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We've launched a new version of this blog, the same features and information, but at a new address.  As of August 2011, updates will be made at CAPERB.com (instead of the site you're reading now). 
Visit CAPERB.com, read articles, archives, find out more about Tim Yeung.
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AB 455 Vetoed

On July 25, 2011, Governor Brown vetoed AB 455.  AB 455 would have given unions the power to appoint half the members of civil service commisions and personnel boards.  The Governor provided the following veto message:

To the Members of the Califomia State Assembly:

I am returning Assembly Bill 455 without my signature.  This bill prescribes how all local merit or personnel commission members should be appointed.  It requires that half of the members be selected by the employer and half by largest employee bargaining unit.  While intended to create more balanced commissions and address concerns relating to individual commissions, this measure imposes a top down, one-size-fits-all solution on all merit and personal commissions statewide.  This measure seeks to impose a level of state control that is inconsistent with my administration's efforts to realign state services and to increase local control. Concerns relating to specific commissions should be addressed on a case-by-case basis at the local level. 

AB 455: Gives Unions Power to Appoint Half of Civil Service Commission Members

AB 455 was introduced by Assemblymember Campos on February 15, 2011 and amended on March 31, 2011.  AB 455 has passed both the Assembly and Senate and was ordered enrolled on July 5, 2011. It now awaits signature from the Governor.  AB 455 would add section 3507.7 to the MMBA, which would provide:

(a) When a public agency has established a personnel commission or merit commission to administer personnel rules or a merit system, the governing board of the public agency shall appoint one-half of the members of the commission, and one-half of the members of the commission, nominated by the recognized employee organization, shall be appointed by the governing board of the public agency. Whenever multiple bargaining units are represented by different recognized employee organizations, the employee organization representing the largest number of employees shall be the one empowered to designate commission members pursuant to this section.
(b) The commission members selected under subdivision (a) shall elect jointly one additional member of the commission, who will act as chairperson of the commission.

Comments:

1. According to the legislative analysis, the author of the bill states that it is needed because, “… despite the importance of merit and personnel commissions to employment relations, the MMBA is silent as to how these commissions should be composed.” This is true, however, the silence is by design. The preamble to the MMBA expressly states that, “Nothing contained herein shall be deemed to supersede the provisions of existing state law and the charters, ordinances, and rules of local public agencies that establish and regulate a merit or civil service system …” (Gov. Code, § 3500, subd. (a).) Thus, the MMBA was never intended to regulate civil service commissions. That function was reserved to the public agencies.
2. The practical effect of AB 455 would be to require civil service commissions to use a form of “tripartite” arbitration. Under the system created by AB 455, the jointly elected chair of the commission essentially becomes an arbitrator. Whether there are three, five, seven, or nine members of the commission basically becomes irrelevant. It is the chairperson who will get the deciding vote. Faced with such a situation, many cities and counties may find it easier (and cheaper) just to use an arbitrator in civil service proceedings instead of a civil service commission. This is probably exactly what the unions hope to gain.
3. As with several other union-sponsored bills before the legislature, this one poses significant “home rule” issues for charter cities and counties. My personal opinion (and again, I’m a management lawyer) is that this bill cannot trump the constitutional home rule provisions governing charter cities and counties. However, that will be an issue to be litigated in the event the Governor signs AB 455.
4. One last note, this bill as written would apply to both the City of Los Angeles and Los Angeles County. Both the city and county of Los Angeles are not subject to PERB, although both are subject to the MMBA. The language and placement of this bill in the MMBA means that both the city and county of Los Angeles are covered by it. I don’t know whether this was intended by the author or a drafting oversight. However, my friends in Los Angeles are usually extremely protective of their governance structure and I’m surprised this bill made it through the legislature without Los Angeles trying to get an exemption.

Supreme Court Grants Review on Whether Right to Privacy Prevents Release of Non-Member Employee Addresses to Union

County of Los Angeles v. Los Angeles County Employee Relations Commission (Supreme Court Case No. S191944) (Reviewed granted on 6/16/11)

I discussed this case in a couple of prior blog posts. (Click here and here for prior posts.) The Court of Appeal decision held that under California’s right to privacy, non-union members of a bargaining unit (i.e. agency fee payers) have a reasonable expectation of privacy that their personal information will remain confidential. The Court held that before the home addresses of non-union members can be released, the employer must provide these employees with notice and an opportunity to object to the disclosure of their personal information.

On June 16, 2011, the Supreme Court granted review of this case. The specific issues that the Court granted review on are:

(1) Under the state Constitution (Cal. Const., art. I, § 1), do the interests of non-union-member public employees in the privacy of their personal contact information outweigh the interests of the union representing their bargaining unit in obtaining that information in furtherance of its duties as a matter of labor law to provide fair and equal representation of union-member and non-union-member employees within the bargaining unit? (2) Did the Court of Appeal err in remanding to the trial court with directions to apply a specific notice procedure to protect such employees' privacy rights instead of permitting the parties to determine the proper procedure for doing so?

DPA Director Ron Yank to Speak at IRANC Luncheon on July 14

If you're going to be in Sacramento on July 14, 2011, please come hear Department of Personnel Administration (DPA) Director Ron Yank speak at a luncheon sponsored by the Industrial Relations Association of Northern California (IRANC). As DPA Director, Ron Yank is Governor Jerry Brown’s Chief Labor Negotiator. Prior to becoming DPA Director, Mr. Yank was a well-known labor lawyer at Carroll Burdick & McDonough LLP where he represented employees and unions in all areas labor relations.

Here are the details:

• Date: Thursday, July 14, 2011
• Time: 11:30 A.M. Registration & Networking; Noon – Lunch & Speaker; 1:00 P.M. Adjourn
• Location: Firehouse Restaurant, Golden Eagle Room, 1112 Second Street, Old Sacramento, CA 95814
• Menu: Choice of 1) Pork Tenderloin Puttanesca; 2) Salmon Nantua; or 3) French Onion Steak Sandwich
• Cost: Reservation by July 5 = $20.00 Members, $30.00 Non Members; After July 5 or at the Door = $25.00 Members, $35.00 Non Members

RSVP by Tuesday, July 5 to Marcia Mooney (916) 928-0399 or email mmooney@local39.org with lunch choice.  Make checks payable to IRANC and mail to 1017 L Street #159, Sacramento, CA 95814-3805.

SB 931: Prohibits Public Funds for “Union Avoidance” Campaigns

SB 931 was introduced by Senator Vargas on February 18, 2011 and amended on April 25, 2011. SB 931 would prohibit public agencies from using public funds to pay for what is sometimes euphemistically called a “union avoidance” campaign. Specifically, this bill would add language to EERA, HEERA, Dills, and the MMBA providing that:

“Public agencies shall not use public funds to pay outside consultants or legal advisors for the purpose of counseling the public employer about ways to minimize or deter the exercise of rights guaranteed under this chapter.”

The bill was amended on April 25th to clarify that:

“Nothing in this section shall be construed to apply to payments for representation of a public sector employer before any court, administrative agency, or tribunal of arbitration, or for payments for engaging in collective bargaining on behalf of the employer with respect to wages, hours, or other terms and conditions of employment.”

Comments:

1. SB 931 is the public sector progeny of AB 1889 which passed the Legislature and was signed by Governor Davis in 2000. AB 1889 prohibited government contractors receiving more than $50,000 in state funds (or $10,000 in certain situations) from using those funds “to assist, promote, or deter union organizing.” Private sector employers challenged the constitutionality of AB 1889 and the case eventually reached the United States Supreme Court. In Chamber of Commerce of U.S. v. Brown (2008) 554 U.S. 60, the Supreme Court held that the provisions of AB 1889 that applied to private sector employers (Gov. Code §§16645.2 and 16645.7) were invalid because they were preempted by the National Labor Relations Act.
2. One interesting note about AB1889 is that buried within the bill is a provision that applies to public employers. Specifically, Government Code section 16645.6 provides that:  “(a) A public employer receiving state funds shall not use any of those funds to assist, promote, or deter union organizing. (b) Any public official who knowingly authorizes the use of state funds in violation of subdivision (a) shall be liable to the state for the amount of those funds.”  In Chamber of Commerce of U.S. v. Brown, the Court only addressed the two provisions of AB 1889 that applied to private sector employers. Thus—as far as I can tell—Government Code section 16645.6 remains good law. However, because Government Code section 16645.6 is not incorporated into any of the acts administered by PERB, it cannot be enforced through PERB.
3. AB 931 goes beyond Government Code section 16645.6 by incorporating its provisions directly into EERA, HEERA, Dills, and the MMBA. Thus, a violation of AB 931 can be enforced by PERB.
4. However, AB 931 also goes beyond Government Code section 16645.6 in its scope. Section 16645.6 only applies to “state funds” received by public employers. In contrast, AB 931 applies to a public employer’s “public funds,” which presumably would mean all funds possessed by a public employer. In my opinion, the scope of AB 931 raises serious constitutional questions as applied to charter cities and counties and other public entities with constitutional spending authority. While the State can generally put restrictions on the use of its own money, it is a different thing to put restrictions on the use of someone else’s money. Not all money received by public employers are “state funds.” So to the extent a public employer receives non-State money, it’s not clear to me that the State can be restrictions on the use of those non-State funds in this manner.
5. According to the Legislative analysis, the sponsor of this bill is the American Federation of State, County and Municipal Employees. Other unions in support include the California Conference of Machinists and the California Nurses Association. Those in opposition include the California State Association of Counties and the League of California cities.

SB 259 Would Open Door to Unionizing Student Research Assistants

SB 259 was introduced by Senator Hancock on February 10, 2011.  SB 259 would amend the Higher Education Employer-Employee Relations Act (HEERA) to cover student employees whose employment is contingent upon their status as students, without any other conditions.  Currently, HEERA section 3562(e) defines “employee” to include student employees if the employment is contingent on their status as students and “only if the services they provide are unrelated to their educational objectives, or that those educational objectives are subordinate to the services they perform and that coverage under this chapter would further the purposes of this chapter.”  SB 259 eliminates the latter requirement.

According to the Legislative analysis, the genesis of this bill is PERB’s decision in Regents of the UC & Association of Student Employees, UAW, et al (1998) (PERB Order No. 1301-H) in which PERB held that University of California Teaching Assistants (TAs), Readers, and Tutors had bargaining rights under HEERA, but that Research Assistants (RAs) did not. This bill would grant RAs bargaining rights under HEERA by deleting the statutory language that student employees only have bargaining rights if their employment is unrelated to their educational objectives.

AB 1318 Would Limit Damages for Unlawful Strikes

AB 1318 was introduced by Assemblymember Davis on February 18, 2011. No action has been taken on this bill yet. AB 13818 would limit an employer’s ability to obtain a “make-whole” remedy when faced with an unlawful strike. Specifically, this bill provides that an employer may not obtain damages for 1) revenue losses caused by an unlawful strike; and 2) expenses incurred by the employer in anticipation of, or in preparation for, the strike.

This bill was obviously motivated by the California Nurses Association’s threatened strike against the University of California (UC) in 2005. That threatened pre-impasse strike was found to be an unlawful pressure tactic by PERB in 2010. (California Nurses Association (2010) PERB Decision No. 2094-H.) As part of that decision, PERB ordered CNA to pay for any damages suffered by UC. Proceedings before PERB on the amount of those damages are continuing to this day.

Governor Appoints New PERB Chair, Board Member and General Counsel

Governor Brown has appointed Anita Martinez and Eugene Huguenin to the five-member Public Employment Relations Board (PERB).  They will join Alice Dowdin Calvillo and Sally McKeag as the four members of PERB.  There is still one vacancy to be filled.  Anita Martinez was also named Chair of PERB.  The Governor also appointed Suzanne Murphy as PERB's new General Counsel.  Here are the bios of the appointees from the Governor's new release:

Anita Martinez, 58, of Oakland, has been appointed member and chair of the Public Employment Relations Board. She has worked for the Board since 1976, where she currently serves as a regional director. Previously, Martinez was a board agent for the Agricultural Labor Relations Board from 1975 to 1976. She was an intern at the National Labor Relations Board from 1973 to 1976. This position requires Senate confirmation and the compensation is $132,179. Martinez is a Democrat

A. Eugene Huguenin, 68, of Rancho Murieta, has been appointed to the Public Employment Relations Board. He has been the owner of the Huguenin Law Office since 2001. Huguenin was staff counsel at the California Teachers Association from 1979 to 2000, after serving as a consultant from 1973 to 1979. Huguenin has also served as a commissioner on the Fair Political Practices Commission from 2005 to 2009. This position requires Senate confirmation and the compensation is $128,109. Huguenin is a Democrat.

M. Suzanne Murphy, 58, of Lafayette, has been appointed general counsel of the Public Employment Relations Board. She has been a law clerk to the late Honorable Cynthia Holcomb Hall, senior judge on the U.S. Court of Appeals, Ninth Circuit since 2009, and where she previously clerked from 1988 to 1989. Murphy was the executive director of Worksafe from 2008 to 2009. She was legal counsel for the California Nurses Association from 2006 to 2007. Previously, Murphy was an appellate and litigation attorney with Weinberg, Roger and Rosenfeld from 2003 to 2006. She also worked for the Administrative Office of the Courts where she was managing attorney at the Center for Families, Children & the Courts from 2002 to 2003 and supervising attorney for the rules and projects unit in the Office of the General Counsel from 2000 to 2002. Previously, she was a senior research attorney to the Honorable Patricia Sepulveda from 1999 to 2000 and to the Honorable Michael Phelan from 1993 to 1998, both of the California Court of Appeal, First District. Murphy was an associate with Heller, Ehrman, White & McAuliffe from 1992 to 1993 and with Cooley, Godward, Castro, Huddleston & Tatum from 1989 to 1991. This position does not require Senate confirmation and the compensation is $126,864. Murphy is registered decline-to-state.

CPER Presents "Practicing Before PERB" Seminar on May 5th

Ever wonder why so many unfair practice charges are dismissed or if you stand a chance of getting a board agent’s decision overturned by the board?  Then you should attend, "Practicing Before PERB" sponsored by the California Public Employee Relations Program (CPER).  The seminar will feature experts discussing the what to do when a charge is filed, what happens when a charge goes to hearing, and how to appeal a dismissal or proposed decision.

The seminar is being held on May 5, 2011, at the Junipero Serra State Building, Carmel Room, 320 W. 4th Street, Los Angeles, California. (Click here for the brochure).  Advance registration is only $100. It should be a great program so if you're in the Los Angeles area you should consider attending!

PERB Remains Without a Quorum

Board Member Kari Miner's last day was March 31, 2011.  Because she was appointed by Governor Schwarzenegger on one of his last days in office she had not been confirmed by the Senate.  That meant Governor Brown could withdraw her appointment at any time.  That has left PERB with only two Board members and without a quorum to conduct any business.

So what happens if PERB receives a request for injunctive relief involving a strike?  Remember, under City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4^th 597, the courts have held that PERB has exclusive initial jurisdiction to consider whether a strike constitutes an unfair practice.  PERB actually considered that such a situation might occur and promulgated PERB Regulation 32470.  That regulation provides that:

In the event that a quorum of the Board itself is unavailable to act upon the request for injunctive relief within 24 hours after the time the General Counsel's recommendation is filed, the Board authorizes the General Counsel to seek injunctive relief in every case in which the General Counsel has reasonable cause to believe that such action is in accordance with Board policy and that legal grounds for injunctive relief are present.

The question on everyone's mind is when Governor Brown will appoint new Board members and who they might be.  Hopefully we'll find out soon.

PERB Advisory Committee Meeting on April 14th, 2011

The Public Employment Relations Board (PERB) has a set a meeting of its Advisory Committee for April 14, 2011 at 11 am.  The location will be at the PERB headquarters in Sacramento at 1031 18th Street, First Floor, Room 103, Sacramento, CA.

The purpose of the advisory committee is to help PERB "obtain feedback and ideas from PERB constituents relating to our mission in administering the seven collective bargaining statues over which we have jurisdiction with the overall intent of making PERB more efficient."  The agenda includes presentations by PERB staff on various topics followed by a roundtable discussion.

Court: City Has Inherent Authority to Furlough Employees

City of Los Angeles v. Superior Court (Engineers and Architects Association) (Court of Appeal Case No. B228732) (Issued on 3/25/11)

Facing a $500 million deficit, the City of Los Angeles (City) passed an ordinance furloughing civilian employees for up to 26 days per fiscal year. Many of the furloughed employees filed grievances under their union contracts arguing that the furloughs were impermissible. After the grievances were denied, the Engineers and Architects union requested arbitration. When the City refused to arbitrate, the union filed a petition to compel arbitration of over 400 such grievances.

The trial court granted the petition to compel arbitration finding that the grievances were arbitrable. The City appealed. The Court of Appeal found there to be legitimate questions as to whether the furloughs are arbitrable under the parties’ Memorandum of Understanding (MOU). However, the court nevertheless ruled in the City’s favor by finding that any agreement to arbitrate the furloughs constituted an improper delegation of discretionary policymaking power vested in the City Council.

With respect to the holding that arbitration would constitute an improper delegation of authority, the court began its analysis by discussing three different types of improper delegation.  First, there can be an improper delegation to a private individual under California Constitution, article XI, section 11.  However, this provision only applies to State delegations of municipal power to private individuals, and does not apply to a City’s delegation of its own power. Second, there can be an improper delegation by a legislative body to another actor, such as an arbitrator.  Here, however, the City passed an ordinance authorizing furloughs and did not delegate the authority to another individual. Third, there can be an improper delegation of a public agency’s discretionary power.  The court cited to prior cases holding that: “As a general rule, powers conferred upon public agencies and officers which involve the exercise of judgment or discretion are in the nature of public trusts and cannot be surrendered or delegated to subordinates in the absence of statutory authorization.” (California Sch. Employees Assn. v. Personnel Commission (1970) 3 Cal.3d 139, 144; San Francisco Fire Fighters v. City and County of San Francisco (1977) 68 Cal.App.3d 896, 901.)

In examining whether this case involves an improper delegation of discretionary authority, the court noted that the City’s Charter vests budgeting discretion in the City Council and the Mayor. The City Charter also provides that the City Council “shall set salaries for all officers and employees of the City.”  The court held that, “Clearly, a mandatory furlough is encompassed within salary setting [citation omitted] and a furlough imposed in a fiscal emergency is encompassed within budget making. Moreover, it cannot legitimately be disputed that setting salaries is a discretionary function.”

Applying these findings to the case at hand, the court held that by seeking to arbitrate the grievances, the union was attempting to “have an arbitrator determine issues of discretionary policymaking which have been assigned to the City Council."  The court further held that, "The Union wants a determination made that the City violated the salary and workweek provisions of the MOU by instituting furloughs, and that the furloughs were therefore improper. Grievance after grievance argued that the furloughs were improper and that the employees should be returned to full-time work and repaid for the days on which they were furloughed.” In such a situation, the court held that the union’s petition to compel arbitration was a clear, “… challenge to a City Council’s decision to impose furloughs as a response to the City’s dire financial condition. If the City Council had agreed to arbitral review of such a decision, it would have been an improper delegation of its salary setting and budget making powers.”

Comments:

1. According to the court, the issue that the union wanted to arbitrate was whether the City had the authority to furlough employees. The court held that this issue could not be deleted to an arbitrator as it was an inherent power of the City. The court, however, did not address whether the City had to bargain with the union before exercising its power to furlough employees. In a footnote, the court noted that the City offered to bargain over the effects of the furloughs but not the decision to furlough employees.  The court acknowledged that, “… the issue of whether furloughs could be imposed without prior consultation with the Union is different from the issue of whether furloughs could be imposed at all.” As for whether the City had to bargain, that issue is pending before the City’s Employee Relations Board on an unfair practice charge filed by the union. Thus, this decision does not directly address whether furloughs have to be bargained.
2. On the issue of whether furloughs have to be bargained, there was another interesting comment in a footnote: “… While the City argues that section 1.9 of the MOU permits it to unilaterally furlough employees, the City also argues that, even if the MOU does not permit the imposition of furloughs, the City nonetheless may implicitly suspend operation of the MOU by emergency ordinance properly enacted.” The court did not address this issue.  However, whether a public entity can suspend operation of a MOU during a fiscal emergency is an issue that has to be addressed sooner or later in this economic climate.  Answering that question in the negative might push more public agencies to consider Chapter 9 bankruptcy ... something that most public agencies are loath to even mention ... 

A Little History on the Labor Movement

Today is the 100 year anniversary of the Triangle Shirtwaist Factory fire that killed 146 young women and girls in New York City on March 25, 1911. It was one of the worst workplace disasters in our nation’s history. The sight of immigrant girls and women leaping to their deaths—some with their clothes on fire, some holding hands—horrified the entire nation. The tragedy not only helped spark the growth of the International Ladies Garment Workers Union but the entire labor movement in the United States.

Fast forward to 2011 … I’ve received a couple of comments from readers on how Governor Jerry Brown has been wrongly “blamed” for giving California public sector workers the right to unionize. For example, the Wall Street Journal ran an opinion article stating:

The sharp rise in public union membership in the 1960s and 1970s coincides with the movement to give public unions collective bargaining rights. Wisconsin was the first state to provide those rights in 1959, other states followed, and California became the biggest convert in 1978 under Jerry Brown in his first stint as Governor. (A Union Education, Wall Street Journal On-line.)

It’s true that during his first two terms as Governor (1975-1983), Jerry Brown signed the Educational Employment Relations Act of 1976 giving collective bargaining rights to schools and community college employees, the State Employer-Employee Relations Act of 1978 (now called the Dills Act) giving collective bargaining rights to state employees, and the Higher Education Employer-Employee Relations Act of 1979, giving collective bargaining rights to higher education employees.

However, those laws were not truly ground-breaking because they were not the first laws in California giving public sector employees the right to collective bargaining. The first law that gave public sector employees the right to collective bargaining is the Meyers-Milias-Brown Act (MMBA). The MMBA was signed in 1968 and gave city and county employees the right to collective bargaining. The MMBA was signed by a former union president. No, it wasn’t Jerry Brown. It was Ronald Reagan.  By signing the MMBA, Governor Reagan made California the second state in the nation to allow public sector collective bargaining. The first was Wisconsin in 1959.

Court Affirms Duty of Fair Representation under MMBA

Paulsen v. Local No. 856 (Court of Appeal Case No. A126633) (Issued on 3/18/11)

Plaintiffs are Deputy Probation Officers employed by the County of Marin (County) who brought a wage and hour lawsuit against both the County and their union, Local 856. The lawsuit alleged that the County and the union entered into a “secret” deal to falsely designate plaintiffs as exempt employees under the Fair Labor Standards Act. The plaintiffs brought three (3) causes of action alleged against the union: 1) breach of the duty of fair representation, 2) common law breach of fiduciary duty, and 3) fraudulent concealment.

The trial court sustained the union’s demurrer to the first cause of action on the ground that PERB has exclusive jurisdiction over an alleged breach of the duty of fair representation. The trial court also sustained the union’s demurrer to the 2nd and 3rd causes of action on the ground that the “essence” of those claims also was for breach of the duty of fair representation.

On appeal, the plaintiffs made the novel argument that under the MMBA there is no duty of fair representation. Because there is no duty of fair representation, plaintiff s argued that there could be no unfair practice. The court acknowledged that in Andrews v. Board of Supervisors (1982) 134 Cal.App.3d 274, 283 (“Andrews”), another appellate court concluded that the MMBA does not contain an implied duty of fair representation. However, based on subsequent case-law, the court questioned the validity of the Andrews decision and noted that PERB has consistently held that a duty of fair representation exists under the MMBA. Accordingly, the court held that a claim for breach of the duty of fair representation is clearly an unfair practice under the MMBA.

Comments:

1. In addition to the above holding, the court also affirmed that MMBA section 3511 only exempts from PERB’s jurisdiction peace officers designated under Penal Code 830.1. Deputy Probation Officers are designated peace officers under Penal Code 830.5, and therefore are subject to PERB’s jurisdiction.
2. With respect to the duty of fair representation, the court emphasized that the duty arises from the union’s role as the “exclusive” representative of employees. The decision notes that, "there is ordinarily no such duty when the union does not occupy that position, or as to particular matters for which the union does not act as the employees’ exclusive agent." Typically, the duty of fair representation attaches to negotiations and contractually based remedies under the union’s exclusive control. What this means is that if the union voluntarily takes on a role—for example, representing an employee in a civil service hearing where the employee is free to represent himself or herself or obtain independent counsel—the duty of fair representation may not attach.  I've always seens this as an unnecessary loophole in the law.  In my opinion, if a union voluntarily undertakes representation of an employee the duty of fair representation should attach.  Granted, I'm a management attorney so I'm biased.  But it seems to me that an employee should expect the union to treat him or her fairly and not to make arbitrarty decisions regardless of whether the union is acting in an "exclusive" capacity or not.  

SB 609: Requires Board Decision in 180 Days in Representation Cases

SB 609 was introduced by Senator Negrete McLeod on February 17, 2011. Under SB 609, PERB would have 180 days to issue a decision in an appeal of an Administrative Law Judge's decision in a representation case (ie. requests for recognition, unit modification, severance, decertification, etc.).  Currently, there are no time limits governing how long PERB has to issue a decision on any matter before the Board.

Comments:

1. This bill is obviously aimed at shortening the time its takes to get a final decision from PERB.  In years past, it could take up to two years for the Board to issue a decision on an appeal of an ALJ’s proposed decision. However, that was when the Board’s docket of cases approached 150. Currently, the Board has a docket of about 50-60 cases. So today I think the longest delays are at the initial charge processing stage rather than at the Board.
2. Although the Board can take up to two years (or more in some isolated cases) to issue a decision, it has always prioritized representation cases.  I do not know how many cases, if any, there have been where the Board took more than 180 days to issue a decision in a representation case. I suspect there must be at least one, which is what prompted this bill.
3. Although I support the goal of this bill, I'm concerned with the way it is written because it does not provide any exceptions and singles out representation cases for priority.  Under this bill, the 180 days would run from the date the appeal is filed. However, this doesn’t take into account that after an appeal is filed there is briefing that must be done. Sometimes a transcript must be prepared.  As an example of unanticipated delay, during the last budget impasse PERB was unable to pay for transcription services until the budget was passed which caused a delay in the processing of cases at the Board level.  None of these factors would be taken into account under this bill.
4. As mentioned, I am absolutely in favor of PERB having timelines for the issuance of decisions.  My preference would be for PERB to issue its own regulations setting forth timelines rather than having those timelines set in statute.  My recommendation to PERB would be to have a timeline of 90 days to issue a decision in an appeal of a dismissal and 180 days to issue a decision in an appeal of an ALJ decision. I would apply these timelines to all cases, not just representation ones. Contrary to SB 609, I would run the timelines from when a case is placed on the Board’s docket (ie. after briefing is complete) instead of when an appeal is filed.

AB 501 Would Bring JPA’s Under EERA; But Is It Necessary?

AB 501 was introduced by Assemblymember Nora Campos (D-San Jose) on February 15, 2011.  AB 501 would expand the definition of “public school employer” under EERA to include a joint powers agency (JPA) if: 1) the JPA is separate from the contracting parties to the joint powers agreement; 2) the JPA has its own employees; and, 3) the JPA is designated under statute or provides services primarily performed by either a “school district, county board of education, or county superintendent of schools” or is comprised solely of school agencies.

This bill was just introduced so there is no legislative analysis available.  However, the impetus for this bill appears to be PERB’s decision in North Orange County Regional Occupational Program (1990) PERB Decision N. 857-E (“North Orange County”) issued in 1990.  In that case, PERB overturned prior precedent by holding that a JPA created by five school districts was not a “public school employer” for purposes of EERA.  In 1999, Assemblymember Hertzberg introduced AB 91 which would have overturned the North Orange County decision and brought JPAs under EERA’s jurisdiction.  That bill was vetoed by the Governor because of the potential costs to the state and school districts.

In 2007, Assemblymember Eng introduced AB 1463 which would have accomplished the same result as AB 91.  That bill did not make it out of the Legislature.  Now, Assemblymember Campos has introduced AB 501, which is nearly identical to the prior AB 1463.

In addition to overturning North Orange County, AB 501 would also likely overturn the Board's decision in Castaic Union School District (2010) PERB Decision No. Ad-384 ("Castaic") (Note: Castaic is currently on appeal) which held that school noon-duty aides are not "employees" within the meaning of EERA.  The Board's decision in Castaic was based on EERA section 3540.1 which states that an exclusive representative under EERA must represent either classified or certificated employees.  Since the noon-duty aides at issue were neither, Board held that they were not covered by EERA.  AB 501 would change section 3540.1 to remove the requirement that an employee be either a classified or certificated employee.

Comments:

1. According to the Assembly analysis of AB 1463, the result of the North Orange County decision was that JPAs became subject to the MMBA instead of EERA. The analysis stated that, “JPAs must comply with the MMBA which calls for a "meet and confer" process but does not provide all of the procedural elements of the EERA which could result in egregious labor abuses.  For example, it is possible for a JPA to lay off workers and hire them back with reduction in salary, hours, working conditions, and classification changes without regard to negotiated criteria under MMBA.”
2. The Senate analysis stated that because of the North Orange County decision, “JPAs were not required to engage in collective bargaining. JPAs, thus, are subject only to ‘meet and confer in good faith’ provisions, which are not subject to PERB oversight.”
3. First, it's interesting that both the Assembly and Senate analyses for AB 1463 assume that collective bargaining under the MMBA is different from that under EERA.  Both analyses suggest that the term “meet and confer” is a lesser requirement than that under EERA. I don’t know what gave them that idea but it’s certainly not true today. The requirement to “meet and confer” under the MMBA is no different than the requirement to “meet and negotiate” under EERA.  Both require collective bargaining as that term is generally understood.
4. Second, the Assembly analysis suggests that under the MMBA, an employer can abrogate a collective bargaining agreement by simply laying off employees and hiring them back under different terms and conditions.  I would like to see the support for that proposition because I'm not aware of any legal authority for that.
5. Third, one of the criticisms of the North Orange County decision has been that it allows school districts to “legally join together in a way that evades EERA and results in the loss of employees' statutory rights.” (San Jose/Evergreen Community College District (2005) PERB Decision No. 1928-E, dissent of Member Shek, p. 21, fn. 5; Clovis Unified School District (2002) PERB Decision N0. 1504-E, p. 15, fn 11.)  It’s certainly true that under North Orange County, JPAs are not subject to EERA.  But that does not mean employees of JPAs have no statutory right to collective bargaining. They are still subject to the MMBA.  More important, back in 1990, the MMBA was not subject to PERB.  However, today the MMBA is subject to PERB just like EERA.
6. Because the MMBA is now subject to PERB’s jurisdiction and provides employees with substantially the same right to collective bargaining, it’s not clear to me that the reasons given during former attempts to pass this bill are still valid today.

Court: Cross-Unit Bumping Is Negotiable; No Pre-Layoff Hearing Required for Economic Layoffs

Alameda County Management Employees Ass’n. v. Superior Court (Case No. A128697) (Issued on 3/7/11)

In response to a budget deficit for the 2009-2010 fiscal year, the Superior Court of Alameda County (Court) laid off 28 members in the bargaining unit represented by the Alameda County Management Employees Association (ACMEA). Under the Court’s personnel rules, an employee who is laid off has the right to “bump” into a position he or she previously held.  However, the Court negotiated a MOU with SEIU providing that an employee loses any “seniority” for calculating bumping rights if the employee leaves his or her position for more than six months. The SEIU MOU had the effect of preventing management employees from “bumping” into the SEIU unit because the management employees lost seniority per the SEIU MOU provision.

ACMEA argued that the Court could not apply the SEIU MOU to its members. ACMEA also argued that the laid off employees were entitled to pre-layoff hearings. The trial court rejected both arguments. The court of appeal reversed the trial court on the issue of whether the Court violated the Trial Court Employment Protection and Governance Act (TCEPGA) by applying the SEIU MOU to ACMEA unit members, but affirmed the trial court holding that no pre-layoff hearings were required.

With respect to the SEIU MOU, the court held that under the TCEPGA the Court had the duty to meet and confer with ACMEA over terms and conditions of employment, which include seniority rights.  The “status quo” with respect to seniority rights was contained in the Court’s personnel rules.  The appellate court held that if the Court wanted to apply the SEIU provision to ACMEA, it should have provided ACMEA notice and an opportunity to bargain over the seniority language. Because it didn’t, the court violated the TCEPGA.

As for the right to pre-layoff hearings, the court cited to Duncan v. Department of Personnel Administration (2000) 77 Cal.App.4th 1166 ("Duncan") for the holding that pre-layoff hearings are not required when the layoff is due to budgetary constraints. Here, the court held that there is no dispute that the layoffs were due to budgetary constraints. The court also noted that the layoffs involved multiple people and were done according to seniority which is an objective criteria. These factors greatly lessened any chance that the layoffs were “targeted” at particular individuals. Under these facts, the court held that pre-layoff due process hearings are not necessary.

Comments:

1. Cross-unit bumping is becoming more of an issue now that layoffs are a reality in the public sector.  Many unions take the position that members of other unions should not be able to "bump" into their bargaining unit.  However, it's fairly rare to find actual contract language prohibiting employees from "bumping" into a unit.  Most public entities allow cross-unit bumping if the employee previously held the position he or she is bumping into.  In this case, the SEIU language had the practical effect of protecting existing SEIU unit members from being bumped by employees coming back into the unit.  Under this decision, such contract language must be negotiated with not only the union demanding it, but every other union which might be affected.  I think trying to implement this decision and actually negotiate such language with multiple unions would be a nightmare.  The practical result of this decision is that employers are going to refuse to agree to the SEIU language found in this case.
2. The more interesting aspect of this case is the issue of pre-layoff due process hearings.  This is the first published decision discussing pre-layoff due process hearings since the Levine v. City of Alameda (9th Cir. 2008) 525 F. 3d 903, decision in 2008.  That decision created a stir because it suggested that pre-layoff due process hearings are required.  However, this decision makes clear that if there is no evidence that employees are being specifically "targeted" for layoff in lieu of discipline or as a form of reprisal, then no pre-layoff due process hearing is required.  What's interesting is that the court does not directly discuss Levine in reaching this holding.  However, the court cites to Levine in other portions of the case and also cites to other federal cases on the issue of due process rights.  So although I would have liked a more robust discussion of Levine versus Duncan, I think this decision gives public entities some much needed guidance as to when pre-layoff hearings are required. 

Isolated Reference to Union Activity During Termination Not Enough To Establish Retaliation

Fallbrook Union Elementary School District (2011) 2171-E (Issued on 3/01/11)

This case involved an allegation that the Fallbrook Union Elementary School District (District) decided not to reemploy a teacher because of her activities as a union site representative.  For a retaliation case, the facts are fairly short and simple. The teacher was employed on a series of temporary contracts in 2005-06, 2006-07, and 2007-08. She received satisfactory evaluations the first two years. However, in 2007-08 she was not recommended for re-hire purportedly because of her classroom management skills. The teacher alleged that immediately after she was informed by the Principal that she would not be re-hired the next year, he stated, “On a side bar, off the record, I believe that your Union activities have gotten in the way of your teaching objectives this year. . ."  Based on this statement, the union alleged that the teacher was retaliated against for her union activities as a site representative.

The Administrative Law Judge (ALJ) found in favor of the teacher. However, on exceptions by the District the Board rejected the ALJ’s proposed decision and dismissed the charge. The Board’s decision focused on whether the union had established the required “nexus” between the adverse action and the protected activity.  According to the Board, there were two factors proffered to establish nexus.  First, the union argued that the Principal failed to follow the contract by having a conference with the teacher within a certain time period after the classroom observation.  Second, the union argued that the Principal’s statement, “I believe that your Union activities have gotten in the way of your teaching objectives this year …” evidenced discriminatory intent.

The Board rejected both of these factors as supporting the required nexus. As for the failure to follow the contract, the Board found that the Principal had failed to follow the contract in prior years when he gave the teacher a favorable rating. Based on this fact, the Board set forth a rule that, “[W]hen an employer fails to comply with an MOU provision both before the employee engaged in protected conduct and after the employee engaged in such conduct, the later failure to comply with the MOU is not a reliable predictor of discriminatory intent.” As for the alleged statement by the Principal, the Board held that, by itself, it was a “relatively benign statement that does not convey union animosity.”  The Board acknowledged that it could indicate anti-union animus if coupled with other facts. But here, the Board found no other facts supporting anti-union animus.  Accordingly, the Board rejected the ALJ’s proposed decision and dismissed the complaint.

Member Wesley dissented. Member Wesley stated that the District’s failure to adhere to the contract meant that the teacher was not apprised of her performance prior to the decision not to re-hire.  According to Member Wesley, the teacher “had no way of knowing she was at risk of not being reemployed and she was not given the opportunity to improve as required in the evaluation procedure.” As for the statement by the Principal, Member Wesley agreed that it was not “blatant anti-union animosity ...” However, she would have found that the statement, “does imply that union activity is inconsistent with professional achievement and further supports the inference that the District’s actions were unlawfully motivated.” Accordingly, Member Wesley would have found that the District unlawfully retaliated against the teacher for her protected activity.

Comments:

1. Historically, it’s rare for the Board to overturn an ALJ’s proposed decision in a retaliation case because such cases are very fact-intensive and often rely on credibility determinations that the Board is loath to reject.  It’s also fairly rare for a decision to draw a dissent, so this case is doubly interesting.
2. It terms of new law, the Board held that, “[W]hen an employer fails to comply with an MOU provision both before the employee engaged in protected conduct and after the employee engaged in such conduct, the later failure to comply with the MOU is not a reliable predictor of discriminatory intent.” I think this makes sense. A classic example is the annual performance evaluation. Many public entities have an express requirement that an employee is supposed to get an annual performance evaluation. But it’s very common for supervisors to fail to comply with this requirement.  In a situation where a supervisor fails to comply with this requirement for all employees, can it really be said that the failure is evidence of any discriminatory intent?  Clearly, it’s not a good personnel practice and if the issue was “just cause” it would absolutely make a difference. But in a retaliation case under PERB, the issue is not “just cause” but whether the action was taken for discriminatory intent. The key to proving discrimination is showing that the employee was treated differently. If the employer’s non-compliance with the contract applies to everyone, then it cannot be said that any particular employee was treated differently. So I think the Board’s rule makes sense. However, I will add that failure to comply with rules and procedures can absolutely be evidence of discriminatory intent in other circumstances. So I think the application of this rule will be very fact specific.
3. The most interesting part of this decision is the Board’s treatment of the Principal’s statement, “I believe that your Union activities have gotten in the way of your teaching objectives this year …” The Board found that by itself, this statement wasn’t enough to establish retaliation.  Presumably, this is because the Board felt that the Principal could merely have been saying that the teacher did not focus enough on her core reaching duties. Fortunately for the school district, there was no other evidence of unlawful retaliation. If there was other evidence, I believe the result would have been very different. The reality is that it’s very dangerous for a supervisor to reference an employee’s union conduct during a performance review. An employee can easily view such references as a form of retaliation. If an employee is inappropriately spending time on union duties there is a legitimate way to address that.  But it must be done carefully to avoid charges of retaliation like the one in this case.

Proof of Majority Support Not Always Required When Adding Employees to a Bargaining Unit

County of Riverside (2011) PERB Decision No. 2163M (Issued on 2/18/11)

This case began with a petition from SEIU to add unrepresented ‘per diem’ nurses to an existing bargaining unit. The County denied the petition because it was not accompanied by proof of majority support of the per diem nurses being added to the unit. SEIU filed an unfair practice charge asserting that it was unreasonable for the County to impose a majority support requirement on SEIU’s petition because the County’s local rules did not contain such a requirement. In defending against the unfair practice charge, the County acknowledged that its local rules were silent regarding proof of support but argued that a majority support requirement had to be implied in the rules in order to prevent unrepresented employees from being "involuntarily unionized against their will."  The Administrative Law Judge (ALJ) rejected the County’s defense. The ALJ held that the County’s position was contrary to PERB regulations which only require proof of majority support if the added employees would increase the existing bargaining unit by 10% or more.

On exceptions, the Board affirmed the ALJ’s proposed decision. The Board noted that the National Labor Relations Board (NLRB) only requires a showing a majority support when the employees to be added to an existing bargaining unit historically have been excluded from the unit, typically (but not necessarily) by agreement between the union and the employer. (Teamsters National United Parcel Service Negotiating Committee v. National Labor Relations Rd. (D.C. Cir. 1994) 17 F.3d 1518, 1522; Laconia Shoe Co. (1974) 215 NLRB 573, 576.) However, PERB does not follow the NLRB ’s approach to accretion.  Instead, PERB regulations require a showing of majority support when adding the requested employees "would increase the size of the established unit by ten percent or more." (PERB Regs. 32781(e)(1); 61450(e)(1); 81450(e)(1); 91450(e)( 1).)  If the addition would not increase unit size by ten percent or more, no showing of majority support is required.  (Regents of the University of California (2010) PERB Decision No. 2107-H.) Based on PERB’s regulation on accretion, the Board rejected the County’s argument that a showing of majority support must be implied whenever employees are added to an existing bargaining unit.

Comments:

1. The majority support requirement for adding employees into an existing bargaining unit is one of the areas where PERB’s rules differ from those under the NLRB. Under PERB’s regulations, proof of majority support is required only if the added employees increase the bargaining unit by 10% of more.  It’s a more objective standard than that under the NLRB. I personally like PERB’s rule because it provides much more certainty to both the employee organization attempting to organize the employees and to the employer attempting to apply its local rules.
2. However, this decision leaves unanswered a very significant question. What if a public entity has in its local rules a requirement for proof of majority support whenever employees are being added to an existing bargaining unit, even if the increase to the bargaining unit is less than 10%? Clearly, the Board is saying that PERB does not require proof of majority support if the bargaining unit does not increase by 10% of more.  But what if a public entity wants to impose such a requirement in those situations where the increase is less than 10%?  Does this decision make such a “requirement” unreasonable?  In other words, is PERB imposing a minimum standard of 10% such that a public entity may not impose any contrary requirement?  It's unclear from this decision.  I believe there are certainly public policy reasons why a public entity may want to require proof of majority support in situations even where a bargaining unit isn’t increased by 10%.  It seems to me such a requirement wouldn't be that onerous to employee organizations.  But again, whether PERB would find such a requirement an “unreasonable” local rule is not answered by this decision.

PERB Chair Alice Dowdin Calvillo to Speak at IRANC Luncheon on March 10th

If you're going to be in Sacramento on March 10, 2011, please make plans to attend a luncheon sponsored by the Industrial Relations Association of Northern California (IRANC) featuring Alice Dowdin Calvillo, Chair of PERB.  Chair Dowin Calvillo will be speaking on, "PERB: Past – Present – Future" and will talk about her time at PERB.

Here are the details:

• Date: Thursday, March 10, 2011 Meeting
• Time: 11:30 A.M. Registration & Networking; Noon – Lunch & Speaker; 1:00 P.M. Adjourn
• Location: Firehouse Restaurant, Golden Eagle Room, 1112 Second Street, Old Sacramento, CA 95814
• Menu: Choice of 1)  Vegetarian Sandwich; 2) Chicken Breast Forestiere, or 3) Mahi Mahi

RSVP by March 2 to Marcie Mooney at (916) 928-0399 or email her at: mmooney@local 39.org with lunch choice.

AB 646 Would Impose Mandatory Mediation and Factfinding under the MMBA

AB 646 was introduced by Assemblymember Toni Atkins (D-San Diego) on February 16, 2011.  AB 646 would repeal the right of local agencies to impose a last, best, final offer (LBFO) upon reaching impasse.  AB 646 would instead introduce mandatory mediation and factfinding into the MMBA.  Under this bill, a local agency could not impose its LBFO until after the completion of these post-impasse procedures. The language of the bill can be found here.  The language in the bill establishing mediation and factfinding essentially mirrors the language under the Educational Employment Relations Act (EERA).

Comments:

1. When PERB took over jurisdiction for administering the MMBA in 2001, cities and counties were extremely concerned that PERB would try to override existing local rules governing labor relations with PERB's own rules.  As enacted, Senate Bill 739—which brought the MMBA under PERB’s jurisdiction—expressly provided that a local agency could adopt its own local rules and regulations. (Gov. Code, §3507.) This bill would eat away at that right by taking away the ability of a local agency to adopt impasse procedures.
2. Virtually every local agency that has adopted local rules has adopted impasse procedures.  Many of the procedures simply allow the local agency to take appropriate action, including imposition of the LBFO, upon impasse. Many, if not most, provide for mediation.  Some local agencies even provide for factfinding.
3. Under AB 646, mediation would become mandatory. I don’t have an objection to mediation as a post-impasse tool and almost always advise my clients to attempt mediation after a declaration of impasse, whether it is required or not. However, I think a local entity should have the right to decide for itself whether to require mediation in its local rules.
4. Factfinding is more problematic.  AB 646 does leave open the possibility that factfinding will not be required if the mediator does not recommend it.  However, if EERA and HEERA are a guide, factfinding will almost always be recommended, and therefore required by AB 646.  I believe there are many situations where factfinding is not helpful to the process and only serves as a tool for delay.  If asked, I almost always advise local entities not to require factfinding in local rules.
5. Perhaps a bigger problem with AB 646 is that PERB simply does not have the money to pay all the mediators and factfinders that would be required. For the last few years, the MMBA has either generated the most, or second most, number of unfair practice charges before PERB.  There are over 2 million employees covered by the MMBA.  Unless PERB is given a serious injection of funding, I don’t see how PERB could possibly fund this bill’s mandate.

PERB: Poor Personnel Practices Do Not Prove Discrimination

City of Alhambra (2011) PERB Decision No. 2161-M (Issued 2/08/11)

This case involved an employee who was rejected during probation. The employee alleged that he was rejected during probation because of protected activities, in violation of the MMBA. Specifically, the employee argued that the City retaliated against him because of comments he made criticizing his supervisor during an employee meeting.

The Administrative Law Judge (ALJ) issued a proposed decision finding that the City rejected the employee during probation because of his protected activities. To establish unlawful motive, the ALJ found that the City decided to reject the employee less than eight hours after the employee’s complaints at the meeting. The ALJ also found that the decision-maker, who knew about the employee’s complaint, decided to reject the employee based on complaints from others even though no investigation was conducted. 

On exceptions filed by the City, the Board agreed that these facts could establish a prima facie case of retaliation.  However, the Board first questioned whether the employee even engaged in protected activity. The Board noted that under the MMBA, employees have the right to represent themselves individually in their employment relations with their employer. (Gov. Code, §3502.)  But individual employee complaints generally have been held to be unprotected when they are undertaken for the employee’s sole benefit or are the result of a personal grudge. (See Los Angeles Unified School District (2003) PERB Decision No. 1552.) Here, the Board found no evidence the employee’s complaints were related to group activity or intended to group action.

The Board also acknowledged that an employee’s reporting of workplace safety concerns is protected activity. However, the Board held that the employee’s references to safety concerns during the meeting involved safety to the public, not to employees. Accordingly, the Board reversed the ALJ’s finding that the employee engaged in protected activity.

Even if the employee had engaged in protected activity, the Board held that the City met its burden to demonstrate that it would have rejected the employee during probation even absent the protected activity.  In reaching its decision, the Board made several interesting findings. First, the Board found that an employer’s failure to give an "at will" employee a reason for dismissal does not indicate unlawful motive in the absence of evidence that the employer was required by policy or past practice to do so.  (Sacramento City Unified School District (2010) PERB Decision No. 2129.)

In addition, the Board found that the evidence established that the employee was rejected solely because of complaints about his attitude and work conduct. Acknowledging that the decision-maker did not investigate the complaints, the Board held that, “while this may demonstrate a poor personnel practice, it does not establish that [the decision-maker] rejected [the employee] on probation because of his complaints about being worked too hard.  Instead, the Board found that the decision-maker reasonably believed the employee’s performance would not improve.

Comments:

1. When it comes to proving discrimination, it’s very rare to have “smoking gun” evidence of discriminatory intent.  Therefore most discrimination cases involve circumstantial evidence. In this case, the Board clarified how it will treat circumstantial evidence that can be indicia of discriminatory intent.
2. First, the Board held that, “[W]e find an employer’s failure to offer justification at the time it took action is not a reliable indicator of discriminatory intent unless the employer was required by law, policy, or past practice to give a reason.”  Practically, this will not apply often in the public sector as employees entitled to civil service protection have due process rights that include the right to know the grounds for any discipline. However, exceptions exist for probationary employees, limited-term employees, and other types of temporary employees.  In those situations, this holding may be helpful to employers.
3. Board also affirmed that merely proving that the employer made a unwise or unjust decision to discipline or terminate an employee is not enough to find that there was discrimination.  This is a concept the Board has upheld before.  This case, however, provides a good illustration that an employer’s “poor personnel practice” does not establish unlawful discrimination.
4. Finally, it is worth noting that this decision continues a trend of the Board reversing cases where the ALJ’s proposed decision has found a violation. Since July 1, 2010, the Board has considered seven (7) cases, including this case, where the ALJ’s proposed decision found a violation. The Board overturned, either partially or entirely, every one of those decisions.  During that same time, the Board considered seven (7) cases where the ALJ’s proposed decision found no violation. The Board affirmed every one of those decisions.

John Liebert Passes Away …

I’m saddened to report that John Liebert, a founding partner of Liebert Cassidy Whitmore, passed away today. You can visit Liebert Cassidy’s website (click here) for further information.  John Liebert was truly one of the great pioneers of public sector labor law in California and in the nation.  He will be missed by all of us in the field.

Jeff Sloan, a partner in my firm, knew John well and had this to say, “John was and is the most esteemed public sector labor lawyer in California, and beyond that an extraordinarily kind, compassionate and forward-thinking person. From its very humble beginnings, he built LCW into what is now by far the largest public sector labor and employment law firm in California. Our firm and our partners will miss him.”

AB 195 Would Codify Employer Unfair Practices Under MMBA

Last week Assembly members Roger Hernandez and Michael Allen introduced AB 195 which would codify employer unfair practices under the MMBA. The bill would delete Government Code section 3506 and replace it with the following:

3506. A public agency shall not do any of the following:


(a) Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter. For purposes of this subdivision, "employee" includes an applicant for employment or reemployment.

(b) Deny to employee organizations the rights guaranteed to them by this chapter.

(c) Refuse or fail to meet and negotiate in good faith with a recognized employee organization. For purposes of this subdivision, knowingly providing a recognized employee organization with inaccurate information, whether or not in response to a request for information, constitutes a refusal or failure to meet and negotiate in good faith.

(d) Dominate or interfere with the formation or administration of any employee organization, contribute financial or other support to any employee organization, or in any way encourage employees to join any organization in preference to another.

(e) Refuse to participate in good faith in an applicable impasse procedure.

Comments:

1. The MMBA is unique among the four major public sector labor relations statutes because it does not set forth specific unfair practices in the statute itself. Because of this, PERB promulgated regulations setting forth unfair practices under the MMBA for both employers and employee organizations. (PERB Regs. 32604, 32604.) The regulations are substantially similar to the language defining unfair practices under the other acts. (See, e.g., Gov. Code, § 3519, 3543.5, 3571.)
2. Interestingly, AB 195 uses language from EERA (Gov. Code, § 3543.5) rather than just using the current MMBA regulation language. The big difference is that EERA contains language making it an unfair practice for a school employer to provide “inaccurate information” regarding its financial resources to an exclusive representative. (Gov. Code, § 3543.5.)  AB 195 adopts this language but tweaks it slightly. Under AB 195, it would become an unfair practice to provide an exclusive representative with “inaccurate information” whether related to finances or not.
3. Finally, it should be noted that Gov. Code section 3506 currently prohibits both employers and employee organizations from intimidating or discriminating against employees.  AB 195 would delete this language and replace it with language only prohibiting employers from such actions. There would be no similar prohibition against unions from engaging in such conduct. Is the intent therefore that unions would be free to intimidate and discriminate against employees—for example, by pressuring employees to vote a certain way during representation elections? It’s not clear.  Because the bill was just introduced there isn't an analysis yet for the bill.  Once the analysis is released perhaps we'll learn more.

Court: Fiscal Impact of MOU Must Be Presented to Legislature

Cal. Statewide Law Enforcement Assn. v. Dept. Personnel Admin. (Case No. C061102) (Issued on 1/26/11)

This case involved a Memorandum of Understanding (MOU) between the California Statewide Law Enforcement Association (CSLEA) and the State of California reached in 2002. Under the new MOU, CSLEA bargaining unit members were to be reclassified as “safety members” effective July 1, 2004 and allowed to participate in the more generous safety retirement pension plan. A dispute arose over whether the reclassification into safety member status was intended to be retroactive; in other words, whether the employees' past years of service would also be credited for safety retirement. According to the court, applying the reclassification retroactively would cost the State “[m]any millions of dollars …” The dispute was submitted to arbitration. The arbitrator ruled for CSLEA and held that the safety retirement provision was intended to apply retroactively. Over the State’s objection, the superior court confirmed the arbitration award.

On appeal, the court reversed the superior court’s judgment. The court based its decision on the ground that the bill presenting the CSLEA MOU to the Legislative did not expressly inform the Legislature that safety retirement was being conferred retroactively. Under the Dills Act, any MOU must be presented to the Legislature for approval. (Gov. Code, § 3517.5.) Because the Legislature was never informed of the fiscal consequences of the retroactive provision, the court held that the MOU failed to meet the Dills Act requirement of being presented to the Legislature. The court expressly rejected CSLEA’s argument that it was sufficient that the Legislature knew that there was the potential that safety retirement could be applied retroactively. Instead, the court held that under the Dills Act, “The Legislature had to (1) be informed explicitly that DPA and CSLEA did enter into such an agreement, (2) be provided with a fiscal analysis of the cost of retroactive application of the agreement, and (3) with said knowledge, vote to approve or disapprove the agreement and expenditure.” Because that did not occur in this case, the court held that the “retroactive part of the agreement may be enforced only if it and its fiscal consequences are explicitly submitted to, and approved by vote of, the Legislature.”

Comments:

1.  This is an interesting decision. Presumably, the union can still push to have the retroactive pension provision presented to the Legislature for approval. However, given the fiscal situation facing the state I suspect the Legislature would face pressure to reject it.
2. This decision also gives state employee unions an incentive to pay attention to the bills presenting their MOU’s to the Legislature. Unions will want to make sure that the full fiscal impact of their MOU’s are clearly set forth so there is no dispute that the Legislature has approved the an agreement.
3. Finally, it will be interesting to see if the courts give this decision application beyond the Dills Act. For example, section 3505.1 of the MMBA is very similar to section 3517.5 of the Dills Act. Both require that any MOU reached between the employer and recognized union be presented to the Legislature or the governing body for approval. Arguably, the court’s holding that under the Dills Act any presentation must include a full disclosure of the fiscal effects of the MOU should also apply to the MMBA since the statutory provisions are similar. If so, both employers and union will want to keep that in mind during negotiations.

Supreme Court: Layoffs Are Management Right

The California Supreme Court has just issued its decision in International Association of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Board (City of Richmond) (Case No. S172377) ("Richmond").

Here's the holding:

Here, we address two issues: (1) If, after receiving an unfair labor practice charge, PERB decides not to issue a complaint, is that decision ever subject to judicial review? (2) Is a city's decision to lay off firefighters for fiscal reasons a matter that is subject to collective bargaining?

On the first question, we agree with the Court of Appeal that although PERB's refusal to issue a complaint is generally not subject to judicial review, this general rule has narrow exceptions. One of these exception applies when, as the union alleges here, PERB's refusal is based on a clearly erroneous statutory construction.

On the second question, we conclude, as did the Court of Appeal, that when a city, faced with a budget deficit, decides that some firefighters must be laid off as a cost-saving measure, the city is not required to meet and confer with the firefighters' authorized employee representative before making that initial decision. In this situation, the city's duty to bargain with the employee representative extends only to the implementation and effects of the layoff decision, including the number and identity of the employees to be laid off, and the timing of the layoffs.

As I predicted, the Court answered "yes" to the first question and "no" to the second.  I'll have more on this decision after I've had a chance to thoroughly read it.

IAFF v. City of Richmond Decision Expected on Monday

The California Supreme Court has given notice that a decision in International Association of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Board (City of Richmond) (Case No. S172377) ("Richmond") will be issued on Monday morning.

As a recap, the Richmond case presents the following issues:

(1) Is the decision by the Public Employment Relations Board not to issue an unfair labor practices complaint under the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.) subject to judicial review? (2) Is a decision to lay off firefighters for fiscal reasons a matter that is subject to collective bargaining under the act?

Given the questions asked by the Justices at oral argument, my prediction is that the Court will answer the first question "yes" and the second question "no."  We'll see if I'm right.

Court Grants Rehearing on Whether Right to Privacy Prevents Release of Non-Member Employee Addresses to Union

County of Los Angeles v. Los Angeles County Employee Relations Commission (Court of Appeal Case No. B217668) (Issued on 12/14/10; Rehearing granted on 1/11/11)

I discussed this case in a prior blog post. (Click here for prior post) In short, the Court of Appeal held that under California’s right to privacy, non-union members of a bargaining unit (i.e. agency fee payers) have a reasonable expectation of privacy that their personal information will remain confidential.  The Court held that before the home addresses of non-union members can be released, the employer must provide these employees with notice and an opportunity to object to the disclosure of their personal information.

After this ruling was issued, the Service Employees International Union (SEIU) filed a petition for rehearing. On January 11, 2011, the Court of Appeal granted the request for rehearing with the following order:

“In order to allow sufficient time for consideration of the issues raised in the petition for rehearing filed by real party in interest and respondent Service Employees International Union, Local 721, and in order to obtain an answer to the petition for rehearing from appellant the County of Los Angeles, Chief Executive Office, the court grants rehearing on its own motion as of this date. Appellant has 15 days from the date of this order file and serve an answer to the petition for rehearing. (Cal. Rules of Court, rule 8.268.) Klein, P.J., Croskey, J., Aldrich, J.)”

Under Rule 8.268, subdivision (d), of the California Rules of Court, “An order granting a rehearing vacates the decision and any opinion filed in the case and sets the cause at large in the Court of Appeal.”  Accordingly, the underlying published decision in this case has been vacated.

Comments:

It’s rare for a court to grant a petition for rehearing. It’s not clear from Court’s order whether the Court is focused on a specific part or section of the decision. Without knowing more it’s hard to speculate how the Court may rule on rehearing the case. As soon as I know more I’ll post another entry.

Governor's Budget Spares PERB From Cuts

On Monday, Governor Brown released his proposed budget for 2011-2012. The overall budget picture is grim. However, the budget picture for PERB isn't that bad. PERB's proposed budget for 2011-2012 is $6,235,000, which is slightly higher (about 4.4%) than PERB's estimated expenditures for 2010-2011 of $5,971,000. I don't know for sure, but I'm guessing the increase is due to the fact that PERB employees were subject to a 3-day per month furlough in 2010-2011 (a roughly 14% paycut) while in 2011-12 PERB employees will be subject to a combination of cuts totally about 10% of pay. The difference would explain why PERB's budget increased slightly. In terms of personnel, the 2011-2012 budget anticipates 40 FTE's; the same as in 2010-2011.

Below are the excerpts from the Governor's proposed budget for PERB:

Retired Annuitants Not Automatically In Bargaining Unit

State of California (Department of Corrections & Rehabilitation) (2010) PERB Dec. No. 2154-S (Issued on 12/30/10)

This case considered whether retired annuitants (individuals who have retired from State service and are then hired back for part-time work) working as correctional officers are automatically members of State Bargaining Unit 6 (BU6), represented by the California Correctional Peace Officers Association (CCPOA).  The administrative law judge (ALJ) ruled in favor of CCPOA.  The ALJ held that retired annuitants were included in BU6 by operation of the original unit determination by PERB in 1979. That unit determination placed all state employees working as correctional officers, parole agents, and correctional counselors into BU6.

Relying upon Unit Determination for Technical, Skilled Crafts, Service and Professional Employees of the University of California (Lawrence Livermore National Laboratory Casual Employees) (1983) PERB Decision Nos. 290-H and 290a-H (Lawrence Livermore I), a Board majority rejected the ALJ’s proposed decision.  The majority held that because there are substantial differences between retired annuitants and full-time employees, any unit determination decision must analyze whether including retired annuitants in a bargaining unit is appropriate.  The Board held that:

“Lawrence Livermore I stands for the proposition that retired annuitants are not automatically placed in units containing full-time employees performing similar tasks.  Rather, retired annuitants will be placed in such units if they are included in a unit determination or modification petition and if, following a full unit hearing, the Board determines they are appropriately placed in that unit.”

Accordingly, the Board majority dismissed the unfair practice charge.

Board Member Wesley dissented from the majority’s holding that retired annuitants are not members of BU6.  Member Wesley stated that the original 1979 unit determination found "a unit of corrections employees to be appropriate."  She noted that the unit determination specifically considered which employees to exclude and only excluded employees in managerial, confidential, or supervisory positions.  According to Member Wesley, there is no indication the unit determination decision in 1979 intended to exclude employees in the same classifications who work in less than permanent, full-time positions, such as retired annuitants.

Comments:

1. At first blush, this decision seems to involve a unit issue unique to the State’s BU6.  However, the legal principle enunciated by the Board majority in this decision has wide-ranging implications. Namely, the notion that retired annuitants are not automatically included in bargaining units containing full-time employees performing similar tasks presumably would apply to all of the statutes administered by PERB. 
2. The impact of this decision is also wide-ranging because retired annuitants are fairly common among public employers who are members of CalPERS, which includes many more employers than just the State.  Also, this decision presumably would apply to employees who are similarly situated to the retired annuitants in this case.  For example, many public employers utilize deferred retirement option plans (DROP’s) that function similarly to the retired annuitant system.
3. Lastly, the statement of facts in the decision notes that it was CCPOA attorney Ronald Yank who filed the grievance over the State’s use of retired annuitants to perform BU6 work.  Ron was recently appointed to be director of the Department of Personnel Administration, which defended this case against CCPOA.  It will be interesting to see whether CCPOA attempts to appeal this case to the courts or whether it will attempt to modify its unit determination to include retired annuitants.

Governor Appoints Kari Miner to PERB

As one of his last acts in office, Governor Schwarzenegger announced a slew of appointments to various commissions and boards.  Among the appointments was a new member to PERB.  Here's the announcement:

Kari Miner, 47, of Sacramento, has been appointed to the Public Employment Relations Board. Since 2003, she has been an independent consultant to small businesses focusing on image and efficiency. Prior to that, Miner was a statewide development and programs officer at the Department of Alcohol and Drug Programs from 1996 to 2002. Previously, she was a paralegal for the law firm Burger and Plavan from 1993 to 1996. This position requires Senate confirmation and the salary is $128,109. Miner is a Republican.