PERB Issues 2008-2009 Annual Report

PERB released its annual report for fiscal year 2008-2009 back in October. (The report is available here.) I’ve been remiss in reporting on it; but better late than never. Here are the highlights for 2008-2009:

Unfair Practice Charges

868 unfair practice charges (UPCs) were filed in fiscal year 2008-09. This represents a 6.3% increase from the 816 UPCs filed in 2007-08. Since PERB assumed jurisdiction over the MMBA in 2001, UPC filings have been averaging over 800 a year, roughly double the number before 2001.

The increase in UPCs for 2008-09 can be largely attributed to the Dills Act and MMBA. The Dills Act went from 137 UPCs in 2007-08 to 167 in 2008-09; a 22% increase. The MMBA went from 261 UPCs in 2007-08 to 310 in 2008-09; a 19% increase. All the other statutes only increased or decreased nominally.

The increase in UPCs for 2008-09 is consistent with what I predicted last year. For the coming year, I predict that UPC filings will rise again. However, I believe the big increase will come under EERA, and to a lesser extent, the MMBA. This is because the budget situation appears to be just as bad this coming year as last. And unlike last year, there will be no stimulus funds to save the day for schools and in all public jurisdictions the less-painful cuts have already been made. That combination is going to create a lot of tension between management and labor as both sides search for money to close the budget gap.

ALJ Proposed Decisions

In 2008-09, the ALJs at PERB issued 52 proposed decisions; taking an average of 94 days for each decision. This is an increase from the 44 decisions issued in 2007-08. However, the length of time it takes to issue a decision stayed the same. I expect these numbers to remain at these levels in 2008-09.

Year: # of Proposed Decisions (Average # of Days)
2008-09:  52 (94)
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

For 2008-09, the Board itself issued 89 decisions. It also considered 19 injunctive relief (IR) requests. The 89 decisions issued represent a 37% increase from the 65 decisions issued in 2007-08.  For 2009-10, I don’t expect the number of Board decisions to increase much, if at all, since the 5-member Board already has one vacancy and could possibly see another in early 2010.

The chart below lists the number of decisions issued by the Board since 2001. In past years, the Board has sometimes included IR requests in its decision count. So to make things easier, I have listed the number of Board decisions, IR requests, and the total.

Year: # of Board Decisions/IR Requests/Combined Total
2008-09:  89/19/108
2007-08:   65/28/93
2006-07:  87/16/103
2005-06:  80/23/103
2004-05: 142/14/156
2003-04:  128/13/141
2002-03:  73/14/87
2001-02:  44/23/67

So as you can see, the number of decisions issued by the Board this past year is the highest it has been since the 2003-04 and 2004-05 years. As I mentioned above, I don’t expect the number of decisions to increase in 2009-10 because of the Board member vacancy.  So far this year (2009-10), the Board has issued 38 decisions and I expect a few more will come out before the end of the calendar year.  That’s right on track for approximately 80 decisions this coming year.

Governor's Communication to Employees was Permissible

State of California (Department of Personnel Administration) (2009) PERB Decision No. 2078-S (Issued on 11/24/09)

Facts

This unfair practice charge arose out of bargaining between the State of California (State) and the Stationary Engineers Local 39, International Union of Operating Engineers, AFL-CIO (Local 39) in 2008. Local 39 alleged that the State committed an unfair practice by: (1) failing to make or respond to economic proposals during bargaining; (2) failing to respond to information requests; (3) making bargaining proposals directly to employees; and (4) claiming it had no authority to bargain over economic items after stating at the outset of negotiations that it had such authority.  The Board agent dismissed the charge in its entirety.  Local 39 appealed the dismissal to the Board on all its allegations, except for allegation number 2 (failure to provide information).

The parties began bargaining in April 2008.  According to the charge, negotiators from the Department of Personnel Administration (DPA) told Local 39 that they had authority to negotiate over all issues.  However, in May 2008, Local 39 alleged that DPA negotiators told it they had no authority to address economic proposals until after the State budget was passed.  Even after the budget passed, Local 39 alleged that DPA negotiators continued to claim they had no authority to negotiate over economic items.

In November 2008, DPA told Local 39 that the Governor would be holding a press conference to discuss the State budget crisis. The DPA representatives said the Governor was considering several proposals that would impact State employees, including one furlough day per month, a reduction in holiday premium pay, changes in overtime calculation methods, and the elimination of Columbus Day and Lincoln's Birthday as State holidays.  Also in November, the Governor issued a letter to all State employees informing them of “a projected $11 billion revenue shortfall this fiscal year.”  The letter detailed four measures affecting State employees that would be proposed to the Legislature as part of the Governor's plan to close the budget gap: (1) one furlough day per month for 18 months; (2) elimination of Columbus Day and Lincoln's Birthday as State holidays; (3) increased ability to work four ten-hour days per week (4/10 workweek); and (4) elimination of leave time from overtime calculation.  The letter assured State workers that, “we are working closely with union leadership to achieve results in the least painful way possible.  All the actions we're proposing must first be approved by the Legislature.”

Board's Decision

On appeal, the Board held that DPA’s failure to make economic proposals was not, by itself, sufficient to establish bad faith bargaining.  Importantly, the Board affirmed the principle that, “it is permissible for an employer to defer bargaining over economic items when its financial situation is uncertain.” (State of California (Department of Personnel Administration) (1986) PERB Decision No. 569-S.) The Board also affirmed that it does not constitute bad faith bargaining for an employer to defer making a firm economic proposal until it "has had an opportunity to review the final budget in good faith in order to determine the funds potentially available for salary increases." (State of California, Department of Personnel Administration (1990) PERB Decision No. 823-S.)

Similarly, the Board rejected Local 39’s contention that it constituted bad faith bargaining for DPA negotiators to claim a lack of authority to negotiate economic proposals. The Board affirmed that in the public sector, “it is not an unfair practice for a negotiator to discuss issues and make proposals that are subject to ratification by the employer.” (Oakland Unifed School District (1983) PERB Decision No. 326.)  A negotiator's lack of authority only constitutes an unfair practice when it is used to foreclose the achievement of any agreement.

Finally, the Board addressed Local 39’s contention that the Governor’s communication to employees constituted unlawful direct dealing. The Board found that there was no allegation that the Governor was attempting to bargain directly with employees.  Further, the Governor’s communication did not contain any threats of reprisal or promise of benefit.  The only theory that Local 39 appeared to allege was that the communication “undermined” its authority in the eyes of its bargaining unit members.  The Board noted that it had found a violation under such a theory in only one case, California State University (1989) PERB Decision No. 777-H. 

In that case, the California State University had published an article in its newsletter stating that it had offered a 4% raise and implied that it would take effect.  The Board found that the publication “tend(ed) to diminish the authority of the exclusive representative at the table, as well as in the eyes of bargaining unit employees.” Here, however, the Board distinguished California State University because the Governor’s communication clearly indicated that the State would fulfill its bargaining obligations.  Accordingly, the Board affirmed the dismissal.

Comments:

1. There are several items in this decision that are helpful for public employers.  First, public employers should be pleased that the Board has affirmed the rule that it is not an unfair practice to delay economic bargaining until the budget is passed. This should be especially comforting to schools, local agencies, and universities who all find themselves at the mercy of the State legislature and Governor each year during the budget process.
2. Next, I think the Board’s treatment of California State University is important. In my opinion, that 20-year old decision was wrongly decided and should be overturned.  I have never understood why completely factual information transmitted by the employer to employees should be considered an unfair practice.  It’s not as if the unions are prohibited from responding. To the contrary, unions regularly communicate with employees regarding the status of bargaining.  Often, unions will make claims that the employer feels are untrue.  What happens is that the employees who view those untrue claims then take out their frustration and/or anger on the employer, including supervisors, managers, and governing board members.  It seems only fair that when that occurs an employer should be able to respond with completely factual information.  To the extent such communications may “diminish” the union in the eyes of its members—it seems to me—that is a function of the facts, and should not be an unfair practice.  So I would have preferred that the Board just overturn California State University.  However, I can live with the holding here: that California State University doesn’t apply (at least) where the employer makes it clear in the communication that bargaining is continuing and/or that it will meet its bargaining obligations.

Beyond Furloughs

I’ve been meaning to write on the issue of furloughs for a while as our firm has been dealing with the issue throughout the state. As I’ve commented publicly, part of the reason we’ve been successful in negotiating furloughs in a number of jurisdictions is because the unions have largely been cooperative.  From the perspective of unions, furloughs allow them to save jobs.  The unions also believe—correctly in my view—that once the economy recovers, it will be a lot easier to end furloughs than it will be to fill positions where people have been laid off.  However, with next year’s state budget not looking that much better, many public agencies are going to have a make tough choices.  Continue furloughs?  Impose layoffs? Cut services? Or something else?

Layoffs v. Furloughs

A recent article out of the Wharton School of Business helps shed some light on why furloughs have been in vogue during this recession. According to the article, in the past the investment community favored layoffs in response to economic downturns. “If you laid people off, it looked like you were taking action. It looked like you were cutting costs, and the investment community used to reward companies every time they announced that.  As a result, there was strong evidence that employers announced more layoffs than they actually executed.”  Thus, by laying-off employees companies were often rewarded by investors (ie their stock price went up).

However, recently that thinking has begun to change.  Many companies have discovered that layoffs extract a heavy price in terms of severance payments, potential litigation, decreased productivity and morale among those remaining, and general dissatisfaction among employees.  According to the article, “many companies have discovered in this most recent downturn that having an effective layoff -- one that actually helps the organization rather than inflicting strategic damage on the organization -- is fairly difficult to do.”  The investment community has also taken notice of the negative side-effects of layoffs. As a result, the investment community does not seem to be “rewarding” companies for layoffs today in the way it did in the past.

With the realization that layoffs may not be the best option in response to an economic downturn, many companies and public entities turned to furloughs as the next obvious choice.

What Happens Next?

However, the notion of furloughs as a better alternative to layoffs necessarily requires that the furloughs be short-term.  If maintained long-term, furloughs become nothing more than pay-cuts that harm employee morale and may cause the best employees to look for jobs elsewhere.  Thus, furloughs only make a lot of sense if you expect your financial problems to only last a year or two.  The problem for public agencies is that economic conditions in California may not improve significantly anytime soon.

According to a Pew study, the recession has been so deep that many states may not see revenues rebound until late in the next decade.  It’s difficult to imagine furloughs lasting that long.  So instead, according to the Pew study, “some states are moving beyond short-term fixes to rethink the role and structure of government with the goal of delivering high quality, but fewer services, at lower costs. Targeted are functions and agencies that overlap or are no longer relevant.”  Thus, cutting services may have to be part of the discussion in California.  Quite simply, as a state we may not be able to afford the level of services that has been provided in the past.

The Pew study also noted that, “After hiring freezes, furloughs are the preferred short-term option for most states, because they preserve morale and keep talented workers on the job for better days ahead.” However, according to the study, “A better way for states to weather fiscal ups and downs is to increase the number of contract workers.”  Most corporations maintain about 25 percent of their workforce through flexible contracts, while most states have a contingent workforce in the single digits.

Thus, in addition to cutting services, contracting out may have to be considered.  Contracting out certainly makes sense economically.  If you maintain a permanent workforce at a level sufficient to handle the “valleys” and contract out temporary employees to handle the “peaks” you can avoid layoffs and furloughs altogether, at least in theory.  However, any discussion of contracting out in the public sector must take into account the role (and opposition) of unions. Contracting out existing bargaining unit work is generally negotiable.  And because unions consider contracting out a direct attack on their very existence, you can expect that they will fight tooth and nail to oppose any contracting out.  More important, in any discussion about contracting-out you can expect unions to use their political might as well.  So it is doable?  Will public agencies go that route?  We’ll have to wait and see …

Pre-Layoff Due Process Hearings: What’s Required?

Alameda County Management Employees Association v. Alameda County Superior Court (Alameda Superior Court Case No. RG09-464432) (Tentative ruling issued 12/9/09)

In 2008, the Ninth Circuit Court of Appeal issued a surprise ruling in Levine v. City of Alameda, 525 F.3d 903 (9th Cir. 2008) suggesting that a public employee who is laid-off from work is entitled to a pre-layoff due process hearing.  That decision shocked public employers because no other decision had suggested such a requirement.  Levine also seemed to conflict with Duncan v. Department of Personnel Administration, 77 Cal.App.4th 1166 (2000), a California appellate decision which held that pre-layoff due process hearings are not required.  After Levine became final, the consensus among most public practitioners was that pre-layoff hearings are only potentially required in situations where the employee argues that he or she has been targeted for layoff, in lieu of discipline.  In situations involving mass layoffs, it was believed that Duncan would still apply.  However, because of the uncertainty and risk, many public agencies decided to offer pre-layoff Skelly-type hearings just to be safe.

Recently, the court in Alameda County Management Employees Association v. Alameda County Superior Court issued a tentative ruling on whether pre-layoff hearings are required.  To my knowledge, this is one of the first times any court has addressed this issue.

Are Pre-Layoff Hearings Required?

In considering whether pre-layoff due process hearings are required, the court quoted extensively from Duncan. The court seemed to agree with Duncan that a layoff, unlike a disciplinary action, carries no “stigma” that attaches to the employee. This is especially true in the case of mass layoffs. The court also agreed with Duncan that, “It is one thing for the State to provide a predeprivation hearing for a single employee who has been demoted because of misconduct. [Citation omitted] It is quite another to require the State to conduct pre-layoff hearings for 95 employees in the midst of a financial crisis.  Indeed, the cost of such hearings would simply exacerbate the crisis, primarily because the State would have to keep the affected employees on the payroll pending the outcome of the hearings.”

However, despite this favorable language from Duncan, the court noted that Levine held that an employee selected for layoff is entitled to a pre-layoff hearing where there is evidence that the employee was targeted for layoff.  Here—not surprisingly—all the employees in the lawsuit were alleging that they were targeted for layoff as a pretext for discipline.

If so, What Exactly Is Required?

Instead of ruling on whether pre-layoff hearings are required, the court was able to avoid the issue by finding that even if a pre-layoff hearing was required, the employees here received that.

Specifically, that court noted that due process in these situations does not require a full trial-type evidentiary hearing. Instead, the court held that as a minimum, what was required was, “notice of the proposed action, the reasons therefore, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” Here, all the employees received the following notice with the layoff paperwork:

“If you think that the [Employer] has incorrectly determined to lay off your position, you may within three (3) working days from receipt of this notice, submit an explanation in writing to the Assistant Executive Officer.”

The court held that such notice and the opportunity to respond in writing was sufficient to meet any pre-layoff due process rights. This was especially true, according to the court, since the employees all had the right to a post-layoff evidentiary hearing.

Comments:

1. This is a tentative ruling in a superior court case, so you can’t read too much into it.  However, it should be noted that the ruling was authored by Justice Mallano, the Presiding Justice of Division One of the Second District Court of Appeal. (He was appointed to avoid a conflict of interest by the Alameda superior court judges)
2. The tentative ruling largely confirms the consensus among practitioners that Levine kicks in only when there is an allegation that the layoff is pretextual.  Of course, the problem is that unions aren’t stupid and that given Levine, they are going to advise employees to argue pretext in every layoff situation.  This case is a prime example of that.  Here, the layoffs were done by seniority. Nevertheless, all 13 of the laid-off employees argued that they were “targeted.”
3. So what’s an employer to do? Well, if you want to play it absolutely safe, an employer should give employees some opportunity to respond to the layoff notice.  This ruling says that the response can be in writing, which certainly makes things easier.  But again, it’s just a tentative ruling in a non-precedential superior court case so you can’t read too much into it.  Hopefully, in the near future we’ll get some more clarification from the courts.

If You Don't Want to Bargain Over a Permissive Subect, Say So...

State of California (Department of Personnel Administration) (2009) PERB Decision No. 2081-S (Issued on 11/24/09)

This case involved an appeal from a dismissal. The California Correctional Peace Officers Association (CCPOA) alleged that the State committed an unfair practice by insisting to impasse on a permissive subject of bargaining. Specifically, CCPOA asserted that the State included several provisions in its last, best and final offer that constituted waivers of employee rights. For example, the State proposed a continuance of a contract provision whereby CCPOA agreed that it would not directly bring an action against the State for violations of the Fair Labor Standards Act. The Board agent dismissed the charge on the ground that CCPOA failed to make known its objections to the State’s proposals on such permissive subjects of bargaining.

On appeal, the Board affirmed the well-established rule that a party may not legally insist upon the acceptance of a proposal involving a permissive subject of bargaining "in the face of a clear and express refusal by the union to bargain" over them. (Citing to Lake Elsinore School District (1986) PERB Decision No. 603.) However, the Board held that its precedent also established that the party objecting to a non-mandatory subject “clearly communicate its opposition to further consideration of the proposal.” Once a party makes its objection clear, the party proposing the non-mandatory subject of bargaining may not insist to impasse on it.

Here, CCPOA asserted that its response to that State that, “YOUR CURRENT PROPOSAL HAS SEVERAL SECTIONS THAT REQUIRE US TO AGREE TO WAIVE STATE LAW FOR OUR MEMBERS. THAT IS NOT A LEGITIMATE EFFORT TOWARDS AN AGREEMENT” placed the State on notice of the union’s objection. The Board disagreed, finding that such a response and CCPOA’s other actions failed to communicate “clear opposition” to the State’s permissive proposals.  Accordingly, the Board affirmed the dismissal.

Comments:

This is not a ground-breaking case, but a good reminder that if you don’t want to negotiate over permissive subjects of bargaining you must clearly say so.

The reality is, however, that most permissive subjects of bargaining find their way into contracts as the quid pro quo for a mandatory subject of bargaining.  Most employers also realize that you can’t insist to impasse on a permissive subject of bargaining.  However, nothing prevents an employer from offering something “extra” in exchange for agreement on a permissive subject as long as the employer continues to bargain in good faith over other mandatory subjects.  That’s how most permissive subjects are bargained.

PERB: Complaint Must Issue on Union's Violation of DFR

IBEW Local 1245 (Flowers) (2009) PERB Decision No. 2079-M (Issued on 11/24/09)

Of the 35 Board decisions issued so far this year, 9 have been brought against unions alleging a violation of the duty of fair representation.  That's not unusual as DFR cases typically make up 25% of the Board's caseload.  In eight of the cases this year, the Board affirmed the dismissal of the unfair practice charge. In IBEW Local 1245 (Flowers), the Board actually overturned the Board agent’s dismissal. Getting a complaint issued on a DFR charge is not easy, so I thought this case was worth highlighting.

There are not a lot of facts.  The employee was terminated from his employment.  Under the collective bargaining agreement, the employee’s right to challenge his termination through arbitration was controlled by the union. The union filed a grievance on the employee’s behalf.  However, the employee never heard from the union again until a few months later when a union representative called the employee and said that union would not take the case to arbitration.  The union representative offered no explanation.

Under these facts, the Board held that the employee had stated a prima facie violation of the duty of fair representation.  First, the Board held that it could be inferred from the facts as alleged that the union did not undertake any investigation or evaluation into the merits of the employee’s case.  Second, the Board affirmed that the DFR requires a union to offer the employee an explanation as to why it will not elevate a case to arbitration.  Here, the union allegedly failed to provide such an explanation.  Accordingly, the Board overturned the dismissal and ordered a complaint to be issued.

Comments:

1.  The facts in this case are unusual as most unions are acutely aware of their DFR obligations.  As long as a union does its due diligence and makes an informed decision about whether to take a case to arbitration, getting a DFR complaint issued is virtually impossible.  So congrats to Steve Bassoff for getting the Board to issue a complaint.

2.  However, the employee should not start celebrating just because a complaint has issued.  The hard part is still ahead: the employee has to actually prove a violation of the DFR.  Undoubtedly, the union will come into the hearing and provide an explanation as to why it did not take the case to arbitration.  However, does that cure the fact that the union didn't provide that explanation to the employee at the time?  In my mind it shouldn't.  However, even if it doesn't what's the remedy?  That's the problem with the current DFR jurisprudence - in the extremely rare instance where an employee can actually prove a DFR violation the remedy almost always falls short of making the employee whole.  Hopefully, given the right case, the Board will address this issue sometime in the future.

City Not Required to Implement Last, Best, Final Offer

City of Clovis (2009) PERB Decision No. 2074-M (Issued on 10/30/09)

This case involved an allegation by the Clovis Public Works Employees' Affiliation (Union) that the City of Clovis committed an unfair practice by refusing to implement its last, best, and final offer of a three percent wage increase.

Facts:

The parties began negotiations on a wage re-opener in May 2007.  After multiple bargaining sessions the parties were unsuccessful in reaching agreement.  On July 13, 2007, the City proffered its last, best, and final offer of a three percent salary increase, effective July 1, 2007.  On July 17, 2007, the Union rejected the offer and declared impasse. After unsuccessful mediation attempts the parties resumed negotiations but made no progress.  On September 28, 2007, the Union’s chief negotiator sent a letter to the City's chief negotiator stating that the City's proposal had been voted down by the membership and the Union again declared impasse.  Soon thereafter the Union also informed the City that it intended to file an unfair practice charge.

The Union’s chief negotiator assumed that the City would implement its last, best, and final offer of a three percent salary increase.  However, by late January 2008, the City had not implemented the three percent wage increase.  On February 1, 2008, after discussions with union membership, the Union’s chief negotiator left the City’s chief negotiator a message stating that the Union would dismiss the pending unfair practice charge if the City would implement the three percent salary increase contained in its last, best, and final offer.

At the PERB hearing, the City’s chief negotiator testified that he understood the Union’s proposal to be nothing more than a settlement offer of the unfair practice charge.  However, based on the facts described above the ALJ found that the Union’s message was an acceptance of the City’s last, best and final offer and therefore created a binding agreement between the parties.  Because the City didn't implement the offer, the ALJ concluded that the City committed an unfair practice.

The Board’s Decision

For the first time this year (2009-2010), the Board rejected the ALJ’s proposed decision.  First, the Board noted that under MMBA section 3505.4, once an impasse has been properly reached between the parties, a public agency "may implement its last, best, and final offer." (Emphasis added.)  The Board held that this provision is permissive, not mandatory.  Therefore the City was under no obligation to implement its last, best, and final offer at impasse. 

Next, the Board found that the evidence at hearing was inadequate to establish an unconditional acceptance of the City’s offer.  More importantly, the Board held that even if the Union had validly accepted the City's last, best, and final offer, that alone did not create a binding and enforceable agreement under the MMBA. This is because MMBA section 3505.1 requires that any agreement be reduced to writing and ratified by the City Council before it becomes binding on the parties. Accordingly, the Board rejected the proposed decision and dismissed the complaint.

Comments:

1.  The Board’s decision is absolutely correct.  Because the Board rejected the ALJ’s decision, a copy of the proposed decision was not attached.  You have to go to the “CA-PER” database in Westlaw to find the ALJ’s proposed decision. When you look at the ALJ’s proposed decision, you will see that the ALJ exclusively cited to private sector NLRB cases. But there is a huge difference between the NLRB and MMBA when it comes to the concept of who has the ultimate authority to bind the employer.  Under NLRB precedent, it is potentially an unfair practice to send a negotiator who doesn’t have authority to bind the employer. However, under MMBA section 3505.1, it is plain that only the governing body of a local agency has the authority to ratify an agreement for the City.  In the same way the union’s membership can reject a contract, a City Council or County Board of Supervisors can also reject a contract.  Thus, the City's chief negotiator did not have the authority to "bind" the City in the manner the ALJ found.

2.  This is (I believe) the first case under the MMBA that expressly affirms two very important principles.  One, under the MMBA only the governing body of a local agency can bind the agency.  As mentioned above, this is a critical difference between the MMBA and the NLRB, and to some extent even with the other public sector statutes.  Second, the imposition of an employer’s last, best, and final offer is not mandatory, but rather permissive.  Thus, where a union rejects an offer of a raise because it isn't enough, it bears the risk that the employer will choose not to implement any raise at all.  Here, in retrospect, I'm sure the Union wishes it would have accepted the 3% offer back in 2007.

PERB: Police Search Was Adverse Employment Action

Trustees of the California State University (San Marcos) (2009) PERB Dec. No. 2070-H (Issued on 10/15/09)

This case involved an appeal from a dismissal. The unfair practice charge alleged that the California State University (San Marcos) (“CSU”) violated the Higher Education Employer-Employee Relations Act (HEERA) by: (1) unilaterally transferring bargaining unit work to non-unit employees; and (2) retaliating against an employee for using union representation in a dispute over his work assignments. The Board agent dismissed both allegations for failure to state a prima facie case. The Board affirmed the dismissal of the allegation that CSU unlawfully transferred bargaining unit work.  However, the Board reversed the dismissal on the retaliation charge.

With respect to the retaliation charge, the union alleged that one of its bargaining unit members, Rafael Lopez, was retaliated against for filing grievances and utilizing union representation. One of the issues PERB considered was whether the union established that Lopez suffered an adverse employment action. The unfair practice charge alleged that Lopez’ supervisor initiated a false complaint against him that resulted in Lopez’ car being searched by campus police.

In its decision, PERB noted that it had previously held that the filing of a citizen's complaint against an employee with the knowledge that it would lead to an investigation by the employer can constitute an adverse employment action. (California Union of Safety Employees (Coelho) (1994) PERB Decision No. 1032-S.)  Here, the union alleged that Lopez’ supervisor filed a complaint with campus security claiming that Lopez had stolen state property.  The complaint resulted in campus police searching Lopez' personal vehicle.  Under these facts, PERB held that, “A reasonable person would be concerned about the effect of the search on his or her employment because it could lead to discipline, criminal charges, or both.  Thus, despite the fact that Lopez was never disciplined or charged based on the search, we find the vehicle search was an adverse action.”

Comments:

This case caught my attention because of the report to campus police.  The fact that the alleged adverse employment action was based on a police report should normally trigger the absolute protection of Civil Code section 47(b).  Significantly, Section 47(b) was apparently not raised by the parties; or at least it was not addressed by PERB.

Section 47(b) establishes an absolute privilege for statements made during judicial proceedings. The courts have held that Section 47(b) “gives all persons the right to report crimes to the police, the local prosecutor or an appropriate regulatory agency, even if the report is made in bad faith.” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350.)  Section 47(b) has been held that bar all tort causes of action, except a claim for malicious prosecution, based on statements made in a judicial proceeding such as a report to law enforcement.

One of the key cases in this area is Brown v. Department of Corrections (2005) 132 Cal.App.4th 520 (“Brown”). In Brown, an employee of the Department of Corrections filed a whistle-blower complaint under Labor Code section 1102.5 alleging that the department made a police report against him because of his whistleblower activities.  The court held that the department’s report to the police was absolutely privileged under Section 47(b).  While acknowledging the public policy underlying the whistleblower statute, the court nevertheless found that the “importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity outweighs the occasional harm that might befall a defamed individual.  Thus the absolute privilege is essential.”

Under Brown, the absolute privilege of Section 47(b) has been held to trump discrimination statutes.  Similarly, I believe the statutory protections of HEERA must similarly yield to the absolute privilege of Section 47(b).  While there is certainly a public policy in preventing retaliation against employees who participate in protected union conduct, that public policy cannot trump the policy in favor of promoting the reporting of crimes—even if made in bad faith—to law enforcement.  Indeed, that’s exactly the point of the absolute privilege. 

Thus, even though this decision is precedential, I believe that if the Section 47(b) defense is properly raised, PERB will have no choice but to recognize that a police report cannot form the basis of an adverse employment action.

PERB Stops Strike in Palo Alto

On September 23, 2009, PERB sought and received a temporary restraining order (TRO) from the superior court prohibiting certain health and safety employees in the City of Palo Alto from engaging in a strike called by SEIU Local 521. That TRO applied to public safety dispatchers, water quality control operators, mechanics, and electrical workers, among other employee classifications. On October 15, 2009, the court issued a preliminary injunction, extending the injunction set forth in the TRO indefinitely. In the preliminary injunction, the court specifically found that:

“1. Plaintiff has established the probable validity of its claims and the probability that there is an immediate danger that Defendant SEIU will violate the Government Code by engaging in a strike or work stoppage. Failure to issue this Preliminary Injunction would result in an imminent threat to public health, safety and welfare.

2. This is a proper case for issuance of a Preliminary Injunction, and unless a Preliminary Injunction issues, the City of Palo Alto will face substantial and irreparable injury.”

Comments

This is only the second time this year that PERB has sought injunctive relief on behalf of a party. The first was back in July when PERB obtained a TRO against AFSCME Local 3299, prohibiting it from engaging in a strike against the University of California. Since then PERB has received several requests for injunctive relief, mainly by unions seeking to prevent employers from imposing last, best and final offers. To date, all those requests have been denied, presumably because PERB found no “irreparable harm" as any violation could be remedied later on.

In contrast, PERB has appeared willing to grant requests for injunctive relief when health and safety employees threaten to strike. In my opinion, this is as it should be. By definition, strikes by health and safety employees have the potential to cause irreparable harm to the general public. As such, these situations are tailor-made for PERB’s injunctive relief powers. Quite frankly, I still believe it would be more efficient and make more sense to allow public entities to go directly to superior court to seek injunctive relief, instead of having to detour to PERB first. However, I'm glad that PERB has acted aggressively in stopping these strikes.

10 New Employment Laws You Probably Haven't Heard Of . . .

Last week the Governor signed over two hundred bills and vetoed at least that many. Over the next few weeks, I’m sure we will all be receiving various bulletins describing the major new labor and employment laws in California.  So instead of duplicating that effort, I decided to highlight 10 obscure new laws that affect public sector employment in California.  Have fun reading.

1.  AB 32 (D-Lieu) - Public officials: Personal Information.
Allows an elected or appointed official, or his or her employer, to obtain an injunction against any person or entity that publicly posts on the Internet the home address or telephone number of that official.

2.  AB 381 (D-Block) - Unemployment Compensation Disability Benefits: Academic Employees.  Allows community college districts to elect to provide state disability insurance (SDI) coverage to academic employees who are permanent, part-time, or temporary; and, to management, confidential, and employees who are not part of a bargaining unit.

3.  AB 485 (D- Carter) - Civil Air Patrol: California Wing: Employment Leave.
Requires an employer to provide 10 days of unpaid leave to an employee called to service by the Civil Air Patrol.  (Not just a public sector law)

4.  AB 567 (R- Villines) - Government Practices.
Amends the California Whistleblower Protection Act (CWPA) to cover as “employees” those persons appointed to state boards or commissions

5.  AB 681 (D- Hernandez) - Confidentiality of Medical Information: Psychotherapy.
Allows for the disclosure of confidential medical information (as opposed to a mere Tarasoff warning) by a psychotherapist when there is a serious imminent threat to the health and safety of a reasonably foreseeable victim or victims. Disclosure must be pursuant to a request for information from law enforcement or the target of the threat (which presumably would include employers and/or employees that are targeted).  (Not just a public sector law)

6.  AB 955 (D- León) - Public Safety Officers Procedural Bill of Rights Act: Discipline.
Amends the Public Safety Officers Procedural Bill of Rights Act to clarify that a public agency is not be required to impose discipline within the one-year limitations period; only the investigation and notice of discipline must be completed within the year.

7.  AB 1227 (D- Feuer) - Workers’ Compensation: Public Employees: Leaves of Absence.
Expands the availability of Labor Code 4850 leave—which allows injured peace officers to receive a full year’s pay tax-free—to include local park rangers, community college police, and school district police officers.

8.  AB 1245 (D- Monning) - Recovery of Public Records.
Establishes a procedure by which the Secretary of State can recover governmental records, belonging to the state or a local agency that are found in possession of non-governmental entities or persons (for example, a former employee).

9.  SB 169 (R- Benoit) - Identification: Honorably Retired Peace Officers.
Empowers the head of a local agency that employs peace officers to bestow upon retirees an honorary badge or other emblem that states that person's position as an honorable retired peace officer from that agency.

10.  SB 644 (R- Denham) - Civil Service Examinations: Veterans’ Preference.
Increases the veterans' preference points provided on open, non-promotional state civil service entrance examinations from 10 to 15 points for disabled veterans, and from 5 to 10 points for all other veterans.

SB 656 Vetoed

Back in May, I wrote about SB 656 (DeSaulnier) which sought to remove from PERB’s jurisdiction any bargaining unit comprised of a majority of peace officers as defined by Penal Code section 830.1. (830.1 officers.).  I was partly ambivalent on the bill but opposed to it on the principle that it’s bad public policy to have certain employees covered by PERB and not others.  I’m pleased to report that the Governor has vetoed SB 656 for the same reasons. Here is the Governor’s veto message:

“To the Members of the California State Senate:

I am returning Senate Bill 656 without my signature.

While I am supportive of employee rights, this bill would create an inconsistent treatment of non-peace officer employees in unions with peace officer majorities and similar non-peace officer employees that are in unions without a peace officer majority. I do not believe a sufficient case can be made why one group should circumvent the existing dispute resolution process that currently exists through the Public Employment Relations Board. For these reasons, I am unable to sign this bill.

Sincerely,

Arnold Schwarzenegger”

An Employee Must Expressly Request Representation Under Weingarten Doctrine

San Bernardino County Public Defender (2009) PERB Decision No. 2058-M (Issued on 9/03/09)

This was a fairly typical Weingarten case. In order to establish a violation of the right to union representation, the charging party must demonstrate that: 1) the employee requested representation; 2) for an investigatory meeting; 3) which the employee reasonably believed might result in disciplinary action; and (4) the employer denied the request. Here, the employee alleged that she was forced to attend an investigatory interview where she was denied union representation. The employer’s main defense was that the meeting was not investigatory in nature.

In the proposed decision, the ALJ commented that the employee satisfied the first element when she “at least expressed her reluctance to attend the meeting without union representation.” In its decision, the Board found the ALJ’s statement “inconsistent with long-standing PERB precedent that requires employees to affirmatively request union representation in order to invoke their rights to representation at an investigatory interview. Instead, the Board held that, “expressing reluctance to attend an investigatory interview without union representation is insufficient, standing alone, to invoke the right to union representation.”

Comments:
 
This decision isn't particularly ground-breaking.  It's always been the case that an employer has no obligation to offer an employee a union representative if the employee doesn't ask for one.  This case just makes it clear that the request from the employee must be explicit.

Hawaii Court Stops Furloughs

Hawaii State Teachers Ass'n et. al. v. Linda Lingle, Governor, State of Hawaii et. al. (Hawaii Circuit Court, First Circuit, Case No. 09-1-1372-06 KKS) (Issued on 7/29/09)

Many people have mentioned that in addition to a federal district court in Maryland, a trial court in Hawaii has also enjoined public employee furloughs. Unlike the case in Maryland, the Hawaii case involved a state court ruling. Hawaii is one of only five states in the nation where the right to engage in collective bargaining is enshrined in the state constitution (the other states are New York, Florida, Missouri, and New Jersey). The scope of representation in Hawaii includes, “wages, hours, and other conditions of employment.” In June 2009, Governor Lingle announced that the state was going to unilaterally impose 3 furlough days per month on all state employees. Not surprisingly, the state employee unions brought suit to stop the planned furloughs.

Instead of filing a charge with the Hawaii Labor Relations Board (“HLRB”), the unions went directly to court. Under Hawaii law, the HLRB has “exclusive original jurisdiction” over controversies involving the state’s collective bargaining laws. However, the law expressly provides that “nothing herein shall prevent the pursuit of relief in courts of competent jurisdiction.” Based on the latter language, the court held that the unions were entitled to seek relief directly with the courts instead of having to go through the HLRB.

On the merits, the state court had little trouble finding that a plan imposing 3 furlough days per month affected the “wages, hours, and other conditions of employment.”  Indeed, from the decision it wasn’t even clear if the state itself thought it had a valid defense. I think the state’s primary argument was that there was an “emergency” justifying the Governor’s unilateral actions. However, the court found that the Governor failed to properly raise an “emergency” defense; instead, the Governor justified the furloughs on the need to achieve labor cost savings.

Comments:

All in all, I don’t consider this case to be ground-breaking.  It was a trial court decision in Hawaii so it has no precedential value either.  I think the California courts and PERB would have reached the same result given these facts.  I do think that the public sector labor relations statutes in California allow some flexibility for employers to unilaterally change terms and conditions of employment in "emergencies."  (That right is expressly provided for in the Dills Act.)  Unfortunately, what constitutes an emergency has never been clearly delineated by PERB or the courts.  Governor Schwarzenegger, unlike Governor Lingle, expressly raised the "emergency" defense in response to challenges to the furloughs.  So the California cases will be much more interesting than the one in Hawaii.

Effort to Block Municipal Bankruptcies is Back

I previously wrote about AB 155 (DeSaulnier, D-Concord), which would have prohibited municipalities from declaring bankruptcy without first obtaining approval from the California Debt and Investment Advisory Commission.  AB 155 was sponsored by unions hoping to prevent another “Vallejo” situation from occurring.  Fortunately, AB 155 got bogged down in committee and was going no where fast.  Unfortunately, the provisions in AB 155 have now been resurrected into SB 88 in a “gut and amend.”

As I stated previously, I believe such a bill is completely unnecessary. I think the bankruptcy court’s recent decision in Vallejo throwing out the IBEW contract actually supports my position. Although the court threw out the IBEW contract, it did so only after an exhaustive analysis under applicable law. It’s hard to imagine that a “commission” stacked with partisans could do a better job than the bankrtupcy court at such an analysis. While you may disagree with the court’s ultimate conclusion, I think even unions would be hard pressed to deny that they got a fair hearing.  I doubt the same could be said of any proceeding before a "commission" of politicians.

Bankruptcy Court Rejects Vallejo MOU

In re Vallejo (U.S.E.D. Bankruptcy Case No. 08-26813-A-9) (Issued 8/31/09)

The federal judge hearing the City of Vallejo’s bankruptcy case has tossed out the MOU between the City and the International Brotherhood of Electrical Workers (IBEW). The City had initially asked the court to toss out all its MOUs.  However, the City was able to reach agreements with all its unions, with the sole exception of the IBEW.  Even the firefighters—the group most responsible for pushing the City into bankruptcy—agreed to dissolve their MOU in exchange for an expedited negotiations process for a new one.  The last holdout was the IBEW.

Most observers did not expect the judge to toss the IBEW MOU without trying to apply more pressure on the parties. So the timing of the court’s decision was a bit of a surprise.  In its decision, the court held that the City had met the standards set forth in NLRB v. Bildisco & Bildisco, 465 U.S. 513, 521-22 (1984) (Bildisco) for rejection of a collective bargaining agreement in bankruptcy.  Specifically, the court made the following findings:

1. The Court found that the IBEW MOU was “burdensome” within the meaning of Bildisco. The court based this finding on the fact that the IBEW MOU would require another salary increase in fiscal year 2009-10 and further imposed “significant burdens, such as costs related to active and retiree health benefits and compensated absences” on the City. The court also found that the City’s financial situation will likely continue to deteriorate in the next two years. Given these facts, the court concluded that the “City cannot afford the IBEW [MOU].”

2. The court held that the balance of equities supported rejection of the MOU. This conclusion was based on the findings that compensation under the IBEW MOU is above market. Also, the court noted that all the other employee unions voluntarily agreed to modify their respective MOUs—even the firefighters. Based on these facts, the court held that, “It is equitable to reject the IBEW [MOU]”

3. Finally, the court found that the City had made reasonable efforts to reach voluntary agreement with IBEW. This was based on the fact that the parties met numerous and exchanged several proposals. The court also found that the City had negotiated in good faith as evidenced by the agreements reached with all the other unions.

Based on these findings, the court concluded that the IBEW MOU should be rejected.

Furloughs in the News

The National Law Journal just did an article on the likely effect of the Maryland furlough case and also a recent case out of Hawaii. The article includes some comments I provided the reporter on the potential effect (really, none) of those cases in California. The article can be found here.

Are Furloughs Unconstitutional? Unions Claim Victory in Maryland

Fraternal Order of Police v. Prince Geroge's County (U.S. District Court, Maryland) (Issued on 8/18/09)

Unions representing public employees throughout the nation have been crowing about a recent federal court decision in Maryland finding that Prince George’s County violated the federal Constitution when it furloughed nearly 6,000 county employees for 80 hours during fiscal year 2009.

Facts

Facing a $57 million budget deficit, the county implemented a furlough plan for employees. The unions sued the county arguing that the furlough plan violated the Contracts Clause of the Constitution. The district court agreed. The court held that the furloughs substantially impaired the bargaining agreements which were voluntarily entered into by both the unions and the county. Central to the court’s holding was the fact that—according to the court—the county did not fully explore alternatives to furloughs. The court also noted that the county had over $230 million in reserves—half of which were unrestricted funds—and that the county had recently touted its fiscal health in order to bolster its financial rating when issuing over $100 million in bonds.

Comments

The unions have been widely circulating this case since it represents one of the few victories unions can claim on this issue. However, what effect might this decision have in California? In my opinion, none.

First, the decision is a district court decision. While the decision is intriguing, it has no precedential value. Second, this case involved a constitutional claim and did not address any issues under labor law. This is because Maryland labor law only covers employees of the state and its school system. In contrast, all of California’s public sector employers are subject to one of several collective bargaining statutes and most of California’s public employees have exclusive representatives. Thus, in California, most furlough programs have been negotiated with unions. When furloughs are negotiated there cannot be any violation of the federal Constitution’s contracts clause.

I suppose the constitutional issue could arise if a California public employer unilaterally imposed furloughs on employees while an MOU was in effect. However, such an action is far more likely to draw an unfair practice charge with PERB. (The exception is the State of California itself which pursuant to the Dills Act, Gov Code 3516.5, has the authority to implement changes within the scope of representation during in emergency situations). Presumably, a union could also bring a breach of contract action under state law in such a situation.

The only other situation where furloughs might be imposed would be upon impasse as part of an employer's last, best, and final offer. However, in an impasse situation the MOU has already expired. So again, there cannot be any violation of the federal Constitution’s contracts clause.

So while unions around the nation may consider this case a victory, I don’t see it having any effect in California.

[Many thanks to Genevieve Ng for helping me draft this post]

Alameda Minimum Staffing Fight Continued to November 2011

I’ve been following with interest a battle over a minimum staffing initiative in the City of Alameda (City). In January of this year, the City began engine company “brownouts” because of the budget crisis. In response, the firefighters’ union began circulating a petition for a local ballot measure that would mandate a minimum staffing level of 27 firefighters per shift. At the time, the City had 24 firefighters per shift.

In March, while the petition was still circulating, the City took the unusual step of filing a lawsuit against the measure’s backers. The City argued that the measure constituted “an improper exercise of the initiative power pursuant to Article II, Section 8, of the California Constitution and the City Charter” and requested that the court relieve the City Clerk from having to validate and tabulate any signatures that were gathered. While the lawsuit was still pending, the firefighters were able to gather signatures from about 25% of the electorate by June, more than enough to qualify the measure. The City then had no choice but to schedule the measure for a vote.

According to news articles, the big debate was whether the measure should be put on the ballot in November 2009, at a substantial cost to the City since it would be a stand alone matter on the ballot, or some later time. At its August 3, 2009 meeting, the City Council voted to put the measure on the ballot in November 2011—the latest it could do so. The City Council also voted to drop its lawsuit.

At first blush, it seems like a clever move by the City Council—talk about putting a measure on ice! However, if the economy improves substantially by November 2011, it might actually be harder to defeat the measure. Everyone knows that the public likes to support public safety and if there is plenty of money, people are going to be inclined to vote for anything that makes them feel safer. Had the measure been put on the ballot this year or even June 2010, given the current economic climate, the additional cost to the City from the minimum staffing measure (estimated at $4 million/year by City staff) measure might have doomed it.

Furlough Fridays Return to PERB

I've been told that "Furlough Fridays" are returning to PERB. In July, PERB will be closed on July 10, 17, and 24. After that, PERB will be closed the 1st, 2nd, and 3rd Fridays of each month. If you have a filing due on a furlough Friday, refer to PERB reg. 32130. Note, PERB has not yet announced the Friday closures on its website. Until it does, I recommend confirming the closures with the Board agent or Appeal's office if you have something due just to be safe.

Fiscal Year Ends; PERB's Numbers Are Up

[UPDATED (7/6/09): 2 more Ad decisions, 1 Recon, and 1 Bd Decision bring the total number to 89. Plus, someone pointed out that my historic numbers did not all always include IR requests, so I made that clear.]

The fiscal year has ended for PERB. PERB's annual report is not due until October, but I have some preliminary numbers based on my own record keeping.

For the 2008-09 fiscal year, my numbers show that PERB issued 89 decisions, not including any requests for injunctive relief. This includes: 80 Board decisions; 3 Reconsideration decisions; and 6 Administrative decisions. In terms of which acts the decisions came under, it breaks down as follows:

MMBA: 34 decisions
EERA: 34 decisions
Dills Act: 11 decisons
HEERA: 8 decisions
Trial Court: 1 decison
Court Interpreters: 1 decision

I estimate that PERB probably considered 12 injunctive relief requests, which would bring the total number of decisions to 101. Last year the Board issued 65 decisions along with 28 requests for injunctive relief, for a total of 93.

Year: Bd. Decisions/IRs/Total

2008-09: 89/12/101 (est.)
2007-08: 65 /28/93
2006-07: 87/16/103
2005-06: 80/23/103
2004-05: 142/14/156
2003-04: 128/13/141
2002-03: 73/14/87
2001-02: 44/23/67

Union Must Submit to Binding Interest Arbitration

Stationary Engineers Local 39 (2009) PERB Decision No. 2041-M (Issued on 6/29/09)

In this case, PERB affirmed an ALJ’s proposed decision finding that the Stationary Engineers Local 39 (Local 39) violated the MMBA by refusing to participate in binding interest arbitration pursuant to San Francisco’s local rules. What is interesting in this case is the position advacned by Local 39. Local 39 argued that San Francisco’s binding interest arbitration provision conflicted with the MMBA. According to the decision:

“Local 39 contends that interest arbitration conflicts with the MMBA's ‘intent that
agreements be reached by bargaining, rather than being imposed by the unilateral declaration of one side of the bargaining process.’ Agreements should be the result of compromise and a "reasonable accommodation of the needs of both parties.”

In other words, Local 39 argued that San Francisco’s binding arbitration procedure was an unreasonable local rule under the MMBA because terms and conditions of employment are imposed upon the parties, rather than reached through negotiations. PERB easily rejected that argument. However, I think it’s safe to say that Local 39’s position on binding interest arbitration is unusual and certainly not shared with most (if not all) other unions. Indeed, the ALJ noted in the decision that, “it is commonly known that many unions believe interest arbitration to serve their interests.” That’s an understatement. The reality is that San Francisco is one of only two local agencies (the other being Vallejo) where binding interest arbitration is available to non-safety employees. I’m willing to bet that non-safety unions in other cities and counties would love to have what Local 39 has in San Francisco.

However, looking at Local 39’s history, I’m not surprised by its position in this case. Over the years I’ve (very grudgingly) developed a respect for Local 39. The engineers have a reputation for hard bargaining and a willingness to engage in job actions. They also (like SEIU) understand the critical need for organizing. That makes them a force to be reckoned with and explains why they have been very successful in many places. They obviously feel that with their success, they can gain more for their members through traditional bargaining rather than relying on binding interest arbitration. In some sense, Local 39’s desire to stick with traditional bargaining is refreshing.

PERB: Implied Right of Access Exists Under MMBA

Omitrans (2009) PERB Decision No.2030-M (Issued on 5/29/09)

Section 3507, subdivision (a), of the MMBA provides, in relevant part, that:

“A public agency may adopt reasonable rules and regulations after consultation in good faith with representatives of a recognized employee organization or organizations for the administration of employer-employee relations under this chapter. The rules and regulations may include provisions for all of the following: . . . (6) Access of employee organization officers and representatives to work locations.”

Thus, under MMBA section 3507(a)(6), a union’s right to access employer facilities has always been subject to an employer’s reasonable rules. However, the question has often arisen, what’s reasonable? I’ve always told employers that having a rule that denies all access would be considered unreasonable under the MMBA. Short of that, it’s hard to say.

In this case, PERB relied on NLRB precedent to find that there is an implied right to access under the MMBA. Specifically, PERB held that, “Considering the language of the MMBA in light of the well -established implied right of access grounded in the non-interference and non-discrimination provisions of other labor relations statutes, we hold that the MMBA grants a recognized employee organization a right of access to a public agency's facilities for the purpose of communicating with employees subject to reasonable regulation by the public agency.”

Comments:

1. By finding an implied right to access the Board has essentially set minimum standards for what constitutes reasonable regulation of a union’s access rights. Those minimum standards are comprised of the body of case-law developed by PERB over the years. In other words, you can still adopt a reasonable rule under the MMBA, but if you're rule provides less access rights than under EERA, HEERA, or Dills, then it's (likely) unreasonable. Here, PERB is sending a clear signal that it views access rights under the MMBA no differently than under the other major statutes.

2. If this case is not appealed and becomes final (my bet is that it will be appealed), every MMBA employer should review its rules and regulations governing reasonable access and compare those rules to PERB’s existing standards. For example, many local rules limit union access to only certain activities (eg only grievance processing, but no general union meetings), require certain procedural rules to be met (eg advance notice, obtaining permission, etc.), and otherwise limit union access to sites even during non-work times. Those rules should be evaluated to see if they are consistent with PERB case-law; if not PERB might find the local rule “unreasonable” as it did in this case.

Final Comments:

Lastly, I’ll just note that in this case PERB issued a very unusual remedy. Here, the employer had the employee arrested when he wouldn’t leave the premises. That caused the employee all sorts of legal problems. Because PERB found that the employee had a right to be in the break-room, it order the employer to make the employee whole, including: 1) paying the employee’s attorneys’ fees that he incurred in the criminal proceedings; and 2) joining the employee in petitioning the court to have his record expunged.

That leads me to my final comments. For employers, be aware that calling in the police on the union really ups the ante (that's putting it mildly). Unless property is being damaged or people are getting hurt, I don't advise having your employees arrested. You're better off imposing discipline (if it's unprotected and unlawful activity) and/or filing an unfair practice charge with PERB, including seeking injunctive relief if necessary. For union folks, I still think you're better off abiding by the maxim "obey now, grieve later." It's just not worth the risk of defying your employer's direct order to make a point; make your point before PERB.

UPDATE: I've been informed that Omitrans has just filed a writ challenging this decision.

Non-profit El Camino Hospital Subject to MMBA

El Camino Hospital District (2009) PERB Decision No. 2033-M (Issued on 5/29/09)

The facts in this case are fairly convoluted. However, it boils down to this. The El Camino Hospital (Hospital) is a nonprofit 501(c)(3) corporation. It’s sole shareholder is the El Camino Hospital District (District), which is a public entity. The hospital owns its building but the District owns the land the building sits on. The Hospital and District have separate budgets. However, the actual people who sit on the governing board of the Hospital also sit on the governing board of the District. SEIU submitted a petition to conduct an agency fee election at the Hospital. The Hospital refused to allow an election. This unfair practice charge followed. The primary issue was whether the Hospital was subject to the MMBA.

In its decision, PERB noted that the MMBA covers every “public agency” except those covered by other public sector labor relations statutes (e.g. EERA, HEERA, Dills, etc). In contrast, the NLRA expressly excludes from its coverage "any State or political subdivision thereof." (29 U.S.C. § 152(2).) Thus, broadly speaking, the MMBA covers those public agencies excluded by the NLRA. The test for determining whether an employer is a political subdivision, and therefore excluded from NLRB jurisdiction, is if it is either: (1) created directly by the state, so as to constitute a department or administrative arm of the government, or (2) administered by individuals who are responsible to public officials or the general electorate. (NLRB v. Natural Gas Utility District (1971) 402 U.S. 600.) Applying this test, PERB found that the Hospital was indeed a public entity subject to the MMBA.

Even if the Hospital is not a public entity, PERB held that it was still subject to the MMBA under the “single employer” doctrine. A single employer status exists where two nominally separate entities are actually part of a single integrated enterprise so that there is, in reality, only a single employer. (Public Transportation Services Corporation (2004) PERB Decision No. 1637-M. The Board looked to the following four factors to determine the existence of a single employer relationship: (1) functional integration of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership. Applying these factors, PERB found that the District and the Hospital could also be properly characterized as a single employer and subject to the MMBA under that doctrine.

Comments:

1. To my knowledge, this is the first case where an entity organized as a non-profit 501(c)(3) corporation has been found to be a “public entity” under the MMBA.

2. Similar cases involving auxiliary organizations affiliated with a particular CSU or UC campus have arisen under HEERA. Most of those cases have concluded that the auxiliary organization—often times also a non-profit 501(c)(3) corporation—is not an employer under HEERA. (See Trustees of the California State University (2006) PERB Decision No. 1839-H (“CSU”).) CSU, at first blush, seems very similar to the facts here, in El Camino. There, CSU created a non-profit corporation to develop student housing because such an entity could obtain lower financing rates. There was some overlap in management, as CSU officers served on the corporation’s Board of Directors and its executive director was appointed by the CSU president. The corporation owned the student housing and the CSU owned the land. In that case, PERB held that the corporation was not subject to HEERA and that the corporation and CSU were not a “single employer.”

3. These 2 cases are very similar and probably represent the dividing line between single employer and separate entities, which shows that there is a still a fertile ground for litigation in this area. The evidence of a “single employer” is probably slightly better in El Camino since the management was identical and there really was no principled distinction between the two entities.

4. In addition, these 2 cases can also be distinguished because CSU arose under HEERA while El Camino involved the MMBA. The MMBA has a much broader definition of employer than HEERA, which only covers the CSU and UC. Thus, the question in CSU wasn't whether the corporation was a public entity, but whether it was an employer covered under HEERA. However, would the corporation in CSU be considered a public entity covered by the MMBA? That's an interesting question that didn't arise in CSU.

PERB: Equitable Tolling Also Applies to MMBA

Solano County Fair Association (2009) PERB Decision No. 2035-M (Issued on 6/09/09)

Following the reasoning set forth in Trustees of the California State University (San Jose) (2009) PERB Decision No. 2032-H (Issued on 5/29/09), the Board held that the doctrine of equitable tolling also applies under the MMBA.

PERB Recognizes Equitable Tolling Under HEERA

Trustees of the California State University (San Jose) (2009) PERB Decision No. 2032-H (Issued on 5/29/09)

This case involved a CSU professor who was demoted because he refused to comply with a university decision on allowing a student to retake an exam. He was demoted in November 2005, but did not file his unfair practice charge until May, 2007—almost two years later. The employee argued that the time for filing his unfair practice charge should be “equitably tolled” during the period of time he was proceeding under the university’s grievance process. PERB agreed.

PERB noted that unlike the other statutes it administers, HEERA does not expressly provide for the tolling of the statute of limitations. (HEERA, §3563.2.) However, PERB noted that in Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072 (“Coachella”), the California Supreme Court held that a six-month statute of limitations applied to the MMBA. The Court came to this conclusion based heavily on the fact that all the other statutes administered by PERB had a six-month statute of limitations. Relying on Coachella, the Board held that the same result should apply to the issue of equitable tolling. Basically, PERB held that it makes sense as a matter of public policy to interpret all the statutes similarly where the public policies are the same.

Comments

I actually disagree with this decision. My disagreement arises from the fact that I believe the Regents of University of California v. Public Employment Relations Bd. (1985) 168 Cal.App.3d 937, 944-945 (1985) ("Regents") case is more applicable to this situation than Coachella. The Regents case involved a very similar situation under HEERA. Basically, the issue involved the rights of non-exclusive representatives. The language on this issue under HEERA differed from the other statutes administered by PERB. As in this case, PERB concluded that even though language in all the other statutes was missing in HEERA, it could still read that language into the act. On appeal, the court disagreed and held:

“We cannot agree with the Board's conclusion that HEERA's omission of a “right to represent” was without significance. It is true that we must accord great respect to an administrative agency's interpretation of the statute it is charged with enforcing. [Citations omitted] But upholding such a reading would go well beyond respect for the agency's interpretation. It would authorize the Board to rewrite the statute to suit its notion of what the Legislature must have intended to say about organizational rights. It would do this in the face of strong evidence of a contrary legislative intent: the Legislature's use of the same construction in four different pairs of statutes, and its failure to use that construction in the statute under scrutiny. The Legislature would be rendered nearly powerless to make changes in the law if we were to permit the Board to interpret this obvious change as an attempt to continue the same legal relationships established in the George Brown Act, EERA, and SEERA."

That’s almost exactly the same situation here. Except the MMBA, the equitable tolling language appears in all the acts under than HEERA. Under Regents, that fact is strong (in my mind presumptive) evidence that the legislature intentionally left the language out.

It’s true that Coachella appears to take a different approach than Regents. That’s why it’s disappointing that the Court in Coachella didn’t discuss the Regents case. However, I believe it’s possible to reconcile the two approaches. Indeed, Coachella acknowledged that where one of the statutes administered by PERB has different statutory language than the others it could be indicative of legislative intent to treat that statute different. Specifically, the Court held:

“[T]he PERB argues that because the Legislature included an express six-month limitation period in every other public employment relations law under the PERB's jurisdiction, the omission of an express six-month limitation period in the MMBA is compelling evidence of a different legislative intent. We would agree if there were any plausible ground for the Legislature to draw such a distinction, or, in other words, if this line of reasoning did not lead to an inexplicable anomaly. The rule that the PERB cites is merely one of several guides to statutory construction; it applies generally but not universally, and we do not find it helpful or controlling here.”

Thus, Coachella basically says that statutory differences should be recognized where there is some reason to do so. Here, in my opinion there is a very good reason to draw a distinction between HEERA and the other acts. HEERA covers the University of California (UC), which is a constitutional agency. Under the constitution, the UC has distinct powers from other public agencies. (e.g. UC policies have the force and effect of statutes. See, e.g., Regents of the University of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 135.) Thus, the Legislature may not have wanted to impose equitable tolling on a constitutional agency.

Last year, the California Supreme Court issued the Miklosy v. Regents of University of California (2008) 44 Cal.4th 876 decision, which actually is very instructive in this case. There, the Court considered a set of whistle-blower statutes where the statute covering the UC contained different language than that covering the state and the CSU. As in this case, there was no legislative history explaining the difference. However, the Court held that there was good reason to treat the UC differently:

“In short, the University functions in some ways like an independent sovereign, retaining a degree of control over the terms and scope of its own liability. Given the University's unique constitutional status, it is not surprising that the Legislature would take a deferential approach when authorizing damages actions against the University.” (Miklosy, at p. 890.)

One might argue that there is no evidence that the Legislature intended to give deference to the UC in crafting HEERA. However, that’s no different than Miklosy. One could also argue Coachella represents a better approach than Regents. Maybe. However, in my mind Coachella was a very different case. There, the Court had to find some statute of limitations since no one was arguing that the absence of an express limitations period meant there wasn’t one. Here, it’s entirely possible that the Legislature excluded the equitable tolling language.

So where does that leave us? This case is precedential and binding on future cases. However, that doesn’t mean the UC or CSU might not try to get PERB to reconsider this issue in the future. This is especially true given that the employee in this case was pro per and likely failed to address the issues I raise above. Also, the CSU didn’t make an appearance in this case so there was no one to competently argue the other side.

School District Can Prohibit Union’s Political Literature in Mailboxes

San Leandro Teachers Assn. v. Governing Bd. (California Supreme Court, Case No. S156961) (Issued on 6/18/09)

The issue in this case was whether a school district can prohibit a union from using the district’s mail system to distribute political literature. The district asserted that it could prohibit political literature under Education Code section 7054, subdivision (a). The California Supreme Court agreed. The Court also held that such a rule did not violate the union’s right to access under EERA and did not violate the union’s first amendment rights.

Firefighters Union Must Pay City’s Attorneys' Fees

City of Alhambra (2009) PERB Decision No. 2036-M (Issued on 6/9/09) (City of Alhambra I) and City of Alhambra (2009) PERB Decision No. 2037-M (City of Alhambra II) (Issued on 6/9/09).

In these two decisions PERB considered when an award of attorneys' fees may be awarded against a party in an unfair practice charge action. In City of Alhambra I, PERB clarified that in order to obtain an award of attorneys’ fees the moving party must demonstrate that the charge was ‘without arguable merit’ and pursued in ‘bad faith’. PERB expressly disavowed prior cases which suggested that the standard was a case without merit or brought in bad faith. Also, PERB clarified that there does not need to have been repetitive bad faith behavior; a single instance is sufficient.

In City of Alhambra I, PERB didn't award attorneys’ fees because while the unfair practice charge was without merit, it wasn’t brought in bad faith. In contrast, in City of Alhambra II, PERB affirmed an award of attorneys’ fees. There, PERB found that the testimony of two of the union’s witnesses was "inherently contradictory, illogical, and unreasonable.” Basically, PERB found that they lied under oath and that lying under oath satisfies both the “without merit” and “bad faith” prongs of the test.

Comments

This is a very rare case where attorneys’ fees are awarded against a party. City of Alhambra I does a great job surveying all the PERB cases involving motions for attorneys’ fee and sanctions. Based on that list, it looks like attorneys’ fees have only been awarded one other time this decade. (See Marin County Law Library (2004) PERB Decision No. 1655-M.)

City of Alhambra I makes the point that attorneys’ fees will only be awarded where an action is without merit and brought in bad faith. When I first read that I was scratching my head trying to think of a situation where a charge could be without merit, yet not brought in bad faith. I only had to get to the end of the decision to find an example, since the Board made exactly that finding in this case. In contrast, in City of Alhambra II the Board found that the union’s witnesses lied under oath, which the Board held was sufficient to warrant the imposition of attorneys’ fees.

PERB Has Issued Several New Decisions

PERB has recently placed on its website 13 decisions issued in the last month. I subscribe to PERB's email notification system for new cases but didn't receive anything in the last month. I've been told that PERB has recently switched to a new computer system, which may require that people re-subscribe to the email notification system.

Correction: I've been told that PERB's email notification system is still working, they're just a little behind on sending out the email notifications. So you don't need to sign-up again.

PERB Chair Tiffany Rystrom Passes Away Following Battle with Cancer

I was deeply saddened today to learn of the passing of PERB Chair Tiffany Rystrom. Governor Schwarzenegger issued the following statement regarding Chair Rystrom's death:

"Tiffany Rystrom capped a distinguished career by channeling her passion for the law into public service. As a member of the Public Employment Relations Board, and most recently its Chair, she raised the bar on quality, integrity and consistency with the law for every decision. I was proud to have her serve in my Administration. The prayers of both Maria and I go out to Tiffany’s family and her partner Angela.”

Chair Rystrom’s full obituary can be found here.

Collective Bargaining: "Be Careful What You Ask For”

California Attorneys v. Schwarzenegger, Court of Appeal Case No. C058415 (Issued on 5/28/09)

With the support of Attorney General Jerry Brown, the union representing state attorneys—the California Attorneys, Administrative Law Judges, and Hearing Officers in State Employment (CASE)—brought a lawsuit seeking to force the State to pay higher salaries. For years, CASE has asserted that state attorneys are paid substantially less than comparable public sector attorneys. Through collective bargaining, CASE has been arguing for “pay parity” but has never achieved its goal. According to CASE, the pay situation is so bad that the State has become “the employer of last resort” for attorneys.

In a published decision, the panel of judges had little trouble rejecting the lawsuit. The court held that even if the pay situation was as CASE said, it was not the court’s role to correct it. Instead, the court—properly, in my opinion—said the correct forum for addressing the pay issue was in collective bargaining or through the Legislature. In a concurring opinion, Justice Scotland noted that Jerry Brown, as Governor, signed the Dills Act which created the system of collective bargaining for state employees. Now, as Attorney General, Jerry Brown is facing the results of that system. Justice Scotland concludes, “To the extent that [the Dills Act] has proved to be unwise or flawed, it is up to the Legislature or the people through the initiative process, not the courts, to correct it.”

Comments:

First, let me disclose that I used to be an attorney for the state and am very familiar with the issues raised in the CASE lawsuit. In fact, I used to be an attorney for the Department of Personnel Administration—which represents the Governor in collective bargaining and defended this case. I also was a Deputy Attorney General and member of CASE, in addition to being an attorney at PERB. So I know all the players in this saga. That said this was a very odd lawsuit; one that had little hope of success from the beginning.

In terms of pay, I fully agree that some state attorneys are underpaid compared to attorneys in other public agencies. The salary disparity is most pronounced in the San Francisco and Los Angeles areas. One way to address the situation would be to provide some sort of geographical differential so that attorneys in higher-cost areas got more compensation. The federal government does this. However, CASE has always steadfastly opposed such a system.

In addition, CASE has made some bone-headed moves in the past. For example, the State has offered CASE salary increases, not enough to achieve full pay parity, but enough to at least start closing the gap. Yet CASE has refused the offers. Also, years ago after a change in leadership CASE got rid of its longtime negotiators—Blanning & Baker. Just a short time later Blanning & Baker was able to negotiate a pay parity provision for state engineers, which probably was one of the greatest achievements of any state union during the Davis Administration. In my mind, there is absolutely no public policy reason why engineers should be entitled to a pay parity provision any more than attorneys. Which only leaves one to wonder what if CASE had stuck with Blanning & Baker. (Disclosure: I used to work for Dick Baker and still think the world of him).

Anyway, in my opinion all these facts just illustrate that CASE can’t blame the collective bargaining system for its woes. After all, other unions have been able to achieve results for its members that the employees could not have obtained individually without collective bargaining. So what does that mean? Maybe CASE should look inward at its own actions. The fact is, there are effective unions and ineffective ones. That’s why the Dills Act, like every other collective bargaining statute, has a system that allows employees to change their exclusive representative.

Status of Binding Interest Arbitration in California

Sacramento County Measure A passed on Tuesday with 52% of the vote. Measure A added additional law enforcement employees to those covered by the County’s binding interest arbitration provision. Because Sacramento County already had binding interest arbitration for deputy sheriffs, Measure A did not add another public entity to the list of those with binding arbitration. As it stands today, there are 24 charter cities/counties in California with some form of binding interest arbitration. They are:

1. Alameda
2. Anaheim
3. Gilroy
4. Hayward
5. Modesto
6. Monterey
7. Napa
8. Oakland
9. Oroville
10. Palo Alto
11. Petaluma
12. Redwood City
13. Sacramento City
14. Sacramento County
15. Salinas
16. San Francisco
17. San Jose
18. San Leandro
19. San Luis Obispo
20. Santa Cruz
21. Santa Rosa
22. Stockton
23. Vallejo
24. Watsonville
    
    Of these 24:

• The first entity to adopt binding arbitration was Vallejo in 1970. The most recent was Oroville in 2004;
• Sacramento County is the only county with binding arbitration (unless you count San Francisco, then there are 2);
• Anaheim is the only public entity in Southern California with binding arbitration;
• Vallejo and San Francisco are the only public entities with binding arbitration covering non-safety employees.
• (To my knowledge) Binding interest arbitration has been invoked in 13 of the 24 entities. They are: Alameda, Anaheim, Gilroy, Hayward, Modesto, Oakland, Palo Alto, Redwood City, Sacramento County, San Francisco, San Jose, San Luis Obispo, and Vallejo. [Update: I've been informed that fire and police in City of Sacramento have also gone to arbitration.]

PERB Issues Trio of Decisions Involving Discrimination

Escondido Union Elementary School District (2009) PERB Decision No. 2019-E (Issued on 4/30/09); County of Yolo (2009) PERB Decision No. 2020-M (Issued on 4/30/09); Alvord Unified School District (2009) PERB Decision No. 2021-E (Issued on 4/30/09).

A couple of weeks ago PERB released a trio of decisions all involving allegations of discrimination for protected union activities. If you’ve handled a discrimination case before PERB, you know that the main issue is often the motive behind an employment action—what is referred to as the “nexus.” PERB has a set of factors it analyzes in order to determine whether the necessary “nexus” has been established. In addition to timing, these factors are: 1) the employer's disparate treatment of the employee; (2) the employer's departure from established procedures and standards when dealing with the employee; (3) the employer's inconsistent or contradictory justifications for its actions; (4) the employer's cursory investigation of the employee's misconduct; and (5) the employer's offering of exaggerated, vague, or ambiguous reasons to justify its conduct; (6) employer animosity towards union activists; and (7) any other facts that might demonstrate the employer's unlawful motive.

The Yolo County decision was a fairly standard case. The Board ended up dismissing the charge and the decision doesn’t break any new legal ground; it’s just an application of law to facts. However, this case was interesting because the Board actually took the time to analyze each of the elements of a discrimination case, including all of the above-enumerated factors. You don’t see that too often in PERB decisions, so if you’re litigating a discrimination charge before PERB this case may be worth a read

Alford Unified School District involved an appeal from a dismissal. Nothing new here. The only interesting aspect was that the Board affirmed the Board agent’s finding that the charging party did not allege facts sufficient to demonstrate an adverse employment action. Here, charging was a teacher who was assigned a new teaching schedule that required him to prepare for 3 classes on some days instead of 2. PERB said that without more, the mere fact that the new schedule required more preparation time did not demonstrate that the change was an adverse action.

The Escondido Union Elementary School District decision was the most involved of the three. This was a highly fact intensive case. In the end, PERB sustained some of the ALJ’s findings of discrimination and dismissed others. Because it was very fact sensitive, it’s hard to draw any conclusions. But basically the case involved a situation familiar to all of us: how do you discipline an employee for cause when the employee has also engaged in some form of protected activity? Answer: very carefully. But seriously, if there is a lesson from this case it is that if you (as the employer) have a situation where you need to discipline an employee who has recently engaged in protected activity, you must ensure that you are following all the rules (progressive discipline, proper investigation, etc.) and then take some extra steps to eliminate whatever suspicions might be caused by the unfortunate timing. Here, the combination of bad timing and other shortcomings by the employer lead the Board to conclude that discrimination had indeed occurred.

Court Stops LA Teachers Strike

Today (May 15th) is the day that teachers in the Los Angeles Unified School District (District) had originally planned to hold a one-day strike to protest layoffs and other budget-cutting proposals. On Tuesday, May 12th, the District successfully obtained a temporary restraining order (TRO) stopping the strike.

The United Teachers of Los Angeles (UTLA) blamed the adverse court decision on a “notoriously anti-union Los Angeles Superior Court judge.” However, according to the LA Times, the court decision was based on the fact that the contract between the District and UTLA contains a no-strike clause. The court order also cited concerns about student health, safety and welfare. The fact the superior court issued a TRO enjoining the strike is interesting since—according to the UTLA website—PERB had denied the District's request for injunctive relief.

[Note: I checked out the UTLA contract. It does indeed contain a clause prohibiting strikes and work stoppages during the term of the agreement, which does not expire until June 30, 2009. So maybe I’m missing something, but it seems to me UTLA must have known from the beginning that they were on shaky legal grounds calling a strike.]

In the face of $1000 per person fines for violating the TRO, UTLA has cancelled the one-day strike and urged its members to report to work. Instead of a strike, UTLA plans to picket for one hour before school begins. According to a UTLA press release, “The pickets will be followed in the afternoon by civil disobedience at an undisclosed location and members converging on Beaudry, where we will bring the fight to Cortines’ and the School Board’s doorstep.” That should be interesting.

Election Watch: Sacramento County Measure A

In 1998, Sacramento County become one of the first counties (if not the first) in California to adopt binding arbitration as a mechanism to settle labor disputes. In the case of Sacramento County, the binding arbitration measure applied only to its deputy sheriffs. On May 19th, Sacramento County voters will decide the fate of Measure A, which would extend the County’s binding arbitration charter provision to cover probation officers and law enforcement management. The local newspaper—the Sacramento Bee—has come out strongly against Measure A. The Bee has also been running articles and editorials criticizing public safety salaries and overtime, particularly in the Sacramento metro fire department. However, other than the Bee there appears to be no organized opposition to Measure A.

Given the state of the economy and voter hostility to the state propositions, my initial thought is that Measure A may have a tough time passing. But given the expected tiny voter turnout and the fact there is no organized opposition, its anyone's call as to what will happen. Also, since Sacramento County has had binding arbitration for its deputy sheriffs for over a decade and the City of Sacramento also has binding arbitration, the voters may not see Measure A as controversial. So keep you eyes out for the result on Measure A, it may be a harbinger of things to come.