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.