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 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.