Monday, March 23, 2009

Just in Case You Didn't Know . . .

International Union of Operating Engineers v. County of Plumas (Case No. 07-16001) (9th Cir. 2009)

The introduction to this recent Ninth Circuit case says it all:

“James M. Cain, whose novels were often adapted into film noir, described his body of work by saying ‘I write of the wish that comes true—for some reason, a terrifying concept.’ The plight of Plumas County would have doubtless piqued his interest."

"Plumas County thought that federal court would provide a more hospitable forum for its defense against a suit seeking to compel arbitration, so it removed the action to federal court. The district court ordered Plumas County to arbitrate. Now, the County argues that the district court had no business deciding the question because the court lacked subject matter jurisdiction over the case that the County removed. We conclude that Plumas was not barred from raising the jurisdictional argument and that the district court lacked subject matter jurisdiction. We remand to the district court the question of whether attorneys fees should be assessed.”

If you have a few minutes in your day, this case is worth a read. The Ninth Circuit was clearly annoyed at having to issue a decision on what should have been obvious – that the National Labor Relations Act does not apply to public entities – and directs some choice language at both parties.

Friday, March 20, 2009

Layoffs Are a Management Right

International Association of Fire Fighters, Local 188, AFL-CIO v. PERB (2009) __ Cal.App.4th __. (Challenge to City of Richmond (2004) PERB Decision No. 1720-M.)

Facing significant economic constraints, in late 2003 the City of Richmond decided to lay off 78 city employees, including 18 firefighters. The firefighter’s union, Local 188, made a request to bargain over the City’s decision to lay off firefighters but failed to request to bargain the effects of the layoff decision. When the City declined to bargain over the decision, Local 188 responded by filing an unfair practice charge with PERB, asserting that the reduced staffing level presented a threat to employee safety and affected workload, and therefore the layoff decision itself was subject to bargaining. A PERB regional attorney dismissed that aspect of the unfair practice charge, holding that the decision to lay off personnel is not within the scope of bargaining. The regional attorney further held that while the effects of such a decision are subject to bargaining, Local 188 never demanded to bargain over effects. On appeal, PERB sustained the dismissal, declining to issue a complaint that would have sent the matter to a full hearing. Local 188 then sought to compel PERB to issue a complaint.

The most significant facet of the court’s opinion is its interpretation of the California Supreme Court’s decision in Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608. The Vallejo Court held that due to the dangerous nature of firefighting, “to the extent [] that the decision to lay off some employees affects the workload and safety of the remaining workers, it is subject to bargaining . . .” Vallejo, supra, 12 Cal.3d at p. 622. Local 188 argued that the Vallejo decision thus requires public employers to bargain over firefighter staffing, meaning that the employer cannot lay off firefighter personnel unless and until it bargains fully over that decision – an interpretation that would cause extensive delays before layoffs could be implemented, and that would intrude on the basic management prerogative of determining the necessity for layoffs. Rejecting Local 188’s argument, the court of appeal held that, under Vallejo, the decision to reduce staffing levels through layoffs is a managerial prerogative and not subject to bargaining. The court further confirmed that the Union may bargain over residual safety and workload issues which occur for the “remaining employees” after the reduction in staffing is achieved.


This decision should finally bring an end to the 30-year debate over the meaning of the Vallejo decision. For years, unions - particularly firefighters - have asserted that layoffs are negotiable if the workload and safety of remaining employees is affected. In contrast, management has always interpreted Vallejo to mean that only the effects of a layoff decision are negotiable (e.g. safety and workload) and that the layoff decision itself remains a management right. Here, the court unequivacally held that layoffs decision are a management right. Hopefully end of the story.

Thursday, March 19, 2009

Card Check Already a Reality in California’s Public Sector

As I noted in my previous blog entry, both unions and employers are gearing up for a huge fight over the Employee Free Choice Act (EFCA). Because the EFCA amends the National Labor Relations Act, which does not cover the public sector, it will not directly affect California public employers. Even if it did, California public employers have been living with card check for years. In California, all the statutes covering the public sector, except for the Dills Act, require the recognition of an exclusive representative solely by a showing of majority support (ie card check). (See MMBA (Gov Code 3507.1); EERA (Gov. Code 3544; 3544.1); HEERA (Gov Code 3573; 3574 (Note: HEERA is unique in that the employer can initially challenge recognition by card check if it reasonable doubts that the union has majority support); TCEPGA (Gov Code 71636.3); TCIELRA (Gov Code 71823); TEERA (PUC Code 99564.1).)

Arguably, card check in the public sector is not that significant because the vast of majority of public sector employees in California are already unionized, and have been for years. In the private sector, the advent of card check will surely spawn a wave of organizing efforts around the country. While not all of those efforts will be successful even with card check, many of them will be. The possibility of unionizing thousands of unorganized workplaces throughout the country is why the EFCA is such a huge issue.

Also, I was reminded today that a few years ago the Legislature amended the Agricultural Labor Relations Act to provide for mandatory interest arbitration (or what the Legislature referred to as “mandatory mediation” – a misnomer if there ever was one) of the first contract after a new exclusive representative has been certified. I’m not sure how many times, if any, that law has been utilized since its enactment. But anyone wondering what the interest arbitration system under the EFCA might look like can take a look at the ALRB’s statutes and regulations to get an idea.

Wednesday, March 18, 2009

Employee Free Choice Act More Than Just Card Check

Both unions and employers around the country are marshaling their forces for the upcoming war over the Employee Free Choice Act (EFCA) (H.R. 1409, S. 560). Dubbed “card check” by employers, the EFCA would easily be the most significant amendment to the National Labor Relations Act since its enactment. Under the EFCA, the NLRB would be required to certify a union as the exclusive representative if it presented evidence (usually signed authorization cards) of majority support. In such a situation, there would be no secret ballot election.

However, the EFCA does a lot more than just authorize card check. The EFCA also imposes a system of mandatory interest arbitration for the first contract after certification. Specifically, the EFCA would amend Section 8 of the NLRA to require the following:

1. Within 10 days of a request from the newly certified exclusive representative, the parties must begin bargaining and “shall make every reasonable effort to conclude and sign a collective bargaining agreement.”

2. 90 days after bargaining begins, either party may request mediation with the Federal Mediation and Conciliation Service (FMCS).

3. The FMCS then has 30 days to mediate the dispute. If the FMCS is unable to resolve the dispute within 30 days after the request for mediation, the FMCS shall refer the dispute to an arbitration board (which will be established through regulations). The EFCA provides that the “arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years.”

Thus, the EFCA not only provides for a card check system, but virtually guarantees that any newly certified union will have a 2-year contract in place before expiration of the statutory one-year contract bar.

Stay tuned.... in the coming weeks I intend to blog more about the EFCA...

Saturday, March 14, 2009

Vallejo MOUs May Be Voided in Bankruptcy

According to the Vallejo Times Herald, the bankruptcy judge for the City of Vallejo ruled on Friday that the City might be able to void its labor contracts as a way to escape bankruptcy. The ruling by the bankruptcy judge answers a question that has never been answered in California: whether public agencies in California can void labor contracts through Chapter 9 bankruptcy proceedings. Although the judge held that labor contracts may be voided through bankruptcy, the judge declined to rule on whether the City of Vallejo could do so in its situation. Instead, the court urged the parties to continue negotiations.

Based on the court's decision, it's obvious the judge is hoping to place pressure on the parties - especially the unions - to reach a settlement so that the court won't have to take the next step and rule on whether the contracts should be voided. The ball appears to be in the unions' court, and it will be interesting to see what they do. The eyes of unions and public agencies throughout California will be watching.