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.
Tuesday, July 22, 2008
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.
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.
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.
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.
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