Board held that when the reasonableness of a local rule is at issue, the burden to demonstrate that the rule is "unreasonable" falls on the party attacking the rule. On this point, the Board held that:
"Where a legislative action by a local governmental agency is attacked as unreasonable, the burden of proof is on the attacking party. Such regulations are presumed to be reasonable in the absence of proof to the contrary."
How strong that presumption is remains to be seen. As mentioned below, there are many situations where local rules differ from the "default" local rules provided by PERB regulations. For example, PERB regulations generally provide a 3-year contract bar. Many local agencies impose contract bars greater than 3 years. Presumably, PERB could not hold that any local rule providing a contract bar greater than 3 years is unreasonable. However, how much deference will PERB provide? Hopefully, this decision indicates that PERB will provide great deference to local agencies.
The Board held that when the reasonableness of a local rule is at issue, the burden to demonstrate that the rule is "unreasonable" falls on the party attacking the rule. On this point, the Board held that:
"Where a legislative action by a local governmental agency is attacked as unreasonable, the burden of proof is on the attacking party. Such regulations are presumed to be reasonable in the absence of proof to the contrary."
How strong that presumption is remains to be seen. As mentioned below, there are many situations where local rules differ from the "default" local rules provided by PERB regulations. For example, PERB regulations generally provide a 3-year contract bar. Many local agencies impose contract bars greater than 3 years. Presumably, PERB could not hold that any local rule providing a contract bar greater than 3 years is unreasonable. However, how much deference will PERB provide? Hopefully, this decision indicates that PERB will provide great deference to local agencies.
Monday, April 2, 2007
PERB Recognizes "De Minimus" Standard
Newark Unified School District (PERB Dec. No. 1895E) (Issued 03/27/07)
The case involved 3 consolidated unfair practice charges. All the charges stemmed from contract negotiations between the parties. The decision discusses various allegations of bad faith bargaining and unilateral change.
Of interest is the finding regarding the employer’s unilateral implementation of a pre-paid legal services program for its employees. Although finding that the employer did make a unilateral change within the scope of representation, the Board agreed with the ALJ that the change was “de minimus” because there was no “generalized effect.” This was because the district promptly froze enrollment in the program as soon as the current charge was filed.
A couple of past PERB decisions have characterized certain changes as “de minimus.” However, those cases all involved situations where the employer promptly and completely rescinded the alleged unilateral changes. Since those cases involved conduct that was corrected, it may be a more appropriate to characterize them as “safe harbor” rather than “de minimus” situations.
Unlike those cases, here the employer allowed a few (5 to 6) employees to remain in the pre-paid legal program. Because the employer did not entirely completely rescind its actions, this is much more of a true “de minimus” situation than the previous PERB cases. In addition, the recent Claremont case from the California Supreme Court arguably is the first judicial case in California recognizing a “de minimus” standard under any of the public sector statutes. With Claremont and this Newark decision, employers hopefully will have more opportunity to argue that minor changes affecting few employees should not be considered unfair practices.
The case involved 3 consolidated unfair practice charges. All the charges stemmed from contract negotiations between the parties. The decision discusses various allegations of bad faith bargaining and unilateral change.
Of interest is the finding regarding the employer’s unilateral implementation of a pre-paid legal services program for its employees. Although finding that the employer did make a unilateral change within the scope of representation, the Board agreed with the ALJ that the change was “de minimus” because there was no “generalized effect.” This was because the district promptly froze enrollment in the program as soon as the current charge was filed.
A couple of past PERB decisions have characterized certain changes as “de minimus.” However, those cases all involved situations where the employer promptly and completely rescinded the alleged unilateral changes. Since those cases involved conduct that was corrected, it may be a more appropriate to characterize them as “safe harbor” rather than “de minimus” situations.
Unlike those cases, here the employer allowed a few (5 to 6) employees to remain in the pre-paid legal program. Because the employer did not entirely completely rescind its actions, this is much more of a true “de minimus” situation than the previous PERB cases. In addition, the recent Claremont case from the California Supreme Court arguably is the first judicial case in California recognizing a “de minimus” standard under any of the public sector statutes. With Claremont and this Newark decision, employers hopefully will have more opportunity to argue that minor changes affecting few employees should not be considered unfair practices.
No Unilateral Change
County of Siskiyou (PERB Dec. No. 1894M) (Issued 3/27/07)
The issue in this case was whether the contract required that “extra help” employees be laid off prior to any permanent employees. The Board reached the same conclusion as the ALJ - to dismiss the complaint - but reached its decision based on a different rationale. The ALJ apparently had held that the contract language was ambiguous, and thus, found that the union had failed to meet its burden of proof to establish a ‘change.’
The Board in its analysis attempted to harmonize the contract language with the County Code and the County’s personnel policies. Based on its analysis, the Board found no requirement that “extra help” be laid off first, and thus, held that there was no unilateral change by the employer.
The issue in this case was whether the contract required that “extra help” employees be laid off prior to any permanent employees. The Board reached the same conclusion as the ALJ - to dismiss the complaint - but reached its decision based on a different rationale. The ALJ apparently had held that the contract language was ambiguous, and thus, found that the union had failed to meet its burden of proof to establish a ‘change.’
The Board in its analysis attempted to harmonize the contract language with the County Code and the County’s personnel policies. Based on its analysis, the Board found no requirement that “extra help” be laid off first, and thus, held that there was no unilateral change by the employer.
DFR Charge Dismissed
SEIU Local 790 (Chan) (PERB Dec. No. 1892M) (Issued 3/15/07)
Employee alleged that union violated its duty of fair representation by failing to seek arbitration of employee’s termination. Applying well-settled law, Board dismissed the charge for failure to state a prima facie case.
Employee alleged that union violated its duty of fair representation by failing to seek arbitration of employee’s termination. Applying well-settled law, Board dismissed the charge for failure to state a prima facie case.
What is a Reasonable Local Rule?
City and County of San Francisco (PERB Dec. No. 1890M) (Issued 3/12/07)
This is one of the first cases addressing whether a local rule is “reasonable” under the MMBA. The Board discussed the “reasonableness” standard in broad terms; finding that a local agency has discretion in adopting local rules as long as they do not “frustrate the declared policies and purposes of the MMBA.” In this case, the Board held that the impasse procedure set forth in the City Charter was not unreasonable on its face.
This case is helpful in setting forth the general legal standards for determining whether a local rule is reasonable. However, this case did not appear to be that difficult for the Board. As more of these cases reach the Board’s docket, look for more difficult issues to arise.
This is one of the first cases addressing whether a local rule is “reasonable” under the MMBA. The Board discussed the “reasonableness” standard in broad terms; finding that a local agency has discretion in adopting local rules as long as they do not “frustrate the declared policies and purposes of the MMBA.” In this case, the Board held that the impasse procedure set forth in the City Charter was not unreasonable on its face.
This case is helpful in setting forth the general legal standards for determining whether a local rule is reasonable. However, this case did not appear to be that difficult for the Board. As more of these cases reach the Board’s docket, look for more difficult issues to arise.
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