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.