PERB: School Noon-Duty Aides Not Covered by EERA

Castaic Union School District (2010) PERB Decision No. A384E (Issued on 8/09/10)

In an unexpected decision, PERB has held that school district employees in part-time playground positions, also referred to as "noon-duty aides," who do not otherwise hold a position in the classified service, are not covered by the Educational Employment Relations Act (EERA). This decision overturns the Board’s holding in Pittsburg Unified School District (1976) EERB Decision No. 3 (“Pittsburg”). What is significant is that the Pittsburg decision has been binding precedent for over 30 years; indeed it was the third decision ever issued by PERB (then known as EERB).

The Board based its decision on the language of Education Code section 45103, subdivision (b)(4), which states:

Part-time playground positions shall not be a part of the classified service, where the employee is not otherwise employed in a classified position. Part-time playground positions shall be considered a part of the classified service when the employee in the position also works in the same school district in a classified position.

Then Board then compared Education Code section 45103 with Government Code section 3540.1, subdivision (e), which states:

“Exclusive representative means the employee organization recognized or certified as the exclusive negotiating representative of certificated or classified employees in an appropriate unit of a public school employer.”

The Board interpreted the “plain language of the statute to mean that an exclusive representative may only represent a bargaining unit of certificated or classified employees and, therefore, cannot represent employees who do not fall into one of those two categories.”  According to the Board, the definition of "exclusive representative" limits the definition of "public school employee" to certificated or classified employees.  Thus, part-time playground employees are not considered “employees” for purposes of EERA.

As a result of the Board’s holding, the petition in this case to add part-time playground positions to an existing unit was dismissed. However, in the interesting move, PERB stated that it would only apply the holding in this case prospectively. Specifically, the Board stated that:

“We recognize that classified bargaining units may currently exist which include parttime playground positions. Because of the potential disruption to stable employer-employee relations that would result from application of this decision to such units, PERB will only apply this decision prospectively. (Palo Alto Unified School District, et al. (1979) PERB Decision No. 84; Peralta Community College District (197 8) PERB Decision No. 77.) Consequently, this decision does not affect existing units that include part-time playground positions.”

Member Wesley dissented from the Board’s decision that EERA does not cover part-time playground positions. Member Wesley argued that the definition of “employee” under EERA does not limit it to classified or certificated employees. Further, Member Wesley asserted that being excluded from the classified service has little bearing on whether an employee should be covered by EERA, as the purposes of the two statutory sections are different.

Comments:

1. It is fairly rare for the Board to overturn one of its prior decisions. It probably occurs once a year on average; perhaps a little more when there is a change of Governor. However, I can’t remember the Board ever overturning a decision as old as Pittsburg. As mentioned above, Pittsburg has been around for over 30 years and it was only the third decision ever issued by the Board. In terms of the merits of the decision, I think both sides have valid points. But given how long Pittsburgh has been around, I’m sure CSEA will appeal this case. It will be interesting to see how the Court rules.
2. For me, the really interesting portion of this case was the Board’s guidance on how this decision will be applied in the future. The Board acknowledged that many districts have part-time playground positions in bargaining units and that this decision could cause substantial disruption to those districts and employees. Therefore, the Board stated that it would only apply this decision prospectively. However, can the Board do that? I personally think it’s questionable. Here, the Board said that the plain language of the statute required that it hold that part-time playground employees are not covered by EERA. However, PERB cited to a couple of prior cases where it declined to apply a statutory interpretation retrospectively where such an application would “cause disruption and instability.” I think those prior decisions are distinguishable. But in its basic form, the legal question is this: Can an administrative agency charged with enforcing a statute decide not to enforce the plain language of the statute because it would cause disruption and instability?  I believe the answer is no; such a decision is one for the Legislature. My view is that if PERB says that under the plain language of EERA that these positions are not covered, it has no choice but to enforce that interpretation. Any “disruption or instability” in this situation is caused by the language of the statute, which is something for the Legislature to address.  I certainly understand why PERB only wants to apply this holding prospectively, I just don't know that it can do that when it says that the language of the statute is plain and clear.

A Guide to PERB Abbreviations

Have you ever wondered what the letters and numbers in a PERB charge mean?  Here's what you need to know.  All PERB charges follow the same rule:  The first two letters denote the PERB office where the charge was filed; the next two letters denote the type of case; next the number is the number of the charge under the Act; and the last letter is the Act under which the charge was filed.

Here's a guide to the abbreviations used:

Location:

• SA = Sacramento
• SF = San Francisco (Note: For those of you wondering, yes, PERB's office is in Oakland.  But it used to be in SF)
• LA = Los Angeles

Charge types:

• AC Amendment of Certification Request
• AR Arbitration Request
• CE Unfair Practice Charge against Employer (Note:  Most common type of charge)
• CO Unfair Practice Charge against Employee Organization  (Note:  Second most common type of charge)
• DP Decertification Petition
• FS Financial Statement Complaint
• HS HEERA Student Participation Complaint
• IM Impasse Request (Mediation and Factfinding)
• OS Organizational Security Election Request
• PC Petition for Certification
• PN Public Notice Complaint
• RR Request for Recognition
• SV Severance Request or Petition
• UM Unit Modification Petition

Acts:

• E = EERA
• H = HEERA
• S = Dills (Note:  It was initially referred to as "SEERA" before being renamed for the late Senator Ralph Dills)
• M = MMBA
• C = Trial Court Employment Protection and Governance Act
• I = Trial Court Interpreter Employment and Labor Relations Act
• T = Los Angeles County Metropolitan Transportation Authority Transit Employer-Employee Relations Act

PERB’s End of Fiscal Year Numbers

Fiscal year 2009-2010 is over. PERB’s annual report for 2009-2010 is not due until October 1, 2010. However, I have been keeping track of PERB’s decisions throughout the year. So unless there are additional cases issued before June 30th that PERB has not posted on its website, I have the final tally for the year.  For fiscal year 2009-2010, PERB issued 79 decisions.  The year before, fiscal year 2008-2009, PERB issued 89 decisions. However, PERB had five board members in 2008-09, while it had only four board members for most of 2009-2010, and ended the last few months with only three board members. So given that PERB only had about 3.5 board members this year, and was subject to 3-day a month furloughs, 89 decisions is not bad at all.

Here are some other statistics for the 2009-2010 fiscal year:

Decisions by Statute:

• MMBA: 33
• Dills Act: 17
• EERA: 15
• HEERA: 12
• Court Interpreter: 2

Decisions by Type:

• Appeals from Dismissals: 49 (15 of which were DFR’s)
• Exceptions to ALJ Decisions: 23
• Approval of Settlement: 1
• Administrative Appeal: 2
• Reconsideration: 2
• Unit Modification: 1
• Amend Certification: 1

Decisions by Outcome:

• Dismissal Affirmed: 44
• Dismissal Overturned/Partially Overturned: 5
• ALJ Decisions Affirmed: 14
• ALJ Decision Overturned/Partially Overturned: 9

Decisions by Board Member:  

• Dowdin: 29 
• Wesley: 20 
• McKeag: 15 
• Neuwald (Term ended 2/28/10): 15 

Other Interesting Facts:  

• There were 5 dissents in the last year: 2058M (Neuwald); 2107H (McKeag); 2106S (McKeag); 2103M (Dowdin); 2094H (Neuwald).

Comments: 

1. I need to confirm this, but I believe this is the first year that the MMBA has generated the most cases from the Board. Last year, the MMBA and EERA were tied at 34 each. I believe that before that EERA has always been the dominant Act. This year, it wasn’t close. The MMBA generated 33 cases while EERA only generated 17.
2. The only other major statistic that stands out to me is the Board’s affirmance rate. The rate that dismissals were affirmed by the Board was 89.7%, which is consistent with the historical average of 90%+. However, what is surprising to me is that only 60.8% of the proposed ALJ decisions were affirmed in their entirety. 9 out of 23 proposed ALJ decisions were partially or completely overturned. This is a significant statistic because I think it will only drive more cases to the Board.  As a litigant, I’m much more likely to appeal a case to the Board if I have a 40% chance of success (even if it's only a partial success) versus only a 10% chance.  40% isn’t good, but it’s a whole lot better than 10%.

PERB: State Properly Imposed Layoffs Prior to Completion of Effects Negotiations

State of California (Department of Corrections & Rehabilitation, Department of Personnel Administration) (2010) PERB Decision No. 2115-S (Issued on 6/10/10)

Facts

This case stems from the State’s decision to close the El Paso De Robles Youth Correctional Facility (El Paso) and the DeWitt Nelson Youth Correctional Facility (DeWitt) in response to an anticipated drop in the juvenile population held by the Department of Corrections and Rehabilitation (CDCR) resulting from the passage of SB 81. In November 2007, CDCR developed preliminary plans to close both the El Paso and the DeWitt facilities effective July 31, 2008. Given the language of SB 81, CDCR determined that closure of these two facilities was required in fiscal year 20082009.  The Governor incorporated the closure of these facilities into his proposed budget in January 2008 by not including funding for juvenile services at those facilities.

On March 24, 2008, the State gave written notice to the California Correctional Peace Officers Association (CCPOA) that the two facilities were closing and that affected employees would be subject to layoff. The parties then met and conferred over the effects of the layoffs on six occasions prior to the July 31, 2008 implementation date.  When no "effects" agreement was reached by July 31 the State went ahead and imposed the layoffs.

Decision

In its decision, PERB affirmed that the decision itself to lay off employees is a fundamental management right that is not subject to bargaining. At the same time, PERB affirmed that the “effects” of a layoff are subject to bargaining. In terms of timing, PERB held that in such a situation the notice, “must be given sufficiently in advance of a firm decision to make a change to allow the exclusive representative a reasonable amount of time to decide whether to make a demand to negotiate."

However, PERB then noted that there is an exception to this rule. Specifically, PERB has held that it is permissible to implement a managerial decision before the completion of bargaining over “effects” where:

1. The implementation date is not an arbitrary one, but is based upon either an immutable deadline or an important managerial interest, such that a delay in implementation beyond the date chosen would effectively undermine the employer’s right to make the nonnegotiable decision;

2. Notice of the decision and implementation date is given sufficiently in advance of the implementation date to allow for meaningful negotiations prior to implementation; and

3. The employer negotiates in good faith prior to implementation and continues to negotiate in good faith after implementation as to those subjects not necessarily resolved by virtue of the implementation.

Here, the Board found all 3 factors present. The Board also rejected the union’s contention that the State negotiated in bad faith. Accordingly, the charge was dismissed.

Comments

Many public agencies are currently considering layoffs because the budget situation for this fiscal year is not much better than last year. When public agencies do seek to impose layoffs, some unions adopt a tactic to try to delay the layoffs for as long as possible in the hope that the public agency will change its mind due to external political pressures. These unions will submit voluminous information requests, refuse to meet promptly, and/or otherwise engage in tactics to prevent the employer from quickly reaching impasse on "effects" negotiations. In these situations, employers should remember that is it possible to impose a managerial decision, such as a layoff, even when effects negotiations have not been completed if the elements in this case are present.  Obviously, it’s better to have reached agreement and/or impasse prior to implementation.  However, it’s good to keep this exception in mind.

Supreme Court: PERB Has Initial Jurisdiction Over Strikes

City of San Jose v. Operating Engineers Local Union No. 3 (Case No. S162647) (Issued on July 1, 2010)

The California Supreme Court has just issued its decision in City of San Jose.  The key holding is as follows:

"California allows public employees to go on strike to enforce their collective bargaining demands unless the striking employees perform jobs that are essential to public welfare. But whether a particular employee’s job is so essential that the employee may not legally strike is a complex and fact-intensive matter, and one on which public employee organizations and public entities may disagree.


Here, we address this issue: If a public entity is of the view that a threatened strike by its employees will be unlawful because a strike by some or all of the employees creates a substantial and imminent threat to public health and safety, must the public entity first file an unfair labor practice complaint with PERB and await PERB’s adjudication of the complaint before asking a court for an injunction prohibiting the strike?

We agree with the Court of Appeal that PERB has initial jurisdiction over a claim by a public entity that a strike by some or all of its employees is illegal. In addition, we conclude that a public entity must exhaust its administrative remedies before PERB before seeking judicial relief unless one of the recognized exceptions to the exhaustion of administrative remedies requirement is established."

I'll try to have more on this decision tomorrow.

California Supreme Court to Decide “Vesting” Issue Regarding Retiree Health Benefits

Retired Employees v. County of Orange (9th Cir. 09-56026 6/29/10)

Since approximately 1966, Orange County has provided health care benefits to its retired employees. In 1985, the County began “pooling” the retired employees with the active employees in the rate-setting process. Because retirees generally require more health services than active employees, who are generally younger and healthier, pooling the two groups allowed retirees to pay lower premiums and receive greater coverage than they otherwise would. As the cost of health care continued to rise over the years, the County found its employee health plans underfunded and needing adjustment. On September 12, 2006, the
Board of Supervisors approved a resolution to “split the pool,” which created different premium pools for active and retired employees and became effective on January 1, 2008. Retirees then faced significantly higher health insurance premiums.  A group of them brought a lawsuit against the County.

In federal court, the retirees – in essence – argued that the County’s past practice of “pooling” retirees with active employees created a “vested” right that the County could not now eliminate. The court quickly rejected the retirees’ argument, holding that:

“The law is clear: California courts have refused to find public entities contractually obligated to provide specified retirement benefits like those Plaintiff seeks in the absence of explicit legislative or statutory authority. This law also suggests that the requirement to provide lifetime health benefits does not establish a right to a specific method of rate-setting. Here, Plaintiff has failed to provide evidence of any explicit legislative or statutory authority requiring the County to continue providing retirees the pooling benefit in setting rates.”

The retirees then appealed to the Ninth Circuit Court of Appeal. Today, the Ninth Circuit certified to the California Supreme Court the following question:

"Whether, as a matter of California law, a California county and its employees can form an implied contract that confers vested rights to health benefits on retired county employees.

Defendant-Appellee in this case contends that decisions of the Supreme Court of California and the California Courts of Appeal support a conclusion that an implied contract to which a county is one party cannot confer such vested rights. Plaintiff-Appellant contends the contrary.

We understand that the Supreme Court of California may reformulate our question, and we agree to accept and follow the court’s decision. To aid the Supreme Court in deciding whether to accept the certification, we provide the following background."

Having a question certified to the California Supreme Court is fairly rare. More important, how the Court answers this question may have a tremendous impact on the public sector. Everyone knows that there is a huge unfunded liability for future retiree health benefits in the public sector. Many public employers have begun to address this unfunded liability to cutting back on benefits going forward. If the Court rules that employees and/or retirees have a “vested” right to accrue health benefits at a certain level even absent explicit legislature action, that will greatly weaken the ability of public agencies to scale back benefits.

Vallejo Repeals Binding Interest Arbitration

... But Not All the Votes Are Counted Yet ....


It looks like the voters in the City of Vallejo have repealed the City charter provision requiring binding interest arbitration to resolve collective bargaining disputes.  Although it was initially reported that Measure A had passed, the Times Herald was reporting as of this afternoon that thousands of mail-in and provisional ballots remain to be counted. (See article here.)  According to the Solano County Registrar's website, Measure A is currently ahead by 454 votes (7014 to 6065).
Assuming that the measure passes, it may be a harbinger of things to come.  In 1970, Vallejo became the first city or county in California to pass a local provision requiring binding interest arbitration.  Since then 23 other cities and counties have passed similar measures, the most recent (to my knowledge) being the City of Oroville in 2004.  Now, Vallejo has become the first city or county in California to repeal its binding interest arbitration requirement.  I believe many other local entities will try to follow Vallejo's lead by sponsoring similar measures in the November elections.  Whether those measures succeed or not remains to be seen.  Without a doubt, public employee unions will vehemently oppose such measures.  The unions in Vallejo opposed Measure A, but were greatly weakened financially and had lost a lot of public support by the bankruptcy proceedings involving the City.  Unions elsewhere will not face the same financial constraints.  However, will they face the same public backlash?  We'll have to wait to find out.