Court Denies Permanent Injunction in UC Strike

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

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

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

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

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.”

Court: PERB Has Jurisdiction Over Essential Employee Strikes

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

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.

Rialto Police Benefit Assn. v. City of Rialto

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.

Washington’s ‘Paycheck Protection’ Law is Constitutional

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.