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.