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.