DPA Director Ron Yank to Speak at IRANC Luncheon on July 14

If you're going to be in Sacramento on July 14, 2011, please come hear Department of Personnel Administration (DPA) Director Ron Yank speak at a luncheon sponsored by the Industrial Relations Association of Northern California (IRANC). As DPA Director, Ron Yank is Governor Jerry Brown’s Chief Labor Negotiator. Prior to becoming DPA Director, Mr. Yank was a well-known labor lawyer at Carroll Burdick & McDonough LLP where he represented employees and unions in all areas labor relations.

Here are the details:

• Date: Thursday, July 14, 2011
• Time: 11:30 A.M. Registration & Networking; Noon – Lunch & Speaker; 1:00 P.M. Adjourn
• Location: Firehouse Restaurant, Golden Eagle Room, 1112 Second Street, Old Sacramento, CA 95814
• Menu: Choice of 1) Pork Tenderloin Puttanesca; 2) Salmon Nantua; or 3) French Onion Steak Sandwich
• Cost: Reservation by July 5 = $20.00 Members, $30.00 Non Members; After July 5 or at the Door = $25.00 Members, $35.00 Non Members

RSVP by Tuesday, July 5 to Marcia Mooney (916) 928-0399 or email mmooney@local39.org with lunch choice.  Make checks payable to IRANC and mail to 1017 L Street #159, Sacramento, CA 95814-3805.

SB 931: Prohibits Public Funds for “Union Avoidance” Campaigns

SB 931 was introduced by Senator Vargas on February 18, 2011 and amended on April 25, 2011. SB 931 would prohibit public agencies from using public funds to pay for what is sometimes euphemistically called a “union avoidance” campaign. Specifically, this bill would add language to EERA, HEERA, Dills, and the MMBA providing that:

“Public agencies shall not use public funds to pay outside consultants or legal advisors for the purpose of counseling the public employer about ways to minimize or deter the exercise of rights guaranteed under this chapter.”

The bill was amended on April 25th to clarify that:

“Nothing in this section shall be construed to apply to payments for representation of a public sector employer before any court, administrative agency, or tribunal of arbitration, or for payments for engaging in collective bargaining on behalf of the employer with respect to wages, hours, or other terms and conditions of employment.”

Comments:

1. SB 931 is the public sector progeny of AB 1889 which passed the Legislature and was signed by Governor Davis in 2000. AB 1889 prohibited government contractors receiving more than $50,000 in state funds (or $10,000 in certain situations) from using those funds “to assist, promote, or deter union organizing.” Private sector employers challenged the constitutionality of AB 1889 and the case eventually reached the United States Supreme Court. In Chamber of Commerce of U.S. v. Brown (2008) 554 U.S. 60, the Supreme Court held that the provisions of AB 1889 that applied to private sector employers (Gov. Code §§16645.2 and 16645.7) were invalid because they were preempted by the National Labor Relations Act.
2. One interesting note about AB1889 is that buried within the bill is a provision that applies to public employers. Specifically, Government Code section 16645.6 provides that:  “(a) A public employer receiving state funds shall not use any of those funds to assist, promote, or deter union organizing. (b) Any public official who knowingly authorizes the use of state funds in violation of subdivision (a) shall be liable to the state for the amount of those funds.”  In Chamber of Commerce of U.S. v. Brown, the Court only addressed the two provisions of AB 1889 that applied to private sector employers. Thus—as far as I can tell—Government Code section 16645.6 remains good law. However, because Government Code section 16645.6 is not incorporated into any of the acts administered by PERB, it cannot be enforced through PERB.
3. AB 931 goes beyond Government Code section 16645.6 by incorporating its provisions directly into EERA, HEERA, Dills, and the MMBA. Thus, a violation of AB 931 can be enforced by PERB.
4. However, AB 931 also goes beyond Government Code section 16645.6 in its scope. Section 16645.6 only applies to “state funds” received by public employers. In contrast, AB 931 applies to a public employer’s “public funds,” which presumably would mean all funds possessed by a public employer. In my opinion, the scope of AB 931 raises serious constitutional questions as applied to charter cities and counties and other public entities with constitutional spending authority. While the State can generally put restrictions on the use of its own money, it is a different thing to put restrictions on the use of someone else’s money. Not all money received by public employers are “state funds.” So to the extent a public employer receives non-State money, it’s not clear to me that the State can be restrictions on the use of those non-State funds in this manner.
5. According to the Legislative analysis, the sponsor of this bill is the American Federation of State, County and Municipal Employees. Other unions in support include the California Conference of Machinists and the California Nurses Association. Those in opposition include the California State Association of Counties and the League of California cities.

SB 259 Would Open Door to Unionizing Student Research Assistants

SB 259 was introduced by Senator Hancock on February 10, 2011.  SB 259 would amend the Higher Education Employer-Employee Relations Act (HEERA) to cover student employees whose employment is contingent upon their status as students, without any other conditions.  Currently, HEERA section 3562(e) defines “employee” to include student employees if the employment is contingent on their status as students and “only if the services they provide are unrelated to their educational objectives, or that those educational objectives are subordinate to the services they perform and that coverage under this chapter would further the purposes of this chapter.”  SB 259 eliminates the latter requirement.

According to the Legislative analysis, the genesis of this bill is PERB’s decision in Regents of the UC & Association of Student Employees, UAW, et al (1998) (PERB Order No. 1301-H) in which PERB held that University of California Teaching Assistants (TAs), Readers, and Tutors had bargaining rights under HEERA, but that Research Assistants (RAs) did not. This bill would grant RAs bargaining rights under HEERA by deleting the statutory language that student employees only have bargaining rights if their employment is unrelated to their educational objectives.

AB 1318 Would Limit Damages for Unlawful Strikes

AB 1318 was introduced by Assemblymember Davis on February 18, 2011. No action has been taken on this bill yet. AB 13818 would limit an employer’s ability to obtain a “make-whole” remedy when faced with an unlawful strike. Specifically, this bill provides that an employer may not obtain damages for 1) revenue losses caused by an unlawful strike; and 2) expenses incurred by the employer in anticipation of, or in preparation for, the strike.

This bill was obviously motivated by the California Nurses Association’s threatened strike against the University of California (UC) in 2005. That threatened pre-impasse strike was found to be an unlawful pressure tactic by PERB in 2010. (California Nurses Association (2010) PERB Decision No. 2094-H.) As part of that decision, PERB ordered CNA to pay for any damages suffered by UC. Proceedings before PERB on the amount of those damages are continuing to this day.

Governor Appoints New PERB Chair, Board Member and General Counsel

Governor Brown has appointed Anita Martinez and Eugene Huguenin to the five-member Public Employment Relations Board (PERB).  They will join Alice Dowdin Calvillo and Sally McKeag as the four members of PERB.  There is still one vacancy to be filled.  Anita Martinez was also named Chair of PERB.  The Governor also appointed Suzanne Murphy as PERB's new General Counsel.  Here are the bios of the appointees from the Governor's new release:

Anita Martinez, 58, of Oakland, has been appointed member and chair of the Public Employment Relations Board. She has worked for the Board since 1976, where she currently serves as a regional director. Previously, Martinez was a board agent for the Agricultural Labor Relations Board from 1975 to 1976. She was an intern at the National Labor Relations Board from 1973 to 1976. This position requires Senate confirmation and the compensation is $132,179. Martinez is a Democrat

A. Eugene Huguenin, 68, of Rancho Murieta, has been appointed to the Public Employment Relations Board. He has been the owner of the Huguenin Law Office since 2001. Huguenin was staff counsel at the California Teachers Association from 1979 to 2000, after serving as a consultant from 1973 to 1979. Huguenin has also served as a commissioner on the Fair Political Practices Commission from 2005 to 2009. This position requires Senate confirmation and the compensation is $128,109. Huguenin is a Democrat.

M. Suzanne Murphy, 58, of Lafayette, has been appointed general counsel of the Public Employment Relations Board. She has been a law clerk to the late Honorable Cynthia Holcomb Hall, senior judge on the U.S. Court of Appeals, Ninth Circuit since 2009, and where she previously clerked from 1988 to 1989. Murphy was the executive director of Worksafe from 2008 to 2009. She was legal counsel for the California Nurses Association from 2006 to 2007. Previously, Murphy was an appellate and litigation attorney with Weinberg, Roger and Rosenfeld from 2003 to 2006. She also worked for the Administrative Office of the Courts where she was managing attorney at the Center for Families, Children & the Courts from 2002 to 2003 and supervising attorney for the rules and projects unit in the Office of the General Counsel from 2000 to 2002. Previously, she was a senior research attorney to the Honorable Patricia Sepulveda from 1999 to 2000 and to the Honorable Michael Phelan from 1993 to 1998, both of the California Court of Appeal, First District. Murphy was an associate with Heller, Ehrman, White & McAuliffe from 1992 to 1993 and with Cooley, Godward, Castro, Huddleston & Tatum from 1989 to 1991. This position does not require Senate confirmation and the compensation is $126,864. Murphy is registered decline-to-state.

CPER Presents "Practicing Before PERB" Seminar on May 5th

Ever wonder why so many unfair practice charges are dismissed or if you stand a chance of getting a board agent’s decision overturned by the board?  Then you should attend, "Practicing Before PERB" sponsored by the California Public Employee Relations Program (CPER).  The seminar will feature experts discussing the what to do when a charge is filed, what happens when a charge goes to hearing, and how to appeal a dismissal or proposed decision.

The seminar is being held on May 5, 2011, at the Junipero Serra State Building, Carmel Room, 320 W. 4th Street, Los Angeles, California. (Click here for the brochure).  Advance registration is only $100. It should be a great program so if you're in the Los Angeles area you should consider attending!

PERB Remains Without a Quorum

Board Member Kari Miner's last day was March 31, 2011.  Because she was appointed by Governor Schwarzenegger on one of his last days in office she had not been confirmed by the Senate.  That meant Governor Brown could withdraw her appointment at any time.  That has left PERB with only two Board members and without a quorum to conduct any business.

So what happens if PERB receives a request for injunctive relief involving a strike?  Remember, under City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4^th 597, the courts have held that PERB has exclusive initial jurisdiction to consider whether a strike constitutes an unfair practice.  PERB actually considered that such a situation might occur and promulgated PERB Regulation 32470.  That regulation provides that:

In the event that a quorum of the Board itself is unavailable to act upon the request for injunctive relief within 24 hours after the time the General Counsel's recommendation is filed, the Board authorizes the General Counsel to seek injunctive relief in every case in which the General Counsel has reasonable cause to believe that such action is in accordance with Board policy and that legal grounds for injunctive relief are present.

The question on everyone's mind is when Governor Brown will appoint new Board members and who they might be.  Hopefully we'll find out soon.