Friday, May 29, 2009

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.”


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.

Friday, May 22, 2009

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.]

Wednesday, May 20, 2009

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.

Thursday, May 14, 2009

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.

Sunday, May 3, 2009

SB 656: Removing “Mixed-Units” of Law Enforcement From PERB

SB 656 (DeSaulnier) would remove from PERB’s jurisdiction a bargaining unit comprised of a majority of peace officers as defined by Penal Code section 830.1. (830.1 officers.) Currently, the MMBA already excludes 830.1 officers from PERB’s jurisdiction. (Gov. Code, §3511.) However, what happens when you have a dispute involving a bargaining unit comprised of both 830.1 officers (who are exempt from PERB) and other employees covered by PERB? This bill tries to address that situation.

I’m pretty sure I can take some credit for this bill’s introduction. Last year I litigated this issue before PERB on behalf of the County of Sonoma (County) in an unfair practice charge filed by the Sonoma County Law Enforcement Association (SCLEA). (PERB Case No. SF-CE-523-M.) The case involved the County’s imposition of its last, best and final offer upon impasse. Most of the classifications in the SCLEA unit were covered by PERB, but some were not. Also, about a third of the classifications in the unit were covered by SB 440, the binding interest arbitration statute. SCLEA’s argument was that the County could not impose its last, best and final offer on the unit because the County had to first submit the dispute to binding arbitration under SB 440. The ALJ held that even if the County had to go to binding arbitration under SB 440, it only had to do so with respect to those officers covered by SB 440. For those officers not covered, the County could go ahead and impose its last, best, and final offer. There was also a jurisdictional issue over whether the inclusion of some 830.1 officers would preclude PERB from jurisdiction over the entire unit. PERB held that the inclusion of some 830.1 officers in the unit would not deny PERB jurisdiction over the remaining individuals in the unit. The case is now before the PERB Board on exceptions filed by the parties.


1. I’m ambivalent over this bill. CSAC has already taken a position against it. I guess if I had to take a position, I would oppose this bill on the principle that it’s bad public policy to have certain employees covered by PERB and not others. However, part of me says that if the unions want to exclude more people from PERB, let them do it. After all, the unions were the ones who wanted to bring the MMBA under PERB’s jurisdiction in the first place. Here’s a direct quote from the Assembly Analysis (dated 8/26/2000) of SB 739 (Solis), which placed the MMBA under PERB’s jurisdiction:

“Proponents argue that the MMBA has ‘no effective enforcement procedures except for court action, which is time-consuming and expensive. One of the basic principles of an effective collective bargaining law should be to provide for enforcement by an administrative agency with expertise in labor relations. The appropriate role for the courts is to serve as an appellate body.’”

So the argument in favor of SB 739 was that having to go to court was time consuming and expensive; and that it was a basic principle of collective bargaining that there should be an administrative remedy. Now more law enforcement want to leave PERB and go back to the courts? Part of me says let them do it.

2. I think what really is driving this bill is the prospect of binding arbitration under SB 440. (That prospect was greatly dimmed by an appellate decision last week finding SB 440 unconstitutional; that decision may change the calculus behind this bill.) SCLEA wanted everyone in its unit to benefit from binding arbitration under SB 440. The problem is that SB 440 covers a different set of law enforcement officers than the MMBA excludes. For example, with SCLEA, there were some law enforcement classifications covered by both SB 440 and PERB. Some were covered by SB 440, but not PERB. And some were covered by PERB, but not SB 440.

Instead of this bill, I think the better policy solution would be to reconcile the definition of officers excluded from PERB with those covered by SB 440. In others words, the definition of peace officers covered by SB 440 should be the same as those excluded from PERB. Then you wouldn’t have employees covered by one but not the other. Keep in mind, I’m strongly opposed to SB 440; but if I’m going to have binding arbitration forced upon me I would rather have it be a well-drafted law.

3. Finally, I’ll point out what I believe is a flaw in the drafting of SB 656. Gov Code section 3511 currently states:

“The changes made to Sections 3501, 3507.1, and 3509 of the Government Code by legislation enacted during the 1999-2000 Regular Session of the Legislature shall not apply to persons who are peace officers as defined in Section 830.1 of the Penal Code."

As amended, it would state:

“The changes made to Sections 3501, 3507.1, and 3509 of the Government Code by legislation enacted during the 1999-2000 Regular Session of the Legislature shall not apply to a bargaining unit which is comprised of a majority of persons who are peace officers as defined in Section 830.1 of the Penal Code."

The flaw is that the bill removes the term “persons.” Under the MMBA, the two most common types of unfair practices are: 1) discrimination and/or retaliation against individuals for union activities, and 2) unilateral changes in the terms and conditions of employment. Discrimination charges are brought on behalf of individuals or groups of individuals, and can be litigated by either the individual or the union. In contrast, unilateral change charges are brought on behalf of the union which is the only entity with standing to do so. As amended, section 3511 would clearly exclude unilateral change charges involving units with a majority of 830.1 officers. However, what if an individual 830.1 officer wanted to bring a charge of discrimination or retaliation? Under the former section 3511, they would be excluded from PERB because it covered “persons” who are 830.1 officers. As amended, it’s not so clear. Arguably, because SB 656 only excludes a "bargaining unit," it might not cover individual cases of discrimination. Thus, it could be argued that section 3511 wouldn’t apply to any unfair practice charge brought on behalf of an individual 830.1 officer and that such charges would fall under PERB's jurisdiction. I doubt that was the intent of the sponsor or author (but who knows, maybe it was?). What I think they should have done is amend section 3511 to state, “. . . shall not apply to persons who are peace officers as defined in Section 830.1 of the Penal Code or any bargaining unit which is comprised of a majority of persons who are peace officers as defined in Section 830.1 of the Penal Code.” That would keep all 830.1 officers excluded from PERB while adding any bargaining unit comprised of a majority of 830.1 officers.