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!
Thursday, April 28, 2011
Wednesday, April 13, 2011
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.4th 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:
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.4th 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.
Thursday, March 31, 2011
PERB Advisory Committee Meeting on April 14th, 2011
The Public Employment Relations Board (PERB) has a set a meeting of its Advisory Committee for April 14, 2011 at 11 am. The location will be at the PERB headquarters in Sacramento at 1031 18th Street, First Floor, Room 103, Sacramento, CA.
The purpose of the advisory committee is to help PERB "obtain feedback and ideas from PERB constituents relating to our mission in administering the seven collective bargaining statues over which we have jurisdiction with the overall intent of making PERB more efficient." The agenda includes presentations by PERB staff on various topics followed by a roundtable discussion.
The purpose of the advisory committee is to help PERB "obtain feedback and ideas from PERB constituents relating to our mission in administering the seven collective bargaining statues over which we have jurisdiction with the overall intent of making PERB more efficient." The agenda includes presentations by PERB staff on various topics followed by a roundtable discussion.
Sunday, March 27, 2011
Court: City Has Inherent Authority to Furlough Employees
City of Los Angeles v. Superior Court (Engineers and Architects Association) (Court of Appeal Case No. B228732) (Issued on 3/25/11)
Facing a $500 million deficit, the City of Los Angeles (City) passed an ordinance furloughing civilian employees for up to 26 days per fiscal year. Many of the furloughed employees filed grievances under their union contracts arguing that the furloughs were impermissible. After the grievances were denied, the Engineers and Architects union requested arbitration. When the City refused to arbitrate, the union filed a petition to compel arbitration of over 400 such grievances.
The trial court granted the petition to compel arbitration finding that the grievances were arbitrable. The City appealed. The Court of Appeal found there to be legitimate questions as to whether the furloughs are arbitrable under the parties’ Memorandum of Understanding (MOU). However, the court nevertheless ruled in the City’s favor by finding that any agreement to arbitrate the furloughs constituted an improper delegation of discretionary policymaking power vested in the City Council.
With respect to the holding that arbitration would constitute an improper delegation of authority, the court began its analysis by discussing three different types of improper delegation. First, there can be an improper delegation to a private individual under California Constitution, article XI, section 11. However, this provision only applies to State delegations of municipal power to private individuals, and does not apply to a City’s delegation of its own power. Second, there can be an improper delegation by a legislative body to another actor, such as an arbitrator. Here, however, the City passed an ordinance authorizing furloughs and did not delegate the authority to another individual. Third, there can be an improper delegation of a public agency’s discretionary power. The court cited to prior cases holding that: “As a general rule, powers conferred upon public agencies and officers which involve the exercise of judgment or discretion are in the nature of public trusts and cannot be surrendered or delegated to subordinates in the absence of statutory authorization.” (California Sch. Employees Assn. v. Personnel Commission (1970) 3 Cal.3d 139, 144; San Francisco Fire Fighters v. City and County of San Francisco (1977) 68 Cal.App.3d 896, 901.)
In examining whether this case involves an improper delegation of discretionary authority, the court noted that the City’s Charter vests budgeting discretion in the City Council and the Mayor. The City Charter also provides that the City Council “shall set salaries for all officers and employees of the City.” The court held that, “Clearly, a mandatory furlough is encompassed within salary setting [citation omitted] and a furlough imposed in a fiscal emergency is encompassed within budget making. Moreover, it cannot legitimately be disputed that setting salaries is a discretionary function.”
Applying these findings to the case at hand, the court held that by seeking to arbitrate the grievances, the union was attempting to “have an arbitrator determine issues of discretionary policymaking which have been assigned to the City Council." The court further held that, "The Union wants a determination made that the City violated the salary and workweek provisions of the MOU by instituting furloughs, and that the furloughs were therefore improper. Grievance after grievance argued that the furloughs were improper and that the employees should be returned to full-time work and repaid for the days on which they were furloughed.” In such a situation, the court held that the union’s petition to compel arbitration was a clear, “… challenge to a City Council’s decision to impose furloughs as a response to the City’s dire financial condition. If the City Council had agreed to arbitral review of such a decision, it would have been an improper delegation of its salary setting and budget making powers.”
Comments:
Facing a $500 million deficit, the City of Los Angeles (City) passed an ordinance furloughing civilian employees for up to 26 days per fiscal year. Many of the furloughed employees filed grievances under their union contracts arguing that the furloughs were impermissible. After the grievances were denied, the Engineers and Architects union requested arbitration. When the City refused to arbitrate, the union filed a petition to compel arbitration of over 400 such grievances.
The trial court granted the petition to compel arbitration finding that the grievances were arbitrable. The City appealed. The Court of Appeal found there to be legitimate questions as to whether the furloughs are arbitrable under the parties’ Memorandum of Understanding (MOU). However, the court nevertheless ruled in the City’s favor by finding that any agreement to arbitrate the furloughs constituted an improper delegation of discretionary policymaking power vested in the City Council.
With respect to the holding that arbitration would constitute an improper delegation of authority, the court began its analysis by discussing three different types of improper delegation. First, there can be an improper delegation to a private individual under California Constitution, article XI, section 11. However, this provision only applies to State delegations of municipal power to private individuals, and does not apply to a City’s delegation of its own power. Second, there can be an improper delegation by a legislative body to another actor, such as an arbitrator. Here, however, the City passed an ordinance authorizing furloughs and did not delegate the authority to another individual. Third, there can be an improper delegation of a public agency’s discretionary power. The court cited to prior cases holding that: “As a general rule, powers conferred upon public agencies and officers which involve the exercise of judgment or discretion are in the nature of public trusts and cannot be surrendered or delegated to subordinates in the absence of statutory authorization.” (California Sch. Employees Assn. v. Personnel Commission (1970) 3 Cal.3d 139, 144; San Francisco Fire Fighters v. City and County of San Francisco (1977) 68 Cal.App.3d 896, 901.)
In examining whether this case involves an improper delegation of discretionary authority, the court noted that the City’s Charter vests budgeting discretion in the City Council and the Mayor. The City Charter also provides that the City Council “shall set salaries for all officers and employees of the City.” The court held that, “Clearly, a mandatory furlough is encompassed within salary setting [citation omitted] and a furlough imposed in a fiscal emergency is encompassed within budget making. Moreover, it cannot legitimately be disputed that setting salaries is a discretionary function.”
Applying these findings to the case at hand, the court held that by seeking to arbitrate the grievances, the union was attempting to “have an arbitrator determine issues of discretionary policymaking which have been assigned to the City Council." The court further held that, "The Union wants a determination made that the City violated the salary and workweek provisions of the MOU by instituting furloughs, and that the furloughs were therefore improper. Grievance after grievance argued that the furloughs were improper and that the employees should be returned to full-time work and repaid for the days on which they were furloughed.” In such a situation, the court held that the union’s petition to compel arbitration was a clear, “… challenge to a City Council’s decision to impose furloughs as a response to the City’s dire financial condition. If the City Council had agreed to arbitral review of such a decision, it would have been an improper delegation of its salary setting and budget making powers.”
Comments:
- According to the court, the issue that the union wanted to arbitrate was whether the City had the authority to furlough employees. The court held that this issue could not be deleted to an arbitrator as it was an inherent power of the City. The court, however, did not address whether the City had to bargain with the union before exercising its power to furlough employees. In a footnote, the court noted that the City offered to bargain over the effects of the furloughs but not the decision to furlough employees. The court acknowledged that, “… the issue of whether furloughs could be imposed without prior consultation with the Union is different from the issue of whether furloughs could be imposed at all.” As for whether the City had to bargain, that issue is pending before the City’s Employee Relations Board on an unfair practice charge filed by the union. Thus, this decision does not directly address whether furloughs have to be bargained.
- On the issue of whether furloughs have to be bargained, there was another interesting comment in a footnote: “… While the City argues that section 1.9 of the MOU permits it to unilaterally furlough employees, the City also argues that, even if the MOU does not permit the imposition of furloughs, the City nonetheless may implicitly suspend operation of the MOU by emergency ordinance properly enacted.” The court did not address this issue. However, whether a public entity can suspend operation of a MOU during a fiscal emergency is an issue that has to be addressed sooner or later in this economic climate. Answering that question in the negative might push more public agencies to consider Chapter 9 bankruptcy ... something that most public agencies are loath to even mention ...
Friday, March 25, 2011
A Little History on the Labor Movement
Today is the 100 year anniversary of the Triangle Shirtwaist Factory fire that killed 146 young women and girls in New York City on March 25, 1911. It was one of the worst workplace disasters in our nation’s history. The sight of immigrant girls and women leaping to their deaths—some with their clothes on fire, some holding hands—horrified the entire nation. The tragedy not only helped spark the growth of the International Ladies Garment Workers Union but the entire labor movement in the United States.
Fast forward to 2011 … I’ve received a couple of comments from readers on how Governor Jerry Brown has been wrongly “blamed” for giving California public sector workers the right to unionize. For example, the Wall Street Journal ran an opinion article stating:
However, those laws were not truly ground-breaking because they were not the first laws in California giving public sector employees the right to collective bargaining. The first law that gave public sector employees the right to collective bargaining is the Meyers-Milias-Brown Act (MMBA). The MMBA was signed in 1968 and gave city and county employees the right to collective bargaining. The MMBA was signed by a former union president. No, it wasn’t Jerry Brown. It was Ronald Reagan. By signing the MMBA, Governor Reagan made California the second state in the nation to allow public sector collective bargaining. The first was Wisconsin in 1959.
Fast forward to 2011 … I’ve received a couple of comments from readers on how Governor Jerry Brown has been wrongly “blamed” for giving California public sector workers the right to unionize. For example, the Wall Street Journal ran an opinion article stating:
The sharp rise in public union membership in the 1960s and 1970s coincides with the movement to give public unions collective bargaining rights. Wisconsin was the first state to provide those rights in 1959, other states followed, and California became the biggest convert in 1978 under Jerry Brown in his first stint as Governor. (A Union Education, Wall Street Journal On-line.)It’s true that during his first two terms as Governor (1975-1983), Jerry Brown signed the Educational Employment Relations Act of 1976 giving collective bargaining rights to schools and community college employees, the State Employer-Employee Relations Act of 1978 (now called the Dills Act) giving collective bargaining rights to state employees, and the Higher Education Employer-Employee Relations Act of 1979, giving collective bargaining rights to higher education employees.
However, those laws were not truly ground-breaking because they were not the first laws in California giving public sector employees the right to collective bargaining. The first law that gave public sector employees the right to collective bargaining is the Meyers-Milias-Brown Act (MMBA). The MMBA was signed in 1968 and gave city and county employees the right to collective bargaining. The MMBA was signed by a former union president. No, it wasn’t Jerry Brown. It was Ronald Reagan. By signing the MMBA, Governor Reagan made California the second state in the nation to allow public sector collective bargaining. The first was Wisconsin in 1959.
Monday, March 21, 2011
Court Affirms Duty of Fair Representation under MMBA
Paulsen v. Local No. 856 (Court of Appeal Case No. A126633) (Issued on 3/18/11)
Plaintiffs are Deputy Probation Officers employed by the County of Marin (County) who brought a wage and hour lawsuit against both the County and their union, Local 856. The lawsuit alleged that the County and the union entered into a “secret” deal to falsely designate plaintiffs as exempt employees under the Fair Labor Standards Act. The plaintiffs brought three (3) causes of action alleged against the union: 1) breach of the duty of fair representation, 2) common law breach of fiduciary duty, and 3) fraudulent concealment.
The trial court sustained the union’s demurrer to the first cause of action on the ground that PERB has exclusive jurisdiction over an alleged breach of the duty of fair representation. The trial court also sustained the union’s demurrer to the 2nd and 3rd causes of action on the ground that the “essence” of those claims also was for breach of the duty of fair representation.
On appeal, the plaintiffs made the novel argument that under the MMBA there is no duty of fair representation. Because there is no duty of fair representation, plaintiff s argued that there could be no unfair practice. The court acknowledged that in Andrews v. Board of Supervisors (1982) 134 Cal.App.3d 274, 283 (“Andrews”), another appellate court concluded that the MMBA does not contain an implied duty of fair representation. However, based on subsequent case-law, the court questioned the validity of the Andrews decision and noted that PERB has consistently held that a duty of fair representation exists under the MMBA. Accordingly, the court held that a claim for breach of the duty of fair representation is clearly an unfair practice under the MMBA.
Comments:
Plaintiffs are Deputy Probation Officers employed by the County of Marin (County) who brought a wage and hour lawsuit against both the County and their union, Local 856. The lawsuit alleged that the County and the union entered into a “secret” deal to falsely designate plaintiffs as exempt employees under the Fair Labor Standards Act. The plaintiffs brought three (3) causes of action alleged against the union: 1) breach of the duty of fair representation, 2) common law breach of fiduciary duty, and 3) fraudulent concealment.
The trial court sustained the union’s demurrer to the first cause of action on the ground that PERB has exclusive jurisdiction over an alleged breach of the duty of fair representation. The trial court also sustained the union’s demurrer to the 2nd and 3rd causes of action on the ground that the “essence” of those claims also was for breach of the duty of fair representation.
On appeal, the plaintiffs made the novel argument that under the MMBA there is no duty of fair representation. Because there is no duty of fair representation, plaintiff s argued that there could be no unfair practice. The court acknowledged that in Andrews v. Board of Supervisors (1982) 134 Cal.App.3d 274, 283 (“Andrews”), another appellate court concluded that the MMBA does not contain an implied duty of fair representation. However, based on subsequent case-law, the court questioned the validity of the Andrews decision and noted that PERB has consistently held that a duty of fair representation exists under the MMBA. Accordingly, the court held that a claim for breach of the duty of fair representation is clearly an unfair practice under the MMBA.
Comments:
- In addition to the above holding, the court also affirmed that MMBA section 3511 only exempts from PERB’s jurisdiction peace officers designated under Penal Code 830.1. Deputy Probation Officers are designated peace officers under Penal Code 830.5, and therefore are subject to PERB’s jurisdiction.
- With respect to the duty of fair representation, the court emphasized that the duty arises from the union’s role as the “exclusive” representative of employees. The decision notes that, "there is ordinarily no such duty when the union does not occupy that position, or as to particular matters for which the union does not act as the employees’ exclusive agent." Typically, the duty of fair representation attaches to negotiations and contractually based remedies under the union’s exclusive control. What this means is that if the union voluntarily takes on a role—for example, representing an employee in a civil service hearing where the employee is free to represent himself or herself or obtain independent counsel—the duty of fair representation may not attach. I've always seens this as an unnecessary loophole in the law. In my opinion, if a union voluntarily undertakes representation of an employee the duty of fair representation should attach. Granted, I'm a management attorney so I'm biased. But it seems to me that an employee should expect the union to treat him or her fairly and not to make arbitrarty decisions regardless of whether the union is acting in an "exclusive" capacity or not.
Thursday, March 17, 2011
SB 609: Requires Board Decision in 180 Days in Representation Cases
SB 609 was introduced by Senator Negrete McLeod on February 17, 2011. Under SB 609, PERB would have 180 days to issue a decision in an appeal of an Administrative Law Judge's decision in a representation case (ie. requests for recognition, unit modification, severance, decertification, etc.). Currently, there are no time limits governing how long PERB has to issue a decision on any matter before the Board.
Comments:
Comments:
- This bill is obviously aimed at shortening the time its takes to get a final decision from PERB. In years past, it could take up to two years for the Board to issue a decision on an appeal of an ALJ’s proposed decision. However, that was when the Board’s docket of cases approached 150. Currently, the Board has a docket of about 50-60 cases. So today I think the longest delays are at the initial charge processing stage rather than at the Board.
- Although the Board can take up to two years (or more in some isolated cases) to issue a decision, it has always prioritized representation cases. I do not know how many cases, if any, there have been where the Board took more than 180 days to issue a decision in a representation case. I suspect there must be at least one, which is what prompted this bill.
- Although I support the goal of this bill, I'm concerned with the way it is written because it does not provide any exceptions and singles out representation cases for priority. Under this bill, the 180 days would run from the date the appeal is filed. However, this doesn’t take into account that after an appeal is filed there is briefing that must be done. Sometimes a transcript must be prepared. As an example of unanticipated delay, during the last budget impasse PERB was unable to pay for transcription services until the budget was passed which caused a delay in the processing of cases at the Board level. None of these factors would be taken into account under this bill.
- As mentioned, I am absolutely in favor of PERB having timelines for the issuance of decisions. My preference would be for PERB to issue its own regulations setting forth timelines rather than having those timelines set in statute. My recommendation to PERB would be to have a timeline of 90 days to issue a decision in an appeal of a dismissal and 180 days to issue a decision in an appeal of an ALJ decision. I would apply these timelines to all cases, not just representation ones. Contrary to SB 609, I would run the timelines from when a case is placed on the Board’s docket (ie. after briefing is complete) instead of when an appeal is filed.
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