Furlough Fridays Return to PERB

I've been told that "Furlough Fridays" are returning to PERB. In July, PERB will be closed on July 10, 17, and 24. After that, PERB will be closed the 1st, 2nd, and 3rd Fridays of each month. If you have a filing due on a furlough Friday, refer to PERB reg. 32130. Note, PERB has not yet announced the Friday closures on its website. Until it does, I recommend confirming the closures with the Board agent or Appeal's office if you have something due just to be safe.

Fiscal Year Ends; PERB's Numbers Are Up

[UPDATED (7/6/09): 2 more Ad decisions, 1 Recon, and 1 Bd Decision bring the total number to 89. Plus, someone pointed out that my historic numbers did not all always include IR requests, so I made that clear.]

The fiscal year has ended for PERB. PERB's annual report is not due until October, but I have some preliminary numbers based on my own record keeping.

For the 2008-09 fiscal year, my numbers show that PERB issued 89 decisions, not including any requests for injunctive relief. This includes: 80 Board decisions; 3 Reconsideration decisions; and 6 Administrative decisions. In terms of which acts the decisions came under, it breaks down as follows:

MMBA: 34 decisions
EERA: 34 decisions
Dills Act: 11 decisons
HEERA: 8 decisions
Trial Court: 1 decison
Court Interpreters: 1 decision

I estimate that PERB probably considered 12 injunctive relief requests, which would bring the total number of decisions to 101. Last year the Board issued 65 decisions along with 28 requests for injunctive relief, for a total of 93.

Year: Bd. Decisions/IRs/Total

2008-09: 89/12/101 (est.)
2007-08: 65 /28/93
2006-07: 87/16/103
2005-06: 80/23/103
2004-05: 142/14/156
2003-04: 128/13/141
2002-03: 73/14/87
2001-02: 44/23/67

Union Must Submit to Binding Interest Arbitration

Stationary Engineers Local 39 (2009) PERB Decision No. 2041-M (Issued on 6/29/09)

In this case, PERB affirmed an ALJ’s proposed decision finding that the Stationary Engineers Local 39 (Local 39) violated the MMBA by refusing to participate in binding interest arbitration pursuant to San Francisco’s local rules. What is interesting in this case is the position advacned by Local 39. Local 39 argued that San Francisco’s binding interest arbitration provision conflicted with the MMBA. According to the decision:

“Local 39 contends that interest arbitration conflicts with the MMBA's ‘intent that
agreements be reached by bargaining, rather than being imposed by the unilateral declaration of one side of the bargaining process.’ Agreements should be the result of compromise and a "reasonable accommodation of the needs of both parties.”

In other words, Local 39 argued that San Francisco’s binding arbitration procedure was an unreasonable local rule under the MMBA because terms and conditions of employment are imposed upon the parties, rather than reached through negotiations. PERB easily rejected that argument. However, I think it’s safe to say that Local 39’s position on binding interest arbitration is unusual and certainly not shared with most (if not all) other unions. Indeed, the ALJ noted in the decision that, “it is commonly known that many unions believe interest arbitration to serve their interests.” That’s an understatement. The reality is that San Francisco is one of only two local agencies (the other being Vallejo) where binding interest arbitration is available to non-safety employees. I’m willing to bet that non-safety unions in other cities and counties would love to have what Local 39 has in San Francisco.

However, looking at Local 39’s history, I’m not surprised by its position in this case. Over the years I’ve (very grudgingly) developed a respect for Local 39. The engineers have a reputation for hard bargaining and a willingness to engage in job actions. They also (like SEIU) understand the critical need for organizing. That makes them a force to be reckoned with and explains why they have been very successful in many places. They obviously feel that with their success, they can gain more for their members through traditional bargaining rather than relying on binding interest arbitration. In some sense, Local 39’s desire to stick with traditional bargaining is refreshing.

PERB: Implied Right of Access Exists Under MMBA

Omitrans (2009) PERB Decision No.2030-M (Issued on 5/29/09)

Section 3507, subdivision (a), of the MMBA provides, in relevant part, that:

“A public agency may adopt reasonable rules and regulations after consultation in good faith with representatives of a recognized employee organization or organizations for the administration of employer-employee relations under this chapter. The rules and regulations may include provisions for all of the following: . . . (6) Access of employee organization officers and representatives to work locations.”

Thus, under MMBA section 3507(a)(6), a union’s right to access employer facilities has always been subject to an employer’s reasonable rules. However, the question has often arisen, what’s reasonable? I’ve always told employers that having a rule that denies all access would be considered unreasonable under the MMBA. Short of that, it’s hard to say.

In this case, PERB relied on NLRB precedent to find that there is an implied right to access under the MMBA. Specifically, PERB held that, “Considering the language of the MMBA in light of the well -established implied right of access grounded in the non-interference and non-discrimination provisions of other labor relations statutes, we hold that the MMBA grants a recognized employee organization a right of access to a public agency's facilities for the purpose of communicating with employees subject to reasonable regulation by the public agency.”

Comments:

1. By finding an implied right to access the Board has essentially set minimum standards for what constitutes reasonable regulation of a union’s access rights. Those minimum standards are comprised of the body of case-law developed by PERB over the years. In other words, you can still adopt a reasonable rule under the MMBA, but if you're rule provides less access rights than under EERA, HEERA, or Dills, then it's (likely) unreasonable. Here, PERB is sending a clear signal that it views access rights under the MMBA no differently than under the other major statutes.

2. If this case is not appealed and becomes final (my bet is that it will be appealed), every MMBA employer should review its rules and regulations governing reasonable access and compare those rules to PERB’s existing standards. For example, many local rules limit union access to only certain activities (eg only grievance processing, but no general union meetings), require certain procedural rules to be met (eg advance notice, obtaining permission, etc.), and otherwise limit union access to sites even during non-work times. Those rules should be evaluated to see if they are consistent with PERB case-law; if not PERB might find the local rule “unreasonable” as it did in this case.

Final Comments:

Lastly, I’ll just note that in this case PERB issued a very unusual remedy. Here, the employer had the employee arrested when he wouldn’t leave the premises. That caused the employee all sorts of legal problems. Because PERB found that the employee had a right to be in the break-room, it order the employer to make the employee whole, including: 1) paying the employee’s attorneys’ fees that he incurred in the criminal proceedings; and 2) joining the employee in petitioning the court to have his record expunged.

That leads me to my final comments. For employers, be aware that calling in the police on the union really ups the ante (that's putting it mildly). Unless property is being damaged or people are getting hurt, I don't advise having your employees arrested. You're better off imposing discipline (if it's unprotected and unlawful activity) and/or filing an unfair practice charge with PERB, including seeking injunctive relief if necessary. For union folks, I still think you're better off abiding by the maxim "obey now, grieve later." It's just not worth the risk of defying your employer's direct order to make a point; make your point before PERB.

UPDATE: I've been informed that Omitrans has just filed a writ challenging this decision.

Non-profit El Camino Hospital Subject to MMBA

El Camino Hospital District (2009) PERB Decision No. 2033-M (Issued on 5/29/09)

The facts in this case are fairly convoluted. However, it boils down to this. The El Camino Hospital (Hospital) is a nonprofit 501(c)(3) corporation. It’s sole shareholder is the El Camino Hospital District (District), which is a public entity. The hospital owns its building but the District owns the land the building sits on. The Hospital and District have separate budgets. However, the actual people who sit on the governing board of the Hospital also sit on the governing board of the District. SEIU submitted a petition to conduct an agency fee election at the Hospital. The Hospital refused to allow an election. This unfair practice charge followed. The primary issue was whether the Hospital was subject to the MMBA.

In its decision, PERB noted that the MMBA covers every “public agency” except those covered by other public sector labor relations statutes (e.g. EERA, HEERA, Dills, etc). In contrast, the NLRA expressly excludes from its coverage "any State or political subdivision thereof." (29 U.S.C. § 152(2).) Thus, broadly speaking, the MMBA covers those public agencies excluded by the NLRA. The test for determining whether an employer is a political subdivision, and therefore excluded from NLRB jurisdiction, is if it is either: (1) created directly by the state, so as to constitute a department or administrative arm of the government, or (2) administered by individuals who are responsible to public officials or the general electorate. (NLRB v. Natural Gas Utility District (1971) 402 U.S. 600.) Applying this test, PERB found that the Hospital was indeed a public entity subject to the MMBA.

Even if the Hospital is not a public entity, PERB held that it was still subject to the MMBA under the “single employer” doctrine. A single employer status exists where two nominally separate entities are actually part of a single integrated enterprise so that there is, in reality, only a single employer. (Public Transportation Services Corporation (2004) PERB Decision No. 1637-M. The Board looked to the following four factors to determine the existence of a single employer relationship: (1) functional integration of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership. Applying these factors, PERB found that the District and the Hospital could also be properly characterized as a single employer and subject to the MMBA under that doctrine.

Comments:

1. To my knowledge, this is the first case where an entity organized as a non-profit 501(c)(3) corporation has been found to be a “public entity” under the MMBA.

2. Similar cases involving auxiliary organizations affiliated with a particular CSU or UC campus have arisen under HEERA. Most of those cases have concluded that the auxiliary organization—often times also a non-profit 501(c)(3) corporation—is not an employer under HEERA. (See Trustees of the California State University (2006) PERB Decision No. 1839-H (“CSU”).) CSU, at first blush, seems very similar to the facts here, in El Camino. There, CSU created a non-profit corporation to develop student housing because such an entity could obtain lower financing rates. There was some overlap in management, as CSU officers served on the corporation’s Board of Directors and its executive director was appointed by the CSU president. The corporation owned the student housing and the CSU owned the land. In that case, PERB held that the corporation was not subject to HEERA and that the corporation and CSU were not a “single employer.”

3. These 2 cases are very similar and probably represent the dividing line between single employer and separate entities, which shows that there is a still a fertile ground for litigation in this area. The evidence of a “single employer” is probably slightly better in El Camino since the management was identical and there really was no principled distinction between the two entities.

4. In addition, these 2 cases can also be distinguished because CSU arose under HEERA while El Camino involved the MMBA. The MMBA has a much broader definition of employer than HEERA, which only covers the CSU and UC. Thus, the question in CSU wasn't whether the corporation was a public entity, but whether it was an employer covered under HEERA. However, would the corporation in CSU be considered a public entity covered by the MMBA? That's an interesting question that didn't arise in CSU.

PERB: Equitable Tolling Also Applies to MMBA

Solano County Fair Association (2009) PERB Decision No. 2035-M (Issued on 6/09/09)

Following the reasoning set forth in Trustees of the California State University (San Jose) (2009) PERB Decision No. 2032-H (Issued on 5/29/09), the Board held that the doctrine of equitable tolling also applies under the MMBA.

PERB Recognizes Equitable Tolling Under HEERA

Trustees of the California State University (San Jose) (2009) PERB Decision No. 2032-H (Issued on 5/29/09)

This case involved a CSU professor who was demoted because he refused to comply with a university decision on allowing a student to retake an exam. He was demoted in November 2005, but did not file his unfair practice charge until May, 2007—almost two years later. The employee argued that the time for filing his unfair practice charge should be “equitably tolled” during the period of time he was proceeding under the university’s grievance process. PERB agreed.

PERB noted that unlike the other statutes it administers, HEERA does not expressly provide for the tolling of the statute of limitations. (HEERA, §3563.2.) However, PERB noted that in Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072 (“Coachella”), the California Supreme Court held that a six-month statute of limitations applied to the MMBA. The Court came to this conclusion based heavily on the fact that all the other statutes administered by PERB had a six-month statute of limitations. Relying on Coachella, the Board held that the same result should apply to the issue of equitable tolling. Basically, PERB held that it makes sense as a matter of public policy to interpret all the statutes similarly where the public policies are the same.

Comments

I actually disagree with this decision. My disagreement arises from the fact that I believe the Regents of University of California v. Public Employment Relations Bd. (1985) 168 Cal.App.3d 937, 944-945 (1985) ("Regents") case is more applicable to this situation than Coachella. The Regents case involved a very similar situation under HEERA. Basically, the issue involved the rights of non-exclusive representatives. The language on this issue under HEERA differed from the other statutes administered by PERB. As in this case, PERB concluded that even though language in all the other statutes was missing in HEERA, it could still read that language into the act. On appeal, the court disagreed and held:

“We cannot agree with the Board's conclusion that HEERA's omission of a “right to represent” was without significance. It is true that we must accord great respect to an administrative agency's interpretation of the statute it is charged with enforcing. [Citations omitted] But upholding such a reading would go well beyond respect for the agency's interpretation. It would authorize the Board to rewrite the statute to suit its notion of what the Legislature must have intended to say about organizational rights. It would do this in the face of strong evidence of a contrary legislative intent: the Legislature's use of the same construction in four different pairs of statutes, and its failure to use that construction in the statute under scrutiny. The Legislature would be rendered nearly powerless to make changes in the law if we were to permit the Board to interpret this obvious change as an attempt to continue the same legal relationships established in the George Brown Act, EERA, and SEERA."

That’s almost exactly the same situation here. Except the MMBA, the equitable tolling language appears in all the acts under than HEERA. Under Regents, that fact is strong (in my mind presumptive) evidence that the legislature intentionally left the language out.

It’s true that Coachella appears to take a different approach than Regents. That’s why it’s disappointing that the Court in Coachella didn’t discuss the Regents case. However, I believe it’s possible to reconcile the two approaches. Indeed, Coachella acknowledged that where one of the statutes administered by PERB has different statutory language than the others it could be indicative of legislative intent to treat that statute different. Specifically, the Court held:

“[T]he PERB argues that because the Legislature included an express six-month limitation period in every other public employment relations law under the PERB's jurisdiction, the omission of an express six-month limitation period in the MMBA is compelling evidence of a different legislative intent. We would agree if there were any plausible ground for the Legislature to draw such a distinction, or, in other words, if this line of reasoning did not lead to an inexplicable anomaly. The rule that the PERB cites is merely one of several guides to statutory construction; it applies generally but not universally, and we do not find it helpful or controlling here.”

Thus, Coachella basically says that statutory differences should be recognized where there is some reason to do so. Here, in my opinion there is a very good reason to draw a distinction between HEERA and the other acts. HEERA covers the University of California (UC), which is a constitutional agency. Under the constitution, the UC has distinct powers from other public agencies. (e.g. UC policies have the force and effect of statutes. See, e.g., Regents of the University of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 135.) Thus, the Legislature may not have wanted to impose equitable tolling on a constitutional agency.

Last year, the California Supreme Court issued the Miklosy v. Regents of University of California (2008) 44 Cal.4th 876 decision, which actually is very instructive in this case. There, the Court considered a set of whistle-blower statutes where the statute covering the UC contained different language than that covering the state and the CSU. As in this case, there was no legislative history explaining the difference. However, the Court held that there was good reason to treat the UC differently:

“In short, the University functions in some ways like an independent sovereign, retaining a degree of control over the terms and scope of its own liability. Given the University's unique constitutional status, it is not surprising that the Legislature would take a deferential approach when authorizing damages actions against the University.” (Miklosy, at p. 890.)

One might argue that there is no evidence that the Legislature intended to give deference to the UC in crafting HEERA. However, that’s no different than Miklosy. One could also argue Coachella represents a better approach than Regents. Maybe. However, in my mind Coachella was a very different case. There, the Court had to find some statute of limitations since no one was arguing that the absence of an express limitations period meant there wasn’t one. Here, it’s entirely possible that the Legislature excluded the equitable tolling language.

So where does that leave us? This case is precedential and binding on future cases. However, that doesn’t mean the UC or CSU might not try to get PERB to reconsider this issue in the future. This is especially true given that the employee in this case was pro per and likely failed to address the issues I raise above. Also, the CSU didn’t make an appearance in this case so there was no one to competently argue the other side.