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.
Showing posts with label Decisions. Show all posts
Showing posts with label Decisions. Show all posts
Thursday, May 15, 2008
Thursday, May 1, 2008
Union’s Right to Information Does Not Extend to Extra-Contractual Forums
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.
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.
Tuesday, April 8, 2008
PERB Recognizes Doctrine of Judicial Estoppel
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.
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.
Wednesday, February 20, 2008
No Safe Harbor for Employer Who Rescinded Unilateral Change
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.
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.
Thursday, February 14, 2008
PERB Overrules Contracting-Out Waiver Case
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.
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.
Wednesday, February 13, 2008
Scope of Representation is Limited under the Trial Court Act
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.
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.
Tuesday, December 11, 2007
Board Issues First Decision Under Trial Court Interpreter Act
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.
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
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.
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.
Monday, August 20, 2007
District's Ability to Regulate "Politcal Speech" is Limited
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.
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.
Monday, July 30, 2007
50% Participation Rule Deemed Unreasonable
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.
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.
Tuesday, July 3, 2007
Retirement Health Benefits for Current Employees Negotiable
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.
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.
Friday, May 11, 2007
Is There an Implied Right of Access under the MMBA? Answer Still Unknown.
City of Porterville (PERB Dec. No. 1905M) (Issued 5/10/07)
All the statutes administered by PERB have differences in statutory language. Despite these differences, PERB has generally interpreted the statutes the same absent clear legislative intent to the contrary. Thus, a decision regarding the right to representation under EERA would also be applicable under HEERA, Dills, MMBA, etc.
One area where there has been some confusion is the right of unions to access employer facilities. EERA and HEERA provide for such a right by statute. The Dills Act does not; but PERB has interpreted the Dills Act to include an “implied” right of access. The MMBA also fails to include statutory language granting access rights but does provide that such rights can be subject to local rule. The question then arises - if a local entity does not have a local rule on a union's right to access employer facilities, does the MMBA grant an implied right of access? The Board intentionally avoided this question in Fresno Irrigation District (PERB Dec. No. 1565M) (that decision was subsequently overturned by the court of appeal).
The question arose again in this matter. Here, the issue was whether the employer violated the MMBA by denying union access to its facilities. In the proposed decision, the ALJ held that, “the MMBA inferentially includes a right of access for employee representatives . . .” Thus, the ALJ answered in the affirmative the question that was explicitly deferred by the Board in Fresno Irrigation District.
The Board then rejected the ALJ’s proposed decision. Without stating whether it agreed, the Board noted the employer’s argument that access rights under the MMBA must be determined by local rule. The Board also stated that the fact that access rights are subject to local rules under the MMBA “gives the City a measure of discretion in drafting its own access policy.” Unfortunately, the Board never addressed whether an implied right of access exists under the MMBA. Also unanswered is how much discretion the Board will give to an employer’s local rule on union access.
Until a more definitive answer is provided by the Board, employers under the MMBA would be wise to generally conform their local rules on access to the scope of the right under EERA, HEERA and the Dills Act. Any attempt by a local entity to enact local rules that are more restrictive should be narrowly tailored and supported by business necessity. Because this area of law is in flux, it would be wise for local entities to consult with counsel before making changes.
All the statutes administered by PERB have differences in statutory language. Despite these differences, PERB has generally interpreted the statutes the same absent clear legislative intent to the contrary. Thus, a decision regarding the right to representation under EERA would also be applicable under HEERA, Dills, MMBA, etc.
One area where there has been some confusion is the right of unions to access employer facilities. EERA and HEERA provide for such a right by statute. The Dills Act does not; but PERB has interpreted the Dills Act to include an “implied” right of access. The MMBA also fails to include statutory language granting access rights but does provide that such rights can be subject to local rule. The question then arises - if a local entity does not have a local rule on a union's right to access employer facilities, does the MMBA grant an implied right of access? The Board intentionally avoided this question in Fresno Irrigation District (PERB Dec. No. 1565M) (that decision was subsequently overturned by the court of appeal).
The question arose again in this matter. Here, the issue was whether the employer violated the MMBA by denying union access to its facilities. In the proposed decision, the ALJ held that, “the MMBA inferentially includes a right of access for employee representatives . . .” Thus, the ALJ answered in the affirmative the question that was explicitly deferred by the Board in Fresno Irrigation District.
The Board then rejected the ALJ’s proposed decision. Without stating whether it agreed, the Board noted the employer’s argument that access rights under the MMBA must be determined by local rule. The Board also stated that the fact that access rights are subject to local rules under the MMBA “gives the City a measure of discretion in drafting its own access policy.” Unfortunately, the Board never addressed whether an implied right of access exists under the MMBA. Also unanswered is how much discretion the Board will give to an employer’s local rule on union access.
Until a more definitive answer is provided by the Board, employers under the MMBA would be wise to generally conform their local rules on access to the scope of the right under EERA, HEERA and the Dills Act. Any attempt by a local entity to enact local rules that are more restrictive should be narrowly tailored and supported by business necessity. Because this area of law is in flux, it would be wise for local entities to consult with counsel before making changes.
Monday, April 2, 2007
PERB Recognizes "De Minimus" Standard
Newark Unified School District (PERB Dec. No. 1895E) (Issued 03/27/07)
The case involved 3 consolidated unfair practice charges. All the charges stemmed from contract negotiations between the parties. The decision discusses various allegations of bad faith bargaining and unilateral change.
Of interest is the finding regarding the employer’s unilateral implementation of a pre-paid legal services program for its employees. Although finding that the employer did make a unilateral change within the scope of representation, the Board agreed with the ALJ that the change was “de minimus” because there was no “generalized effect.” This was because the district promptly froze enrollment in the program as soon as the current charge was filed.
A couple of past PERB decisions have characterized certain changes as “de minimus.” However, those cases all involved situations where the employer promptly and completely rescinded the alleged unilateral changes. Since those cases involved conduct that was corrected, it may be a more appropriate to characterize them as “safe harbor” rather than “de minimus” situations.
Unlike those cases, here the employer allowed a few (5 to 6) employees to remain in the pre-paid legal program. Because the employer did not entirely completely rescind its actions, this is much more of a true “de minimus” situation than the previous PERB cases. In addition, the recent Claremont case from the California Supreme Court arguably is the first judicial case in California recognizing a “de minimus” standard under any of the public sector statutes. With Claremont and this Newark decision, employers hopefully will have more opportunity to argue that minor changes affecting few employees should not be considered unfair practices.
The case involved 3 consolidated unfair practice charges. All the charges stemmed from contract negotiations between the parties. The decision discusses various allegations of bad faith bargaining and unilateral change.
Of interest is the finding regarding the employer’s unilateral implementation of a pre-paid legal services program for its employees. Although finding that the employer did make a unilateral change within the scope of representation, the Board agreed with the ALJ that the change was “de minimus” because there was no “generalized effect.” This was because the district promptly froze enrollment in the program as soon as the current charge was filed.
A couple of past PERB decisions have characterized certain changes as “de minimus.” However, those cases all involved situations where the employer promptly and completely rescinded the alleged unilateral changes. Since those cases involved conduct that was corrected, it may be a more appropriate to characterize them as “safe harbor” rather than “de minimus” situations.
Unlike those cases, here the employer allowed a few (5 to 6) employees to remain in the pre-paid legal program. Because the employer did not entirely completely rescind its actions, this is much more of a true “de minimus” situation than the previous PERB cases. In addition, the recent Claremont case from the California Supreme Court arguably is the first judicial case in California recognizing a “de minimus” standard under any of the public sector statutes. With Claremont and this Newark decision, employers hopefully will have more opportunity to argue that minor changes affecting few employees should not be considered unfair practices.
No Unilateral Change
County of Siskiyou (PERB Dec. No. 1894M) (Issued 3/27/07)
The issue in this case was whether the contract required that “extra help” employees be laid off prior to any permanent employees. The Board reached the same conclusion as the ALJ - to dismiss the complaint - but reached its decision based on a different rationale. The ALJ apparently had held that the contract language was ambiguous, and thus, found that the union had failed to meet its burden of proof to establish a ‘change.’
The Board in its analysis attempted to harmonize the contract language with the County Code and the County’s personnel policies. Based on its analysis, the Board found no requirement that “extra help” be laid off first, and thus, held that there was no unilateral change by the employer.
The issue in this case was whether the contract required that “extra help” employees be laid off prior to any permanent employees. The Board reached the same conclusion as the ALJ - to dismiss the complaint - but reached its decision based on a different rationale. The ALJ apparently had held that the contract language was ambiguous, and thus, found that the union had failed to meet its burden of proof to establish a ‘change.’
The Board in its analysis attempted to harmonize the contract language with the County Code and the County’s personnel policies. Based on its analysis, the Board found no requirement that “extra help” be laid off first, and thus, held that there was no unilateral change by the employer.
DFR Charge Dismissed
SEIU Local 790 (Chan) (PERB Dec. No. 1892M) (Issued 3/15/07)
Employee alleged that union violated its duty of fair representation by failing to seek arbitration of employee’s termination. Applying well-settled law, Board dismissed the charge for failure to state a prima facie case.
Employee alleged that union violated its duty of fair representation by failing to seek arbitration of employee’s termination. Applying well-settled law, Board dismissed the charge for failure to state a prima facie case.
What is a Reasonable Local Rule?
City and County of San Francisco (PERB Dec. No. 1890M) (Issued 3/12/07)
This is one of the first cases addressing whether a local rule is “reasonable” under the MMBA. The Board discussed the “reasonableness” standard in broad terms; finding that a local agency has discretion in adopting local rules as long as they do not “frustrate the declared policies and purposes of the MMBA.” In this case, the Board held that the impasse procedure set forth in the City Charter was not unreasonable on its face.
This case is helpful in setting forth the general legal standards for determining whether a local rule is reasonable. However, this case did not appear to be that difficult for the Board. As more of these cases reach the Board’s docket, look for more difficult issues to arise.
This is one of the first cases addressing whether a local rule is “reasonable” under the MMBA. The Board discussed the “reasonableness” standard in broad terms; finding that a local agency has discretion in adopting local rules as long as they do not “frustrate the declared policies and purposes of the MMBA.” In this case, the Board held that the impasse procedure set forth in the City Charter was not unreasonable on its face.
This case is helpful in setting forth the general legal standards for determining whether a local rule is reasonable. However, this case did not appear to be that difficult for the Board. As more of these cases reach the Board’s docket, look for more difficult issues to arise.
Wednesday, March 21, 2007
No Duty To Provide Information Absent Request
City of Los Altos (PERB Dec. No. 1891M) (Issued 3/14/07)
Union alleged that City had an affirmative obligation to notice the union whenever the City terminated a bargaining unit member, even where the employee had not requested union representation and where the union had not specifically requested the information. The Board held that under well-established precedent, there is no obligation to provide the union information absent a request. Since there was no request, the Board dismissed the charge.
The board also stated that even if the union had requested information about an employee termination, absent consent by the employee, compliance with such a request would have to take into consideration the employee’s privacy rights. This seems like a straight forward and common sense decision.
Union alleged that City had an affirmative obligation to notice the union whenever the City terminated a bargaining unit member, even where the employee had not requested union representation and where the union had not specifically requested the information. The Board held that under well-established precedent, there is no obligation to provide the union information absent a request. Since there was no request, the Board dismissed the charge.
The board also stated that even if the union had requested information about an employee termination, absent consent by the employee, compliance with such a request would have to take into consideration the employee’s privacy rights. This seems like a straight forward and common sense decision.
Wednesday, March 7, 2007
DFR Dismissal Adopted
California Faculty Association (Wunder) (PERB Dec. No. 1889H) (Issued 3/1/07)
Employee alleged that the union violated its duty of fair representation by failing to take her grievance to arbitration. This is one of the rarer instances where a complaint actually issues on a DFR charge. In the proposed decision, the ALJ applied well-settled standards and found that the union’s decision not to advance the grievance to arbitration was honest and reasonable.
Employee alleged that the union violated its duty of fair representation by failing to take her grievance to arbitration. This is one of the rarer instances where a complaint actually issues on a DFR charge. In the proposed decision, the ALJ applied well-settled standards and found that the union’s decision not to advance the grievance to arbitration was honest and reasonable.
Wednesday, February 28, 2007
Unit Determination Decision Vacated by Request
East Whittier City Elementary School District (PERB Dec. No. 1887E) (Issued 2/27/07)
District initially filed exceptions to board agent’s unit determination decision. Subsequently, based on a vote of the affected units, the union withdrew its representation petition. Parties then settled and requested that the Board vacate its decision, which the Board agreed to do.
District initially filed exceptions to board agent’s unit determination decision. Subsequently, based on a vote of the affected units, the union withdrew its representation petition. Parties then settled and requested that the Board vacate its decision, which the Board agreed to do.
DFR Charge Dismissed
United Teachers of Los Angeles (PERB Dec. No. 1888E) (Issued 2/27/07)
Employee alleged that union violated its duty of fair representation. Applying established law, board agent dismissed complaint. Board summarily affirmed.
Employee alleged that union violated its duty of fair representation. Applying established law, board agent dismissed complaint. Board summarily affirmed.
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