PERB's Annual Report for 2006-2007 is now available on its wesbite.
In fiscal year 2006-07, 823 unfair practices charges were filed with PERB, compared to 1012 the year before; a 19% decrease. Interestingly, that decrease was due mostly to the number of unfair practice charges filed under HEERA, which went from 328 in 2005-06, to 92 in 2006-07.
Despite the drastic decrease in the number of unfair practice charges, higher education still remains the most contentious of the public sector arenas based on the number of unfair practice charges compared to the number of employees covered under each Act.
Consider, according to PERB's 2006-07 annual report, 71 charges were filed under Dills, 343 under EERA, 92 under HEERA, and 297 under MMBA. The number of employees covered under each Act is (roughly): 125,000 under Dills, 675,000 under EERA, 100,000 under HEERA, and 1,000,000 under MMBA.
Based on these figures, the number of unfair practice charges filed per 10,000 employees is: 5.68 under Dills, 5.08 under EERA, 9.2 under HEERA, and 2.97 under MMBA. Thus, HEERA generates almost 2 to 3 times the number of unfair practice charges as the other acts.
Wednesday, January 2, 2008
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, October 15, 2007
AB 220 - Firefighter Bill of Rights Signed
In one of the most shocking developments this legislative year in the labor and employment area, the Governor signed AB 220 - the Firefighter Bill of Rights (FBOR). The newly enacted statute gives firefighters the same basic rights as peace officers under the Peace Officer Bills of Rights (POBAR). The requirements of AB 220 include:
* Specifying the conditions under which investigations and interrogations that may lead to punitive action of firefighters must be conducted;
* Requiring that any punitive action against a firefighter be taken within one year of discovery;
* Requiring that a firefighter be allowed to read and sign any adverse comment before it is entered into their personnel file.
* Prohibiting forced lie detector tests of a firefighter;
* Specifying that a firefighter cannot be required to disclose financial information unless otherwise required by law or court order;
* Requiring that a fire chief, prior to removal, must be provided with written notice stating the reasons for removal and an opportunity for administrative appeal;
* Allowing a firefighter's locker or other storage space to be searched only in the firefighter's presence, or with their consent, or with a valid search warrant.
While there may be sound public policy reasons for POBAR, it is difficult to fathom why firefighters need the same protections. Amazingly, AB 220 received almost full Republican support in the Assembly, and that support likely explains why the bill was signed.
* Specifying the conditions under which investigations and interrogations that may lead to punitive action of firefighters must be conducted;
* Requiring that any punitive action against a firefighter be taken within one year of discovery;
* Requiring that a firefighter be allowed to read and sign any adverse comment before it is entered into their personnel file.
* Prohibiting forced lie detector tests of a firefighter;
* Specifying that a firefighter cannot be required to disclose financial information unless otherwise required by law or court order;
* Requiring that a fire chief, prior to removal, must be provided with written notice stating the reasons for removal and an opportunity for administrative appeal;
* Allowing a firefighter's locker or other storage space to be searched only in the firefighter's presence, or with their consent, or with a valid search warrant.
While there may be sound public policy reasons for POBAR, it is difficult to fathom why firefighters need the same protections. Amazingly, AB 220 received almost full Republican support in the Assembly, and that support likely explains why the bill was signed.
Friday, October 12, 2007
Rialto Police Benefit Assn. v. City of Rialto
Rialto Police Benefit Assn. v. City of Rialto (Court of Appeal Case No. E039649) (Issued 10/3/07)
This case arose under the Meyers-Milias-Brown Act and presented an issue of first impression: Is a city’s decision to enter into a contract with the county sheriff for law enforcement services, rather than continue to provide such services through the city’s own police department, subject to the meet and confer requirements of the Meyers-Milias-Brown Act (MMBA) (Gov. Code, § 3500 et seq.)? The court answered in the affirmative.
More on this case later.
This case arose under the Meyers-Milias-Brown Act and presented an issue of first impression: Is a city’s decision to enter into a contract with the county sheriff for law enforcement services, rather than continue to provide such services through the city’s own police department, subject to the meet and confer requirements of the Meyers-Milias-Brown Act (MMBA) (Gov. Code, § 3500 et seq.)? The court answered in the affirmative.
More on this case later.
Thursday, September 27, 2007
Good News: AB 553 Vetoed
If enacted, AB 553 would have denied cities and counties the right to seek injunctions directly with the courts when faced with strikes affecting health and safety. Fortunately, the bill was vetoed. Here is the Governor’s message:
To the Members of the California State Assembly:
I am returning Assembly Bill 553 without my signature. This bill would provide the Public Employment Relations Board (PERB) with exclusive authority to determine whether public health and safety would be at risk in strike or lockout situations. Doing so would add an unnecessary layer of bureaucracy and potentially place the public at risk. Cities and counties have common law and statutory authority over matters of public health and safety. When local governments seek injunctive relief from a strike, they are doing so because of a potential threat to the public health and safety of citizens. It is therefore imperative that local governments have access to immediate injunctive relief from superior courts during strike situations. As the courts are sufficiently suited to address matters of public health and safety, there is no reason to force decisions on injunctive relief into the slower PERB process. For these reasons I am returning this bill without my signature.
Sincerely,
Arnold Schwarzenegger
To the Members of the California State Assembly:
I am returning Assembly Bill 553 without my signature. This bill would provide the Public Employment Relations Board (PERB) with exclusive authority to determine whether public health and safety would be at risk in strike or lockout situations. Doing so would add an unnecessary layer of bureaucracy and potentially place the public at risk. Cities and counties have common law and statutory authority over matters of public health and safety. When local governments seek injunctive relief from a strike, they are doing so because of a potential threat to the public health and safety of citizens. It is therefore imperative that local governments have access to immediate injunctive relief from superior courts during strike situations. As the courts are sufficiently suited to address matters of public health and safety, there is no reason to force decisions on injunctive relief into the slower PERB process. For these reasons I am returning this bill without my signature.
Sincerely,
Arnold Schwarzenegger
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.
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