The 2008-2009 budget for PERB eliminated funding for factfinding, which in the previous year had been $85,000. However, the Legislature and Governor did not eliminate PERB's mandate under EERA and HEERA to fund factfinding. PERB has called a Board meeting for October 27, 2008, to address this problem.
In 2002-03, when the state also faced a serious budget crisis, PERB reduced the per diem it paid to factfinders to $100/per day from $600/per day. That resulted in a drastic reduction of individuals willing to as factfinders. The few factfinders who accepted the $100/day rate reduced the number of cases they would take and many considered it "pro bono" work. This time, it is unclear whether PERB will even be able to drastically reduce the rate it pays factfinders given that its entire factfinding budget has been eliminated.
PERB's agenda and a memo describing the problem can be found at this link: Agenda for October 27, 2008, Meeting
Sunday, October 19, 2008
Thursday, October 9, 2008
Restrictions on Union Email Use Ok
Los Angeles County Superior Court (PERB Dec. No. 1979-C) (Issued on 10/7/08)
The Los Angeles County Superior Court (Court) has the following policy on email use:
“The Court provides access to its electronic communications systems for the purpose of facilitating the performance of court related business. . .. Employees may not use the system in a manner or to a degree that is disruptive or detrimental to the Court or to the employee's performance. . .. Any violation of this policy may subject an employee to discipline.”
This policy recognized that there would always be some incidental non-work related email use by employees. The policy sought to limit email use only if it was “disruptive or detrimental.” The Court considered disruptive or detrimental emails to include “broadcast” emails that went to a large number of recipients. Under this policy the Court had always allowed union job stewards to use email to communicate with individual employees on representation matters and also allowed the union to send broadcast e-mails into the Court's e-mail system from the outside.
In this particular case, a union job steward was disciplined for sending several “broadcast” emails to all 780 bargaining unit members from within the County’s email system. The complaint issued by the Office of the General Counsel asserted that the email use was protected activity and thus the discipline was unlawful.
In its decision, PERB noted that generally, “an employer may limit employees' non-business use of its e-mail system without committing an unfair practice as long as the limitation does not discriminate along union lines.” PERB then set forth a two-part test for determining whether an employer’s restrictions on email are lawful: First, PERB will establish the extent of permissible non-business email use under the employer’s email use policy. Second, PERB will determine whether each of the employee’s emails fell within the range of permissible use and was therefore protected activity.
Applying this test, PERB held that the job steward’s “broadcast” emails were not protected activity because the Court had never allowed employees to send broadcast emails in any other context.
Comments:
The most significant legal holding in this case actually appears in footnote 15. It apparently was undisputed that the Court itself had sent “broadcast” emails to all its employees informing them of the status of negotiations. Because the Court itself sent “broadcast” emails, the union argued that it must be allowed to do the same. PERB said no.
PERB said that in considering the scope of email use allowed, the proper comparison is what other employees are allowed to do. According to PERB, the Court’s use of the email system is not the proper comparator as it is not an employee, but rather the employer. PERB reasoned:
“The Court is not required to provide AFSCME "equal time" use of its e-mail system under such circumstances. . . . Here, the record is replete with evidence that AFSCME had ample alternate means of communicating with Court employees, such as e-mail between union stewards and individual employees, distribution of flyers in the courthouse, use of Court bulletin boards, and a telephone hotline and website where members could obtain information about bargaining and upcoming meetings. Indeed, the Court even allowed APSCME to send broadcast e-mails into its system from the outside. In light of this evidence, the Court was not required to grant AFSCME an exemption from its e-mail use policy so that the union could state its position on labor relations issues via internally-generated broadcast e-mail as the Court had done.”
Thus, this case seems to suggest that an employer may use its email system however it wants to for “official” employer purposes but prevent the union from the same use as long as all employees face similar restrictions. This, of course, assumes that the union has alternate means of communication available. In reality, few mediums of communication are as effective in reaching a large number of people for minimal cost as email. Thus, even though PERB found the email use here unproected, I expect unions to continue to press this issue in the future and vigorously fight any employer attempts to limit email use.
The Los Angeles County Superior Court (Court) has the following policy on email use:
“The Court provides access to its electronic communications systems for the purpose of facilitating the performance of court related business. . .. Employees may not use the system in a manner or to a degree that is disruptive or detrimental to the Court or to the employee's performance. . .. Any violation of this policy may subject an employee to discipline.”
This policy recognized that there would always be some incidental non-work related email use by employees. The policy sought to limit email use only if it was “disruptive or detrimental.” The Court considered disruptive or detrimental emails to include “broadcast” emails that went to a large number of recipients. Under this policy the Court had always allowed union job stewards to use email to communicate with individual employees on representation matters and also allowed the union to send broadcast e-mails into the Court's e-mail system from the outside.
In this particular case, a union job steward was disciplined for sending several “broadcast” emails to all 780 bargaining unit members from within the County’s email system. The complaint issued by the Office of the General Counsel asserted that the email use was protected activity and thus the discipline was unlawful.
In its decision, PERB noted that generally, “an employer may limit employees' non-business use of its e-mail system without committing an unfair practice as long as the limitation does not discriminate along union lines.” PERB then set forth a two-part test for determining whether an employer’s restrictions on email are lawful: First, PERB will establish the extent of permissible non-business email use under the employer’s email use policy. Second, PERB will determine whether each of the employee’s emails fell within the range of permissible use and was therefore protected activity.
Applying this test, PERB held that the job steward’s “broadcast” emails were not protected activity because the Court had never allowed employees to send broadcast emails in any other context.
Comments:
The most significant legal holding in this case actually appears in footnote 15. It apparently was undisputed that the Court itself had sent “broadcast” emails to all its employees informing them of the status of negotiations. Because the Court itself sent “broadcast” emails, the union argued that it must be allowed to do the same. PERB said no.
PERB said that in considering the scope of email use allowed, the proper comparison is what other employees are allowed to do. According to PERB, the Court’s use of the email system is not the proper comparator as it is not an employee, but rather the employer. PERB reasoned:
“The Court is not required to provide AFSCME "equal time" use of its e-mail system under such circumstances. . . . Here, the record is replete with evidence that AFSCME had ample alternate means of communicating with Court employees, such as e-mail between union stewards and individual employees, distribution of flyers in the courthouse, use of Court bulletin boards, and a telephone hotline and website where members could obtain information about bargaining and upcoming meetings. Indeed, the Court even allowed APSCME to send broadcast e-mails into its system from the outside. In light of this evidence, the Court was not required to grant AFSCME an exemption from its e-mail use policy so that the union could state its position on labor relations issues via internally-generated broadcast e-mail as the Court had done.”
Thus, this case seems to suggest that an employer may use its email system however it wants to for “official” employer purposes but prevent the union from the same use as long as all employees face similar restrictions. This, of course, assumes that the union has alternate means of communication available. In reality, few mediums of communication are as effective in reaching a large number of people for minimal cost as email. Thus, even though PERB found the email use here unproected, I expect unions to continue to press this issue in the future and vigorously fight any employer attempts to limit email use.
Thursday, October 2, 2008
SB 1296 Signed by Governor
SB 1296 was signed by the Governor on 9/30/08. SB 1296 modifies the MMBA to provide that the superior courts, and not PERB, have exclusive jurisdiction over actions involving firefighter interest arbitration. [See my previous post on 8/28/08 for a discussion of the impact of SB 1296.]
Friday, September 26, 2008
"Anti-huddling" Policy Not Within Scope
Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) __ Cal.App.4th ___ (Court of Appeal Case No. B197611) (Issued 9/24/08)
In 2006, the Los Angeles County Sheriff’s Department revised its policy on deputy-involved shootings to prohibit officers involved in a shooting incident from talking with each other prior to being interviewed by the Department’s investigators. Officers still had the right to individually talk with an attorney or labor representative. The intent of the new policy was to ensure one officer’s recollection would not be influenced by another’s. The parties referred to this rule as an “anti-huddling” policy.
One of the issues before the court was whether the anti-huddling policy was within the scope of representation under the MMBA such that the County was required to bargain with the Association. Because this case involved Los Angeles County and cops, PERB did not have jurisdiction over the dispute. Thus, the case found its way to the Court of Appeal via the trial court.
In finding that the County’s policy was not within the scope of representation, the Court applied the 3-part test set forth in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623. First, the court found that the anti-huddling policy did not have a significant effect on officers’ “wages, hours, and working conditions.” Second, the court found that the policy arose from the implementation of a fundamental managerial decision. Each of these findings was sufficient to find that the policy was outside the scope of bargaining. However, for good measure, the court also applied the balancing test and found that it weighed in favor of the County.
With respect MMBA, the court’s holding does not break any new legal ground. The court’s application of the Claremont test is interesting, but not surprising as this case bears similarity to the Claremont case itself. In Claremont, the City implemented a tracking program to combat racial profiling. In both this case and Claremont, the courts appear to give management great deference in imposing policies that go directly to the public mission—to combat racial profiling in Claremont and to maintain public trust in this case.
Interesting Note: The Association also asserted that the anti-huddling policy violated the officers’ Weingarten rights. The court held: “We rejected [the Association’s] argument that Weingarten supports the principle that a deputy has a communal right to huddle with other deputies and counsel.”
In 2006, the Los Angeles County Sheriff’s Department revised its policy on deputy-involved shootings to prohibit officers involved in a shooting incident from talking with each other prior to being interviewed by the Department’s investigators. Officers still had the right to individually talk with an attorney or labor representative. The intent of the new policy was to ensure one officer’s recollection would not be influenced by another’s. The parties referred to this rule as an “anti-huddling” policy.
One of the issues before the court was whether the anti-huddling policy was within the scope of representation under the MMBA such that the County was required to bargain with the Association. Because this case involved Los Angeles County and cops, PERB did not have jurisdiction over the dispute. Thus, the case found its way to the Court of Appeal via the trial court.
In finding that the County’s policy was not within the scope of representation, the Court applied the 3-part test set forth in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623. First, the court found that the anti-huddling policy did not have a significant effect on officers’ “wages, hours, and working conditions.” Second, the court found that the policy arose from the implementation of a fundamental managerial decision. Each of these findings was sufficient to find that the policy was outside the scope of bargaining. However, for good measure, the court also applied the balancing test and found that it weighed in favor of the County.
With respect MMBA, the court’s holding does not break any new legal ground. The court’s application of the Claremont test is interesting, but not surprising as this case bears similarity to the Claremont case itself. In Claremont, the City implemented a tracking program to combat racial profiling. In both this case and Claremont, the courts appear to give management great deference in imposing policies that go directly to the public mission—to combat racial profiling in Claremont and to maintain public trust in this case.
Interesting Note: The Association also asserted that the anti-huddling policy violated the officers’ Weingarten rights. The court held: “We rejected [the Association’s] argument that Weingarten supports the principle that a deputy has a communal right to huddle with other deputies and counsel.”
Thursday, September 25, 2008
Constitutionality of Binding Interest Arbitration
In 2000, Governor Davis signed SB 402 which created a mandatory system of binding interest arbitration for local police officers and firefighters. Not surprisingly, local governments considered SB 402 a direct attack on the “home rule” doctrine enshrined in the California constitution. Under the home rule doctrine, local governments have plenary authority to set the compensation of county employees. SB 402 altered this doctrine by vesting in a private arbitrator the authority to issue a binding decision setting employee compensation.
SB 402 quickly found its way to the California Supreme Court. In County of Riverside v. Superior Court (2003) 30 Cal.4th 278 ("Riverside"), the California Supreme Court had little trouble finding SB 402 unconstitutional. However, that wasn’t the end of it. In one of his last acts in office, Governor Davis signed SB 440. Like SB 402, SB 440 created a mandatory system of interest arbitration for local police and firefighters. However, in an attempt to cure the constitutional defects in SB 402, SB 440 provides that the arbitrator’s decision can be rejected by the governing body if it unanimously rejects the decision within five days. (Code Civ. Proc., §1299.7.)
In the eyes of local government, SB 440 is nothing more than SB 402 in disguise. The requirement that the local entity unanimously reject the decision within five days is so onerous that it effectively renders the arbitration decision binding. Initially, every superior court that considered SB 440 found it unconstitutional for the same reasons Riverside found SB 402 unconstitutional. (See, e.g., Sierra Madre Police Officers Association v. City of Sierra Madre (Los Angeles Superior Court, Case No. GS 010036; The Adelanto Community, etc. v. City of Adelanto (San Bernardino Superior Court, Case No. VCVVS037008); County of Tulare v. Tulare County Deputy Sheriffs Association (Tulare County Superior Court, Case No. 06-219977). Notably, none of the employee associations on the losing side of these cases filed an appeal.
[Correction: A notice of appeal was filed in the Tulare case, but the case settled]
Recently, the Sonoma County Superior Court became the first trial court in California to find SB 440 constitutional. (Sonoma County Law Enforcement Association v. County of Sonoma (Sonoma County Superior Court, Case No. SCV 242225).) In its decision, the court reasoned that:
"[G]iven the strict rules of constitutional interpretation, the statutory scheme [of SB 440] is not unconstitutional as it may be followed to avoid the binding nature of the arbitrator's decision. The County may reject the arbitrator's determination, or fail to act and succumb to the binding outcome. It is not the duty of this court to determine what motives the Legislature had in enacting this set of statutes. The law may be complied with, resulting in no obligation whatsoever to abide by the arbitrator's decision. As such, this court cannot find it to be facially unconstitutional."
Within days of the trial’s court decision, the First District Court of Appeal issued a temporary stay. The Court of Appeal also ordered the parties to submit briefs on whether the County’s writ seeking to overturn the trial court decision should be granted. (First District Court of Appeal, Case No. A122450.) Those briefs have now been filed. The parties are now awaiting a decision from the Court of Appeal as to whether it will intervene by writ; which seems likely given how quickly the Court issued its stay and the unsettled nature of the statute. Thus, it appears that an appellate decision on the constitutionality of SB 440 is well on its way.
SB 402 quickly found its way to the California Supreme Court. In County of Riverside v. Superior Court (2003) 30 Cal.4th 278 ("Riverside"), the California Supreme Court had little trouble finding SB 402 unconstitutional. However, that wasn’t the end of it. In one of his last acts in office, Governor Davis signed SB 440. Like SB 402, SB 440 created a mandatory system of interest arbitration for local police and firefighters. However, in an attempt to cure the constitutional defects in SB 402, SB 440 provides that the arbitrator’s decision can be rejected by the governing body if it unanimously rejects the decision within five days. (Code Civ. Proc., §1299.7.)
In the eyes of local government, SB 440 is nothing more than SB 402 in disguise. The requirement that the local entity unanimously reject the decision within five days is so onerous that it effectively renders the arbitration decision binding. Initially, every superior court that considered SB 440 found it unconstitutional for the same reasons Riverside found SB 402 unconstitutional. (See, e.g., Sierra Madre Police Officers Association v. City of Sierra Madre (Los Angeles Superior Court, Case No. GS 010036; The Adelanto Community, etc. v. City of Adelanto (San Bernardino Superior Court, Case No. VCVVS037008); County of Tulare v. Tulare County Deputy Sheriffs Association (Tulare County Superior Court, Case No. 06-219977). Notably, none of the employee associations on the losing side of these cases filed an appeal.
[Correction: A notice of appeal was filed in the Tulare case, but the case settled]
Recently, the Sonoma County Superior Court became the first trial court in California to find SB 440 constitutional. (Sonoma County Law Enforcement Association v. County of Sonoma (Sonoma County Superior Court, Case No. SCV 242225).) In its decision, the court reasoned that:
"[G]iven the strict rules of constitutional interpretation, the statutory scheme [of SB 440] is not unconstitutional as it may be followed to avoid the binding nature of the arbitrator's decision. The County may reject the arbitrator's determination, or fail to act and succumb to the binding outcome. It is not the duty of this court to determine what motives the Legislature had in enacting this set of statutes. The law may be complied with, resulting in no obligation whatsoever to abide by the arbitrator's decision. As such, this court cannot find it to be facially unconstitutional."
Within days of the trial’s court decision, the First District Court of Appeal issued a temporary stay. The Court of Appeal also ordered the parties to submit briefs on whether the County’s writ seeking to overturn the trial court decision should be granted. (First District Court of Appeal, Case No. A122450.) Those briefs have now been filed. The parties are now awaiting a decision from the Court of Appeal as to whether it will intervene by writ; which seems likely given how quickly the Court issued its stay and the unsettled nature of the statute. Thus, it appears that an appellate decision on the constitutionality of SB 440 is well on its way.
Thursday, September 11, 2008
Parties' Mutual Mistake Does Not Reopen Bargaining
Berkeley Unified School District (PERB Dec. No. 1976-E) (Issued on 9/9/08)
In 2005, the Berkeley Unified School District (District) and the Berkeley Federation of Teachers (Federation) were engaged in contract negotiations. The Federation alleged that during bargaining the District asserted that it was legally prohibited from using parcel tax revenue to fund its mandatory reserve. This had the practical effect of reducing the amount of money available to fund employee wages and benefits.
After negotiations concluded and a new contract was agreed to, the Federation discovered that the District could in fact legally use parcel tax revenue to fund its reserve. The Federation then demanded that the District reopen negotiations on a provision that the Federation said it would not have agreed to but for the District’s original representation. When the District refused to reopen negotiations, the Federation filed an unfair practice charge alleging bad faith bargaining.
The Board analyzed the bad faith bargaining charge as a refusal to bargain, a per se violation. The key issue was whether the District had an obligation to reopen negotiations on the disputed provision. The Federation argued that the disputed provision was a product of a “mutual mistake of fact” and thus subject to rescission. The Board then embarked on an analysis of both PERB and NLRB law to determine whether a mutual mistake of fact triggered a duty to bargain over the disputed contract.
The Board noted that both PERB and the NLRB recognized that a “unilateral mistake of fact” could trigger a bargaining obligation in limited circumstances. Specifically, both PERB and the NLRB recognized the legal significance of a contract provision based on mistake of fact when: (1) the mistake is a unilateral one; and (2) rescission is raised as a defense to a bad faith bargaining charge.” However, the Board emphasized that demonstrating a unilateral mistake of fact is extremely difficult. First, the unilateral mistake cannot be caused by a party’s lack of “ordinary diligence.” Second, the mistake must be so obvious that the other party should be put on notice.
The Board then went on to consider the significance of a mutual “mistake of fact.” The Board held that unlike unilateral mistakes of fact, mutual ones do not trigger a bargaining obligation. The Board noted that neither PERB nor NLRB cases recognized mutual mistakes of fact as creating a bargaining obligation. Further, citing to public policy, the Board reasoned that:
“Allowing a party to use rescission based on mutual mistake as a means to reopen the CBA would undermine the integrity and stability of the bargaining process by putting the CBA in a perpetual state of uncertainty. Moreover, such a rule would lead to careless bargaining by discouraging parties from verifying each other’s statements during negotiations in the hopes that it will lead to an opportunity to renegotiate an unfavorable contract provision in the future. Neither result is desirable.”
Comments
This is an interesting decision. At first blush, the decision seems to be a departure from PERB’s general practice of following the California statutory contract law. (Barstow Unified School Dist. (1996) PERB Dec. No. 1138-E (PERB generally follows California Civil Code in the interpreting contract language).) Under the California Civil Code, every contract requires that there be “free” and “mutual assent.” (Civ. Code, §1550, 1565.) The Civil Code further provides that consent is not free when obtained through mistake, which can be either a mistake of fact or law. (Civ. Code, §1576, 1577.) California court cases have recognized that contracts can be rescinded in situations involving both unilateral mistakes and mutual ones. Indeed, it has generally been the rule that it is easier to unilaterally rescind a contract based on a mutual mistake of fact, rather than a unilateral one.
Thus, for PERB to follow California contract law with respect to unilateral mistakes of fact but not mutual mistakes of fact initially seems strange. This is especially true since this case arguably involved a mutual mistake of law which is a recognized grounds for contract rescission provided all the criteria are met.
The key to understanding this decision—at least in the mind of this practitioner—can be found in the last paragraph of the decision, which states:
“We recognize, of course, that mutual mistakes of fact will occur in the bargaining process. But the proper place to resolve such mistakes is at the bargaining table. Further, when a party is unwilling to voluntarily surrender a windfall it has received as the result of a mutual mistake, the other party may bring an action in court to rescind the contract. The Board's holding thus places the duty for correcting a mutual mistake of fact in the hands of the parties, where it appropriately belongs, and as a last resort in the courts, with their expertise in matters of contract law.”
This paragraph seems to be a recognition that PERB’s role in bargaining is limited to ensuring the fairness of the process, as opposed to the fairness of the outcome. In short, we (employers and unions) need to take responsibility for our actions and not expect PERB to save us from our mistakes. When mistakes do occur, the proper forum to seek rescission is in the courts who are better equipped to handle such actions. This approach by the Board seems reasonable and fair.
Quite frankly, for consistency sake the Board may want to consider taking this approach with unilateral mistakes as well. After all, the policy arguments advanced by the Board for not recognizing mutual mistakes as triggering a bargaining obligation can apply equally to unilateral mistakes. If a unilateral mistake warrants rescission, why not make the party seeking rescission go to court, just as a party seeking rescission based on a mutual mistake must do. Further, PERB’s continued recognition of unilateral mistakes as potentially reopening bargaining may serve as a loophole to this decision. For example, if this exact case occurs again, what would prevent the Federation from arguing that this was a unilateral mistake, as opposed to a mutual one? It will be interesting to see how this case plays out in the future.
In 2005, the Berkeley Unified School District (District) and the Berkeley Federation of Teachers (Federation) were engaged in contract negotiations. The Federation alleged that during bargaining the District asserted that it was legally prohibited from using parcel tax revenue to fund its mandatory reserve. This had the practical effect of reducing the amount of money available to fund employee wages and benefits.
After negotiations concluded and a new contract was agreed to, the Federation discovered that the District could in fact legally use parcel tax revenue to fund its reserve. The Federation then demanded that the District reopen negotiations on a provision that the Federation said it would not have agreed to but for the District’s original representation. When the District refused to reopen negotiations, the Federation filed an unfair practice charge alleging bad faith bargaining.
The Board analyzed the bad faith bargaining charge as a refusal to bargain, a per se violation. The key issue was whether the District had an obligation to reopen negotiations on the disputed provision. The Federation argued that the disputed provision was a product of a “mutual mistake of fact” and thus subject to rescission. The Board then embarked on an analysis of both PERB and NLRB law to determine whether a mutual mistake of fact triggered a duty to bargain over the disputed contract.
The Board noted that both PERB and the NLRB recognized that a “unilateral mistake of fact” could trigger a bargaining obligation in limited circumstances. Specifically, both PERB and the NLRB recognized the legal significance of a contract provision based on mistake of fact when: (1) the mistake is a unilateral one; and (2) rescission is raised as a defense to a bad faith bargaining charge.” However, the Board emphasized that demonstrating a unilateral mistake of fact is extremely difficult. First, the unilateral mistake cannot be caused by a party’s lack of “ordinary diligence.” Second, the mistake must be so obvious that the other party should be put on notice.
The Board then went on to consider the significance of a mutual “mistake of fact.” The Board held that unlike unilateral mistakes of fact, mutual ones do not trigger a bargaining obligation. The Board noted that neither PERB nor NLRB cases recognized mutual mistakes of fact as creating a bargaining obligation. Further, citing to public policy, the Board reasoned that:
“Allowing a party to use rescission based on mutual mistake as a means to reopen the CBA would undermine the integrity and stability of the bargaining process by putting the CBA in a perpetual state of uncertainty. Moreover, such a rule would lead to careless bargaining by discouraging parties from verifying each other’s statements during negotiations in the hopes that it will lead to an opportunity to renegotiate an unfavorable contract provision in the future. Neither result is desirable.”
Comments
This is an interesting decision. At first blush, the decision seems to be a departure from PERB’s general practice of following the California statutory contract law. (Barstow Unified School Dist. (1996) PERB Dec. No. 1138-E (PERB generally follows California Civil Code in the interpreting contract language).) Under the California Civil Code, every contract requires that there be “free” and “mutual assent.” (Civ. Code, §1550, 1565.) The Civil Code further provides that consent is not free when obtained through mistake, which can be either a mistake of fact or law. (Civ. Code, §1576, 1577.) California court cases have recognized that contracts can be rescinded in situations involving both unilateral mistakes and mutual ones. Indeed, it has generally been the rule that it is easier to unilaterally rescind a contract based on a mutual mistake of fact, rather than a unilateral one.
Thus, for PERB to follow California contract law with respect to unilateral mistakes of fact but not mutual mistakes of fact initially seems strange. This is especially true since this case arguably involved a mutual mistake of law which is a recognized grounds for contract rescission provided all the criteria are met.
The key to understanding this decision—at least in the mind of this practitioner—can be found in the last paragraph of the decision, which states:
“We recognize, of course, that mutual mistakes of fact will occur in the bargaining process. But the proper place to resolve such mistakes is at the bargaining table. Further, when a party is unwilling to voluntarily surrender a windfall it has received as the result of a mutual mistake, the other party may bring an action in court to rescind the contract. The Board's holding thus places the duty for correcting a mutual mistake of fact in the hands of the parties, where it appropriately belongs, and as a last resort in the courts, with their expertise in matters of contract law.”
This paragraph seems to be a recognition that PERB’s role in bargaining is limited to ensuring the fairness of the process, as opposed to the fairness of the outcome. In short, we (employers and unions) need to take responsibility for our actions and not expect PERB to save us from our mistakes. When mistakes do occur, the proper forum to seek rescission is in the courts who are better equipped to handle such actions. This approach by the Board seems reasonable and fair.
Quite frankly, for consistency sake the Board may want to consider taking this approach with unilateral mistakes as well. After all, the policy arguments advanced by the Board for not recognizing mutual mistakes as triggering a bargaining obligation can apply equally to unilateral mistakes. If a unilateral mistake warrants rescission, why not make the party seeking rescission go to court, just as a party seeking rescission based on a mutual mistake must do. Further, PERB’s continued recognition of unilateral mistakes as potentially reopening bargaining may serve as a loophole to this decision. For example, if this exact case occurs again, what would prevent the Federation from arguing that this was a unilateral mistake, as opposed to a mutual one? It will be interesting to see how this case plays out in the future.
Thursday, August 28, 2008
SB 1296: Keeping PERB Out of It
Over the years, unions (and I guess to be fair, also public employers) have had a love-hate relationship with PERB depending largely on the perception of whether PERB is “friendly” or not to its interests. The same holds true of the NLRB, which is currently perceived to be anti-union; and thus private sector unions have become adept at “NLRB-avoidance” as they call it.
This same dynamic can be seen in the current debate involving PERB’s jurisdiction over strikes that impact public health and safety. (See City of San Jose v. Operating Engineers Local No. 3 (2008) 160 Cal.App.4th 951 (review granted); County of Contra Costa v. Public Employees Union Local One (2008) 163 Cal.App.4th 139 (review granted; briefly deferred pending outcome in San Jose); County of Sacramento v. AFSCME Local 146 (2008) 165 Cal.App.4th 401 (petition for review expected).) On that issue unions are pushing the courts to give PERB exclusive initial jurisdiction over such strikes to avoid local superior courts, which they perceive as much more sympathetic to cities and counties. Their hope is that if PERB declines to intervene in a health and safety strike, that decision will be binding on the superior courts or at least influence the courts to also not intervene.
SB 1296—sponsored by the California Professional Firefighters (CPF)—provides an interesting contrast. SB 1296 seeks to keep PERB out of the way when firefighters want to proceed to interest arbitration under local rules. The preamble of the bill asserts that, “In recent years, the dispute resolution process under PERB has been used as a tool by some employers to impede or eliminate altogether the otherwise appropriate review of issues in an alternative forum adopted by voters.” According to the Assembly analysis, what prompted SB 1296 was the decision in City and County of San Francisco v. International Union of Operating Engineers (2007) 151 Cal. App. 4th 938.
Here is basically the scenario the CPF is worried about: 1) the union reaches a point where it feels remaining disputed issues are ready to be submitted to interest arbitration under local rules, 2) the employer disagrees and refuses to proceed to arbitration, 3) the union files a petition to compel arbitration in superior court, 4) citing to San Francisco the employer then argues that PERB, not the court, has jurisdiction over the dispute since if the employer refused to proceed to arbitration under the local rules that would be an unfair practice subject to PERB’s exclusive initial jurisdiction.
SB 1296 attempts to change this outcome for firefighters seeking interest arbitration by amending MMBA section 3509 to provide that:
“[S]uperior courts shall have exclusive jurisdiction over actions involving interest arbitration, as governed by Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure, when the action involves an employee organization that represents firefighters, as defined in Section 3251.”
SB 1296 recently passed the Legislature and is on its way to the Governor. Even if signed, however, SB 1296 may not give CPF the outcome it desires. This is because of how the bill is drafted. The amendment to MMBA 3509 only eliminates PERB’s jurisdiction, not the MMBA’s. Thus, SB1296 does not prevent the filing of unfair practice charges, it only prevents PERB from hearing them. In effect, it places firefighters in the same category as peace officers who are not subject to PERB’s jurisdiction. Peace officers are still covered by the MMBA and can file unfair practice charges, just not with PERB. They must go directly to court.
So even with SB 1296, an employer could still file an unfair practice charge in court in response to a petition to compel. Under CCP 1281.2(c), there is a special provision that allows the court to stay or abate a petition to compel when there is another action pending. That certainly would seem to apply if there was an unfair practice charge on file based on the same set of facts. If that occurs, SB 1296 will not provide firefighter unions the relief they seek, it will only keep PERB out of it.
This same dynamic can be seen in the current debate involving PERB’s jurisdiction over strikes that impact public health and safety. (See City of San Jose v. Operating Engineers Local No. 3 (2008) 160 Cal.App.4th 951 (review granted); County of Contra Costa v. Public Employees Union Local One (2008) 163 Cal.App.4th 139 (review granted; briefly deferred pending outcome in San Jose); County of Sacramento v. AFSCME Local 146 (2008) 165 Cal.App.4th 401 (petition for review expected).) On that issue unions are pushing the courts to give PERB exclusive initial jurisdiction over such strikes to avoid local superior courts, which they perceive as much more sympathetic to cities and counties. Their hope is that if PERB declines to intervene in a health and safety strike, that decision will be binding on the superior courts or at least influence the courts to also not intervene.
SB 1296—sponsored by the California Professional Firefighters (CPF)—provides an interesting contrast. SB 1296 seeks to keep PERB out of the way when firefighters want to proceed to interest arbitration under local rules. The preamble of the bill asserts that, “In recent years, the dispute resolution process under PERB has been used as a tool by some employers to impede or eliminate altogether the otherwise appropriate review of issues in an alternative forum adopted by voters.” According to the Assembly analysis, what prompted SB 1296 was the decision in City and County of San Francisco v. International Union of Operating Engineers (2007) 151 Cal. App. 4th 938.
Here is basically the scenario the CPF is worried about: 1) the union reaches a point where it feels remaining disputed issues are ready to be submitted to interest arbitration under local rules, 2) the employer disagrees and refuses to proceed to arbitration, 3) the union files a petition to compel arbitration in superior court, 4) citing to San Francisco the employer then argues that PERB, not the court, has jurisdiction over the dispute since if the employer refused to proceed to arbitration under the local rules that would be an unfair practice subject to PERB’s exclusive initial jurisdiction.
SB 1296 attempts to change this outcome for firefighters seeking interest arbitration by amending MMBA section 3509 to provide that:
“[S]uperior courts shall have exclusive jurisdiction over actions involving interest arbitration, as governed by Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure, when the action involves an employee organization that represents firefighters, as defined in Section 3251.”
SB 1296 recently passed the Legislature and is on its way to the Governor. Even if signed, however, SB 1296 may not give CPF the outcome it desires. This is because of how the bill is drafted. The amendment to MMBA 3509 only eliminates PERB’s jurisdiction, not the MMBA’s. Thus, SB1296 does not prevent the filing of unfair practice charges, it only prevents PERB from hearing them. In effect, it places firefighters in the same category as peace officers who are not subject to PERB’s jurisdiction. Peace officers are still covered by the MMBA and can file unfair practice charges, just not with PERB. They must go directly to court.
So even with SB 1296, an employer could still file an unfair practice charge in court in response to a petition to compel. Under CCP 1281.2(c), there is a special provision that allows the court to stay or abate a petition to compel when there is another action pending. That certainly would seem to apply if there was an unfair practice charge on file based on the same set of facts. If that occurs, SB 1296 will not provide firefighter unions the relief they seek, it will only keep PERB out of it.
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