Thursday, May 27, 2010

Carlsbad Imposes Reduced Pension Benefits on New Firefighters

There was an interesting story out of Carlsbad last week.  (See articles in the North County Times here and here.)  The Carlsbad City Council voted to impose a two-tiered retirement system on its firefighters after reaching impasse in bargaining.  Under the two-tiered retirement system, existing employees will continue to accrue benefits under the 3% at 50 formula that is widely used in public safety.  However, new firefighters will be under a 2% at 50 formula.  According to the article, the move was necessitated to keep Carlsbad in "good fiscal health." 

What is interesting is that the city is also planning a ballot initiative that would require voter approval to increase pensions in the future.  That will likely require additonal bargaining with the union under Seal Beach Police Officers Association v. City of Seal Beach (1984) 36 Cal.3d 591.  However, once bargaining has been completed (or impasse reached) there is nothing preventing the citizens of Carlsbad from adopting such an initiative.  Up in Northern California, Menlo Park is attempting a similar type of initiative.  (See article here.)  There are also several other cities considering similar measures.  It will be interesting to see which of these pass on election day. 

Tuesday, May 25, 2010

Public Safety Employer-Employee Cooperation Act of 2009: What California Public Employers Need to Know

According to some reports, the Senate may be voting on S. 3194 as early as this week as part of a larger appropriations bill. S. 3194 is titled the “Public Safety Employer-Employee Cooperation Act of 2009” and would establish collective bargaining for state and local firefighters, police officers, and paramedics throughout the nation. Currently, state and local employees are excluded from the National Labor Relations Act (NLRA). Under S. 3194, state and local public safety employees would come under the jurisdiction of the Federal Labor Relations Authority (FLRA). Upon enactment, the FLRA would have 180 days to determine, “whether a State substantially provides for the rights and responsibilities” provided in S. 3194. If the FLRA finds that a state already provides the rights and responsibilities set forth in S. 3194, then the state would be exempted from the requirements of the new law.

Pursuant to S. 3194, a state would have to provide substantially the following rights and responsibilities in order to be exempted from the law:

(1) Granting public safety officers the right to form and join a labor organization, which may exclude management employees, supervisory employees, and confidential employees, that is, or seeks to be, recognized as the exclusive bargaining representative of such employees.

(2) Requiring public safety employers to recognize the employees' labor organization (freely chosen by a majority of the employees), to agree to bargain with the labor organization, and to commit any agreements to writing in a contract or memorandum of understanding.

(3) Providing for the right to bargain over hours, wages, and terms and conditions of employment.

(4) Making available an interest impasse resolution mechanism, such as fact-finding, mediation, arbitration, or comparable procedures.

(5) Requiring enforcement of all rights, responsibilities, and protections provided by State law and enumerated in this section, and of any written contract or memorandum of understanding between a labor organization and a public safety employer, through--

(A) a State administrative agency, if the State so chooses; and

(B) at the election of an aggrieved party, the State courts.
In California, state law (EERA, HEERA, MMBA, and the Dills Act) already provides all of these rights to public safety employees with one possible exception. Under S. 1394, a state would have to make available “an interest impasse resolution mechanism, such as fact-finding, mediation, arbitration, or comparable procedures.” I'm not sure what this means.  The term “interest” when used with “arbitration” has a very distinct meaning in labor relations.  In California, there is a statute providing for interest arbitration for police and firefighters. (See CCP, §1299.) However, that statute has been found unconstitutional by the courts and never enforced. So would S. 3194 require interest arbitration? It’s not clear. What’s confusing is that S. 3194 also allows for “fact-finding” and “mediation.” However, there really is no such thing as “interest fact-finding” or “interest mediation” in the labor relations world.  So it's really not clear from the statute what meaning is attached to the term "interest."  The fear would be that because of the ambiguity, the FLRA might promulgate regulations interpreting S. 3194 as requiring some form of interest arbitration. If so, that would definitely be a change for California public employers.

Regardless of whether S. 3194 requires interest arbitration, it certainly does require some type of “impasse resolution mechanism.” That may be an issue under the MMBA which does not require any form of mediation or anything similar upon impasse. However, the vast majority of local agencies have mediation or fact-finding as part of their local rules. So this particular requirement won’t affect the vast majority of local employers, but may affect a few.

Sunday, May 23, 2010

Supreme Court to Review State Furlough Case

California Attorneys, Administrative Law Judges and Hearing Officers in State Employment v. Schwarzenegger (2010) 182 Cal.App.4th 1424, review granted, 106 Cal.Rptr.3d 702.

The California Supreme Court has granted review in CASE v. Schwarzenegger. Pursuant to the order granting review, the issue before the Court is, “Does the Governor have the authority to furlough the state employees at issue in this case by executive order?” While this sounds like something that might have far-reaching effect throughout the state, the reality is that the decision will likely be much more limited. In CASE v. Schwarzenegger, the issue is whether the Governor’s furlough authority extends to employees of the State Compensation Insurance Fund (SCIF). Both the trial court and appellate court held that the Governor could not impose furloughs on SCIF employees because of Insurance Code section 11873, which provides:

“Notwithstanding any provision of the Government Code or any other provision of law, the positions funded by the State Compensation Insurance Fund are exempt from any hiring freezes and staff cutbacks otherwise required by law.”
If this case is decided solely based on Insurance Code section 11873—which is unique to SCIF—then it will have virtually no impact on other public employees.

However, what is interesting is the other part of the Court’s order granting review in which the Court states, “Review in this case may be undertaken in conjunction with possible consideration of similar issues in cases that are pending in the courts of appeal.”  So what does that mean?  It seems like the court is saying that it might extend the CASE v. Schwarzenegger case to include arguments raised in the state employee furlough cases pending in the lower courts.  Those cases directly raise the issue of whether the Governor has the authority to impose furloughs on state employees absent Legislative action.  Thus, CASE v. Schwarzenegger could have far-reaching implications if the Court considers those other cases.

The briefing schedule set by the Court is very quick.  The Governor's brief is due June 9, 2010 and the union's brief is due on June 29, 2010.  With this schedule, we could have oral argument by the Fall.

Wednesday, May 19, 2010

Mendocino Attorneys Not Entitled To 1% Raise Under Former MOU

[UPDATE (5/20/10): Just received word that MCPAA has filed an appeal of this decision, so it's not yet final.]

County of Mendocino (2010) PERB Decision No. 2104-M (Issued on 4/21/10)

In 2006, the Mendocino County Public Attorneys Association (MCPAA) successfully petitioned to remove several attorney classifications from bargaining units represented by two other unions, the Mendocino County Management Employees Association (MCMEA) and Service Employees International Union (SEIU). Under the MCMEA and SEIU contracts, the attorneys would have gotten a 1% salary increase effective September 2006 if they had remained in those bargaining units. The County’s position was that the attorneys were no longer entitled to the 1% salary increase since they were no longer part of the bargaining units represented by MCMEA and SEIU; and because the MCPAA had not yet negotiated a similar raise for its new unit.

However, in September 2006, all the attorney classifications nevertheless received a 1% salary increase. The County claimed that the increases were given by mistake and stopped them after 3 months. The County also took steps to recoup the mistakenly granted increases but stopped those efforts in response to objections from the MCPAA. MCPAA then brought this unfair practice charge alleging that the County committed an unlawful unilateral change by refusing to give attorneys the 1% salary increase. MCPAA also argued that the County’s efforts to recoup the money constituted a separate unlawful unilateral change.


With respect to the denial of the 1% salary increase, PERB affirmed the ALJ’s proposed decision dismissing that charge. PERB held that since the attorneys were no longer in the bargaining units represented by MCMEA or SEIU, they were not entitled to the raises negotiated by MCMEA or SEIU. Specifically, the Board affirmed the ALJ’s finding that:

“Not inconsistent with the same line of authority, the NLRB has found that absent other proof [of] interference with employee free choice an employer is entitled to withhold benefits that employees would have obtained had they remained unorganized so long as the employer engages in good faith bargaining. (Chevron Oil Co. (1970) 182 NLRB 445, 449, citing Shell Oil Co. (1948) 77 NLRB 1306; McGraw-Edison Co. (1968) 172 NLRB 1604, 1609-1610.)”
With respect to the County’s attempted recoupment of the mistakenly given increases, PERB also affirmed the ALJ’s dismissal of that charge. In the proposed decision, the ALJ held that:

“Although the complaint alleges that the recoupment action constituted another aspect of the unilateral change, I find no violation because the County in reasonably short order desisted from collection of the overpaid compensation. The evidence does not demonstrate a change of generalized effect or continuing impact (i.e., a conscious creation of a new policy). [citations omitted]”

  1. This case is instructive because it involves an issue that arises fairly often in the public sector, but not too often with any single employer: what happens when there is a change in representation? Here, PERB affirmed that employees must take the bad along with the good when it comes to exercising free choice in representation. In this case, because the attorneys chose to create their own bargaining unit with a new exclusive representative, they weren't entitled to the salary increases due under their prior contract. That makes sense but its something employees, and employers, often don't realize.
  2. My only other comment is on the issue of the County’s attempted recoupment of the money. The ALJ dismissed that charge—and the Board affirmed—because the County never actually recouped the money so there wasn’t any “unilateral change.” However, given that PERB had already held that the attorneys were not entitled to the money, and especially since everyone agreed that the raises were given by mistake, why would it have been a unilateral change if the County actually recouped the money? Seems to me the County would have been within its right to recoup the money; and arguably had a duty to the public to do so. So that part of the decision doesn’t make sense to me. However, one can argue that since PERB found no change, it didn’t have to reach the issue of whether the subject matter (ie recoupment of mistakenly given money) was within the scope of representation. That’s true; and that’s how I think that portion of the case should be interpreted.

Sunday, May 16, 2010

PERB: It's Interference To Offer Better Benefits to Non-Union Members

State of California (Department of Personnel Administration) (2010) PERB Decision No. 2106-S (Issued on 4/30/10)


The contract between the State of California (State) and the California Correctional Peace Officer Association (CCPOA) provided that dental and vision benefits would be provided to bargaining unit members through the CCPOA Benefit Trust Fund, an independent corporation established by CCPOA.  Through the CCPOA Benefit Trust Fund, an employee with two dependents would pay $41.80 per month for the dental benefit.

In October 2007, CCPOA informed the State that non-members (ie fair share fee payers) would no longer be provided dental and vision benefits through the CCPOA Benefit Trust Fund. As a result, the State informed the fair share fee payers that they would automatically be enrolled in the state-sponsored dental and vision plans. Under the state-sponsored dental plan, an employee with two dependents would pay $30.94 per month.  CCPOA then filed an unfair practice charge alleging both discrimination and interference. CCPOA asserted that the State unlawfully offered a lower cost dental benefit not provided to CCPOA members.


In its decision, the Board affirmed the dismissal of the discrimination charge based upon its finding that there was no adverse action. However, the Board reversed the dismissal of the interference charge. The Board stated:

“[T]he lower cost dental benefit was not offered to union members. Providing benefits at a lower cost to non-union members, while excluding union members from this option, tends to result in at least slight harm to employees who choose to exercise the right to join a union. A reduced benefit cost available only to non-union members may influence an employee’s decision to join the union. Accordingly, the charge states a prima facie case of interference.”
The Board noted that because the only issue was whether CCPOA stated a prima facie case, the issue of whether the State’s actions were justified due to operational necessity and/or circumstances beyond the employer’s control would be addressed at a formal hearing.

Member McKeag dissented from the majority opinion. In her dissent, she stated:

"In the instant case, CCPOA members continued to enjoy the exact same dental benefits after the implementation of the State’s last best and final offer. When CCPOA Benefit Trust Fund refused to provide dental benefits to the former CCPOA agency fee payers, the State was faced with a choice to either offer these employees the dental benefit currently offered to non-CCPOA members or to provide no dental benefit. Clearly, the latter option was untenable and would have likely resulted in litigation. Therefore, the State had only one legitimate option, benefits available to other non-Bargaining Unit 6 members simply does not constitute a harm in this instance.”

  1. My initial reaction was that CCPOA had a lot of nerve bringing this case. This whole situation was started when CCPOA kicked its fair share fee payers out of the CCPOA Benefit Trust Fund. CCPOA had a right to do this—and maybe it even had a good reason—but clearly CCPOA itself was “discriminating” against non-union members. For CCPOA to then bring a charge against the State for “discriminating” against union members is a classic case of the pot calling the kettle black.
  2. With respect to the interference charge, it’s a close call if you’re solely focused on the prima facie case. Is it interference for an employer to offer non-union members a better benefit than union members? Sure, by itself that’s a problem. However, here the State had to provide the fair share fee payers a dental plan. Could the State have also offered its plan to union members? We need more facts but that likely would just have brought a separate unfair practice charge by CCPOA.
  3. Regardless, it seems clear to me that the State is going to prevail at hearing based on its legitimate business reasons. I’m assuming that the dental-plan the State offered to the fair share fee payers was the same plan offered to other State employees. If so, there’s nothing the State can really do if it just happens that its own plan is cheaper than CCPOA’s.
  4. The dissent would have short-circuited the formal hearing by just ruling on the State’s legitimate business reasons at the charge review stage. As a management attorney, I certainly see the benefit of taking that approach. There are a lot of cases where I would like the Board agent to consider my client’s legitimate business reasons before deciding whether to issue a complaint. However, as it stands, the rule is still that a respondent’s affirmative defenses are to be considered at the formal hearing state, and not at the charge review stage.

Thursday, May 13, 2010

Oral Argument Held in San Jose Case

City of San Jose v. Operating Engineers Local Union No. 3 (Case No. S162647)

Oral argument was held in the San Jose case on May 5, 2010.  The issue in this case is: 
Does the Public Employment Relations Board have the exclusive initial jurisdiction to determine whether certain "essential" public employees covered by Meyers-Milias-Brown Act (Gov. Code, sections 3500 3511) have the right to strike, or does that jurisdiction rest with the superior court?
Practically, the dispute is over whether employers must initially go to PERB when seeking injunctive relief against an essential employee strike or whether the employer can go directly to court.  Employers have taken the position that they should be allowed to proceed directly to court, while the unions have argued that PERB has initial jurisdiction.

The case is incredibly important to those of us who practice public sector labor law.  However, the case is apparently a sleeper for the Supreme Court.  I heard from those in attendance that the justices only asked two substantive questions.  And not very probing ones at that.  One question was from Justice Moreno who asked whether the doctrine of exhaustion of administrative remedies has an emergency exception.  Justice Chin asked whether strikes are "arguably" potential unfair practices.  Those in attendance, both from the union and management, told me that the questions didn't really reveal how any of the justices were leaning.

So we'll have to wait.  A decision is expected in 90 days.

One final note - a congratulations to both Ari Krantz from Leonard Carder and Rob Fabela from the City of San Jose for jobs well done in arguing before the Court!

Wednesday, May 12, 2010

AFSCME's Leafletting Was Not an Unfair Practice

AFSCME, Local 3299 (2010) PERB Decision No. 2105-H (Issued on 4/21/10)


This case involved an unfair practice charge filed by the University of California (UC) against AFSCME. During bargaining, AFSCME began leafleting in front of several medical centers at various UC campuses. The expired contract between UC and AFSCME required the union to abide by specific access guidelines promulgated at each campus. Those guidelines set forth exactly where AFSCME could engage in leafleting and where it couldn’t (for example, because of patient access issues). During the leafleting at issue, it appears undisputed that AFSCME violated the access guidelines by leafleting in prohibited areas.  According to the PERB decision, UC officials asked the AFSCME members engaged in the leafleting to move, which they did.

AFSCME then went to court to seek a temporary restraining order (TRO) to enjoin UC from prohibiting the leafletting. The court granted the TRO but later denied a preliminary injunction on the ground that PERB had initial jurisdiction.

In its decision, PERB assumed that AFSCME was in violation of the contract when it engaged in leafleting in areas where the guidelines prohibited such conduct. However, because AFSCME agreed to move when confronted by UC officials, PERB held that AFSCME’s conduct was just an isolated breach of the contract, and not a repudiation of the contract that would constitute an unlawful unilateral change.

  1. First, I thought it was ironic that the union went straight to court to seek injunctive relief instead of going to PERB. As many of you know, the issue of whether PERB has exclusive jurisdiction over essential employee strikes is before the California Supreme Court in City of San Jose v. Operating Engineers Local Union No. 3 (Case No. S162647). (In fact, oral argument in San Jose occurred on May 5, 2010—but more on that tomorrow.) The unions have all lined-up solidly in favor of PERB having jurisdiction so that employers cannot go directly to court for injunctive relief.  So it’s ironic that the union here went straight to court.
  2. With respect to the merits of this case, the key holding was the Board’s finding that because the union stopped the “breach” (ie stopped leafletting) when asked by UC, it was just an isolated contract violation and not a complete repudiation of the contract.  Because isolated breaches do not constitute an unlawful unilateral change, PERB affirmed the dismissal of the charge.  By itself, I don’t have a problem with this holding.
  3. I’ve argued before that there should be some type of “safe harbor” provision whereby a party can correct a breach and not be guilty of an unfair practice. For example, in County of Sacramento (2008) PERB Decision No. 1943-M, the Board found a violation even though the County rescinded the change before it ever took effect. My position was that given the rescission, PERB should not have found that the County committed an unfair practice.
  4. Indeed, it’s worth taking a look at what PERB said in County of Sacramento: 
    “The County argues that by rescinding the ordinance, there is no longer any policy change even arguably subject to meet and confer requirements, and the issue is now moot. In Amador Valley Joint Union High School District (1978) PERB Decision No. 74, however, the Board held that the later reversal or rescission of a unilateral action or subsequent negotiation on the subject of a unilateral action does not excuse a violation. [Citation.] … The fact that the County reversed its position and restored the status quo before the new policy went into effect, does not cure the unlawful unilateral change.” 
  5. It’s difficult for me to square what PERB said in County of Sacramento with what happened in this case.  I believe the two cases are inconsistent.  Here, there was an undisputed breach. It was actually worse than in County of Sacramento since AFSCME actually did engage in leafleting in areas where it was prohibited. In contrast, in County of Sacramento the County rescinded the change before it ever took effect. Yet PERB found a violation in County of Sacramento but not one here.  Nevertheless, if I had to choose which holding I like better, it's the one in this case.  Even though the union prevailed in this case, in the future this will benefit employers more than unions since the vast majority of unfair practice charges alleging unlawful unilateral changes are directed against employers.
  6. Lastly, in the interest of full disclosure, I must note that I currently represent the University of California in several PERB cases; although I was not involved in this one. As for the remainder of this case, I do think that there was sufficient evidence that AFSCME improperly disrupted university operations so that a complaint should have been issued. However, that was not the main focus of the Board’s decision so I didn’t delve into that aspect of the case.