California PERB Blog

Court Denies Permanent Injunction in UC Strike

2008-07-22T19:45:00.000-07:00

The San Francisco superior court today denied PERB’s request for a permanent injunction against AFSCME. PERB had sought the permanent injunction on behalf of the UC to prohibit AFSCME from calling a strike without sufficient notice and also prohibit certain health and safety sensitive positions from striking at all. The court had issued a temporary restraining order (TRO) against AFSCME on July 11th. In a widely publicized move, AFSCME claimed that the TRO was improper and went ahead with its strike on July 14th.

At the hearing today the judge questioned whether a permanent injunction was “moot” since the AFSCME strike had already occurred. Both PERB and the UC argued that the matter was not moot since AFSCME could, and likely would, initiate another strike in the near future. The judge, however, was not convinced. The judge felt that the language of the injunctive relief request focused solely on a strike set for July 14th, and since that strike had already occurred, the matter was moot. Accordingly, the judge denied the request for a permanent injunction.

Later that day, however, the court did grant UC’s request for an “order to show cause” against ASFCME for violating the court’s TRO. The parties will now submit briefs on that issue. It is expected that AFSCME will argue that no sanctions should be imposed since the order was improperly issued. It should be an interesting case. Stay tuned for more.

PERB’s Jurisdiction Over Units Containing Cops

2008-07-21T19:53:00.000-07:00

As discussed in this blog, PERB’s jurisdiction over public employee strikes that threaten health and safety is one of the hot issues in the public sector. Another brewing issue involves PERB’s jurisdiction over bargaining units containing Penal Code section 830.1 peace officers. When PERB gained jurisdiction over administration of the MMBA in 2001, an exception was carved out for Penal Code 830.1 peace officers. (Gov. Code, §3511.) Penal Code 830.1 peace officers include most all city police officers and county deputy sheriffs. As it stands, while Penal Code 830.1 peace officers are subject to the MMBA, they are not subject to PERB’s jurisdiction. Therefore when unions or employers want to bring unfair practice charges under the MMBA, they must go directly to court.

For bargaining units containing exclusively Penal Code 830.1 peace officers, the exclusion created by Government Code section 3511 is straight forward – PERB doesn’t have jurisdiction. However, what happens where a bargaining unit contains both Penal Code 830.1 peace officers and employees that are otherwise subject to PERB? For example, many cities and counties have law enforcement bargaining units that mix Penal Code 830.1 peace officers together with other peace officers, such as correctional officers or probation officers.

The Sacramento County Deputy Sheriff’s Association (SCDSA) is such a unit. 1400 of the 1700 members in the SCDSA are Penal Code 830.1 peace officers. 300 members are not. Late last year, the SCDSA was successful in obtaining a trial court order enjoining PERB from asserting jurisdiction over a dispute involving the SCDSA. PERB argued before the court that it retained full jurisdiction over the dispute because the SCDSA contains 300 peace officers subject to PERB’s jurisdiction. The trial court disagreed, noting that “the overwhelming majority of SCDSA members are [830.1] peace officers and it is those peace officers who would be affected by a PERB decision.” The case is currently on appeal in the Third District. (Sacramento County Deputy Sheriff's Assoc. v. Public Employment Relations Bd. et al., Court of Appeal Case No. C057877.) Briefing is expected to be completed in late 2008, and a decision expected in 2009.

AFSCME Defies Court Order; Goes on Strike

2008-07-14T10:39:00.000-07:00

According to the Sacramento Bee, about 500 AFSCME members are picketing in front of UC Davis Medical Center this morning, in defiance of a court order enjoining such a strike. When told of UC’s threat to discipline employees who defied the court order, one demonstrator replied that the possibility of discipline was a just a “rumor.”

In my opinion, all the employees who went on strike today are engaged in unprotected activity as far as state labor law is concerned. That means there is nothing prohibiting the UC from imposing discipline on employees participating in the strike. The UC would of course have to demonstrate good cause for any discipline, but I think that standard would be met by the fact that the striking employees are defying a court order. Obviously, AFSCME’s defense will be that the court order was improper. However, defying a court order in the hope that it will in the future be deemed improper is a high stakes gamble. It will be interesting to see how this all plays out.

Also, I received several inquiries on yesterday’s blog post inquiring as to the grounds for the TRO issued by the court. It’s not entirely clear. Here is the language from the court’s order:

"1. That Defendant AFSCME Local 3299, its agents, employees, representatives, officers, organizers, committee persons, stewards, members, and all corporations, unincorporated associations, and natural persons acting in concert and participation with any of them, until a hearing or trial on a preliminary injunction, be enjoined and restrained;
a. from calling, engaging in, continuing, sanctioning, inducing, aiding, enticing, encouraging, abetting or assisting employees who are members of the Service Unit from engaging in any strike, walkout, slowdown or strike-related work stoppage of any nature against the University of California without adequate notice of the exact dates of the strike;
b. from calling, engaging in, continuing, sanctioning, inducing, aiding, enticing, encouraging, abetting or assisting employees of the Patient Care Technical Unit, including but not limited to those employed in the classifications identified in Exhibit "A," from engaging in any strike, walkout, slowdown or strike-related work stoppage of any nature against the University of California;
c. from continuing in effect or refusing to rescind any strike, walkout, slowdown, or work stoppage, notice, call, order or sanction heretofore issued by Defendant with respect to the Service Unit strike scheduled to commence on July 14, 2008."

AFSCME’s position is that the order only prohibits a strike without adequate notice. AFSCME argues that once it gives adequate notice, it can go on strike. This position is probably based on the language of section (a).

Section (b), however, clearly prohibits any strike by members of the Patient Care Technical Unit, irrespective of whether adequate notice is given. The basis for section (b) is most likely the threat to public health & safety.

Section (c) seems to prohibit any strike by the Service Unit beginning July 14th. As I read section (c), even if AFSCME could go on strike by giving adequate notice—as it argues it is permitted to do under section (a)—it couldn’t give notice for a strike beginning July 14th. It would have to give notice for some later date. If I was the UC or PERB, I would argue that any new notice must be for a strike occurring after the hearing on a permanent injunction, which is scheduled for July 22nd.

Therefore, as I read this order it enjoins any strike beginning July 14th and arguably enjoins any strike until July 22nd.

PERB Stops Threatened UC Strike

2008-07-12T08:34:00.000-07:00

On July 11th, PERB obtained a temporary restraining order (TRO) against AFSCME Local 3299 from the San Francisco Superior Court. The TRO enjoins members of AFSCME’s Service Unit and Patient Care Technical Unit at the University of California—approximately 19,000 total employees—from engaging in a threatened strike beginning July 14th. In seeking injunctive relief, PERB asserted that AFSCME had engaged in bad faith bargaining and that the strike by patient care employees would pose a serious threat to the delivery of care to UC patients. Although the threat to public health and safety was one of the grounds for seeking injunctive relief, the TRO appears to enjoin all members of AFSCME Local 3299 from striking, not just those employees in sensitive health and safety positions.

This is one of the first times in recent memory that PERB has moved to enjoin a strike on the grounds that it threatens public health and safety. PERB’s jurisdiction to enjoin health and safety strikes is an issue that has been heavily litigated this past year. Recently, the California Supreme Court granted review in City of San Jose v. Operating Engineers Local No. 3 (2008) 160 Cal.App.4th 951 to decide whether PERB has exclusive jurisdiction over health and safety strikes. One of the issues fanning the debate over PERB’s jurisdiction is the question of whether PERB’s injunctive relief procedures allow it enough time to intervene in strikes that threaten public health and safety and that are often called by unions with little or no notice. Here, on July 2nd AFSCME apparently informed the UC that it would be going to strike, although it did not provide the dates of the strike. Nevertheless, that was enough time for the UC to file a charge and injunctive relief request with PERB and for PERB to process the request and go into court in time to stop the strike before patient lives were endangered.

One interesting note: According to the July 12th edition of the San Francisco Chronicle, Lakesha Harrison, President of AFSCME Local 3299, was quoted as saying that AFSCME Local 3299 would strike despite the court order. Presumably, cooler heads will prevail and AFSCME will obey the court order. If not, and AFSCME knowingly defies the court order by going on strike, the penalties imposed by the court will undoubtedly be severe.

Court: PERB Does Not Have Exclusive Jurisdiction Over Essential Employee Strikes

2008-05-28T15:23:00.000-07:00

Contra Costa Co. v. Public Employees Union Local One (--- Cal.Rptr.3d ---, 2008 WL 2136950 (Cal.App. 1 Dist.)

In response to a threatened strike by public employees, the County of Contra Costa (County) sought a court injunction prohibiting “essential” employees from participating in any strike. Of the 5800 employees threatening to strike, the County argued that 270 employees were essential to maintaining public health and safety. PERB intervened in the court proceedings to assert that it had exclusive initial jurisdiction over the dispute since any strike would arguably be protected or prohibited by the Meyers-Milias-Brown Act (MMBA).

Finding that the MMBA was not implicated by the County’s application for an injunction, the court rejected PERB’s attempt to assert jurisdiction. The court similarly rejected the unions’ assertion that it could not issue an injunction without complying with Labor Code 1138—California’s version of the Norris-LaGuardia Act. The court then issued a temporary restraining order (TRO) enjoining 160 employees from striking because they were essential to maintaining public health and safety. The enjoined employees included airport operations specialists, animal services workers, probation counselors, and various County hospital workers. The court also issued a TRO forbidding nurses from engaging in a sympathy strike.

THE COURT OF APPEAL’S DECISION

PERB Does Not Have Exclusive Jurisdiction over All Strike Issues

The Court of Appeals, First Appellate District affirmed the trial court’s ruling that PERB did not have jurisdiction over this dispute. The court acknowledged that because of legislative changes in 2001, “PERB now has jurisdiction over strikes under the MMBA insofar as the strikes constitute unfair labor practices.” However, the court noted that neither the courts nor PERB has ever held that all strikes implicate unfair labor practices.

Examining the facts in this case, the court found no allegation that either party had committed an unfair practice. Because no unfair practice was alleged, the court distinguished several other cases arising under EERA. Those cases all held that PERB has exclusive jurisdiction over requests for injunctive relief; but those cases all involved situations where unfair practice charges had already been filed with PERB.

The court also discussed the Sixth District Court of Appeals’ recent decision in City of San Jose (160 Cal.App.4th 951 (2008)). In City of San Jose, the court reached the opposite conclusion as the court here, finding that PERB has exclusive jurisdiction over essential employees’ strikes. The court here called the City of San Jose decision overbroad as it would give PERB jurisdiction over every public employee strike, thus eviscerating the rights of public employers under County of Sanitation.

Labor Code Section 1138 Does Not Apply to Public Safety Injunctions

Finally, the court affirmed the trial court’s ruling that Labor Code section 1138 was not applicable to this dispute. In evaluating the applicability of Labor Code section 1138, the court noted that several of the factors in the statute made no sense in the context of a public employee strike. For example, one requirement is that there is a showing of substantial and irreparable injury to a party’s “property.” The court noted that there is no property at stake here, but rather the public’s health and safety. After examining some of the other factors, the court concluded that Labor Code section 1138.1 was not applicable here because the present case does not involve an unfair labor practice and arguably is not one “involving or growing out of a labor dispute.” The court stopped short, however, of expressly holding that Labor Code section 1138 does not apply to public entities or public employees.

Comments

The court in this case reached the opposite conclusion as the one in City of San Jose . Because there is now a split of authority over this issue, look to the Supreme Court to grant review of one of these cases in order to resolve the dispute

In the meantime, a public employer facing a strike by essential employees must carefully evaluate its options. If the employer decides to seek injunction relief through PERB—by alleging an unfair practice—this case suggests that there is a higher likelihood that PERB will have exclusive jurisdiction over the dispute.

A public employer that decides to proceed directly to court under County of Sanitation may assert the same arguments as Contra Costa County in this case and hope that the court will reach the same conclusion. However, public employers that proceed in this fashion should expect an attempt by PERB to intervene in any court proceedings in order to assert its “exclusive jurisdiction.”

Employee's Challenge to SEIU Reorganization Dismissed

2008-05-15T15:50:00.000-07:00

Service Employees International Union Local 1292 (PERB Dec. No. 1956-M) (Issued on 5/09/08)

This case arose out of the implementation of SEIU’s “California Unite to Win” plan. With respect to local government employees, the plan called for the merger of dozens of existing locals into large regional locals. In Northern California, ten locals were merged into SEIU Local 1021 (“ten to one”).

Lisa Marriott was an employee of Tehama County. Her exclusive representative was a Joint Council which consisted of IUOE Local 39 and SEIU Local 1292. Marriott belonged to a group of employees serviced primarily by SEIU Local 1292. In her unfair practice charge, Marriott alleged that with a single exception, no one from Tehama County was allowed to vote on SEIU’s proposed reorganization plan. According to Marriott, SEIU Local 1292 had only 850 unit members and was serviced by locally based representatives. Under the plan, employees in SEIU Local 1292 were to be placed in SEIU Local 1021, which contained 54,000 employees. Marriott alleged that the new SEIU Local 1021 did not maintain locally based representatives, and instead, provided services from its Sacramento offices. Because she and her fellow employees were not allowed to vote on the reorganization plan, Marriott alleged that SEIU committed an unfair practice.

According to PERB, Marriott’s charge raised two issues: (1) Can Marriott challenge SEIU's consolidation of her local union with several other of SEIU' s local unions under the MMBA? (2) Does the MMBA give Marriott the right to challenge SEIU's failure to afford union members in her bargaining unit the right to vote in its decision to consolidate several of its local unions? PERB answered both questions with a qualified yes.

First, PERB held that a local union member “may challenge a parent union's consolidation decision, but only when that decision has a substantial affect on the employer-employee relationship.” Relying on existing precedent, PERB noted that its practice and policy was to not interfere in the internal affairs between an employee organization and its members unless it is shown that there was a significant impact the member's relationship with his or her employer. Here, the Board found that Marriott failed to establish any substantial affect on her relationship with her employee. Marriott’s allegation that SEIU Local 1021 could not properly service its members in Tehama County was too speculative, according to PERB.

PERB answered the second issue in a similar manner: “We also hold that an employee may only challenge the parent union's failure to afford its members the opportunity to vote for or against a consolidation of local unions under the MMBA, if the employee can demonstrate that such consolidation had a substantial impact on the employer-employee relationship.” Again, PERB held that Marriott failed to demonstrate that her inability to vote on the reorganization plan had a substantial impact on her relationship with her employer. For these reasons, PERB dismissed the charge.

Comments

PERB analyzed this case primarily as one raising the issue of standing; namely, did Marriott, as an individual employee, have standing to challenge SEIU’s reorganization. On the issue of standing, PERB’s decision is clearly correct.

However, the more interesting issue—and the one not directly raised in this case—is whether SEIU’s reorganization raised a question concerning representation (QCR) such that an employer could have required a unit-wide vote before recognizing the newly chartered locals. Several PERB charges have been brought on this issue against SEIU around the state. To my knowledge, all the charges have been dismissed on the grounds that the reorganization did not change the basic identity of the exclusive representative; in other words, the reorganization did not raise a QCR. None of these dismissals were appealed to the Board so no precedential decision on this issue is expected. In practice, to my knowledge every local agency confronted with this issue has chosen to recognize the new regional locals.

Union’s Right to Information Does Not Extend to Extra-Contractual Forums

2008-05-01T11:35:00.000-07:00

Carmichael Recreation & Park District (PERB Dec. No. 1953-M) (Issued on 4/17/08)

It is well-established under PERB precedent that a union is entitled to information "necessary and relevant" to represent employees in its role as the exclusive representative. There has been some confusion over the years as to whether the union’s right to information extends to extra-contractual forums. For example, many unions will agree to represent employees in disciplinary matters before personnel boards and/or civil service commissions. These forums are typically non-contractual and the employee’s right to a hearing is not controlled by the union.

When a union does voluntarily assume representation of an employee in such a forum, does it have the same right to information as if it was representing the employee in a contractual forum (e.g. a grievance arbitration)? In San Bernardino City Unified School District (1998) PERB Dec. No. 1270 (San Bernardino), PERB answered this question in the negative. In San Bernardino, PERB held that a union is not entitled to witness lists and other documents requested as part of an extra-contractual dismissal hearing.

The holding in San Bernardino, however, has always been somewhat in doubt because it contained no discussion of a directly contrary prior board decision, Los Angeles Unified School District (1994) PERB Dec. No. 1061 (Los Angeles). Los Angeles involved an almost identical issue – whether the union’s right to information extended to an extra-contractual disciplinary hearing before the District Personnel Board. There, the Board issued three separate decisions. The lead opinion held that the union’s right to information did not extend to extra-contractual disciplinary hearings. The concurring opinion held that it did, but found no violation as the employer had allowed the union to view the requested materials. The dissent would have found a right to information and a violation. Although the Board in Los Angeles dismissed the complaint, it was clear that 2 of the 3 Board members believed that the union’s right to information extended to extra-contractual forums.

In this most recent case, Carmichael Recreation & Park District, the Board adopted the ALJ’s proposed decision holding that the union’s right to information did not extend to its representation of an employee in a Skelly hearing, which was extra-contractual. The Board based its holding on San Bernardino. Interestingly, although the Board did mention Los Angeles, it did so only in passing in a footnote. Even more interesting is that the footnote on Los Angeles merely noted that the Board had dismissed a similar complaint. There was no mention that a majority of the Board in Los Angeles had actually reached a holding contrary to the Board’s subsequent decision in San Bernardino.

In any event, the Board in Carmichael Recreation & Park District clearly was aware of both the San Bernardino and Los Angeles decisions. Although the Board did not expressly overturn Los Angeles, it seems fairly clear that to the extent Los Angeles holds that a union’s right to information extends to extra-contractual forums, it is no longer good law.

PERB Recognizes Doctrine of Judicial Estoppel

2008-04-08T22:09:00.000-07:00

Trustees of the California State University (PERB Dec. No. 1949-H) (Issued on 3/24/08)

The doctrine of “judicial estoppel” prevents a party from advocating a position in a legal proceeding that is contrary to a position taken previously in the same or some earlier proceeding. In the area of labor & employment law, judicial estoppel is often applied in situations involving disabled employees. A typical example involves an employee who claims he or she cannot perform the functions of a job when applying for disability benefits but asserts a contrary position when applying for a reasonable accommodation or other job benefit. Depending on the specific facts of the situation, the courts have applied the doctrine of judicial estoppel to prevent the employee from asserting contrary positions.

This case involved a long-standing dispute between CSU and APC over merit pay. The dispute was submitted to arbitration in which APC prevailed. APC then had the award confirmed in superior court. After CSU made payments to unit employees, APC filed an “Acknowledgement of Satisfaction of Judgment” confirming that the judgment had been satisfied in full.

Thereafter, APC filed an unfair practice charge with PERB alleging that CSU should have increased employee base salaries instead of making one-time payments. In rejecting APC’s contentions, PERB relied on the doctrine of judicial estoppel. In short, PERB found APC’s unfair practice charge to be inconsistent with APC’s acknowledgement in superior court that the judgment had been satisfied in full. Accordingly, PERB dismissed the complaint.

PERB Chair to Speak at Bar Luncheon

2008-03-17T16:06:00.000-07:00

Karen Neuwald, Chair of the Public Employment Relations Board, will be speaking on "What's New at PERB" at the March 25th luncheon of the Labor & Employment Law Section of the Sacramento County Bar Association.

The luncheon is at 11:45 am. at the Firehouse Restaurant in Sacramento. Cost is $18 for members of the Sacramento County Bar Association or $23 for nonmembers. Contact Melissa Strand at 916-321-4500 or mstrand@kmtg.com for reservations.

Court: PERB Has Jurisdiction Over Essential Employee Strikes

2008-03-11T16:02:00.001-07:00

City of San Jose v. Operating Engineers Local No. 3 (6th District Court of Appeal, Case No. H030272) (Issued on 3/4/08)

This is the first Court of Appeal decision addressing whether PERB or the superior courts have initial jurisdiction over “essential employee” strikes that threaten public health and safety. Cases involving this identical issue are also pending before the First and Third District Courts of Appeal.

This case involved the City of San Jose. In May 2006, the City and Operating Engineers Local No. 3 failed to reach agreement on a new labor contract. On May 30, the Union notified the City that it could go on strike in as soon as three days. The City responded that it would seek an injunction against the strike. On May 31, the Union filed an unfair practice charge with PERB alleging that the City’s threat to seek injunctive relief violated its members’ right to strike under the MMBA. On June 2, the City asked the superior court to enjoin 67 “essential” employees from striking, claiming that a strike by those employees would violate the common law prohibition against strikes that threaten public health and safety. Both the Union and PERB opposed the City’s request on the grounds that PERB has exclusive initial jurisdiction over enjoining a potentially unlawful strike. The superior court denied the injunction, finding that the City failed to exhaust administrative remedies because PERB had exclusive initial jurisdiction over the strike.

The Court of Appeal framed the issue as whether the “MMBA arguably prohibits or arguably protects” the threatened strike by the Union and the City’s alleged interference with the strike. In finding the strike arguably prohibited by the MMBA, the court broadly states that any illegal strike “may run afoul of the MMBA.” Conversely, the court then finds that because the strike may be legal, it is arguably protected by the MMBA.

Having determined that PERB has exclusive initial jurisdiction over strikes because they are arguably prohibited and/or protected by the MMBA, the court then considers whether an exception exists where the strike involves "essential" employees. In rejecting any exception, the court cites PERB’s expertise in administering the statewide public employment labor relations scheme as support for recognizing its jurisdiction over essential employee strikes. The court also rejected the City's argument that PERB’s procedures for deciding requests for injunctive relief take too long. The court rejected this argument primarily because by the time the City requested injunctive relief from the court in this case, PERB had already filed papers with the court.

Comments
* Under the court’s broad reasoning, PERB arguably has jurisdiction over all employee strikes under the MMBA since any strike can be prohibited and/or protected by the MMBA. The Court did not address the fact that a strike could violate the common law prohibition on strikes separate and apart from the MMBA.
* The potential delay caused by PERB's involvment will continue to be a key issue in these cases. Here, PERB was only able to beat the City to court because the Union gave the City three days’ notice of the strike. However, the MMBA arguably does not require a union to give the employer any notice before striking.
* As mentioned above, this identical issue is pending before the 1st and 3rd DCA's. If either rules the other way, expect the Supreme Court to weigh in...

Court Holds Employee Parking Location is Within the Scope of Representation; Overturns PERB Decision

2008-03-04T12:59:00.001-08:00

Cal. Faculty Assn. v. PERB (3rd District Court of Appeal, Case No. C054725) (Issued on 2/28/08)

The Memorandum of Understanding (MOU) between the California Faculty Association (CFA) and the California State University (CSU) contains a provision on parking fees. Upon payment of the negotiated parking fee, members of the unit—primarily faculty members—were historically allowed to park in any campus parking lot. In 2001 and 2002, CSU built additional parking structures at its Northridge and Sacramento campuses. Because CSU self-funds parking, it asked all its employee unions to agree to higher parking fees to fund construction of the new parking structures. While some unions agreed, CFA refused to re-open its MOU to negotiate higher parking fees. In response, CSU prohibited CFA members from parking in the new structures. CFA then filed an unfair practice charge alleging that it was an unfair practice to prohibit its members from parking in the new structures where previously they were allowed to park in any campus parking lot. The PERB administrative law judge hearing the matter agreed and found that CSU had committed an unfair practice.

The Board, however, declined to adopt the ALJ’s proposed decision. Instead, the Board found that the location where employees are allowed to park on campus does not involve the ‘employment relationship,’ and therefore is not a matter within the scope of representation. As a result, the Board held that CSU had no duty to bargain its decision to bar CFA members from parking in the new structures. CFA then challenged PERB’s decision in the court of appeal.

In finding the Board’s decision “clearly erroneous,” the court relied heavily on Ford Motor Co. v. NLRB (1979) 441 U.S. 488 (Ford) and the Board’s own precedent in Statewide University Police Association v. Regents of the University of California (1983) PERB Dec. No. 356-H (Regents). In Ford, the Supreme Court held that where an employer chooses to make available a system of in-plant feeding facilities for his employees, the prices at which food is offered and other aspects of this service may reasonably be considered among those subjects about which management and union must bargain. In Regents, the Board held that parking fees—as opposed to location—was also within the scope of representation. The court found these two cases persuasive and questioned why the Board was “deviating from its own precedents without explanation.” Accordingly, the court held that the location of employee parking is a subject within the scope of representation. (The court then remanded the case to the Board for a determination as to the other elements necessary to establish an unlawful unilateral change).

Comments

Although CFA prevailed in court, it may find this to be a Pyrrhic victory. Based on the facts set forth in the decision, what CSU proposed seemed reasonable. Parking had always been self-funded. CSU wanted to build additional parking structures—which would benefit employees—but needed parking fees to increase to pay for the construction. Apparently, all the other unions agreed to the fee increases except CFA. Eventually, CFA’s MOU will expire. When it does it’s a safe bet that one of CSU’s proposals will be an increase in fees. Quite possible, those new fees may be higher for CFA than what it could have negotiated in 2001 and 2002.

No Safe Harbor for Employer Who Rescinded Unilateral Change

2008-02-20T15:18:00.000-08:00

County of Sacramento (PERB Dec. No. 1943-M) (Issued on 2/14/08)

In January 2006, the County of Sacramento notified two of its unions that it was considering changing its Retiree Health Insurance Program (RHIP). The RHIP is a non-vested County benefit that provides a monetary allowance to retirees to offset the cost of health insurance. The County’s proposal called for limiting the number of current employees who would be eligible for the RHIP upon retirement. The unions demanded to bargain over the County’s decision to change the RHIP’s eligibility requirements. The County refused on the ground that the decision to change the RHIP was not within the scope of bargaining.

In March 2006, the County approved and implemented the proposed RHIP changes. However, in September 2006, prior to the effective date of the eligibility changes for current employees, the County rescinded the RHIP changes and agreed to begin “discussions” with the unions. The unions subsequently brought an unfair practice charge which went to a hearing before an Administrative Law Judge (ALJ). The ALJ held that the unfair practice charge was moot because the County had rescinded the RHIP changes.

On exceptions filed by the unions, the Board reversed the ALJ’s proposed decision. Citing to Amador Valley Joint Union High School District (1978) PERB Decision No. 74, the Board held:

“That the later reversal or recission [sic] of a unilateral action or subsequent negotiation on the subject of a unilateral action does not excuse a violation. . . . The fact that the County reversed its position and restored the status quo before the new policy went into effect, does not cure the unlawful unilateral change.”

Analysis

There are several aspects of the Board’s decision in County of Sacramento that are problematic, especially for employers. The first involves what the Board will consider an unlawful unilateral “change.” Past Board decisions have uniformly held that to be unlawful, a unilateral change must not be merely an isolated breach of the contract or past practice, but constitute a change in policy. (Sonoma County Office of Education (1997) PERB Decision No. 1225.) In other words, the change must have “a generalized effect or continuing impact upon bargaining members’ terms and conditions of employment.” (See Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant Joint Union High School District (1982) PERB Decision No. 196.)

Here, it is difficult to see what generalized effect the County’s actions had on bargaining unit members since the County rescinded the changes to the RHIP before the changes ever became effective. True, the County did not waiver from its position that the changes were outside of scope of bargaining. However, once the County rescinded the changes, it never took action on its position; in other words, there was no longer any “change.”

In finding an unlawful unilateral change despite the rescission, the Board cited to Amador Valley Joint Union High School District (1978) PERB Decision No. 74 and Marin Community College District (1980) PERB Decision No. 145 for the proposition that an unlawful unilateral change can exist even where the change is rescinded. True enough, those cases do hold that discontinuing an unfair practice does not render the prior violation moot. However, a strong argument can be made that Amador only applies where the rescission of the unilateral change does not undo the actual harm that has already occurred. Where there has been no actual harm—as the case in Sacramento County—early PERB cases have recognized a “safe harbor” type doctrine (sometimes also referred to as the “de minimus” doctrine). For example, in Muroc Unified School District (1978) PERB Decision No. 80, the Board held that a unilateral change is not unlawful where: 1) it is promptly rescinded, and 2) employees are either not harmed or made whole. (See Oakland Unified School District (1983) PERB Decision No. 367; County of Monterey (2004) PERB Decision No. 1663-M, adopting ALJ's proposed decision at p. 27.)

At first blush, the Muroc line of cases seem to conflict with Amador. However, Amador and its line of cases can be best understood as holding that even small changes are unlawful when made unilaterally. In contrast, Muroc applies in situations where a change has been promptly rectified so that it can be said that there has been no change at all.

Here, based on the facts set forth in the decision, it seems to this practitioner that the Muroc line of cases should have been applied instead of Amador. Sacramento County rescinded the proposed RHIP changes before they ever became effective and it appears no employee suffered any harm. Under these facts, it seems the County should have been allowed to utilize the “safe harbor” doctrine in Muroc.

PERB Overrules Contracting-Out Waiver Case

2008-02-14T11:16:00.000-08:00

Long Beach Community College District (PERB Dec. No. 1941E) (Issued on 1/30/08)

The MOU between the Long Beach Community College District (District) and its Police Officers Association contained a management rights clause which reserved to management the right to “contract out work.” Relying on this clause, the District made the decision to contract out all of its police services to the City of Long Beach without negotiating with the union. The union asserted in its unfair practice charge that the waiver was intended only to apply to contracting out for armed services during special campus events, and was not intended as a general waiver over all contracting out decisions.

In 2003, PERB’s Office of the General Counsel dismissed the union’s unfair practice charge on the ground that the MOU language constituted a waiver of the union’s right to negotiate over contracting out decisions. The union appealed the dismissal to the Board which overturned the dismissal in Long Beach Community College District (2003) PERB Dec. No. 1568E (Long Beach I). In Long Beach I, the Board found that the phrase “contract out work” was ambiguous because some contracting out decisions were negotiable or some were not, and it was not clear from the MOU language itself what rights were being waived. The Board did hold, however, that the District could assert its defense at a hearing before an Administrative Law Judge (ALJ) where presumably the District would submit extrinsic evidence on the meaning of the disputed MOU language. In reaching its decision in Long Beach I the Board expressly overruled Barstow Unified School District (1996) PERB Dec. No. 1138.

The case then went before an ALJ. The proposed decision of the ALJ found that the District failed to demonstrate that the union had waived its right to negotiate over all contracting out decisions. Accordingly, the ALJ found that the District had committed an unfair practice.

The District then filed exceptions with the Board. In its decision, Long Beach Community College District (2008) (PERB Dec. No. 1941E) (Long Beach II), the Board overruled Long Beach I finding that the MOU language “contract out work” was a clear and unambiguous waiver of the union’s right to negotiate over the District’s decision.

Noteworthy is the fact that the Board gave very little weight to the union’s extrinsic evidence that the MOU language was not a far-reaching waiver. Prior PERB decisions have suggested that extrinsic evidence may be utilized by a party to demonstrate a “clear and unmistakable” waiver. This decision may signal a distaste by the Board for resorting to extrinsic evidence to prove a waiver. Such a move makes sense since logically, contract language cannot be “clear and unmistakable” if one has to resort to extrinsic evidence to ascertain its meaning.

Other Notes

Interestingly, this is not the first time the Board has overturned a prior Board’s decision in the same case, when that case came back before the Board. Two years ago, the Board in State of California (Department of Corrections) (2006) (PERB Dec. No. 1826S) overturned the prior Board’s decision in State of California (Department of Corrections) (2003) PERB Decision No. 1579-S (Corrections). As a side note, in that decision the Board ordered the prior Board’s decision to be “vacated.” In Long Beach II, the Board ordered the prior Board’s decision reversed and overruled. It is not clear whether vacating a decision is any different than overruling it; however, the effect presumably is the same.

Also interesting in Long Beach II is that the Board found that the District failed to negotiate with the union over the “effects” of its decision. To remedy that violation, the Board ordered the District to provide backpay to all the police officers who were laid off going back to August 1, 2003. Depending on how much the officers were able to mitigate their damages, the District’s backpay liability could be significant. The backpay order probably assures that neither party is fully satisfied with the Board’s decision in Long Beach II. It will be interesting to see if one or both of the parties attempt to take this case to the Court of Appeal.

Scope of Representation is Limited under the Trial Court Act

2008-02-13T16:23:00.001-08:00

Fresno County Superior Court (PERB Dec. No. 1942C) (Issued on 01/31/08)

This is one of the first cases under the Trial Court Act to go before an administrative law judge and the Board. The issue was whether the Fresno Superior Court’s decision to require all court reporters to provide “realtime” court reporting services was within the “scope of representation.” Relying on the unique language of the TCA, the Board held that it was not.

The TCA, similar to all the other acts administered by PERB, provides that the “scope of representation shall include all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment.” (Gov. Code 716349(a).) However, the TCA goes further and provides that:

“In view of the unique and special responsibilities of the trial courts in the administration of justice, decisions regarding the following matters shall not be included within the scope of representation:
(1) The merits and administration of the trial court system.
(2) Coordination, consolidation, and merger of trial courts and
support staff.
(3) Automation, including, but not limited to, fax filing,
electronic recording, and implementation of information systems.
(4) Design, construction, and location of court facilities.
(5) Delivery of court services.
(6) Hours of operation of the trial courts and trial court system.”

PERB found that the provision of “realtime” reporting by court reporters constituted a “delivery of court services” under the TCA.

Although PERB held that the Court’s decision to require court reporters to provide “realtime” court reporting services was not negotiable, the impact of that decision was negotiable. However, relying on City of Richmond (2004) PERB Decision No. 1720-M (Richmond), the Board held that the union failed to adequately request to bargain over any impact, and thus, had waived their rights.

PERB Annual Report: HEERA Still Most Contentious

2008-01-02T13:30:00.001-08:00

PERB's Annual Report for 2006-2007 is now available on its wesbite.

In fiscal year 2006-07, 823 unfair practices charges were filed with PERB, compared to 1012 the year before; a 19% decrease. Interestingly, that decrease was due mostly to the number of unfair practice charges filed under HEERA, which went from 328 in 2005-06, to 92 in 2006-07.

Despite the drastic decrease in the number of unfair practice charges, higher education still remains the most contentious of the public sector arenas based on the number of unfair practice charges compared to the number of employees covered under each Act.

Consider, according to PERB's 2006-07 annual report, 71 charges were filed under Dills, 343 under EERA, 92 under HEERA, and 297 under MMBA. The number of employees covered under each Act is (roughly): 125,000 under Dills, 675,000 under EERA, 100,000 under HEERA, and 1,000,000 under MMBA.

Based on these figures, the number of unfair practice charges filed per 10,000 employees is: 5.68 under Dills, 5.08 under EERA, 9.2 under HEERA, and 2.97 under MMBA. Thus, HEERA generates almost 2 to 3 times the number of unfair practice charges as the other acts.

Board Issues First Decision Under Trial Court Interpreter Act

2007-12-11T11:49:00.001-08:00

Santa Cruz County Superior Court (PERB Dec. No. 1931I ) (Issued 11/29/07)

The Board has issued its first decision under the Trial Court Interpreter Employment and Labor Relations Act (TCIELRA) (Gov. Code, §71800 et. seq.). The decision itself did not break any new legal ground. However, the Board did confirm that in interpreting the TCIELRA it will generally follow decisions issued under the other PERB-administered statutes (Dills, EERA, HEERA, MMBA) and the NLRA.

Board Reverses ALJ Decision; Finds No Joint Employer Relationship

2007-12-11T11:42:00.000-08:00

Los Angeles Unified School District (PERB Dec. No. 1930E) (Issued 11/28/07)

This case involved allegations of retaliation brought by two teachers against the San Jose/Evergreen Community College District (District). The two teachers taught classes offered by the South Bay Regional Public Safety Training Consortium (Consortium), which was a joint powers agency between the District and Gavilan Community College District. The issue before the Board was whether the District was a joint employer, together with the Consortium, of the teachers.

The ALJ, relying on the Board’s decision in Ventura County Community College District (2003) (PERB Dec. No. 1547), held that the District was a joint employer of the two teachers. In finding a joint employer relationship, the ALJ relied heavily on the fact that the documents creating the consortium stated that the teachers would be considered employees of the member districts. The Board majority reversed the ALJ decision, finding that the “District’s initial acts of control over the Charging Parties fail to meet the level of substantial control necessary to support a finding of a joint employer relationship in this case.” While acknowledging that the operational documents of the consortium listed the member districts as the employer of the teachers, the majority focused on the undisputed fact that the consortium had been hiring teachers directly for some time. According to the majority, “the key inquiry in joint employer cases is the level of actual control exerted over the shared employees.”

The majority’s reversal of the ALJ’s decision drew a rare dissent. The dissent argued that the majority’s opinion would create an “unwarranted safe harbor for the District, which would otherwise be subject to the jurisdiction of the EERA.” According to the dissent, the purposes of EERA would be frustrated if the Consortium could ignore the terms of its operational documents which provide that the member districts are the employers of the teachers.

The result in this case was based heavily on the specific facts. However, since the creation of joint powers agencies is becoming more common, public agencies should take note of the lessons here. This case (which very likely will be appealed) serves as a warning to employers that what you say on paper is not as important as what you actually do. Similar to disputes over whether someone is an employee versus an independent contractor, whether an agency will be found to be a joint employer will rest primarily on the actual right of control the agency exerts over the employees.

AB 220 - Firefighter Bill of Rights Signed

2007-10-15T09:45:00.000-07:00

In one of the most shocking developments this legislative year in the labor and employment area, the Governor signed AB 220 - the Firefighter Bill of Rights (FBOR). The newly enacted statute gives firefighters the same basic rights as peace officers under the Peace Officer Bills of Rights (POBAR). The requirements of AB 220 include:

* Specifying the conditions under which investigations and interrogations that may lead to punitive action of firefighters must be conducted;
* Requiring that any punitive action against a firefighter be taken within one year of discovery;
* Requiring that a firefighter be allowed to read and sign any adverse comment before it is entered into their personnel file.
* Prohibiting forced lie detector tests of a firefighter;
* Specifying that a firefighter cannot be required to disclose financial information unless otherwise required by law or court order;
* Requiring that a fire chief, prior to removal, must be provided with written notice stating the reasons for removal and an opportunity for administrative appeal;
* Allowing a firefighter's locker or other storage space to be searched only in the firefighter's presence, or with their consent, or with a valid search warrant.

While there may be sound public policy reasons for POBAR, it is difficult to fathom why firefighters need the same protections. Amazingly, AB 220 received almost full Republican support in the Assembly, and that support likely explains why the bill was signed.

Rialto Police Benefit Assn. v. City of Rialto

2007-10-12T11:33:00.000-07:00

Rialto Police Benefit Assn. v. City of Rialto (Court of Appeal Case No. E039649) (Issued 10/3/07)

This case arose under the Meyers-Milias-Brown Act and presented an issue of first impression: Is a city’s decision to enter into a contract with the county sheriff for law enforcement services, rather than continue to provide such services through the city’s own police department, subject to the meet and confer requirements of the Meyers-Milias-Brown Act (MMBA) (Gov. Code, § 3500 et seq.)? The court answered in the affirmative.

More on this case later.

Good News: AB 553 Vetoed

2007-09-27T21:04:00.000-07:00

If enacted, AB 553 would have denied cities and counties the right to seek injunctions directly with the courts when faced with strikes affecting health and safety. Fortunately, the bill was vetoed. Here is the Governor’s message:

To the Members of the California State Assembly:

I am returning Assembly Bill 553 without my signature. This bill would provide the Public Employment Relations Board (PERB) with exclusive authority to determine whether public health and safety would be at risk in strike or lockout situations. Doing so would add an unnecessary layer of bureaucracy and potentially place the public at risk. Cities and counties have common law and statutory authority over matters of public health and safety. When local governments seek injunctive relief from a strike, they are doing so because of a potential threat to the public health and safety of citizens. It is therefore imperative that local governments have access to immediate injunctive relief from superior courts during strike situations. As the courts are sufficiently suited to address matters of public health and safety, there is no reason to force decisions on injunctive relief into the slower PERB process. For these reasons I am returning this bill without my signature.

Sincerely,
Arnold Schwarzenegger

District's Ability to Regulate "Politcal Speech" is Limited

2007-08-20T08:08:00.000-07:00

Desert Community College District (PERB Case No. 1921-E) (8/10/07)

PERB held that a community college district violated the Educational
Employment Relations Act (EERA) when it attempted to prohibit one of its unions from discussing a Board of Trustees election at a union meeting held on campus.

The key issue was whether the district’s conduct was justified by the Education Code, specifically sections 7054 and 7055. Section 7054 prohibits the use of district "funds, services, supplies, or equipment" to support or oppose ballot measures and/or candidates. PERB found this language inapplicable since the union was using the district’s “facilities.” PERB also found section 7055 - which allows a college to adopt rules and regulations governing "(p)olitical activities on the premises of the local agency" - to be inapplicable as the district had failed to adopt any such rules or regulations.

Arguably, PERB took a narrow view of the section 7054 prohibition on using “services, supplies or equipment” to support candidates. However, key here is the fact that the union’s meeting was in a non-instructional setting. Also, there were no facts suggesting that the union’s use of the district’s facilities would be interpreted as an endorsement of the union’s speech. Given these facts, PERB would have likely reached the same conclusion even if the district had adopted rules under section 7055.

50% Participation Rule Deemed Unreasonable

2007-07-30T17:22:00.000-07:00

County of Imperial (PERB Dec. No. 1916M) (Issued 6/28/07)

At issue in this case was a local rule requiring that in a representation election, a majority of the employees in the bargaining unit must vote in order for the vote to be valid. PERB held that the rule was “unreasonable” under the MMBA. In reaching its decision, PERB compared the language of MMBA section 3507.l (a) and 3502.5(d). The former section states that a majority of votes cast in representation elections is required, not that a majority of employees must vote. In the latter section - governing rescission elections - the language expressly requires a majority of unit employees to vote. Because the Legislature expressly required majority participation in certain elections and not others, PERB held that a local rule setting different requirements was unreasonable.

This case is one of the first PERB cases finding a local rule to be “unreasonable” under the MMBA. The holding here can be interpreted to set the statutory language of the MMBA as a baseline for evaluating reasonableness. Local rules that deviate or frustrate the MMBA’s statutory provisions will almost certainly be found unreasonable. For example, MMBA section 3507.1 now allows for the establishment of majority support through ‘card check.’ A local rule that ignores ‘card check’ or requires some other kind of election can be expected to be found unreasonable.

Retirement Health Benefits for Current Employees Negotiable

2007-07-03T10:00:00.001-07:00

Madera Unified School District (PERB Dec. No. 1907E) (Issued 5/25/07)

Under the statutes administered by PERB, it has been generally understood that retirement benefits for current employees are within the scope of representation and thus must be negotiated. Benefits affecting current retirees, however, have been understood to be a permissive topic of bargaining.

In this case, the union alleged that the employer unilaterally changed the way it calculated its monetary contribution towards health care for retirees. The Board agent dismissed the charge on the ground that the alleged change did not affect any current employees and any changes to the benefits of current retirees were not within the scope of representation – they were rather a permissive subject of bargaining.

The Board generally affirmed the Board agent’s analysis that only benefits for current employees are within the scope of representation. However, the Board held that any changes to retiree benefits are still negotiable to the extent they affect what current employees will receive in the future.

The Board’s decision is potentially problematic in several respects. First, the Board’s holding has the potential to swallow the rule that benefits for retirees are a permissive subject of bargaining. This is because almost any change to the current benefits of retirees arguably affects the future benefits of current employees.

The decision also raises an interesting question regarding remedies. Consider what would have happened had the Board found a violation. By its own admission, the Board would have no jurisdiction to order a remedy for current retirees, who were the only individuals affected by the alleged conduct. The Board could only order a remedy as to current employees; but here they suffered no harm. Presumably, the Board could order the change rescinded as it applied to the future benefits of current employees. In order words, the Board could order the employer to restore the promised benefit for current employees. However, how would the Board ever enforce such a promise? The employer’s promise would not become actionable until the current employee retired; but once that occurred, the Board would again lose jurisdiction!

This is not to say, of course, that employers can freely renege on promised benefits. There are certainly other avenues of enforcement. The point is that this issue is not one that lends itself to PERB enforcement.

Right of Individual Representation Restored Under EERA

2007-07-03T09:05:00.000-07:00

On June 28, 2007, the Governor signed AB 1194 (Karnette) which restores language in EERA section 3543 granting individuals a protected right of representation. In 2000, for reasons never explained (in reality, it was most likely a careless drafting error), the Legislature deleted the following language from EERA when it approved unrelated amendments:

Public school employees shall also have the right to refuse to join or participate in the activities of employee organizations and shall have the right to represent themselves individually in their employment relations with the public school employer, except that once the employees in an appropriate unit have selected an exclusive representative and it has been recognized pursuant to Section 3544.1 or certified pursuant to Section 3544.7, no employee in that unit may meet and negotiate with the public school employer.

Based on the deletion of this critical language, PERB held in Woodland Joint Unified School District (2004) PERB Dec. No. 1722E, that the Legislature must have intended to eliminate the individual right of representation under EERA. Even if the Legislature did not so intend, PERB held that because of the change in statutory language, it was the Legislature's responsibility to correct the error. Accordingly, PERB held that prior cases recognizing such a right (See Pleasant Valley School District (1988) PERB Dec. No. 708) were no longer valid in light of the change to section 3543.

Sponsored by the California Teachers Association, AB 1194 was intended to restore the individual right of representation under EERA and to statutorily abrogate PERB’s decision in Woodland Joint Unified. Under AB 1194, the following language has been added to section 3543:

Public school employees shall have the right to represent themselves individually in their employment relations with the public school employer, except that once the employees in an appropriate unit have selected an exclusive representative and it has been recognized pursuant to Section 3544.1 or certified pursuant to Section 3544.7, no employee in that unit may meet and negotiate with the public school employer.

Note that AB 1194 does not completely restore the language that was deleted in 2000. Not surprisingly, CTA did not see fit to restore the individual right to “refuse to join or participate in the activities of employee organizations . . .”

Washington’s ‘Paycheck Protection’ Law is Constitutional

2007-06-18T11:27:00.000-07:00

Davenport v. Washington Ed. Assn. (US 05-1589 and 05-1657) (Decided by Supreme Court on 6-14-07)

Washington State allows public-sector unions to charge nonmembers an agency fee equivalent to membership dues and to have the employer collect that fee through payroll deductions. An initiative approved by state voters requires a union to obtain the nonmembers’ affirmative authorization before using their fees for election-related purposes. The issue before the Supreme Court was whether requiring unions to obtain affirmative authorization violated the Constitution. The Supreme Court held that it does not violate the First Amendment for a State to require its public-sector unions to receive affirmative authorization from a nonmember before spending that nonmember’s agency fees for election-related purposes.