Tuesday, December 30, 2008

When a Change Is Not a Unilateral Change

Service Employees International Union, Local 1000, CSEA (2008) PERB Decision No. 1997-S (Issued on 12/22/08)

In July 2005, certified nurse assistants at the Chula Vista Veterans Home engaged in a “sick-out.” The Memorandum of Understanding (MOU) between the State of California (State) and the Service Employees International Union (SEIU)—which represented the nurse assistants—contained a no-strike clause. Soon after the sick-out, the State filed an unfair practice charge alleging that SEIU committed an unlawful unilateral change by condoning the sick-out in violation of the MOU.

The key issue at hearing was whether there actually was a concerted “sick-out,” and if so, whether SEIU organized and/or condoned it. Applying NLRB precedent, the Board affirmed the Administrative Law Judge’s finding that SEIU arguably “condoned” the sick-out by failing to take affirmative steps to end it. The Board expressly found that SEIU’s act of merely informing employees that a sick-out violated the MOU was insufficient. The Board also noted that, “SEIU took no subsequent actions to publicly disavow or censure the actions of the [nurse assistants] who participated in the sick-out.” The Board held, however, that the mere violation of the MOU is not always an unlawful unilateral change. In order for there to be an unlawful unilateral change, the change must have a “generalized impact or continuing effect” on the terms and conditions of employment.

In considering whether SEIU’s breach of the MOU had a generalized effect, the Board cited several cases where one-time breaches of a contract were found not to constitute an unlawful unilateral change. The Board noted that under existing precedent, “a breach of contract amounts to a unilateral change where the party in breach asserts that the contract authorizes its conduct” or where the breach represents a “change in policy that is generally applicable to future situations.”

Applying those standards, the Board found that the State had not established that SEIU’s actions had a generalized effect. Specifically, the Board found that there was no evidence that SEIU asserted that the sick-out was legally permissible and no evidence that SEIU intended to breach the MOU in the future. Accordingly, the Board dismissed the unfair practice charge.


The majority opinion drew a rare dissent. The dissent argued that there was indeed a generalized effect resulting from SEIU’s actions. Namely, the sick-out negatively affected the remaining nurse assistants and patients at the hospital. The dissent also found nothing in the record to suggest that SEIU would refrain from repeating its actions (or inaction) in the future. Given these facts, the dissent would have found that SEIU committed an unfair practice by condoning the sick-out in violation of the MOU.


I have several comments on this decision.

1. I like the fact that both the majority and dissenting opinion focused on whether the violation of the MOU had a “generalized effect” on the terms and conditions of employment. I had argued in my post on County of Sacramento (PERB Dec. No. 1943-M) (County of Sacramento) that the Board failed to properly consider this critical factor in finding that the employer in that case committed an unfair practice. Indeed, I think this decision highlights why I feel the Board reached the wrong result in County of Sacramento.

Recall that in County of Sacramento, the employer actually rescinded the unilateral change before it was scheduled to take effect. Even though the County rescinded the change—thereby restoring the statue quo ante—the Board held that those actions alone did not cure the unlawful unilateral change because it did not correct the “destabilizing and disorienting impact on employer-employee affairs.” Compare that with this decision. Here, SEIU did not cure its violation or take any action to rescind its actions. Thus, SEIU’s conduct here arguably had more of a destabilizing effect on employer-employee relations than the actions of the employer in County of Sacramento. Yet the Board found no generalized effect in this case. In my opinion, these two decisions are inconsistent.

2. Although I think the Board reached the wrong result in County of Sacramento, I also think the majority ended up with the wrong result in this case. Some may argue that I am being inconsistent myself. Perhaps I am, but here is how I look at it. As I argued in my post on County of Sacramento, I believe that PERB precedent supports the concept of a safe harbor in unilateral change situations. Specifically, a party that has committed a unilateral change should be allowed some opportunity to avoid liability for an unfair practice by rescinding its action and restoring the status quo ante. In my opinion that’s what the employer did in County of Sacramento and what SEIU failed to do here. Had SEIU taken some action to censure its employees or somehow disavow the sick-out, I would agree with the majority that there is no generalized effect. This is because where the party taking the unilateral change has rescinded its action and taken steps to make whole the aggrieved party, the “destabilizing effect” of the original unilateral change is eliminated, or at least greatly mitigated. Here, SEIU took no action to correct its behavior and to make whole the employer. Accordingly, I believe the Board should have found an unfair practice.

3. Although I think the Board reached the wrong result, this decision is actually good for employers. The reality is that the vast majority of unilateral change charges are filed against employers, not against unions. Using the analysis in this case, employers can argue that a one-time contract breach has no generalized effect without some showing that the employer intends to breach the contract again in the future. Since that’s a difficult burden to meet, this case arguably makes it harder for unions to establish unilateral change cases. This assumes, of course, that PERB strictly follows the holding in this case in the future (see last point, below).

4. As mentioned above, unions are seldom accused of unlawful unilateral changes. This is because unions normally do not have the power to effectuate a unilateral change in the terms and conditions of employment. Indeed, one of the first (if not the first) case finding that a union committed an unlawful unilateral change was only issued four years ago. (State of California (Department of personnel Administration) (2004) PERB Decision No. 1601-S.) Since that time, everyone has assumed that the elements for a unilateral change are the same whether the charge is against an employer or union.

If I were a union advocate, however, I would argue that the standards shouldn’t be the same. I would argue that since unions have a very limited ability to unilaterally change the terms and conditions of employment, a unilateral change by a union has less of a destabilizing effect on future employer-employee relations than one by an employer. (Naturally, there are many arguments to the contrary; but I’m pretending to be a union advocate here…) I wouldn’t be surprised at all if in the future unions made this argument in order to distinguish this case.

Monday, December 29, 2008

Don’t Get Burned by the “Cat’s Paw” Doctrine

City of Modesto (2008) PERB Decision No. 1994-M (Issued on 12/19/08) and Regents of the University of California (Los Angeles) (2008) PERB Decision No. 1995-H (Issued on 12/19/08)

Last week PERB issued two decisions involving allegations of retaliation against employees for protected union activity. In both City of Modesto and Regents of the University of California, the Board applied the existing retaliation standard to dismiss the unfair practice charges. What is worth noting, however, is that both decisions discussed an important legal concept that many employers still don’t fully understand: “subordinate bias liability” or what employment lawyers commonly refer to as the “cat’s paw” liability.

To understand the issue, consider this example. Supervisor A dislikes an employee because she is a union job steward. Based on this anti-union animus, Supervisor A recommends that the employee be disciplined for poor job performance. Supervisor B is not aware that the employee is a job steward and harbors no anti-union animus. Supervisor B reviews the proposed discipline, and seeing nothing out of the ordinary, approves it. Is the employer liable for unlawful retaliation?

I believe that under PERB precedent, the answer is yes. Even though the ultimate decision-maker, Supervisor B, had no knowledge of the employee’s protected activity and harbored no anti-union animus, PERB has held that the unlawful animus of Supervisor A can be imputed to Supervisor B. In these situations, PERRB has held that unlawful animus may be imputed to high management officials where, even innocently, they rely on inaccurate and biased information of lower level management officials. (See State of California (Department of Corrections) (2001) PERB Decision No. 1435-S; State of California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S.) PERB refers to this doctrine as “subordinate bias liability.” It is also commonly referred to as the "cat’s paw" doctrine by the courts.

Real life situations are seldom as clear-cut as the hypothetical above. In many cases, even where lower-level supervisors are motivated by anti-union animus, the ultimate decision-maker will rely on other “non-tainted” factors and/or will have conducted an independent investigation. In those situations, what is the standard for imputing the animus of lower-level supervisors? The answer is not that clear.

In employment discrimination cases, the courts have been struggling with the cat’s paw doctrine for years. There is currently a split of authority among the federal circuits as to how to apply the doctrine. In Poland v. Chertoff (9th Cir. 2007) 494 F.3d 1174, the Ninth Circuit recognized this split and discussed three possible standards for imputing liability in these situations. The Poland court rejected a simple “but for” causation test because it would create expansive liability for employers. Similarly, the court rejected a standard that would impose liability only where the ultimate decision-maker “rubber stamps” the tainted decision. Instead, the court tried to take a middle ground approach:

“We hold that if a subordinate, in response to a plaintiff's protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment action, the subordinate's bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process. This standard is consistent with what we have suggested in previous Title VII retaliation cases . . . and with the law in a majority of the circuits. . .”

Neither City of Modesto nor Regents of the University of California discuss the exact standard that PERB will apply to impute unlawful animus to the ultimate decision-maker. Both cases merely affirm that PERB may impute such animus. In the Regents case, PERB did decline to follow NLRB precedent in this area and instead stated that, “one individuals’ experience will not be imputed to another unless it is warranted under the circumstances.” However, PERB has never thoroughly addressed those “circumstances.”


I believe that if ever confronted with the issue, PERB will follow the holding of Poland, since it is consistent with the majority of the federal circuits and also California law. (See Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95.) If so, it is vital for an employer to remember that it can avoid having the unlawful animus of a lower-level supervisor imputed to the ultimate decision-maker if it takes steps to neutralize the taint, for example, by conducting an independent investigation. There are also other ways an employer can neutralize or isolate any unlawful animus. The key, however, is recognizing the situation and taking pro-active steps.

P.S. The phrase “cat’s paw” refers to someone who is unwittingly used by another. It comes from La Fontaine's Fable "The Monkey and the Cat," in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire. As the cat scoops the chestnuts from the fire one by one burning his paw in the process, the monkey eagerly gobbles them up, leaving none for the cat.

Tuesday, December 23, 2008

State Employee Furloughs Challenged

The Professional Engineers in California Government (State Bargaining Unit 9) and the California Association of Professional Scientists (State Bargaining Unit 10) have jointly filed a petition for writ of mandate in Sacramento Superior Court (Case No. 2008-80000126) challenging the Governor’s authority to unilaterally impose furloughs on state employees upon a declaration of an emergency. At the same time, the Service Employees International Union Local 1000 (SEIU) has filed an unfair practice charge with PERB challenging the same action by the Governor.

The unions are challenging the Governor’s executive order S-16-08 issued on December 19, 2008. The executive order declared a state of fiscal emergency based on the state’s finances. In response to the fiscal emergency, the Governor ordered the state to begin the process of furloughing employees, including represented employees, two days a month. According to the executive order, the Governor has authority to impose furloughs in emergency situations pursuant to Government Code section 3516.5. That section states:

"3516.5. Except in cases of emergency as provided in this section, the employer shall give reasonable written notice to each recognized employee organization affected by any law, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the employer, and shall give such recognized employee organizations the opportunity to meet and confer with the administrative officials or their delegated representatives as may be properly designated by law.

In cases of emergency when the employer determines that a law, rule, resolution, or regulation must be adopted immediately without prior notice or meeting with a recognized employee organization, the administrative officials or their delegated representatives as may be properly designated by law shall provide such notice and opportunity to meet and confer in good faith at the earliest practical time following the adoption of such law, rule, resolution, or regulation."

According to an article in the LA Times, a spokesperson for the Governor’s Department of Personnel Administration stated that section 3516.5 provided, “extra authority to alter working conditions during emergencies.” It’s certainly true that section 3516.5 provides for a unilateral change in working conditions when there is an “emergency.” However, no case has ever considered what constitutes an “emergency” under section 3516.5. It's also unclear whether PERB would interpret section 3516.5 as any different from existing PERB precedent.

Over the years, PERB has developed a body of law dealing with bargaining obligations during “emergency” situations. Under PERB precedent, an employer raising a business necessity defense must demonstrate that the necessity is the unavoidable result of a sudden change in circumstances beyond the employer's control in order to justify unilateral action. The timing of the emergency must preclude the opportunity for negotiation, and there must be no alternative course of action available to the employer.” (See Lucia Mar Unified School District (2001) PERB Decision No. 1440, Calexico Unified School District (1983) PERB Decision No. 357, Compton Community College District (1989) PERB Decision No. 720.)

The standard is obviously a difficult one to meet, and few employers have been able to avoid bargaining by asserting an “emergency.” However, the situation here appears to be truly unique. Given the news reports, it seems undisputed that the State is on the verge of a fiscal catastrophe. As long as the state offers to bargain in good faith with the unions on the effects of the furlough proposal, I would be surprised if PERB or the courts are going to second guess the Governor on what constitutes an “emergency.”

Friday, November 21, 2008

PERB Issues 2007-2008 Annual Report

PERB recently released its annual report for fiscal year 2007-2008. (The report is available by clicking here.) Here are some highlights:

Unfair Practice Charges

816 unfair practice charges (UPCs) were filed in fiscal year 2007-08. This was just slightly less than the 823 UPCs filed in 2006-07. Since PERB assumed jurisdiction over the MMBA in 2001, UPCs have been averaging over 800 a year, roughly double the number before 2001.

Interestingly, in 2007-08 the number of UPCs filed actually decreased under the MMBA, EERA, and HEERA. The Dills Act, however, saw a dramatic increase from 71 to 137 UPCs. This is likely due to the fact that almost all the unions for the State of California are currently in negotiations.

For 2008-09, I expect the number of UPCs filed to rise again due to the difficult economy. Negotiations are always more difficult in bad economic times; and difficult negotiations tend to spawn UPCs. Also, many public sector employers will be looking to reduce costs through layoffs, furloughs, and salary and benefit reductions—all of which will likely result in more UPCs. Finally, we are seeing a dramatic increase in the number of work actions being taken against public entities. That will likely increase the number of UPCs and requests for injunctive relief filed by employers.

ALJ Proposed Decisions

In 2007-08, the ALJs at PERB issued 44 proposed decisions; taking an average of 94 days for each decision. The number of proposed decisions issued is slightly below the average for the last six years. (See chart, below.) However, the length of time it takes to issue a decision appears to be trending upward. I suspect part of this can be explained by the fact that PERB recently hired three new ALJs to replace two that retired and one who is now a Board member. Once these new ALJs get up to full speed I believe that the time it takes to issue a decision go back down to around 6o days. Notably, back in 2002-03 and 2003-04, PERB had 6 ALJs; that went down to 5 ALJs in 2004-05. PERB now has seven ALJs.

Proposed Decisions (Average # of Days)
2007-08: 44 (94)
2006-07: 41 (85)
2005-06: 46 (100)
2004-05: 49 (63)
2003-04: 47 (53)
2002-03: 52 (53)

Board Decisions

According to PERB’s annual report, in 2007-08 the Board itself issued 65 decisions. As can be seen from the chart below, the number of decisions issued by the Board has varied dramatically from year to year since 2001.

# of Board Decisions Issued
2007-08: 65
2006-07: 87
2005-06: 80
2004-05: 142
2003-04: 141
2002-03: 87
2001-02: 67

There are a number of reasons for this variance. Turnover among Board members is always a factor. Because Board members serve staggered five-year terms, one member is termed-out each year. However, it should be noted that in 2003-04 and 2004-05—when the Board issued over 140 decisions each year—the Board only had three or four Board members. Also, the Board appears to be grappling with a large amount of litigation the past two years. According to the annual report, litigation has increased 60% in recent years. For example, PERB’s jurisdiction over strikes that threaten public health and safety has been under attack throughout the state; and there are currently three cases on this issue pending before the California Supreme Court.

I don’t expect litigation to decrease this year or the next. If anything, litigation will increase. However, since the Board now has five members, I expect that the number of decisions issued will increase next year significantly.

Tuesday, November 11, 2008

Appeal Filed in Email Case

Los Angeles County Superior Court (PERB Dec. No. 1979-C) (Issued on 10/7/08)

The American Federation of State, County & Municipal Employees has filed a petition in the court of appeal challenging the email case (PERB Decision No. 1979-C), discussed in this blog on October 9, 2008.

Sunday, October 19, 2008

PERB Calls Meeting to Deal with Factfinding Budget

The 2008-2009 budget for PERB eliminated funding for factfinding, which in the previous year had been $85,000. However, the Legislature and Governor did not eliminate PERB's mandate under EERA and HEERA to fund factfinding. PERB has called a Board meeting for October 27, 2008, to address this problem.

In 2002-03, when the state also faced a serious budget crisis, PERB reduced the per diem it paid to factfinders to $100/per day from $600/per day. That resulted in a drastic reduction of individuals willing to as factfinders. The few factfinders who accepted the $100/day rate reduced the number of cases they would take and many considered it "pro bono" work. This time, it is unclear whether PERB will even be able to drastically reduce the rate it pays factfinders given that its entire factfinding budget has been eliminated.

PERB's agenda and a memo describing the problem can be found at this link: Agenda for October 27, 2008, Meeting

Thursday, October 9, 2008

Restrictions on Union Email Use Ok

Los Angeles County Superior Court (PERB Dec. No. 1979-C) (Issued on 10/7/08)

The Los Angeles County Superior Court (Court) has the following policy on email use:

“The Court provides access to its electronic communications systems for the purpose of facilitating the performance of court related business. . .. Employees may not use the system in a manner or to a degree that is disruptive or detrimental to the Court or to the employee's performance. . .. Any violation of this policy may subject an employee to discipline.”

This policy recognized that there would always be some incidental non-work related email use by employees. The policy sought to limit email use only if it was “disruptive or detrimental.” The Court considered disruptive or detrimental emails to include “broadcast” emails that went to a large number of recipients. Under this policy the Court had always allowed union job stewards to use email to communicate with individual employees on representation matters and also allowed the union to send broadcast e-mails into the Court's e-mail system from the outside.

In this particular case, a union job steward was disciplined for sending several “broadcast” emails to all 780 bargaining unit members from within the County’s email system. The complaint issued by the Office of the General Counsel asserted that the email use was protected activity and thus the discipline was unlawful.

In its decision, PERB noted that generally, “an employer may limit employees' non-business use of its e-mail system without committing an unfair practice as long as the limitation does not discriminate along union lines.” PERB then set forth a two-part test for determining whether an employer’s restrictions on email are lawful: First, PERB will establish the extent of permissible non-business email use under the employer’s email use policy. Second, PERB will determine whether each of the employee’s emails fell within the range of permissible use and was therefore protected activity.

Applying this test, PERB held that the job steward’s “broadcast” emails were not protected activity because the Court had never allowed employees to send broadcast emails in any other context.


The most significant legal holding in this case actually appears in footnote 15. It apparently was undisputed that the Court itself had sent “broadcast” emails to all its employees informing them of the status of negotiations. Because the Court itself sent “broadcast” emails, the union argued that it must be allowed to do the same. PERB said no.

PERB said that in considering the scope of email use allowed, the proper comparison is what other employees are allowed to do. According to PERB, the Court’s use of the email system is not the proper comparator as it is not an employee, but rather the employer. PERB reasoned:

“The Court is not required to provide AFSCME "equal time" use of its e-mail system under such circumstances. . . . Here, the record is replete with evidence that AFSCME had ample alternate means of communicating with Court employees, such as e-mail between union stewards and individual employees, distribution of flyers in the courthouse, use of Court bulletin boards, and a telephone hotline and website where members could obtain information about bargaining and upcoming meetings. Indeed, the Court even allowed APSCME to send broadcast e-mails into its system from the outside. In light of this evidence, the Court was not required to grant AFSCME an exemption from its e-mail use policy so that the union could state its position on labor relations issues via internally-generated broadcast e-mail as the Court had done.”

Thus, this case seems to suggest that an employer may use its email system however it wants to for “official” employer purposes but prevent the union from the same use as long as all employees face similar restrictions. This, of course, assumes that the union has alternate means of communication available. In reality, few mediums of communication are as effective in reaching a large number of people for minimal cost as email. Thus, even though PERB found the email use here unproected, I expect unions to continue to press this issue in the future and vigorously fight any employer attempts to limit email use.

Thursday, October 2, 2008

SB 1296 Signed by Governor

SB 1296 was signed by the Governor on 9/30/08. SB 1296 modifies the MMBA to provide that the superior courts, and not PERB, have exclusive jurisdiction over actions involving firefighter interest arbitration. [See my previous post on 8/28/08 for a discussion of the impact of SB 1296.]

Friday, September 26, 2008

"Anti-huddling" Policy Not Within Scope

Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) __ Cal.App.4th ___ (Court of Appeal Case No. B197611) (Issued 9/24/08)

In 2006, the Los Angeles County Sheriff’s Department revised its policy on deputy-involved shootings to prohibit officers involved in a shooting incident from talking with each other prior to being interviewed by the Department’s investigators. Officers still had the right to individually talk with an attorney or labor representative. The intent of the new policy was to ensure one officer’s recollection would not be influenced by another’s. The parties referred to this rule as an “anti-huddling” policy.

One of the issues before the court was whether the anti-huddling policy was within the scope of representation under the MMBA such that the County was required to bargain with the Association. Because this case involved Los Angeles County and cops, PERB did not have jurisdiction over the dispute. Thus, the case found its way to the Court of Appeal via the trial court.

In finding that the County’s policy was not within the scope of representation, the Court applied the 3-part test set forth in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623. First, the court found that the anti-huddling policy did not have a significant effect on officers’ “wages, hours, and working conditions.” Second, the court found that the policy arose from the implementation of a fundamental managerial decision. Each of these findings was sufficient to find that the policy was outside the scope of bargaining. However, for good measure, the court also applied the balancing test and found that it weighed in favor of the County.

With respect MMBA, the court’s holding does not break any new legal ground. The court’s application of the Claremont test is interesting, but not surprising as this case bears similarity to the Claremont case itself. In Claremont, the City implemented a tracking program to combat racial profiling. In both this case and Claremont, the courts appear to give management great deference in imposing policies that go directly to the public mission—to combat racial profiling in Claremont and to maintain public trust in this case.

Interesting Note: The Association also asserted that the anti-huddling policy violated the officers’ Weingarten rights. The court held: “We rejected [the Association’s] argument that Weingarten supports the principle that a deputy has a communal right to huddle with other deputies and counsel.”

Thursday, September 25, 2008

Constitutionality of Binding Interest Arbitration

In 2000, Governor Davis signed SB 402 which created a mandatory system of binding interest arbitration for local police officers and firefighters. Not surprisingly, local governments considered SB 402 a direct attack on the “home rule” doctrine enshrined in the California constitution. Under the home rule doctrine, local governments have plenary authority to set the compensation of county employees. SB 402 altered this doctrine by vesting in a private arbitrator the authority to issue a binding decision setting employee compensation.

SB 402 quickly found its way to the California Supreme Court. In County of Riverside v. Superior Court (2003) 30 Cal.4th 278 ("Riverside"), the California Supreme Court had little trouble finding SB 402 unconstitutional. However, that wasn’t the end of it. In one of his last acts in office, Governor Davis signed SB 440. Like SB 402, SB 440 created a mandatory system of interest arbitration for local police and firefighters. However, in an attempt to cure the constitutional defects in SB 402, SB 440 provides that the arbitrator’s decision can be rejected by the governing body if it unanimously rejects the decision within five days. (Code Civ. Proc., §1299.7.)

In the eyes of local government, SB 440 is nothing more than SB 402 in disguise. The requirement that the local entity unanimously reject the decision within five days is so onerous that it effectively renders the arbitration decision binding. Initially, every superior court that considered SB 440 found it unconstitutional for the same reasons Riverside found SB 402 unconstitutional. (See, e.g., Sierra Madre Police Officers Association v. City of Sierra Madre (Los Angeles Superior Court, Case No. GS 010036; The Adelanto Community, etc. v. City of Adelanto (San Bernardino Superior Court, Case No. VCVVS037008); County of Tulare v. Tulare County Deputy Sheriffs Association (Tulare County Superior Court, Case No. 06-219977). Notably, none of the employee associations on the losing side of these cases filed an appeal.

[Correction: A notice of appeal was filed in the Tulare case, but the case settled]

Recently, the Sonoma County Superior Court became the first trial court in California to find SB 440 constitutional. (Sonoma County Law Enforcement Association v. County of Sonoma (Sonoma County Superior Court, Case No. SCV 242225).) In its decision, the court reasoned that:

"[G]iven the strict rules of constitutional interpretation, the statutory scheme [of SB 440] is not unconstitutional as it may be followed to avoid the binding nature of the arbitrator's decision. The County may reject the arbitrator's determination, or fail to act and succumb to the binding outcome. It is not the duty of this court to determine what motives the Legislature had in enacting this set of statutes. The law may be complied with, resulting in no obligation whatsoever to abide by the arbitrator's decision. As such, this court cannot find it to be facially unconstitutional."

Within days of the trial’s court decision, the First District Court of Appeal issued a temporary stay. The Court of Appeal also ordered the parties to submit briefs on whether the County’s writ seeking to overturn the trial court decision should be granted. (First District Court of Appeal, Case No. A122450.) Those briefs have now been filed. The parties are now awaiting a decision from the Court of Appeal as to whether it will intervene by writ; which seems likely given how quickly the Court issued its stay and the unsettled nature of the statute. Thus, it appears that an appellate decision on the constitutionality of SB 440 is well on its way.

Thursday, September 11, 2008

Parties' Mutual Mistake Does Not Reopen Bargaining

Berkeley Unified School District (PERB Dec. No. 1976-E) (Issued on 9/9/08)

In 2005, the Berkeley Unified School District (District) and the Berkeley Federation of Teachers (Federation) were engaged in contract negotiations. The Federation alleged that during bargaining the District asserted that it was legally prohibited from using parcel tax revenue to fund its mandatory reserve. This had the practical effect of reducing the amount of money available to fund employee wages and benefits.

After negotiations concluded and a new contract was agreed to, the Federation discovered that the District could in fact legally use parcel tax revenue to fund its reserve. The Federation then demanded that the District reopen negotiations on a provision that the Federation said it would not have agreed to but for the District’s original representation. When the District refused to reopen negotiations, the Federation filed an unfair practice charge alleging bad faith bargaining.

The Board analyzed the bad faith bargaining charge as a refusal to bargain, a per se violation. The key issue was whether the District had an obligation to reopen negotiations on the disputed provision. The Federation argued that the disputed provision was a product of a “mutual mistake of fact” and thus subject to rescission. The Board then embarked on an analysis of both PERB and NLRB law to determine whether a mutual mistake of fact triggered a duty to bargain over the disputed contract.

The Board noted that both PERB and the NLRB recognized that a “unilateral mistake of fact” could trigger a bargaining obligation in limited circumstances. Specifically, both PERB and the NLRB recognized the legal significance of a contract provision based on mistake of fact when: (1) the mistake is a unilateral one; and (2) rescission is raised as a defense to a bad faith bargaining charge.” However, the Board emphasized that demonstrating a unilateral mistake of fact is extremely difficult. First, the unilateral mistake cannot be caused by a party’s lack of “ordinary diligence.” Second, the mistake must be so obvious that the other party should be put on notice.

The Board then went on to consider the significance of a mutual “mistake of fact.” The Board held that unlike unilateral mistakes of fact, mutual ones do not trigger a bargaining obligation. The Board noted that neither PERB nor NLRB cases recognized mutual mistakes of fact as creating a bargaining obligation. Further, citing to public policy, the Board reasoned that:

“Allowing a party to use rescission based on mutual mistake as a means to reopen the CBA would undermine the integrity and stability of the bargaining process by putting the CBA in a perpetual state of uncertainty. Moreover, such a rule would lead to careless bargaining by discouraging parties from verifying each other’s statements during negotiations in the hopes that it will lead to an opportunity to renegotiate an unfavorable contract provision in the future. Neither result is desirable.”


This is an interesting decision. At first blush, the decision seems to be a departure from PERB’s general practice of following the California statutory contract law. (Barstow Unified School Dist. (1996) PERB Dec. No. 1138-E (PERB generally follows California Civil Code in the interpreting contract language).) Under the California Civil Code, every contract requires that there be “free” and “mutual assent.” (Civ. Code, §1550, 1565.) The Civil Code further provides that consent is not free when obtained through mistake, which can be either a mistake of fact or law. (Civ. Code, §1576, 1577.) California court cases have recognized that contracts can be rescinded in situations involving both unilateral mistakes and mutual ones. Indeed, it has generally been the rule that it is easier to unilaterally rescind a contract based on a mutual mistake of fact, rather than a unilateral one.

Thus, for PERB to follow California contract law with respect to unilateral mistakes of fact but not mutual mistakes of fact initially seems strange. This is especially true since this case arguably involved a mutual mistake of law which is a recognized grounds for contract rescission provided all the criteria are met.

The key to understanding this decision—at least in the mind of this practitioner—can be found in the last paragraph of the decision, which states:

“We recognize, of course, that mutual mistakes of fact will occur in the bargaining process. But the proper place to resolve such mistakes is at the bargaining table. Further, when a party is unwilling to voluntarily surrender a windfall it has received as the result of a mutual mistake, the other party may bring an action in court to rescind the contract. The Board's holding thus places the duty for correcting a mutual mistake of fact in the hands of the parties, where it appropriately belongs, and as a last resort in the courts, with their expertise in matters of contract law.”

This paragraph seems to be a recognition that PERB’s role in bargaining is limited to ensuring the fairness of the process, as opposed to the fairness of the outcome. In short, we (employers and unions) need to take responsibility for our actions and not expect PERB to save us from our mistakes. When mistakes do occur, the proper forum to seek rescission is in the courts who are better equipped to handle such actions. This approach by the Board seems reasonable and fair.

Quite frankly, for consistency sake the Board may want to consider taking this approach with unilateral mistakes as well. After all, the policy arguments advanced by the Board for not recognizing mutual mistakes as triggering a bargaining obligation can apply equally to unilateral mistakes. If a unilateral mistake warrants rescission, why not make the party seeking rescission go to court, just as a party seeking rescission based on a mutual mistake must do. Further, PERB’s continued recognition of unilateral mistakes as potentially reopening bargaining may serve as a loophole to this decision. For example, if this exact case occurs again, what would prevent the Federation from arguing that this was a unilateral mistake, as opposed to a mutual one? It will be interesting to see how this case plays out in the future.

Thursday, August 28, 2008

SB 1296: Keeping PERB Out of It

Over the years, unions (and I guess to be fair, also public employers) have had a love-hate relationship with PERB depending largely on the perception of whether PERB is “friendly” or not to its interests. The same holds true of the NLRB, which is currently perceived to be anti-union; and thus private sector unions have become adept at “NLRB-avoidance” as they call it.

This same dynamic can be seen in the current debate involving PERB’s jurisdiction over strikes that impact public health and safety. (See City of San Jose v. Operating Engineers Local No. 3 (2008) 160 Cal.App.4th 951 (review granted); County of Contra Costa v. Public Employees Union Local One (2008) 163 Cal.App.4th 139 (review granted; briefly deferred pending outcome in San Jose); County of Sacramento v. AFSCME Local 146 (2008) 165 Cal.App.4th 401 (petition for review expected).) On that issue unions are pushing the courts to give PERB exclusive initial jurisdiction over such strikes to avoid local superior courts, which they perceive as much more sympathetic to cities and counties. Their hope is that if PERB declines to intervene in a health and safety strike, that decision will be binding on the superior courts or at least influence the courts to also not intervene.

SB 1296—sponsored by the California Professional Firefighters (CPF)—provides an interesting contrast. SB 1296 seeks to keep PERB out of the way when firefighters want to proceed to interest arbitration under local rules. The preamble of the bill asserts that, “In recent years, the dispute resolution process under PERB has been used as a tool by some employers to impede or eliminate altogether the otherwise appropriate review of issues in an alternative forum adopted by voters.” According to the Assembly analysis, what prompted SB 1296 was the decision in City and County of San Francisco v. International Union of Operating Engineers (2007) 151 Cal. App. 4th 938.

Here is basically the scenario the CPF is worried about: 1) the union reaches a point where it feels remaining disputed issues are ready to be submitted to interest arbitration under local rules, 2) the employer disagrees and refuses to proceed to arbitration, 3) the union files a petition to compel arbitration in superior court, 4) citing to San Francisco the employer then argues that PERB, not the court, has jurisdiction over the dispute since if the employer refused to proceed to arbitration under the local rules that would be an unfair practice subject to PERB’s exclusive initial jurisdiction.

SB 1296 attempts to change this outcome for firefighters seeking interest arbitration by amending MMBA section 3509 to provide that:
“[S]uperior courts shall have exclusive jurisdiction over actions involving interest arbitration, as governed by Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure, when the action involves an employee organization that represents firefighters, as defined in Section 3251.”

SB 1296 recently passed the Legislature and is on its way to the Governor. Even if signed, however, SB 1296 may not give CPF the outcome it desires. This is because of how the bill is drafted. The amendment to MMBA 3509 only eliminates PERB’s jurisdiction, not the MMBA’s. Thus, SB1296 does not prevent the filing of unfair practice charges, it only prevents PERB from hearing them. In effect, it places firefighters in the same category as peace officers who are not subject to PERB’s jurisdiction. Peace officers are still covered by the MMBA and can file unfair practice charges, just not with PERB. They must go directly to court.

So even with SB 1296, an employer could still file an unfair practice charge in court in response to a petition to compel. Under CCP 1281.2(c), there is a special provision that allows the court to stay or abate a petition to compel when there is another action pending. That certainly would seem to apply if there was an unfair practice charge on file based on the same set of facts. If that occurs, SB 1296 will not provide firefighter unions the relief they seek, it will only keep PERB out of it.

Tuesday, July 22, 2008

Court Denies Permanent Injunction in UC Strike

The San Francisco superior court today denied PERB’s request for a permanent injunction against AFSCME. PERB had sought the permanent injunction on behalf of the UC to prohibit AFSCME from calling a strike without sufficient notice and also prohibit certain health and safety sensitive positions from striking at all. The court had issued a temporary restraining order (TRO) against AFSCME on July 11th. In a widely publicized move, AFSCME claimed that the TRO was improper and went ahead with its strike on July 14th.

At the hearing today the judge questioned whether a permanent injunction was “moot” since the AFSCME strike had already occurred. Both PERB and the UC argued that the matter was not moot since AFSCME could, and likely would, initiate another strike in the near future. The judge, however, was not convinced. The judge felt that the language of the injunctive relief request focused solely on a strike set for July 14th, and since that strike had already occurred, the matter was moot. Accordingly, the judge denied the request for a permanent injunction.

Later that day, however, the court did grant UC’s request for an “order to show cause” against ASFCME for violating the court’s TRO. The parties will now submit briefs on that issue. It is expected that AFSCME will argue that no sanctions should be imposed since the order was improperly issued. It should be an interesting case. Stay tuned for more.

Monday, July 21, 2008

PERB’s Jurisdiction Over Units Containing Cops

As discussed in this blog, PERB’s jurisdiction over public employee strikes that threaten health and safety is one of the hot issues in the public sector. Another brewing issue involves PERB’s jurisdiction over bargaining units containing Penal Code section 830.1 peace officers. When PERB gained jurisdiction over administration of the MMBA in 2001, an exception was carved out for Penal Code 830.1 peace officers. (Gov. Code, §3511.) Penal Code 830.1 peace officers include most all city police officers and county deputy sheriffs. As it stands, while Penal Code 830.1 peace officers are subject to the MMBA, they are not subject to PERB’s jurisdiction. Therefore when unions or employers want to bring unfair practice charges under the MMBA, they must go directly to court.

For bargaining units containing exclusively Penal Code 830.1 peace officers, the exclusion created by Government Code section 3511 is straight forward – PERB doesn’t have jurisdiction. However, what happens where a bargaining unit contains both Penal Code 830.1 peace officers and employees that are otherwise subject to PERB? For example, many cities and counties have law enforcement bargaining units that mix Penal Code 830.1 peace officers together with other peace officers, such as correctional officers or probation officers.

The Sacramento County Deputy Sheriff’s Association (SCDSA) is such a unit. 1400 of the 1700 members in the SCDSA are Penal Code 830.1 peace officers. 300 members are not. Late last year, the SCDSA was successful in obtaining a trial court order enjoining PERB from asserting jurisdiction over a dispute involving the SCDSA. PERB argued before the court that it retained full jurisdiction over the dispute because the SCDSA contains 300 peace officers subject to PERB’s jurisdiction. The trial court disagreed, noting that “the overwhelming majority of SCDSA members are [830.1] peace officers and it is those peace officers who would be affected by a PERB decision.” The case is currently on appeal in the Third District. (Sacramento County Deputy Sheriff's Assoc. v. Public Employment Relations Bd. et al., Court of Appeal Case No. C057877.) Briefing is expected to be completed in late 2008, and a decision expected in 2009.

Monday, July 14, 2008

AFSCME Defies Court Order; Goes on Strike

According to the Sacramento Bee, about 500 AFSCME members are picketing in front of UC Davis Medical Center this morning, in defiance of a court order enjoining such a strike. When told of UC’s threat to discipline employees who defied the court order, one demonstrator replied that the possibility of discipline was a just a “rumor.”

In my opinion, all the employees who went on strike today are engaged in unprotected activity as far as state labor law is concerned. That means there is nothing prohibiting the UC from imposing discipline on employees participating in the strike. The UC would of course have to demonstrate good cause for any discipline, but I think that standard would be met by the fact that the striking employees are defying a court order. Obviously, AFSCME’s defense will be that the court order was improper. However, defying a court order in the hope that it will in the future be deemed improper is a high stakes gamble. It will be interesting to see how this all plays out.

Also, I received several inquiries on yesterday’s blog post inquiring as to the grounds for the TRO issued by the court. It’s not entirely clear. Here is the language from the court’s order:

"1. That Defendant AFSCME Local 3299, its agents, employees, representatives, officers, organizers, committee persons, stewards, members, and all corporations, unincorporated associations, and natural persons acting in concert and participation with any of them, until a hearing or trial on a preliminary injunction, be enjoined and restrained;
a. from calling, engaging in, continuing, sanctioning, inducing, aiding, enticing, encouraging, abetting or assisting employees who are members of the Service Unit from engaging in any strike, walkout, slowdown or strike-related work stoppage of any nature against the University of California without adequate notice of the exact dates of the strike;
b. from calling, engaging in, continuing, sanctioning, inducing, aiding, enticing, encouraging, abetting or assisting employees of the Patient Care Technical Unit, including but not limited to those employed in the classifications identified in Exhibit "A," from engaging in any strike, walkout, slowdown or strike-related work stoppage of any nature against the University of California;
c. from continuing in effect or refusing to rescind any strike, walkout, slowdown, or work stoppage, notice, call, order or sanction heretofore issued by Defendant with respect to the Service Unit strike scheduled to commence on July 14, 2008."

AFSCME’s position is that the order only prohibits a strike without adequate notice. AFSCME argues that once it gives adequate notice, it can go on strike. This position is probably based on the language of section (a).

Section (b), however, clearly prohibits any strike by members of the Patient Care Technical Unit, irrespective of whether adequate notice is given. The basis for section (b) is most likely the threat to public health & safety.

Section (c) seems to prohibit any strike by the Service Unit beginning July 14th. As I read section (c), even if AFSCME could go on strike by giving adequate notice—as it argues it is permitted to do under section (a)—it couldn’t give notice for a strike beginning July 14th. It would have to give notice for some later date. If I was the UC or PERB, I would argue that any new notice must be for a strike occurring after the hearing on a permanent injunction, which is scheduled for July 22nd.

Therefore, as I read this order it enjoins any strike beginning July 14th and arguably enjoins any strike until July 22nd.

Saturday, July 12, 2008

PERB Stops Threatened UC Strike

On July 11th, PERB obtained a temporary restraining order (TRO) against AFSCME Local 3299 from the San Francisco Superior Court. The TRO enjoins members of AFSCME’s Service Unit and Patient Care Technical Unit at the University of California—approximately 19,000 total employees—from engaging in a threatened strike beginning July 14th. In seeking injunctive relief, PERB asserted that AFSCME had engaged in bad faith bargaining and that the strike by patient care employees would pose a serious threat to the delivery of care to UC patients. Although the threat to public health and safety was one of the grounds for seeking injunctive relief, the TRO appears to enjoin all members of AFSCME Local 3299 from striking, not just those employees in sensitive health and safety positions.

This is one of the first times in recent memory that PERB has moved to enjoin a strike on the grounds that it threatens public health and safety. PERB’s jurisdiction to enjoin health and safety strikes is an issue that has been heavily litigated this past year. Recently, the California Supreme Court granted review in City of San Jose v. Operating Engineers Local No. 3 (2008) 160 Cal.App.4th 951 to decide whether PERB has exclusive jurisdiction over health and safety strikes. One of the issues fanning the debate over PERB’s jurisdiction is the question of whether PERB’s injunctive relief procedures allow it enough time to intervene in strikes that threaten public health and safety and that are often called by unions with little or no notice. Here, on July 2nd AFSCME apparently informed the UC that it would be going to strike, although it did not provide the dates of the strike. Nevertheless, that was enough time for the UC to file a charge and injunctive relief request with PERB and for PERB to process the request and go into court in time to stop the strike before patient lives were endangered.

One interesting note: According to the July 12th edition of the San Francisco Chronicle, Lakesha Harrison, President of AFSCME Local 3299, was quoted as saying that AFSCME Local 3299 would strike despite the court order. Presumably, cooler heads will prevail and AFSCME will obey the court order. If not, and AFSCME knowingly defies the court order by going on strike, the penalties imposed by the court will undoubtedly be severe.

Wednesday, May 28, 2008

Court: PERB Does Not Have Exclusive Jurisdiction Over Essential Employee Strikes

Contra Costa Co. v. Public Employees Union Local One (--- Cal.Rptr.3d ---, 2008 WL 2136950 (Cal.App. 1 Dist.)

In response to a threatened strike by public employees, the County of Contra Costa (County) sought a court injunction prohibiting “essential” employees from participating in any strike. Of the 5800 employees threatening to strike, the County argued that 270 employees were essential to maintaining public health and safety. PERB intervened in the court proceedings to assert that it had exclusive initial jurisdiction over the dispute since any strike would arguably be protected or prohibited by the Meyers-Milias-Brown Act (MMBA).

Finding that the MMBA was not implicated by the County’s application for an injunction, the court rejected PERB’s attempt to assert jurisdiction. The court similarly rejected the unions’ assertion that it could not issue an injunction without complying with Labor Code 1138—California’s version of the Norris-LaGuardia Act. The court then issued a temporary restraining order (TRO) enjoining 160 employees from striking because they were essential to maintaining public health and safety. The enjoined employees included airport operations specialists, animal services workers, probation counselors, and various County hospital workers. The court also issued a TRO forbidding nurses from engaging in a sympathy strike.


PERB Does Not Have Exclusive Jurisdiction over All Strike Issues

The Court of Appeals, First Appellate District affirmed the trial court’s ruling that PERB did not have jurisdiction over this dispute. The court acknowledged that because of legislative changes in 2001, “PERB now has jurisdiction over strikes under the MMBA insofar as the strikes constitute unfair labor practices.” However, the court noted that neither the courts nor PERB has ever held that all strikes implicate unfair labor practices.

Examining the facts in this case, the court found no allegation that either party had committed an unfair practice. Because no unfair practice was alleged, the court distinguished several other cases arising under EERA. Those cases all held that PERB has exclusive jurisdiction over requests for injunctive relief; but those cases all involved situations where unfair practice charges had already been filed with PERB.

The court also discussed the Sixth District Court of Appeals’ recent decision in City of San Jose (160 Cal.App.4th 951 (2008)). In City of San Jose, the court reached the opposite conclusion as the court here, finding that PERB has exclusive jurisdiction over essential employees’ strikes. The court here called the City of San Jose decision overbroad as it would give PERB jurisdiction over every public employee strike, thus eviscerating the rights of public employers under County of Sanitation.

Labor Code Section 1138 Does Not Apply to Public Safety Injunctions

Finally, the court affirmed the trial court’s ruling that Labor Code section 1138 was not applicable to this dispute. In evaluating the applicability of Labor Code section 1138, the court noted that several of the factors in the statute made no sense in the context of a public employee strike. For example, one requirement is that there is a showing of substantial and irreparable injury to a party’s “property.” The court noted that there is no property at stake here, but rather the public’s health and safety. After examining some of the other factors, the court concluded that Labor Code section 1138.1 was not applicable here because the present case does not involve an unfair labor practice and arguably is not one “involving or growing out of a labor dispute.” The court stopped short, however, of expressly holding that Labor Code section 1138 does not apply to public entities or public employees.


The court in this case reached the opposite conclusion as the one in City of San Jose . Because there is now a split of authority over this issue, look to the Supreme Court to grant review of one of these cases in order to resolve the dispute

In the meantime, a public employer facing a strike by essential employees must carefully evaluate its options. If the employer decides to seek injunction relief through PERB—by alleging an unfair practice—this case suggests that there is a higher likelihood that PERB will have exclusive jurisdiction over the dispute.

A public employer that decides to proceed directly to court under County of Sanitation may assert the same arguments as Contra Costa County in this case and hope that the court will reach the same conclusion. However, public employers that proceed in this fashion should expect an attempt by PERB to intervene in any court proceedings in order to assert its “exclusive jurisdiction.”

Thursday, May 15, 2008

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.


PERB analyzed this case primarily as one raising the issue of standing; namely, did Marriott, as an individual employee, have standing to challenge SEIU’s reorganization. On the issue of standing, PERB’s decision is clearly correct.

However, the more interesting issue—and the one not directly raised in this case—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 PERB 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.

Thursday, May 1, 2008

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.

Tuesday, April 8, 2008

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.

Monday, March 17, 2008

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.

Tuesday, March 11, 2008

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.

* 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...

Tuesday, March 4, 2008

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).


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.

Wednesday, February 20, 2008

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.”


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.

Thursday, February 14, 2008

PERB Overrules Contracting-Out Waiver Case

Long Beach Community College District (PERB Dec. No. 1941E) (Issued on 1/30/08)

The MOU between the Long Beach Community College District (District) and its Police Officers Association contained a management rights clause which reserved to management the right to “contract out work.” Relying on this clause, the District made the decision to contract out all of its police services to the City of Long Beach without negotiating with the union. The union asserted in its unfair practice charge that the waiver was intended only to apply to contracting out for armed services during special campus events, and was not intended as a general waiver over all contracting out decisions.

In 2003, PERB’s Office of the General Counsel dismissed the union’s unfair practice charge on the ground that the MOU language constituted a waiver of the union’s right to negotiate over contracting out decisions. The union appealed the dismissal to the Board which overturned the dismissal in Long Beach Community College District (2003) PERB Dec. No. 1568E (Long Beach I). In Long Beach I, the Board found that the phrase “contract out work” was ambiguous because some contracting out decisions were negotiable or some were not, and it was not clear from the MOU language itself what rights were being waived. The Board did hold, however, that the District could assert its defense at a hearing before an Administrative Law Judge (ALJ) where presumably the District would submit extrinsic evidence on the meaning of the disputed MOU language. In reaching its decision in Long Beach I the Board expressly overruled Barstow Unified School District (1996) PERB Dec. No. 1138.

The case then went before an ALJ. The proposed decision of the ALJ found that the District failed to demonstrate that the union had waived its right to negotiate over all contracting out decisions. Accordingly, the ALJ found that the District had committed an unfair practice.

The District then filed exceptions with the Board. In its decision, Long Beach Community College District (2008) (PERB Dec. No. 1941E) (Long Beach II), the Board overruled Long Beach I finding that the MOU language “contract out work” was a clear and unambiguous waiver of the union’s right to negotiate over the District’s decision.

Noteworthy is the fact that the Board gave very little weight to the union’s extrinsic evidence that the MOU language was not a far-reaching waiver. Prior PERB decisions have suggested that extrinsic evidence may be utilized by a party to demonstrate a “clear and unmistakable” waiver. This decision may signal a distaste by the Board for resorting to extrinsic evidence to prove a waiver. Such a move makes sense since logically, contract language cannot be “clear and unmistakable” if one has to resort to extrinsic evidence to ascertain its meaning.

Other Notes

Interestingly, this is not the first time the Board has overturned a prior Board’s decision in the same case, when that case came back before the Board. Two years ago, the Board in State of California (Department of Corrections) (2006) (PERB Dec. No. 1826S) overturned the prior Board’s decision in State of California (Department of Corrections) (2003) PERB Decision No. 1579-S (Corrections). As a side note, in that decision the Board ordered the prior Board’s decision to be “vacated.” In Long Beach II, the Board ordered the prior Board’s decision reversed and overruled. It is not clear whether vacating a decision is any different than overruling it; however, the effect presumably is the same.

Also interesting in Long Beach II is that the Board found that the District failed to negotiate with the union over the “effects” of its decision. To remedy that violation, the Board ordered the District to provide backpay to all the police officers who were laid off going back to August 1, 2003. Depending on how much the officers were able to mitigate their damages, the District’s backpay liability could be significant. The backpay order probably assures that neither party is fully satisfied with the Board’s decision in Long Beach II. It will be interesting to see if one or both of the parties attempt to take this case to the Court of Appeal.

Wednesday, February 13, 2008

Scope of Representation is Limited under the Trial Court Act

Fresno County Superior Court (PERB Dec. No. 1942C) (Issued on 01/31/08)

This is one of the first cases under the Trial Court Act to go before an administrative law judge and the Board. The issue was whether the Fresno Superior Court’s decision to require all court reporters to provide “realtime” court reporting services was within the “scope of representation.” Relying on the unique language of the TCA, the Board held that it was not.

The TCA, similar to all the other acts administered by PERB, provides that the “scope of representation shall include all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment.” (Gov. Code 716349(a).) However, the TCA goes further and provides that:

“In view of the unique and special responsibilities of the trial courts in the administration of justice, decisions regarding the following matters shall not be included within the scope of representation:
(1) The merits and administration of the trial court system.
(2) Coordination, consolidation, and merger of trial courts and
support staff.
(3) Automation, including, but not limited to, fax filing,
electronic recording, and implementation of information systems.
(4) Design, construction, and location of court facilities.
(5) Delivery of court services.
(6) Hours of operation of the trial courts and trial court system.”

PERB found that the provision of “realtime” reporting by court reporters constituted a “delivery of court services” under the TCA.

Although PERB held that the Court’s decision to require court reporters to provide “realtime” court reporting services was not negotiable, the impact of that decision was negotiable. However, relying on City of Richmond (2004) PERB Decision No. 1720-M (Richmond), the Board held that the union failed to adequately request to bargain over any impact, and thus, had waived their rights.

Wednesday, January 2, 2008

PERB Annual Report: HEERA Still Most Contentious

PERB's Annual Report for 2006-2007 is now available on its wesbite.

In fiscal year 2006-07, 823 unfair practices charges were filed with PERB, compared to 1012 the year before; a 19% decrease. Interestingly, that decrease was due mostly to the number of unfair practice charges filed under HEERA, which went from 328 in 2005-06, to 92 in 2006-07.

Despite the drastic decrease in the number of unfair practice charges, higher education still remains the most contentious of the public sector arenas based on the number of unfair practice charges compared to the number of employees covered under each Act.

Consider, according to PERB's 2006-07 annual report, 71 charges were filed under Dills, 343 under EERA, 92 under HEERA, and 297 under MMBA. The number of employees covered under each Act is (roughly): 125,000 under Dills, 675,000 under EERA, 100,000 under HEERA, and 1,000,000 under MMBA.

Based on these figures, the number of unfair practice charges filed per 10,000 employees is: 5.68 under Dills, 5.08 under EERA, 9.2 under HEERA, and 2.97 under MMBA. Thus, HEERA generates almost 2 to 3 times the number of unfair practice charges as the other acts.