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.
Monday, August 20, 2007
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.
Right of Individual Representation Restored Under EERA
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 . . .”
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 . . .”
Monday, June 18, 2007
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.
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.
Wednesday, June 6, 2007
AB 553 - Passes Assembly
AB 553 - which purports to give PERB exclusive initial jurisdiction over public employee strikes - has passed the Assembly and is on its way to the Senate.
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.
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