Monday, August 31, 2009
Furloughs in the News
The National Law Journal just did an article on the likely effect of the Maryland furlough case and also a recent case out of Hawaii. The article includes some comments I provided the reporter on the potential effect (really, none) of those cases in California. The article can be found here.
Tuesday, August 25, 2009
Are Furloughs Unconstitutional? Unions Claim Victory in Maryland
Fraternal Order of Police v. Prince Geroge's County (U.S. District Court, Maryland) (Issued on 8/18/09)
Unions representing public employees throughout the nation have been crowing about a recent federal court decision in Maryland finding that Prince George’s County violated the federal Constitution when it furloughed nearly 6,000 county employees for 80 hours during fiscal year 2009.
Facts
Facing a $57 million budget deficit, the county implemented a furlough plan for employees. The unions sued the county arguing that the furlough plan violated the Contracts Clause of the Constitution. The district court agreed. The court held that the furloughs substantially impaired the bargaining agreements which were voluntarily entered into by both the unions and the county. Central to the court’s holding was the fact that—according to the court—the county did not fully explore alternatives to furloughs. The court also noted that the county had over $230 million in reserves—half of which were unrestricted funds—and that the county had recently touted its fiscal health in order to bolster its financial rating when issuing over $100 million in bonds.
Comments
The unions have been widely circulating this case since it represents one of the few victories unions can claim on this issue. However, what effect might this decision have in California? In my opinion, none.
First, the decision is a district court decision. While the decision is intriguing, it has no precedential value. Second, this case involved a constitutional claim and did not address any issues under labor law. This is because Maryland labor law only covers employees of the state and its school system. In contrast, all of California’s public sector employers are subject to one of several collective bargaining statutes and most of California’s public employees have exclusive representatives. Thus, in California, most furlough programs have been negotiated with unions. When furloughs are negotiated there cannot be any violation of the federal Constitution’s contracts clause.
I suppose the constitutional issue could arise if a California public employer unilaterally imposed furloughs on employees while an MOU was in effect. However, such an action is far more likely to draw an unfair practice charge with PERB. (The exception is the State of California itself which pursuant to the Dills Act, Gov Code 3516.5, has the authority to implement changes within the scope of representation during in emergency situations). Presumably, a union could also bring a breach of contract action under state law in such a situation.
The only other situation where furloughs might be imposed would be upon impasse as part of an employer's last, best, and final offer. However, in an impasse situation the MOU has already expired. So again, there cannot be any violation of the federal Constitution’s contracts clause.
So while unions around the nation may consider this case a victory, I don’t see it having any effect in California.
[Many thanks to Genevieve Ng for helping me draft this post]
Unions representing public employees throughout the nation have been crowing about a recent federal court decision in Maryland finding that Prince George’s County violated the federal Constitution when it furloughed nearly 6,000 county employees for 80 hours during fiscal year 2009.
Facts
Facing a $57 million budget deficit, the county implemented a furlough plan for employees. The unions sued the county arguing that the furlough plan violated the Contracts Clause of the Constitution. The district court agreed. The court held that the furloughs substantially impaired the bargaining agreements which were voluntarily entered into by both the unions and the county. Central to the court’s holding was the fact that—according to the court—the county did not fully explore alternatives to furloughs. The court also noted that the county had over $230 million in reserves—half of which were unrestricted funds—and that the county had recently touted its fiscal health in order to bolster its financial rating when issuing over $100 million in bonds.
Comments
The unions have been widely circulating this case since it represents one of the few victories unions can claim on this issue. However, what effect might this decision have in California? In my opinion, none.
First, the decision is a district court decision. While the decision is intriguing, it has no precedential value. Second, this case involved a constitutional claim and did not address any issues under labor law. This is because Maryland labor law only covers employees of the state and its school system. In contrast, all of California’s public sector employers are subject to one of several collective bargaining statutes and most of California’s public employees have exclusive representatives. Thus, in California, most furlough programs have been negotiated with unions. When furloughs are negotiated there cannot be any violation of the federal Constitution’s contracts clause.
I suppose the constitutional issue could arise if a California public employer unilaterally imposed furloughs on employees while an MOU was in effect. However, such an action is far more likely to draw an unfair practice charge with PERB. (The exception is the State of California itself which pursuant to the Dills Act, Gov Code 3516.5, has the authority to implement changes within the scope of representation during in emergency situations). Presumably, a union could also bring a breach of contract action under state law in such a situation.
The only other situation where furloughs might be imposed would be upon impasse as part of an employer's last, best, and final offer. However, in an impasse situation the MOU has already expired. So again, there cannot be any violation of the federal Constitution’s contracts clause.
So while unions around the nation may consider this case a victory, I don’t see it having any effect in California.
[Many thanks to Genevieve Ng for helping me draft this post]
Friday, August 14, 2009
Alameda Minimum Staffing Fight Continued to November 2011
I’ve been following with interest a battle over a minimum staffing initiative in the City of Alameda (City). In January of this year, the City began engine company “brownouts” because of the budget crisis. In response, the firefighters’ union began circulating a petition for a local ballot measure that would mandate a minimum staffing level of 27 firefighters per shift. At the time, the City had 24 firefighters per shift.
In March, while the petition was still circulating, the City took the unusual step of filing a lawsuit against the measure’s backers. The City argued that the measure constituted “an improper exercise of the initiative power pursuant to Article II, Section 8, of the California Constitution and the City Charter” and requested that the court relieve the City Clerk from having to validate and tabulate any signatures that were gathered. While the lawsuit was still pending, the firefighters were able to gather signatures from about 25% of the electorate by June, more than enough to qualify the measure. The City then had no choice but to schedule the measure for a vote.
According to news articles, the big debate was whether the measure should be put on the ballot in November 2009, at a substantial cost to the City since it would be a stand alone matter on the ballot, or some later time. At its August 3, 2009 meeting, the City Council voted to put the measure on the ballot in November 2011—the latest it could do so. The City Council also voted to drop its lawsuit.
At first blush, it seems like a clever move by the City Council—talk about putting a measure on ice! However, if the economy improves substantially by November 2011, it might actually be harder to defeat the measure. Everyone knows that the public likes to support public safety and if there is plenty of money, people are going to be inclined to vote for anything that makes them feel safer. Had the measure been put on the ballot this year or even June 2010, given the current economic climate, the additional cost to the City from the minimum staffing measure (estimated at $4 million/year by City staff) measure might have doomed it.
Tuesday, July 7, 2009
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.
Thursday, July 2, 2009
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
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
Wednesday, July 1, 2009
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.
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.
Wednesday, June 24, 2009
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.
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.
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