Service Employees International Union, Local 1000, CSEA (2008) PERB Decision No. 1997-S (Issued on 12/22/08)
In July 2005, certified nurse assistants at the Chula Vista Veterans Home engaged in a “sick-out.” The Memorandum of Understanding (MOU) between the State of California (State) and the Service Employees International Union (SEIU)—which represented the nurse assistants—contained a no-strike clause. Soon after the sick-out, the State filed an unfair practice charge alleging that SEIU committed an unlawful unilateral change by condoning the sick-out in violation of the MOU.
The key issue at hearing was whether there actually was a concerted “sick-out,” and if so, whether SEIU organized and/or condoned it. Applying NLRB precedent, the Board affirmed the Administrative Law Judge’s finding that SEIU arguably “condoned” the sick-out by failing to take affirmative steps to end it. The Board expressly found that SEIU’s act of merely informing employees that a sick-out violated the MOU was insufficient. The Board also noted that, “SEIU took no subsequent actions to publicly disavow or censure the actions of the [nurse assistants] who participated in the sick-out.” The Board held, however, that the mere violation of the MOU is not always an unlawful unilateral change. In order for there to be an unlawful unilateral change, the change must have a “generalized impact or continuing effect” on the terms and conditions of employment.
In considering whether SEIU’s breach of the MOU had a generalized effect, the Board cited several cases where one-time breaches of a contract were found not to constitute an unlawful unilateral change. The Board noted that under existing precedent, “a breach of contract amounts to a unilateral change where the party in breach asserts that the contract authorizes its conduct” or where the breach represents a “change in policy that is generally applicable to future situations.”
Applying those standards, the Board found that the State had not established that SEIU’s actions had a generalized effect. Specifically, the Board found that there was no evidence that SEIU asserted that the sick-out was legally permissible and no evidence that SEIU intended to breach the MOU in the future. Accordingly, the Board dismissed the unfair practice charge.
Dissent
The majority opinion drew a rare dissent. The dissent argued that there was indeed a generalized effect resulting from SEIU’s actions. Namely, the sick-out negatively affected the remaining nurse assistants and patients at the hospital. The dissent also found nothing in the record to suggest that SEIU would refrain from repeating its actions (or inaction) in the future. Given these facts, the dissent would have found that SEIU committed an unfair practice by condoning the sick-out in violation of the MOU.
Comments
I have several comments on this decision.
1. I like the fact that both the majority and dissenting opinion focused on whether the violation of the MOU had a “generalized effect” on the terms and conditions of employment. I had argued in my post on County of Sacramento (PERB Dec. No. 1943-M) (County of Sacramento) that the Board failed to properly consider this critical factor in finding that the employer in that case committed an unfair practice. Indeed, I think this decision highlights why I feel the Board reached the wrong result in County of Sacramento.
Recall that in County of Sacramento, the employer actually rescinded the unilateral change before it was scheduled to take effect. Even though the County rescinded the change—thereby restoring the statue quo ante—the Board held that those actions alone did not cure the unlawful unilateral change because it did not correct the “destabilizing and disorienting impact on employer-employee affairs.” Compare that with this decision. Here, SEIU did not cure its violation or take any action to rescind its actions. Thus, SEIU’s conduct here arguably had more of a destabilizing effect on employer-employee relations than the actions of the employer in County of Sacramento. Yet the Board found no generalized effect in this case. In my opinion, these two decisions are inconsistent.
2. Although I think the Board reached the wrong result in County of Sacramento, I also think the majority ended up with the wrong result in this case. Some may argue that I am being inconsistent myself. Perhaps I am, but here is how I look at it. As I argued in my post on County of Sacramento, I believe that PERB precedent supports the concept of a safe harbor in unilateral change situations. Specifically, a party that has committed a unilateral change should be allowed some opportunity to avoid liability for an unfair practice by rescinding its action and restoring the status quo ante. In my opinion that’s what the employer did in County of Sacramento and what SEIU failed to do here. Had SEIU taken some action to censure its employees or somehow disavow the sick-out, I would agree with the majority that there is no generalized effect. This is because where the party taking the unilateral change has rescinded its action and taken steps to make whole the aggrieved party, the “destabilizing effect” of the original unilateral change is eliminated, or at least greatly mitigated. Here, SEIU took no action to correct its behavior and to make whole the employer. Accordingly, I believe the Board should have found an unfair practice.
3. Although I think the Board reached the wrong result, this decision is actually good for employers. The reality is that the vast majority of unilateral change charges are filed against employers, not against unions. Using the analysis in this case, employers can argue that a one-time contract breach has no generalized effect without some showing that the employer intends to breach the contract again in the future. Since that’s a difficult burden to meet, this case arguably makes it harder for unions to establish unilateral change cases. This assumes, of course, that PERB strictly follows the holding in this case in the future (see last point, below).
4. As mentioned above, unions are seldom accused of unlawful unilateral changes. This is because unions normally do not have the power to effectuate a unilateral change in the terms and conditions of employment. Indeed, one of the first (if not the first) case finding that a union committed an unlawful unilateral change was only issued four years ago. (State of California (Department of personnel Administration) (2004) PERB Decision No. 1601-S.) Since that time, everyone has assumed that the elements for a unilateral change are the same whether the charge is against an employer or union.
If I were a union advocate, however, I would argue that the standards shouldn’t be the same. I would argue that since unions have a very limited ability to unilaterally change the terms and conditions of employment, a unilateral change by a union has less of a destabilizing effect on future employer-employee relations than one by an employer. (Naturally, there are many arguments to the contrary; but I’m pretending to be a union advocate here…) I wouldn’t be surprised at all if in the future unions made this argument in order to distinguish this case.
Tuesday, December 30, 2008
Monday, December 29, 2008
Don’t Get Burned by the “Cat’s Paw” Doctrine
City of Modesto (2008) PERB Decision No. 1994-M (Issued on 12/19/08) and Regents of the University of California (Los Angeles) (2008) PERB Decision No. 1995-H (Issued on 12/19/08)
Last week PERB issued two decisions involving allegations of retaliation against employees for protected union activity. In both City of Modesto and Regents of the University of California, the Board applied the existing retaliation standard to dismiss the unfair practice charges. What is worth noting, however, is that both decisions discussed an important legal concept that many employers still don’t fully understand: “subordinate bias liability” or what employment lawyers commonly refer to as the “cat’s paw” liability.
To understand the issue, consider this example. Supervisor A dislikes an employee because she is a union job steward. Based on this anti-union animus, Supervisor A recommends that the employee be disciplined for poor job performance. Supervisor B is not aware that the employee is a job steward and harbors no anti-union animus. Supervisor B reviews the proposed discipline, and seeing nothing out of the ordinary, approves it. Is the employer liable for unlawful retaliation?
I believe that under PERB precedent, the answer is yes. Even though the ultimate decision-maker, Supervisor B, had no knowledge of the employee’s protected activity and harbored no anti-union animus, PERB has held that the unlawful animus of Supervisor A can be imputed to Supervisor B. In these situations, PERRB has held that unlawful animus may be imputed to high management officials where, even innocently, they rely on inaccurate and biased information of lower level management officials. (See State of California (Department of Corrections) (2001) PERB Decision No. 1435-S; State of California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S.) PERB refers to this doctrine as “subordinate bias liability.” It is also commonly referred to as the "cat’s paw" doctrine by the courts.
Real life situations are seldom as clear-cut as the hypothetical above. In many cases, even where lower-level supervisors are motivated by anti-union animus, the ultimate decision-maker will rely on other “non-tainted” factors and/or will have conducted an independent investigation. In those situations, what is the standard for imputing the animus of lower-level supervisors? The answer is not that clear.
In employment discrimination cases, the courts have been struggling with the cat’s paw doctrine for years. There is currently a split of authority among the federal circuits as to how to apply the doctrine. In Poland v. Chertoff (9th Cir. 2007) 494 F.3d 1174, the Ninth Circuit recognized this split and discussed three possible standards for imputing liability in these situations. The Poland court rejected a simple “but for” causation test because it would create expansive liability for employers. Similarly, the court rejected a standard that would impose liability only where the ultimate decision-maker “rubber stamps” the tainted decision. Instead, the court tried to take a middle ground approach:
“We hold that if a subordinate, in response to a plaintiff's protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment action, the subordinate's bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process. This standard is consistent with what we have suggested in previous Title VII retaliation cases . . . and with the law in a majority of the circuits. . .”
Neither City of Modesto nor Regents of the University of California discuss the exact standard that PERB will apply to impute unlawful animus to the ultimate decision-maker. Both cases merely affirm that PERB may impute such animus. In the Regents case, PERB did decline to follow NLRB precedent in this area and instead stated that, “one individuals’ experience will not be imputed to another unless it is warranted under the circumstances.” However, PERB has never thoroughly addressed those “circumstances.”
Comments
I believe that if ever confronted with the issue, PERB will follow the holding of Poland, since it is consistent with the majority of the federal circuits and also California law. (See Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95.) If so, it is vital for an employer to remember that it can avoid having the unlawful animus of a lower-level supervisor imputed to the ultimate decision-maker if it takes steps to neutralize the taint, for example, by conducting an independent investigation. There are also other ways an employer can neutralize or isolate any unlawful animus. The key, however, is recognizing the situation and taking pro-active steps.
P.S. The phrase “cat’s paw” refers to someone who is unwittingly used by another. It comes from La Fontaine's Fable "The Monkey and the Cat," in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire. As the cat scoops the chestnuts from the fire one by one burning his paw in the process, the monkey eagerly gobbles them up, leaving none for the cat.
Last week PERB issued two decisions involving allegations of retaliation against employees for protected union activity. In both City of Modesto and Regents of the University of California, the Board applied the existing retaliation standard to dismiss the unfair practice charges. What is worth noting, however, is that both decisions discussed an important legal concept that many employers still don’t fully understand: “subordinate bias liability” or what employment lawyers commonly refer to as the “cat’s paw” liability.
To understand the issue, consider this example. Supervisor A dislikes an employee because she is a union job steward. Based on this anti-union animus, Supervisor A recommends that the employee be disciplined for poor job performance. Supervisor B is not aware that the employee is a job steward and harbors no anti-union animus. Supervisor B reviews the proposed discipline, and seeing nothing out of the ordinary, approves it. Is the employer liable for unlawful retaliation?
I believe that under PERB precedent, the answer is yes. Even though the ultimate decision-maker, Supervisor B, had no knowledge of the employee’s protected activity and harbored no anti-union animus, PERB has held that the unlawful animus of Supervisor A can be imputed to Supervisor B. In these situations, PERRB has held that unlawful animus may be imputed to high management officials where, even innocently, they rely on inaccurate and biased information of lower level management officials. (See State of California (Department of Corrections) (2001) PERB Decision No. 1435-S; State of California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S.) PERB refers to this doctrine as “subordinate bias liability.” It is also commonly referred to as the "cat’s paw" doctrine by the courts.
Real life situations are seldom as clear-cut as the hypothetical above. In many cases, even where lower-level supervisors are motivated by anti-union animus, the ultimate decision-maker will rely on other “non-tainted” factors and/or will have conducted an independent investigation. In those situations, what is the standard for imputing the animus of lower-level supervisors? The answer is not that clear.
In employment discrimination cases, the courts have been struggling with the cat’s paw doctrine for years. There is currently a split of authority among the federal circuits as to how to apply the doctrine. In Poland v. Chertoff (9th Cir. 2007) 494 F.3d 1174, the Ninth Circuit recognized this split and discussed three possible standards for imputing liability in these situations. The Poland court rejected a simple “but for” causation test because it would create expansive liability for employers. Similarly, the court rejected a standard that would impose liability only where the ultimate decision-maker “rubber stamps” the tainted decision. Instead, the court tried to take a middle ground approach:
“We hold that if a subordinate, in response to a plaintiff's protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment action, the subordinate's bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process. This standard is consistent with what we have suggested in previous Title VII retaliation cases . . . and with the law in a majority of the circuits. . .”
Neither City of Modesto nor Regents of the University of California discuss the exact standard that PERB will apply to impute unlawful animus to the ultimate decision-maker. Both cases merely affirm that PERB may impute such animus. In the Regents case, PERB did decline to follow NLRB precedent in this area and instead stated that, “one individuals’ experience will not be imputed to another unless it is warranted under the circumstances.” However, PERB has never thoroughly addressed those “circumstances.”
Comments
I believe that if ever confronted with the issue, PERB will follow the holding of Poland, since it is consistent with the majority of the federal circuits and also California law. (See Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95.) If so, it is vital for an employer to remember that it can avoid having the unlawful animus of a lower-level supervisor imputed to the ultimate decision-maker if it takes steps to neutralize the taint, for example, by conducting an independent investigation. There are also other ways an employer can neutralize or isolate any unlawful animus. The key, however, is recognizing the situation and taking pro-active steps.
P.S. The phrase “cat’s paw” refers to someone who is unwittingly used by another. It comes from La Fontaine's Fable "The Monkey and the Cat," in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire. As the cat scoops the chestnuts from the fire one by one burning his paw in the process, the monkey eagerly gobbles them up, leaving none for the cat.
Tuesday, December 23, 2008
State Employee Furloughs Challenged
The Professional Engineers in California Government (State Bargaining Unit 9) and the California Association of Professional Scientists (State Bargaining Unit 10) have jointly filed a petition for writ of mandate in Sacramento Superior Court (Case No. 2008-80000126) challenging the Governor’s authority to unilaterally impose furloughs on state employees upon a declaration of an emergency. At the same time, the Service Employees International Union Local 1000 (SEIU) has filed an unfair practice charge with PERB challenging the same action by the Governor.
The unions are challenging the Governor’s executive order S-16-08 issued on December 19, 2008. The executive order declared a state of fiscal emergency based on the state’s finances. In response to the fiscal emergency, the Governor ordered the state to begin the process of furloughing employees, including represented employees, two days a month. According to the executive order, the Governor has authority to impose furloughs in emergency situations pursuant to Government Code section 3516.5. That section states:
"3516.5. Except in cases of emergency as provided in this section, the employer shall give reasonable written notice to each recognized employee organization affected by any law, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the employer, and shall give such recognized employee organizations the opportunity to meet and confer with the administrative officials or their delegated representatives as may be properly designated by law.
In cases of emergency when the employer determines that a law, rule, resolution, or regulation must be adopted immediately without prior notice or meeting with a recognized employee organization, the administrative officials or their delegated representatives as may be properly designated by law shall provide such notice and opportunity to meet and confer in good faith at the earliest practical time following the adoption of such law, rule, resolution, or regulation."
According to an article in the LA Times, a spokesperson for the Governor’s Department of Personnel Administration stated that section 3516.5 provided, “extra authority to alter working conditions during emergencies.” It’s certainly true that section 3516.5 provides for a unilateral change in working conditions when there is an “emergency.” However, no case has ever considered what constitutes an “emergency” under section 3516.5. It's also unclear whether PERB would interpret section 3516.5 as any different from existing PERB precedent.
Over the years, PERB has developed a body of law dealing with bargaining obligations during “emergency” situations. Under PERB precedent, an employer raising a business necessity defense must demonstrate that the necessity is the unavoidable result of a sudden change in circumstances beyond the employer's control in order to justify unilateral action. The timing of the emergency must preclude the opportunity for negotiation, and there must be no alternative course of action available to the employer.” (See Lucia Mar Unified School District (2001) PERB Decision No. 1440, Calexico Unified School District (1983) PERB Decision No. 357, Compton Community College District (1989) PERB Decision No. 720.)
The standard is obviously a difficult one to meet, and few employers have been able to avoid bargaining by asserting an “emergency.” However, the situation here appears to be truly unique. Given the news reports, it seems undisputed that the State is on the verge of a fiscal catastrophe. As long as the state offers to bargain in good faith with the unions on the effects of the furlough proposal, I would be surprised if PERB or the courts are going to second guess the Governor on what constitutes an “emergency.”
The unions are challenging the Governor’s executive order S-16-08 issued on December 19, 2008. The executive order declared a state of fiscal emergency based on the state’s finances. In response to the fiscal emergency, the Governor ordered the state to begin the process of furloughing employees, including represented employees, two days a month. According to the executive order, the Governor has authority to impose furloughs in emergency situations pursuant to Government Code section 3516.5. That section states:
"3516.5. Except in cases of emergency as provided in this section, the employer shall give reasonable written notice to each recognized employee organization affected by any law, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the employer, and shall give such recognized employee organizations the opportunity to meet and confer with the administrative officials or their delegated representatives as may be properly designated by law.
In cases of emergency when the employer determines that a law, rule, resolution, or regulation must be adopted immediately without prior notice or meeting with a recognized employee organization, the administrative officials or their delegated representatives as may be properly designated by law shall provide such notice and opportunity to meet and confer in good faith at the earliest practical time following the adoption of such law, rule, resolution, or regulation."
According to an article in the LA Times, a spokesperson for the Governor’s Department of Personnel Administration stated that section 3516.5 provided, “extra authority to alter working conditions during emergencies.” It’s certainly true that section 3516.5 provides for a unilateral change in working conditions when there is an “emergency.” However, no case has ever considered what constitutes an “emergency” under section 3516.5. It's also unclear whether PERB would interpret section 3516.5 as any different from existing PERB precedent.
Over the years, PERB has developed a body of law dealing with bargaining obligations during “emergency” situations. Under PERB precedent, an employer raising a business necessity defense must demonstrate that the necessity is the unavoidable result of a sudden change in circumstances beyond the employer's control in order to justify unilateral action. The timing of the emergency must preclude the opportunity for negotiation, and there must be no alternative course of action available to the employer.” (See Lucia Mar Unified School District (2001) PERB Decision No. 1440, Calexico Unified School District (1983) PERB Decision No. 357, Compton Community College District (1989) PERB Decision No. 720.)
The standard is obviously a difficult one to meet, and few employers have been able to avoid bargaining by asserting an “emergency.” However, the situation here appears to be truly unique. Given the news reports, it seems undisputed that the State is on the verge of a fiscal catastrophe. As long as the state offers to bargain in good faith with the unions on the effects of the furlough proposal, I would be surprised if PERB or the courts are going to second guess the Governor on what constitutes an “emergency.”
Friday, November 21, 2008
PERB Issues 2007-2008 Annual Report
PERB recently released its annual report for fiscal year 2007-2008. (The report is available by clicking here.) Here are some highlights:
Unfair Practice Charges
816 unfair practice charges (UPCs) were filed in fiscal year 2007-08. This was just slightly less than the 823 UPCs filed in 2006-07. Since PERB assumed jurisdiction over the MMBA in 2001, UPCs have been averaging over 800 a year, roughly double the number before 2001.
Interestingly, in 2007-08 the number of UPCs filed actually decreased under the MMBA, EERA, and HEERA. The Dills Act, however, saw a dramatic increase from 71 to 137 UPCs. This is likely due to the fact that almost all the unions for the State of California are currently in negotiations.
For 2008-09, I expect the number of UPCs filed to rise again due to the difficult economy. Negotiations are always more difficult in bad economic times; and difficult negotiations tend to spawn UPCs. Also, many public sector employers will be looking to reduce costs through layoffs, furloughs, and salary and benefit reductions—all of which will likely result in more UPCs. Finally, we are seeing a dramatic increase in the number of work actions being taken against public entities. That will likely increase the number of UPCs and requests for injunctive relief filed by employers.
ALJ Proposed Decisions
In 2007-08, the ALJs at PERB issued 44 proposed decisions; taking an average of 94 days for each decision. The number of proposed decisions issued is slightly below the average for the last six years. (See chart, below.) However, the length of time it takes to issue a decision appears to be trending upward. I suspect part of this can be explained by the fact that PERB recently hired three new ALJs to replace two that retired and one who is now a Board member. Once these new ALJs get up to full speed I believe that the time it takes to issue a decision go back down to around 6o days. Notably, back in 2002-03 and 2003-04, PERB had 6 ALJs; that went down to 5 ALJs in 2004-05. PERB now has seven ALJs.
Proposed Decisions (Average # of Days)
2007-08: 44 (94)
2006-07: 41 (85)
2005-06: 46 (100)
2004-05: 49 (63)
2003-04: 47 (53)
2002-03: 52 (53)
Board Decisions
According to PERB’s annual report, in 2007-08 the Board itself issued 65 decisions. As can be seen from the chart below, the number of decisions issued by the Board has varied dramatically from year to year since 2001.
# of Board Decisions Issued
2007-08: 65
2006-07: 87
2005-06: 80
2004-05: 142
2003-04: 141
2002-03: 87
2001-02: 67
There are a number of reasons for this variance. Turnover among Board members is always a factor. Because Board members serve staggered five-year terms, one member is termed-out each year. However, it should be noted that in 2003-04 and 2004-05—when the Board issued over 140 decisions each year—the Board only had three or four Board members. Also, the Board appears to be grappling with a large amount of litigation the past two years. According to the annual report, litigation has increased 60% in recent years. For example, PERB’s jurisdiction over strikes that threaten public health and safety has been under attack throughout the state; and there are currently three cases on this issue pending before the California Supreme Court.
I don’t expect litigation to decrease this year or the next. If anything, litigation will increase. However, since the Board now has five members, I expect that the number of decisions issued will increase next year significantly.
Unfair Practice Charges
816 unfair practice charges (UPCs) were filed in fiscal year 2007-08. This was just slightly less than the 823 UPCs filed in 2006-07. Since PERB assumed jurisdiction over the MMBA in 2001, UPCs have been averaging over 800 a year, roughly double the number before 2001.
Interestingly, in 2007-08 the number of UPCs filed actually decreased under the MMBA, EERA, and HEERA. The Dills Act, however, saw a dramatic increase from 71 to 137 UPCs. This is likely due to the fact that almost all the unions for the State of California are currently in negotiations.
For 2008-09, I expect the number of UPCs filed to rise again due to the difficult economy. Negotiations are always more difficult in bad economic times; and difficult negotiations tend to spawn UPCs. Also, many public sector employers will be looking to reduce costs through layoffs, furloughs, and salary and benefit reductions—all of which will likely result in more UPCs. Finally, we are seeing a dramatic increase in the number of work actions being taken against public entities. That will likely increase the number of UPCs and requests for injunctive relief filed by employers.
ALJ Proposed Decisions
In 2007-08, the ALJs at PERB issued 44 proposed decisions; taking an average of 94 days for each decision. The number of proposed decisions issued is slightly below the average for the last six years. (See chart, below.) However, the length of time it takes to issue a decision appears to be trending upward. I suspect part of this can be explained by the fact that PERB recently hired three new ALJs to replace two that retired and one who is now a Board member. Once these new ALJs get up to full speed I believe that the time it takes to issue a decision go back down to around 6o days. Notably, back in 2002-03 and 2003-04, PERB had 6 ALJs; that went down to 5 ALJs in 2004-05. PERB now has seven ALJs.
Proposed Decisions (Average # of Days)
2007-08: 44 (94)
2006-07: 41 (85)
2005-06: 46 (100)
2004-05: 49 (63)
2003-04: 47 (53)
2002-03: 52 (53)
Board Decisions
According to PERB’s annual report, in 2007-08 the Board itself issued 65 decisions. As can be seen from the chart below, the number of decisions issued by the Board has varied dramatically from year to year since 2001.
# of Board Decisions Issued
2007-08: 65
2006-07: 87
2005-06: 80
2004-05: 142
2003-04: 141
2002-03: 87
2001-02: 67
There are a number of reasons for this variance. Turnover among Board members is always a factor. Because Board members serve staggered five-year terms, one member is termed-out each year. However, it should be noted that in 2003-04 and 2004-05—when the Board issued over 140 decisions each year—the Board only had three or four Board members. Also, the Board appears to be grappling with a large amount of litigation the past two years. According to the annual report, litigation has increased 60% in recent years. For example, PERB’s jurisdiction over strikes that threaten public health and safety has been under attack throughout the state; and there are currently three cases on this issue pending before the California Supreme Court.
I don’t expect litigation to decrease this year or the next. If anything, litigation will increase. However, since the Board now has five members, I expect that the number of decisions issued will increase next year significantly.
Tuesday, November 11, 2008
Appeal Filed in Email Case
Los Angeles County Superior Court (PERB Dec. No. 1979-C) (Issued on 10/7/08)
The American Federation of State, County & Municipal Employees has filed a petition in the court of appeal challenging the email case (PERB Decision No. 1979-C), discussed in this blog on October 9, 2008.
The American Federation of State, County & Municipal Employees has filed a petition in the court of appeal challenging the email case (PERB Decision No. 1979-C), discussed in this blog on October 9, 2008.
Sunday, October 19, 2008
PERB Calls Meeting to Deal with Factfinding Budget
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
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
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.
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