According to the Vallejo Times Herald, the bankruptcy judge for the City of Vallejo ruled on Friday that the City might be able to void its labor contracts as a way to escape bankruptcy. The ruling by the bankruptcy judge answers a question that has never been answered in California: whether public agencies in California can void labor contracts through Chapter 9 bankruptcy proceedings. Although the judge held that labor contracts may be voided through bankruptcy, the judge declined to rule on whether the City of Vallejo could do so in its situation. Instead, the court urged the parties to continue negotiations.
Based on the court's decision, it's obvious the judge is hoping to place pressure on the parties - especially the unions - to reach a settlement so that the court won't have to take the next step and rule on whether the contracts should be voided. The ball appears to be in the unions' court, and it will be interesting to see what they do. The eyes of unions and public agencies throughout California will be watching.
Saturday, March 14, 2009
Wednesday, February 25, 2009
Oral Argument Set in Two Major Cases
IAFF Local 188 v. PERB (1st DCA Case No. A114959)
This is the appeal of PERB’s decision in City of Richmond (2004) PERB Decision No. 1720-M. In that case, PERB held that a decision to layoff employees is not within the scope of representation under the MMBA. IAFF is arguing that layoffs should be negotiable where there is an impact on safety and workload.
Oral argument is scheduled before the First District Court of Appeal for March 10, 2009, at 9:00 am.
Sonoma County v. Superior Court (1st DCA Case No. 122450)
The issue in this case is whether SB 440—which mandates interest arbitration for firefighters and police officers—is constitutional under County of Riverside v. Superior Court (2003) 30 Cal.4th 278 (Riverside). In Riverside, the California Supreme Court struck down SB 402 which required interest arbitration for firefighters and police officers and made any arbitration decision binding on the public entity. The Legislature responded by enacting SB 440, which makes any decision binding on the public entity unless the governing body of the public entity unanimously rejects the decision. Cities and Counties throughout California have asserted that SB 440 suffers from the same defects as its predecessor. The unions assert that the statutory scheme now passes muster with the legislative amendments.
Oral argument is scheduled before the First District Court of Appeal for March 12, 2009, at 1:30 pm.
This is the appeal of PERB’s decision in City of Richmond (2004) PERB Decision No. 1720-M. In that case, PERB held that a decision to layoff employees is not within the scope of representation under the MMBA. IAFF is arguing that layoffs should be negotiable where there is an impact on safety and workload.
Oral argument is scheduled before the First District Court of Appeal for March 10, 2009, at 9:00 am.
Sonoma County v. Superior Court (1st DCA Case No. 122450)
The issue in this case is whether SB 440—which mandates interest arbitration for firefighters and police officers—is constitutional under County of Riverside v. Superior Court (2003) 30 Cal.4th 278 (Riverside). In Riverside, the California Supreme Court struck down SB 402 which required interest arbitration for firefighters and police officers and made any arbitration decision binding on the public entity. The Legislature responded by enacting SB 440, which makes any decision binding on the public entity unless the governing body of the public entity unanimously rejects the decision. Cities and Counties throughout California have asserted that SB 440 suffers from the same defects as its predecessor. The unions assert that the statutory scheme now passes muster with the legislative amendments.
Oral argument is scheduled before the First District Court of Appeal for March 12, 2009, at 1:30 pm.
Saturday, February 7, 2009
Statute of Limitations is Not Jurisdictional; But is Also Not an Affirmative Defense
Long Beach Community College District (2009) PERB Decision No. 2002-E (Issued on 1/30/09)
The saga continues. The facts in this case arose back in 2001. The case first came before the Board in 2003 on a dismissal. In that case, Long Beach Community College District (2003) PERB Decision No. 1564 (Long Beach CCD I), the Board considered the effect of the parties’ non-binding grievance procedure on the statute of limitations for filing a charge under EERA. Under existing precedent at that time, the Board did not recognize the doctrine of “equitable tolling” as it considered the limitations period a jurisdictional prerequisite.
After examining the language of EERA and considering the public policy behind the statute, the Board in Long Beach CCD I held that the statute of limitations under EERA was not jurisdictional, but rather an affirmative defense that had to be raised or was waived. Long Beach CCD I thus overturned PERB precedent that had existed since 1991, that had held the limitations period was jurisdictional. (Interestingly, the 1991 decision had overturned prior precedent holding that the limitations period was not jurisdictional.)
Based on Long Beach CCD I, a complaint was eventually issued in the case, it was heard by an ALJ, and eventually the case found its way back to the Board. This time around, the district urged the current Board to overturn Long Beach CCD I. The Board declined and instead affirmed that the limitations period under EERA is not jurisdictional.
However, the Board also held that the timeliness of a charge is not an affirmative defense, but rather remains an element of proof for the charging party. Thus, while Long Beach CCD II affirmed Long Beach CCD I on the holding that the limitations period is not jurisdictional, it overruled Long Beach CCD I on the holding as to whether timeliness constitutes an affirmative defense—finding that it does not.
Comments:
Although this decision only considered the statute of limitations period under EERA, there is little doubt in my mind that the Board will apply the same reasoning to all the other statutes administered by PERB, since the statutory language is similar.
I think this decision ends the debate over whether the statute of limitations under the statutes administered by PERB are jurisdictional – they are not. Some employers had hoped that the new Board would use this opportunity to overturn Long Beach CCD I before it really took hold. Instead, the new Board went out of its way to affirm that prior decision.
With respect to the holding that the timeliness of a charge is not an affirmative defense, I suspect the practical effect of that holding will be minor. Similarly, the holding that the limitations period is not jurisdictional has little effect by itself. The real effect will come from the revival of the equitable tolling doctrine, and perhaps other equitable remedies, that will work to save charges that otherwise would be untimely.
Friday, February 6, 2009
PERB Offices Closed on "Furlough Fridays"
Today PERB issued the following notice:
"FURLOUGH NOTICE
In response to Governor Schwarzenegger’s Executive Order S-16-08 ordering the furlough of State employees, the Public Employment Relations Board (PERB) will be closed for business on the first and third Fridays of each month (furlough days) beginning Friday, February 6, 2009. On furlough days, PERB offices will be closed and no business will be conducted. Presently scheduled furlough days: First and third Fridays of every month until June 30, 2010."
For those of you wondering how this affects due dates for PERB filings, note that PERB regulation 32130 provides that:
"In computing any period of time under these regulations, except under Section 32776(c), (d), (e) and (f), the period of time begins to run the day after the act or occurrence referred to. Whenever the last date to file a document falls on Saturday, Sunday, or a holiday, as defined in Government Code Sections 6700 and 6701, or PERB offices are closed, the time period for filing shall be extended to and include the next regular PERB business day. The extension of time provided herein shall be applied subsequent to the application of any other extension of time provided by these regulations or by other applicable law."
"FURLOUGH NOTICE
In response to Governor Schwarzenegger’s Executive Order S-16-08 ordering the furlough of State employees, the Public Employment Relations Board (PERB) will be closed for business on the first and third Fridays of each month (furlough days) beginning Friday, February 6, 2009. On furlough days, PERB offices will be closed and no business will be conducted. Presently scheduled furlough days: First and third Fridays of every month until June 30, 2010."
For those of you wondering how this affects due dates for PERB filings, note that PERB regulation 32130 provides that:
"In computing any period of time under these regulations, except under Section 32776(c), (d), (e) and (f), the period of time begins to run the day after the act or occurrence referred to. Whenever the last date to file a document falls on Saturday, Sunday, or a holiday, as defined in Government Code Sections 6700 and 6701, or PERB offices are closed, the time period for filing shall be extended to and include the next regular PERB business day. The extension of time provided herein shall be applied subsequent to the application of any other extension of time provided by these regulations or by other applicable law."
Sunday, January 25, 2009
Public Sector Unions May Use Agency Fees for National Litigation Expenses
Locke v. Karass (U.S. Supreme Court, Case 07-610) (Issued on 1/21/09)
Nonmembers (fair share fee payers) of a union local brought suit claiming that the First Amendment prohibits charging them for any portion of the service fee the local union pays the national that represents litigation conducted by the national union that does not directly benefit the local (what the court called “national litigation.”)
The Supreme Court held that under the First Amendment, “a local union may charge a nonmember an appropriate share of its contribution to a national’s litigation expenses if (1) the subject matter of the national litigation bears an appropriate relation to collective bargaining and (2) the arrangement is reciprocal—that is, the local’s payment to the national affiliate is for ‘services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.’”
Comments
This decision resolves confusion among the circuit courts as to when national litigation costs may be assessed against fair share fee payers. However, the test enunciated by the Court raises other questions. For example, what constitutes a “reciprocal” arrangement and what is the test to determine if litigation inures to the benefit of nonmembers? A concurrence by Justice Alito and joined by the Chief Justice and Justice Scalia emphasized that these issues were not addressed in the main decision. The concurrence also cited to the Government’s argument that the burden of establishing a reciprocal arrangements rests on the national union, and not on the objecting fee payer.
Nonmembers (fair share fee payers) of a union local brought suit claiming that the First Amendment prohibits charging them for any portion of the service fee the local union pays the national that represents litigation conducted by the national union that does not directly benefit the local (what the court called “national litigation.”)
The Supreme Court held that under the First Amendment, “a local union may charge a nonmember an appropriate share of its contribution to a national’s litigation expenses if (1) the subject matter of the national litigation bears an appropriate relation to collective bargaining and (2) the arrangement is reciprocal—that is, the local’s payment to the national affiliate is for ‘services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.’”
Comments
This decision resolves confusion among the circuit courts as to when national litigation costs may be assessed against fair share fee payers. However, the test enunciated by the Court raises other questions. For example, what constitutes a “reciprocal” arrangement and what is the test to determine if litigation inures to the benefit of nonmembers? A concurrence by Justice Alito and joined by the Chief Justice and Justice Scalia emphasized that these issues were not addressed in the main decision. The concurrence also cited to the Government’s argument that the burden of establishing a reciprocal arrangements rests on the national union, and not on the objecting fee payer.
Friday, January 23, 2009
Who is an “Employee”
San Francisco Unified School District (2009) PERB Decision No. 2000-E (Issued on 1/20/09)
A former employee of the San Francisco Unified School District (District) filed an unfair practice charge seeking salary benefits that were awarded retroactively in a MOU entered into by the District and Union after he left his employment. The Board affirmed the dismissal, finding that, “In order to have standing to file an unfair practice charge under EERA, a charging party must have been an employee, employee organization, or employer at the time of the alleged unfair practice.” Because the charging party was not an employee at the time the unfair practice arose, the Board held that he did not have standing to bring an unfair practice charge.
Comments
This decision doesn’t break any new legal ground. However, I just wanted to note that the issue of who is an employee can get tricky in certain situations, especially when it comes to remedies. For example, there are many public agencies throughout California that are attempting to modify retirement benefits, particular retiree health benefits. Several of these jurisdictions have implemented (or attempted to implement) changes. The unions in response have filed unfair practice charges. In the event an unfair practice is found, what is the remedy and who benefits? Normally, the remedy is to return to the status quo ante (ie the way things were before the change). In terms of who is covered by the remedy, certainly anyone who was an employee at the time a public agency made the change should be covered. However, what about individuals who were already retired – and thus not employees – at the time the unfair practice arose? Are they covered by PERB’s remedy? Retirees certainly wouldn’t have standing to bring an unfair practice charge on their own, so should they be allowed to go around that statutory prohibition by piggybacking onto a charge brought by current employees? Many of these issues are currently pending on the Board’s docket and it will be interesting to see what the Board decides.
A former employee of the San Francisco Unified School District (District) filed an unfair practice charge seeking salary benefits that were awarded retroactively in a MOU entered into by the District and Union after he left his employment. The Board affirmed the dismissal, finding that, “In order to have standing to file an unfair practice charge under EERA, a charging party must have been an employee, employee organization, or employer at the time of the alleged unfair practice.” Because the charging party was not an employee at the time the unfair practice arose, the Board held that he did not have standing to bring an unfair practice charge.
Comments
This decision doesn’t break any new legal ground. However, I just wanted to note that the issue of who is an employee can get tricky in certain situations, especially when it comes to remedies. For example, there are many public agencies throughout California that are attempting to modify retirement benefits, particular retiree health benefits. Several of these jurisdictions have implemented (or attempted to implement) changes. The unions in response have filed unfair practice charges. In the event an unfair practice is found, what is the remedy and who benefits? Normally, the remedy is to return to the status quo ante (ie the way things were before the change). In terms of who is covered by the remedy, certainly anyone who was an employee at the time a public agency made the change should be covered. However, what about individuals who were already retired – and thus not employees – at the time the unfair practice arose? Are they covered by PERB’s remedy? Retirees certainly wouldn’t have standing to bring an unfair practice charge on their own, so should they be allowed to go around that statutory prohibition by piggybacking onto a charge brought by current employees? Many of these issues are currently pending on the Board’s docket and it will be interesting to see what the Board decides.
Tuesday, January 6, 2009
Court Finds Employee Letter Protected; Overturns PERB Decision
California Teachers Association v. Public Employment Relations Board (Journey Charter School) (2008) __ Cal.App.4th __ (Issued on 1/5/09)
CTA appealed the Board’s decision in Journey Charter School (2008) PERB Decision No. 1945-E. The underlying unfair practice alleged that Journey Charter School (school) terminated the employment of three teachers in retaliation for their organizing efforts. The Administrative Law Judge (ALJ) sustained the allegations. The Board rejected the ALJ’s proposed decision and instead found that that the teachers were not terminated for their organizing efforts, but rather for a letter they sent to the parents of children at the school complaining about the “political climate” and the school’s direction. The Board found that the letter was not protected activity. Because writing and disseminating the letter was not protected activity, the Board found that it was not unlawful for the school to have terminated the teachers.
The court of appeal reversed the Board’s decision. Citing to California Faculty Assn. v. Public Employment Relations Bd. (2008) 160 Cal.App.4th 609—another recent case where a PERB decision was overturned—the court found that the Board’s decision was inconsistent with its own precedent. Specifically, the court found that the prior decisions cited by the Board to support its decision were distinguishable. Further, the court found that the Board’s precedential decision in Mt. San Antonio Community College District (1982) PERB Decision No. 224 actually required the Board to make the opposite finding—that the letter by the teachers was protected activity. After discussing the cases cited by PERB and reviewing Mt. San Antonio, the court concluded:
“Because PERB’s analysis of this July 26 letter in this case cannot be reconciled with its own precedent in Mt. San Antonio, we conclude its determination that the dissemination of the letter does not qualify as protected conduct was clearly erroneous and thus that its order dismissing the complaint must be reversed.”
Comments:
1. As for the substantive holding in this case regarding what is protected activity, I see the court’s point, but I don’t know that I agree that the facts are there to support it. It seems to me the court’s conclusion that the letter was part of the employees' efforts to organize fellow teachers is a stretch. Speaking as a management lawyer, I think this case is consistent with what I perceive to be a trend to attach protection to more and more types of employee speech. If this trend continues, it threatens to turn EERA (and the other acts under PERB’s jurisdiction) into a kind of general code of conduct for employers and employees, which I do not think was the intent of the Legislature.
2. The part of the decision that actually caught my attention was footnote 6, which states: “PERB’s Mt. San Antonio decision states that it “adopts” the ALJ’s procedural history and finding of fact as its own, and “affirms” the ALJ’s conclusions of law “insofar as they are consistent” with its own written decision. [citation] This problematic approach greatly complicates the task of deciphering PERB’s decision.”
I guess this was the court’s way of telling PERB to consider changing the way it structures its decisions. Although I’ve never thought about it before, I must admit the court has a point. The Board’s practice of issuing a decision that “adopts” portions of the ALJ decision, which is then attached, has been long-standing. (I must admit, I was guilty of following this approach to drafting decisions when I was at PERB.) The NLRB uses a similar style.
The problem the court identified is that someone reading such a decision must try to determine which holdings of the ALJ were actually adopted and which weren’t. Admittedly, it’s not always clear and it certainly involves more work to read such a decision than a “unified” one. Anecdotally, I have noticed that in recent years that Board has been more prone to issue unified decisions than ones with an attached ALJ decision. I suspect that practice will accelerate in the future.
3. While we're on the topic of PERB decisions, I’ll take this opportunity to plug one of my pet ideas. I think PERB should cease its practice of designating every one of its decisions precedential. PERB has the statutory authority to designate only certain decisions as precedential, but per its regulations, PERB currently designates all its decisions as such. Many other administrative agencies are more selective. For example, the State Personnel Board issues hundreds of decisions a year but only designates a few as precedential.
The fact is that many PERB decisions really have no precedential value to people reading them. The ultimate example would be a decision that dismisses an unfair practice charge because the parties have settled. Because there is no discussion of the settlement or anything else in such decisions, there really is nothing of “precedential” value to be cited in the future. So why designate such a decision as precedent?
More common, I think many unfair practice charge dismissals (as opposed to charges that get to an ALJ hearing) do not need to be designated precedential because they merely apply established law to common facts. Also, because dismissals are nothing more than short letters to the charging party, there is not always a full rendition of the facts or a full discussion of the legal issues. Without all the facts or a full discussion of the legal concepts, using such a decision as precedent is problematic.
Practically, designating only certain decisions as precedent may allow the Board to dispose of more cases faster since the Board would not have to spend quite as much time on non-precedential cases (at least that’s one purported reason why the courts publish some decisions and not others). It would also help practitioners by reducing the number of decisions to read. Making this change would only require the Board to modify its regulations since it already has the statutory authority to designate which of its decisions are precedential. So that’s my two cents.
CTA appealed the Board’s decision in Journey Charter School (2008) PERB Decision No. 1945-E. The underlying unfair practice alleged that Journey Charter School (school) terminated the employment of three teachers in retaliation for their organizing efforts. The Administrative Law Judge (ALJ) sustained the allegations. The Board rejected the ALJ’s proposed decision and instead found that that the teachers were not terminated for their organizing efforts, but rather for a letter they sent to the parents of children at the school complaining about the “political climate” and the school’s direction. The Board found that the letter was not protected activity. Because writing and disseminating the letter was not protected activity, the Board found that it was not unlawful for the school to have terminated the teachers.
The court of appeal reversed the Board’s decision. Citing to California Faculty Assn. v. Public Employment Relations Bd. (2008) 160 Cal.App.4th 609—another recent case where a PERB decision was overturned—the court found that the Board’s decision was inconsistent with its own precedent. Specifically, the court found that the prior decisions cited by the Board to support its decision were distinguishable. Further, the court found that the Board’s precedential decision in Mt. San Antonio Community College District (1982) PERB Decision No. 224 actually required the Board to make the opposite finding—that the letter by the teachers was protected activity. After discussing the cases cited by PERB and reviewing Mt. San Antonio, the court concluded:
“Because PERB’s analysis of this July 26 letter in this case cannot be reconciled with its own precedent in Mt. San Antonio, we conclude its determination that the dissemination of the letter does not qualify as protected conduct was clearly erroneous and thus that its order dismissing the complaint must be reversed.”
Comments:
1. As for the substantive holding in this case regarding what is protected activity, I see the court’s point, but I don’t know that I agree that the facts are there to support it. It seems to me the court’s conclusion that the letter was part of the employees' efforts to organize fellow teachers is a stretch. Speaking as a management lawyer, I think this case is consistent with what I perceive to be a trend to attach protection to more and more types of employee speech. If this trend continues, it threatens to turn EERA (and the other acts under PERB’s jurisdiction) into a kind of general code of conduct for employers and employees, which I do not think was the intent of the Legislature.
2. The part of the decision that actually caught my attention was footnote 6, which states: “PERB’s Mt. San Antonio decision states that it “adopts” the ALJ’s procedural history and finding of fact as its own, and “affirms” the ALJ’s conclusions of law “insofar as they are consistent” with its own written decision. [citation] This problematic approach greatly complicates the task of deciphering PERB’s decision.”
I guess this was the court’s way of telling PERB to consider changing the way it structures its decisions. Although I’ve never thought about it before, I must admit the court has a point. The Board’s practice of issuing a decision that “adopts” portions of the ALJ decision, which is then attached, has been long-standing. (I must admit, I was guilty of following this approach to drafting decisions when I was at PERB.) The NLRB uses a similar style.
The problem the court identified is that someone reading such a decision must try to determine which holdings of the ALJ were actually adopted and which weren’t. Admittedly, it’s not always clear and it certainly involves more work to read such a decision than a “unified” one. Anecdotally, I have noticed that in recent years that Board has been more prone to issue unified decisions than ones with an attached ALJ decision. I suspect that practice will accelerate in the future.
3. While we're on the topic of PERB decisions, I’ll take this opportunity to plug one of my pet ideas. I think PERB should cease its practice of designating every one of its decisions precedential. PERB has the statutory authority to designate only certain decisions as precedential, but per its regulations, PERB currently designates all its decisions as such. Many other administrative agencies are more selective. For example, the State Personnel Board issues hundreds of decisions a year but only designates a few as precedential.
The fact is that many PERB decisions really have no precedential value to people reading them. The ultimate example would be a decision that dismisses an unfair practice charge because the parties have settled. Because there is no discussion of the settlement or anything else in such decisions, there really is nothing of “precedential” value to be cited in the future. So why designate such a decision as precedent?
More common, I think many unfair practice charge dismissals (as opposed to charges that get to an ALJ hearing) do not need to be designated precedential because they merely apply established law to common facts. Also, because dismissals are nothing more than short letters to the charging party, there is not always a full rendition of the facts or a full discussion of the legal issues. Without all the facts or a full discussion of the legal concepts, using such a decision as precedent is problematic.
Practically, designating only certain decisions as precedent may allow the Board to dispose of more cases faster since the Board would not have to spend quite as much time on non-precedential cases (at least that’s one purported reason why the courts publish some decisions and not others). It would also help practitioners by reducing the number of decisions to read. Making this change would only require the Board to modify its regulations since it already has the statutory authority to designate which of its decisions are precedential. So that’s my two cents.
Subscribe to:
Posts (Atom)
