California PERB Blog

Furlough Fridays Return to PERB

noreply@blogger.com (Tim Yeung) — Tue, 07 Jul 2009 23:45:00 +0000

I've been told that "Furlough Fridays" are returning to PERB. In July, PERB will be closed on July 10, 17, and 24. After that, PERB will be closed the 1st, 2nd, and 3rd Fridays of each month. If you have a filing due on a furlough Friday, refer to PERB reg. 32130. Note, PERB has not yet announced the Friday closures on its website. Until it does, I recommend confirming the closures with the Board agent or Appeal's office if you have something due just to be safe.

Fiscal Year Ends; PERB's Numbers Are Up

noreply@blogger.com (Tim Yeung) — Thu, 02 Jul 2009 17:14:00 +0000

[UPDATED (7/6/09): 2 more Ad decisions, 1 Recon, and 1 Bd Decision bring the total number to 89. Plus, someone pointed out that my historic numbers did not all always include IR requests, so I made that clear.]

The fiscal year has ended for PERB. PERB's annual report is not due until October, but I have some preliminary numbers based on my own record keeping.

For the 2008-09 fiscal year, my numbers show that PERB issued 89 decisions, not including any requests for injunctive relief. This includes: 80 Board decisions; 3 Reconsideration decisions; and 6 Administrative decisions. In terms of which acts the decisions came under, it breaks down as follows:

MMBA: 34 decisions
EERA: 34 decisions
Dills Act: 11 decisons
HEERA: 8 decisions
Trial Court: 1 decison
Court Interpreters: 1 decision

I estimate that PERB probably considered 12 injunctive relief requests, which would bring the total number of decisions to 101. Last year the Board issued 65 decisions along with 28 requests for injunctive relief, for a total of 93.

Year: Bd. Decisions/IRs/Total

2008-09: 89/12/101 (est.)
2007-08: 65 /28/93
2006-07: 87/16/103
2005-06: 80/23/103
2004-05: 142/14/156
2003-04: 128/13/141
2002-03: 73/14/87
2001-02: 44/23/67

Union Must Submit to Binding Interest Arbitration

noreply@blogger.com (Tim Yeung) — Wed, 01 Jul 2009 18:05:00 +0000

Stationary Engineers Local 39 (2009) PERB Decision No. 2041-M (Issued on 6/29/09)

In this case, PERB affirmed an ALJ’s proposed decision finding that the Stationary Engineers Local 39 (Local 39) violated the MMBA by refusing to participate in binding interest arbitration pursuant to San Francisco’s local rules. What is interesting in this case is the position advacned by Local 39. Local 39 argued that San Francisco’s binding interest arbitration provision conflicted with the MMBA. According to the decision:

“Local 39 contends that interest arbitration conflicts with the MMBA's ‘intent that
agreements be reached by bargaining, rather than being imposed by the unilateral declaration of one side of the bargaining process.’ Agreements should be the result of compromise and a "reasonable accommodation of the needs of both parties.”

In other words, Local 39 argued that San Francisco’s binding arbitration procedure was an unreasonable local rule under the MMBA because terms and conditions of employment are imposed upon the parties, rather than reached through negotiations. PERB easily rejected that argument. However, I think it’s safe to say that Local 39’s position on binding interest arbitration is unusual and certainly not shared with most (if not all) other unions. Indeed, the ALJ noted in the decision that, “it is commonly known that many unions believe interest arbitration to serve their interests.” That’s an understatement. The reality is that San Francisco is one of only two local agencies (the other being Vallejo) where binding interest arbitration is available to non-safety employees. I’m willing to bet that non-safety unions in other cities and counties would love to have what Local 39 has in San Francisco.

However, looking at Local 39’s history, I’m not surprised by its position in this case. Over the years I’ve (very grudgingly) developed a respect for Local 39. The engineers have a reputation for hard bargaining and a willingness to engage in job actions. They also (like SEIU) understand the critical need for organizing. That makes them a force to be reckoned with and explains why they have been very successful in many places. They obviously feel that with their success, they can gain more for their members through traditional bargaining rather than relying on binding interest arbitration. In some sense, Local 39’s desire to stick with traditional bargaining is refreshing.

PERB: Implied Right of Access Exists Under MMBA

noreply@blogger.com (Tim Yeung) — Wed, 24 Jun 2009 17:25:00 +0000

Omitrans (2009) PERB Decision No.2030-M (Issued on 5/29/09)

Section 3507, subdivision (a), of the MMBA provides, in relevant part, that:

“A public agency may adopt reasonable rules and regulations after consultation in good faith with representatives of a recognized employee organization or organizations for the administration of employer-employee relations under this chapter. The rules and regulations may include provisions for all of the following: . . . (6) Access of employee organization officers and representatives to work locations.”

Thus, under MMBA section 3507(a)(6), a union’s right to access employer facilities has always been subject to an employer’s reasonable rules. However, the question has often arisen, what’s reasonable? I’ve always told employers that having a rule that denies all access would be considered unreasonable under the MMBA. Short of that, it’s hard to say.

In this case, PERB relied on NLRB precedent to find that there is an implied right to access under the MMBA. Specifically, PERB held that, “Considering the language of the MMBA in light of the well -established implied right of access grounded in the non-interference and non-discrimination provisions of other labor relations statutes, we hold that the MMBA grants a recognized employee organization a right of access to a public agency's facilities for the purpose of communicating with employees subject to reasonable regulation by the public agency.”

Comments:

1. By finding an implied right to access the Board has essentially set minimum standards for what constitutes reasonable regulation of a union’s access rights. Those minimum standards are comprised of the body of case-law developed by PERB over the years. In other words, you can still adopt a reasonable rule under the MMBA, but if you're rule provides less access rights than under EERA, HEERA, or Dills, then it's (likely) unreasonable. Here, PERB is sending a clear signal that it views access rights under the MMBA no differently than under the other major statutes.

2. If this case is not appealed and becomes final (my bet is that it will be appealed), every MMBA employer should review its rules and regulations governing reasonable access and compare those rules to PERB’s existing standards. For example, many local rules limit union access to only certain activities (eg only grievance processing, but no general union meetings), require certain procedural rules to be met (eg advance notice, obtaining permission, etc.), and otherwise limit union access to sites even during non-work times. Those rules should be evaluated to see if they are consistent with PERB case-law; if not PERB might find the local rule “unreasonable” as it did in this case.

Final Comments:

Lastly, I’ll just note that in this case PERB issued a very unusual remedy. Here, the employer had the employee arrested when he wouldn’t leave the premises. That caused the employee all sorts of legal problems. Because PERB found that the employee had a right to be in the break-room, it order the employer to make the employee whole, including: 1) paying the employee’s attorneys’ fees that he incurred in the criminal proceedings; and 2) joining the employee in petitioning the court to have his record expunged.

That leads me to my final comments. For employers, be aware that calling in the police on the union really ups the ante (that's putting it mildly). Unless property is being damaged or people are getting hurt, I don't advise having your employees arrested. You're better off imposing discipline (if it's unprotected and unlawful activity) and/or filing an unfair practice charge with PERB, including seeking injunctive relief if necessary. For union folks, I still think you're better off abiding by the maxim "obey now, grieve later." It's just not worth the risk of defying your employer's direct order to make a point; make your point before PERB.

UPDATE: I've been informed that Omitrans has just filed a writ challenging this decision.

Non-profit El Camino Hospital Subject to MMBA

noreply@blogger.com (Tim Yeung) — Mon, 22 Jun 2009 18:44:00 +0000

El Camino Hospital District (2009) PERB Decision No. 2033-M (Issued on 5/29/09)

The facts in this case are fairly convoluted. However, it boils down to this. The El Camino Hospital (Hospital) is a nonprofit 501(c)(3) corporation. It’s sole shareholder is the El Camino Hospital District (District), which is a public entity. The hospital owns its building but the District owns the land the building sits on. The Hospital and District have separate budgets. However, the actual people who sit on the governing board of the Hospital also sit on the governing board of the District. SEIU submitted a petition to conduct an agency fee election at the Hospital. The Hospital refused to allow an election. This unfair practice charge followed. The primary issue was whether the Hospital was subject to the MMBA.

In its decision, PERB noted that the MMBA covers every “public agency” except those covered by other public sector labor relations statutes (e.g. EERA, HEERA, Dills, etc). In contrast, the NLRA expressly excludes from its coverage "any State or political subdivision thereof." (29 U.S.C. § 152(2).) Thus, broadly speaking, the MMBA covers those public agencies excluded by the NLRA. The test for determining whether an employer is a political subdivision, and therefore excluded from NLRB jurisdiction, is if it is either: (1) created directly by the state, so as to constitute a department or administrative arm of the government, or (2) administered by individuals who are responsible to public officials or the general electorate. (NLRB v. Natural Gas Utility District (1971) 402 U.S. 600.) Applying this test, PERB found that the Hospital was indeed a public entity subject to the MMBA.

Even if the Hospital is not a public entity, PERB held that it was still subject to the MMBA under the “single employer” doctrine. A single employer status exists where two nominally separate entities are actually part of a single integrated enterprise so that there is, in reality, only a single employer. (Public Transportation Services Corporation (2004) PERB Decision No. 1637-M. The Board looked to the following four factors to determine the existence of a single employer relationship: (1) functional integration of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership. Applying these factors, PERB found that the District and the Hospital could also be properly characterized as a single employer and subject to the MMBA under that doctrine.

Comments:

1. To my knowledge, this is the first case where an entity organized as a non-profit 501(c)(3) corporation has been found to be a “public entity” under the MMBA.

2. Similar cases involving auxiliary organizations affiliated with a particular CSU or UC campus have arisen under HEERA. Most of those cases have concluded that the auxiliary organization—often times also a non-profit 501(c)(3) corporation—is not an employer under HEERA. (See Trustees of the California State University (2006) PERB Decision No. 1839-H (“CSU”).) CSU, at first blush, seems very similar to the facts here, in El Camino. There, CSU created a non-profit corporation to develop student housing because such an entity could obtain lower financing rates. There was some overlap in management, as CSU officers served on the corporation’s Board of Directors and its executive director was appointed by the CSU president. The corporation owned the student housing and the CSU owned the land. In that case, PERB held that the corporation was not subject to HEERA and that the corporation and CSU were not a “single employer.”

3. These 2 cases are very similar and probably represent the dividing line between single employer and separate entities, which shows that there is a still a fertile ground for litigation in this area. The evidence of a “single employer” is probably slightly better in El Camino since the management was identical and there really was no principled distinction between the two entities.

4. In addition, these 2 cases can also be distinguished because CSU arose under HEERA while El Camino involved the MMBA. The MMBA has a much broader definition of employer than HEERA, which only covers the CSU and UC. Thus, the question in CSU wasn't whether the corporation was a public entity, but whether it was an employer covered under HEERA. However, would the corporation in CSU be considered a public entity covered by the MMBA? That's an interesting question that didn't arise in CSU.

PERB: Equitable Tolling Also Applies to MMBA

noreply@blogger.com (Tim Yeung) — Sat, 20 Jun 2009 21:50:00 +0000

Solano County Fair Association (2009) PERB Decision No. 2035-M (Issued on 6/09/09)

Following the reasoning set forth in Trustees of the California State University (San Jose) (2009) PERB Decision No. 2032-H (Issued on 5/29/09), the Board held that the doctrine of equitable tolling also applies under the MMBA.

PERB Recognizes Equitable Tolling Under HEERA

noreply@blogger.com (Tim Yeung) — Fri, 19 Jun 2009 22:55:00 +0000

Trustees of the California State University (San Jose) (2009) PERB Decision No. 2032-H (Issued on 5/29/09)

This case involved a CSU professor who was demoted because he refused to comply with a university decision on allowing a student to retake an exam. He was demoted in November 2005, but did not file his unfair practice charge until May, 2007—almost two years later. The employee argued that the time for filing his unfair practice charge should be “equitably tolled” during the period of time he was proceeding under the university’s grievance process. PERB agreed.

PERB noted that unlike the other statutes it administers, HEERA does not expressly provide for the tolling of the statute of limitations. (HEERA, §3563.2.) However, PERB noted that in Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072 (“Coachella”), the California Supreme Court held that a six-month statute of limitations applied to the MMBA. The Court came to this conclusion based heavily on the fact that all the other statutes administered by PERB had a six-month statute of limitations. Relying on Coachella, the Board held that the same result should apply to the issue of equitable tolling. Basically, PERB held that it makes sense as a matter of public policy to interpret all the statutes similarly where the public policies are the same.

Comments

I actually disagree with this decision. My disagreement arises from the fact that I believe the Regents of University of California v. Public Employment Relations Bd. (1985) 168 Cal.App.3d 937, 944-945 (1985) ("Regents") case is more applicable to this situation than Coachella. The Regents case involved a very similar situation under HEERA. Basically, the issue involved the rights of non-exclusive representatives. The language on this issue under HEERA differed from the other statutes administered by PERB. As in this case, PERB concluded that even though language in all the other statutes was missing in HEERA, it could still read that language into the act. On appeal, the court disagreed and held:

“We cannot agree with the Board's conclusion that HEERA's omission of a “right to represent” was without significance. It is true that we must accord great respect to an administrative agency's interpretation of the statute it is charged with enforcing. [Citations omitted] But upholding such a reading would go well beyond respect for the agency's interpretation. It would authorize the Board to rewrite the statute to suit its notion of what the Legislature must have intended to say about organizational rights. It would do this in the face of strong evidence of a contrary legislative intent: the Legislature's use of the same construction in four different pairs of statutes, and its failure to use that construction in the statute under scrutiny. The Legislature would be rendered nearly powerless to make changes in the law if we were to permit the Board to interpret this obvious change as an attempt to continue the same legal relationships established in the George Brown Act, EERA, and SEERA."

That’s almost exactly the same situation here. Except the MMBA, the equitable tolling language appears in all the acts under than HEERA. Under Regents, that fact is strong (in my mind presumptive) evidence that the legislature intentionally left the language out.

It’s true that Coachella appears to take a different approach than Regents. That’s why it’s disappointing that the Court in Coachella didn’t discuss the Regents case. However, I believe it’s possible to reconcile the two approaches. Indeed, Coachella acknowledged that where one of the statutes administered by PERB has different statutory language than the others it could be indicative of legislative intent to treat that statute different. Specifically, the Court held:

“[T]he PERB argues that because the Legislature included an express six-month limitation period in every other public employment relations law under the PERB's jurisdiction, the omission of an express six-month limitation period in the MMBA is compelling evidence of a different legislative intent. We would agree if there were any plausible ground for the Legislature to draw such a distinction, or, in other words, if this line of reasoning did not lead to an inexplicable anomaly. The rule that the PERB cites is merely one of several guides to statutory construction; it applies generally but not universally, and we do not find it helpful or controlling here.”

Thus, Coachella basically says that statutory differences should be recognized where there is some reason to do so. Here, in my opinion there is a very good reason to draw a distinction between HEERA and the other acts. HEERA covers the University of California (UC), which is a constitutional agency. Under the constitution, the UC has distinct powers from other public agencies. (e.g. UC policies have the force and effect of statutes. See, e.g., Regents of the University of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 135.) Thus, the Legislature may not have wanted to impose equitable tolling on a constitutional agency.

Last year, the California Supreme Court issued the Miklosy v. Regents of University of California (2008) 44 Cal.4th 876 decision, which actually is very instructive in this case. There, the Court considered a set of whistle-blower statutes where the statute covering the UC contained different language than that covering the state and the CSU. As in this case, there was no legislative history explaining the difference. However, the Court held that there was good reason to treat the UC differently:

“In short, the University functions in some ways like an independent sovereign, retaining a degree of control over the terms and scope of its own liability. Given the University's unique constitutional status, it is not surprising that the Legislature would take a deferential approach when authorizing damages actions against the University.” (Miklosy, at p. 890.)

One might argue that there is no evidence that the Legislature intended to give deference to the UC in crafting HEERA. However, that’s no different than Miklosy. One could also argue Coachella represents a better approach than Regents. Maybe. However, in my mind Coachella was a very different case. There, the Court had to find some statute of limitations since no one was arguing that the absence of an express limitations period meant there wasn’t one. Here, it’s entirely possible that the Legislature excluded the equitable tolling language.

So where does that leave us? This case is precedential and binding on future cases. However, that doesn’t mean the UC or CSU might not try to get PERB to reconsider this issue in the future. This is especially true given that the employee in this case was pro per and likely failed to address the issues I raise above. Also, the CSU didn’t make an appearance in this case so there was no one to competently argue the other side.

School District Can Prohibit Union’s Political Literature in Mailboxes

noreply@blogger.com (Tim Yeung) — Thu, 18 Jun 2009 22:27:00 +0000

San Leandro Teachers Assn. v. Governing Bd. (California Supreme Court, Case No. S156961) (Issued on 6/18/09)

The issue in this case was whether a school district can prohibit a union from using the district’s mail system to distribute political literature. The district asserted that it could prohibit political literature under Education Code section 7054, subdivision (a). The California Supreme Court agreed. The Court also held that such a rule did not violate the union’s right to access under EERA and did not violate the union’s first amendment rights.

Firefighters Union Must Pay City’s Attorneys' Fees

noreply@blogger.com (Tim Yeung) — Thu, 18 Jun 2009 21:07:00 +0000

City of Alhambra (2009) PERB Decision No. 2036-M (Issued on 6/9/09) (City of Alhambra I) and City of Alhambra (2009) PERB Decision No. 2037-M (City of Alhambra II) (Issued on 6/9/09).

In these two decisions PERB considered when an award of attorneys' fees may be awarded against a party in an unfair practice charge action. In City of Alhambra I, PERB clarified that in order to obtain an award of attorneys’ fees the moving party must demonstrate that the charge was ‘without arguable merit’ and pursued in ‘bad faith’. PERB expressly disavowed prior cases which suggested that the standard was a case without merit or brought in bad faith. Also, PERB clarified that there does not need to have been repetitive bad faith behavior; a single instance is sufficient.

In City of Alhambra I, PERB didn't award attorneys’ fees because while the unfair practice charge was without merit, it wasn’t brought in bad faith. In contrast, in City of Alhambra II, PERB affirmed an award of attorneys’ fees. There, PERB found that the testimony of two of the union’s witnesses was "inherently contradictory, illogical, and unreasonable.” Basically, PERB found that they lied under oath and that lying under oath satisfies both the “without merit” and “bad faith” prongs of the test.

Comments

This is a very rare case where attorneys’ fees are awarded against a party. City of Alhambra I does a great job surveying all the PERB cases involving motions for attorneys’ fee and sanctions. Based on that list, it looks like attorneys’ fees have only been awarded one other time this decade. (See Marin County Law Library (2004) PERB Decision No. 1655-M.)

City of Alhambra I makes the point that attorneys’ fees will only be awarded where an action is without merit and brought in bad faith. When I first read that I was scratching my head trying to think of a situation where a charge could be without merit, yet not brought in bad faith. I only had to get to the end of the decision to find an example, since the Board made exactly that finding in this case. In contrast, in City of Alhambra II the Board found that the union’s witnesses lied under oath, which the Board held was sufficient to warrant the imposition of attorneys’ fees.

PERB Has Issued Several New Decisions

noreply@blogger.com (Tim Yeung) — Thu, 18 Jun 2009 04:58:00 +0000

PERB has recently placed on its website 13 decisions issued in the last month. I subscribe to PERB's email notification system for new cases but didn't receive anything in the last month. I've been told that PERB has recently switched to a new computer system, which may require that people re-subscribe to the email notification system.

Correction: I've been told that PERB's email notification system is still working, they're just a little behind on sending out the email notifications. So you don't need to sign-up again.

PERB Chair Tiffany Rystrom Passes Away Following Battle with Cancer

noreply@blogger.com (Tim Yeung) — Thu, 11 Jun 2009 03:33:00 +0000

I was deeply saddened today to learn of the passing of PERB Chair Tiffany Rystrom. Governor Schwarzenegger issued the following statement regarding Chair Rystrom's death:

"Tiffany Rystrom capped a distinguished career by channeling her passion for the law into public service. As a member of the Public Employment Relations Board, and most recently its Chair, she raised the bar on quality, integrity and consistency with the law for every decision. I was proud to have her serve in my Administration. The prayers of both Maria and I go out to Tiffany’s family and her partner Angela.”

Chair Rystrom’s full obituary can be found here.

Collective Bargaining: "Be Careful What You Ask For”

noreply@blogger.com (Tim Yeung) — Fri, 29 May 2009 14:08:00 +0000

California Attorneys v. Schwarzenegger, Court of Appeal Case No. C058415 (Issued on 5/28/09)

With the support of Attorney General Jerry Brown, the union representing state attorneys—the California Attorneys, Administrative Law Judges, and Hearing Officers in State Employment (CASE)—brought a lawsuit seeking to force the State to pay higher salaries. For years, CASE has asserted that state attorneys are paid substantially less than comparable public sector attorneys. Through collective bargaining, CASE has been arguing for “pay parity” but has never achieved its goal. According to CASE, the pay situation is so bad that the State has become “the employer of last resort” for attorneys.

In a published decision, the panel of judges had little trouble rejecting the lawsuit. The court held that even if the pay situation was as CASE said, it was not the court’s role to correct it. Instead, the court—properly, in my opinion—said the correct forum for addressing the pay issue was in collective bargaining or through the Legislature. In a concurring opinion, Justice Scotland noted that Jerry Brown, as Governor, signed the Dills Act which created the system of collective bargaining for state employees. Now, as Attorney General, Jerry Brown is facing the results of that system. Justice Scotland concludes, “To the extent that [the Dills Act] has proved to be unwise or flawed, it is up to the Legislature or the people through the initiative process, not the courts, to correct it.”

Comments:

First, let me disclose that I used to be an attorney for the state and am very familiar with the issues raised in the CASE lawsuit. In fact, I used to be an attorney for the Department of Personnel Administration—which represents the Governor in collective bargaining and defended this case. I also was a Deputy Attorney General and member of CASE, in addition to being an attorney at PERB. So I know all the players in this saga. That said this was a very odd lawsuit; one that had little hope of success from the beginning.

In terms of pay, I fully agree that some state attorneys are underpaid compared to attorneys in other public agencies. The salary disparity is most pronounced in the San Francisco and Los Angeles areas. One way to address the situation would be to provide some sort of geographical differential so that attorneys in higher-cost areas got more compensation. The federal government does this. However, CASE has always steadfastly opposed such a system.

In addition, CASE has made some bone-headed moves in the past. For example, the State has offered CASE salary increases, not enough to achieve full pay parity, but enough to at least start closing the gap. Yet CASE has refused the offers. Also, years ago after a change in leadership CASE got rid of its longtime negotiators—Blanning & Baker. Just a short time later Blanning & Baker was able to negotiate a pay parity provision for state engineers, which probably was one of the greatest achievements of any state union during the Davis Administration. In my mind, there is absolutely no public policy reason why engineers should be entitled to a pay parity provision any more than attorneys. Which only leaves one to wonder what if CASE had stuck with Blanning & Baker. (Disclosure: I used to work for Dick Baker and still think the world of him).

Anyway, in my opinion all these facts just illustrate that CASE can’t blame the collective bargaining system for its woes. After all, other unions have been able to achieve results for its members that the employees could not have obtained individually without collective bargaining. So what does that mean? Maybe CASE should look inward at its own actions. The fact is, there are effective unions and ineffective ones. That’s why the Dills Act, like every other collective bargaining statute, has a system that allows employees to change their exclusive representative.

Status of Binding Interest Arbitration in California

noreply@blogger.com (Tim Yeung) — Fri, 22 May 2009 07:08:00 +0000

Sacramento County Measure A passed on Tuesday with 52% of the vote. Measure A added additional law enforcement employees to those covered by the County’s binding interest arbitration provision. Because Sacramento County already had binding interest arbitration for deputy sheriffs, Measure A did not add another public entity to the list of those with binding arbitration. As it stands today, there are 24 charter cities/counties in California with some form of binding interest arbitration. They are:

Alameda
Anaheim
Gilroy
Hayward
Modesto
Monterey
Napa
Oakland
Oroville
Palo Alto
Petaluma
Redwood City
Sacramento City
Sacramento County
Salinas
San Francisco
San Jose
San Leandro
San Luis Obispo
Santa Cruz
Santa Rosa
Stockton
Vallejo
Watsonville

Of these 24:

The first entity to adopt binding arbitration was Vallejo in 1970. The most recent was Oroville in 2004;
Sacramento County is the only county with binding arbitration (unless you count San Francisco, then there are 2);
Anaheim is the only public entity in Southern California with binding arbitration;
Vallejo and San Francisco are the only public entities with binding arbitration covering non-safety employees.
(To my knowledge) Binding interest arbitration has been invoked in 13 of the 24 entities. They are: Alameda, Anaheim, Gilroy, Hayward, Modesto, Oakland, Palo Alto, Redwood City, Sacramento County, San Francisco, San Jose, San Luis Obispo, and Vallejo. [Update: I've been informed that fire and police in City of Sacramento have also gone to arbitration.]

PERB Issues Trio of Decisions Involving Discrimination

noreply@blogger.com (Tim Yeung) — Thu, 21 May 2009 00:21:00 +0000

Escondido Union Elementary School District (2009) PERB Decision No. 2019-E (Issued on 4/30/09); County of Yolo (2009) PERB Decision No. 2020-M (Issued on 4/30/09); Alvord Unified School District (2009) PERB Decision No. 2021-E (Issued on 4/30/09).

A couple of weeks ago PERB released a trio of decisions all involving allegations of discrimination for protected union activities. If you’ve handled a discrimination case before PERB, you know that the main issue is often the motive behind an employment action—what is referred to as the “nexus.” PERB has a set of factors it analyzes in order to determine whether the necessary “nexus” has been established. In addition to timing, these factors are: 1) the employer's disparate treatment of the employee; (2) the employer's departure from established procedures and standards when dealing with the employee; (3) the employer's inconsistent or contradictory justifications for its actions; (4) the employer's cursory investigation of the employee's misconduct; and (5) the employer's offering of exaggerated, vague, or ambiguous reasons to justify its conduct; (6) employer animosity towards union activists; and (7) any other facts that might demonstrate the employer's unlawful motive.

The Yolo County decision was a fairly standard case. The Board ended up dismissing the charge and the decision doesn’t break any new legal ground; it’s just an application of law to facts. However, this case was interesting because the Board actually took the time to analyze each of the elements of a discrimination case, including all of the above-enumerated factors. You don’t see that too often in PERB decisions, so if you’re litigating a discrimination charge before PERB this case may be worth a read

Alford Unified School District involved an appeal from a dismissal. Nothing new here. The only interesting aspect was that the Board affirmed the Board agent’s finding that the charging party did not allege facts sufficient to demonstrate an adverse employment action. Here, charging was a teacher who was assigned a new teaching schedule that required him to prepare for 3 classes on some days instead of 2. PERB said that without more, the mere fact that the new schedule required more preparation time did not demonstrate that the change was an adverse action.

The Escondido Union Elementary School District decision was the most involved of the three. This was a highly fact intensive case. In the end, PERB sustained some of the ALJ’s findings of discrimination and dismissed others. Because it was very fact sensitive, it’s hard to draw any conclusions. But basically the case involved a situation familiar to all of us: how do you discipline an employee for cause when the employee has also engaged in some form of protected activity? Answer: very carefully. But seriously, if there is a lesson from this case it is that if you (as the employer) have a situation where you need to discipline an employee who has recently engaged in protected activity, you must ensure that you are following all the rules (progressive discipline, proper investigation, etc.) and then take some extra steps to eliminate whatever suspicions might be caused by the unfortunate timing. Here, the combination of bad timing and other shortcomings by the employer lead the Board to conclude that discrimination had indeed occurred.

Court Stops LA Teachers Strike

noreply@blogger.com (Tim Yeung) — Fri, 15 May 2009 05:32:00 +0000

Today (May 15th) is the day that teachers in the Los Angeles Unified School District (District) had originally planned to hold a one-day strike to protest layoffs and other budget-cutting proposals. On Tuesday, May 12th, the District successfully obtained a temporary restraining order (TRO) stopping the strike.

The United Teachers of Los Angeles (UTLA) blamed the adverse court decision on a “notoriously anti-union Los Angeles Superior Court judge.” However, according to the LA Times, the court decision was based on the fact that the contract between the District and UTLA contains a no-strike clause. The court order also cited concerns about student health, safety and welfare. The fact the superior court issued a TRO enjoining the strike is interesting since—according to the UTLA website—PERB had denied the District's request for injunctive relief.

[Note: I checked out the UTLA contract. It does indeed contain a clause prohibiting strikes and work stoppages during the term of the agreement, which does not expire until June 30, 2009. So maybe I’m missing something, but it seems to me UTLA must have known from the beginning that they were on shaky legal grounds calling a strike.]

In the face of $1000 per person fines for violating the TRO, UTLA has cancelled the one-day strike and urged its members to report to work. Instead of a strike, UTLA plans to picket for one hour before school begins. According to a UTLA press release, “The pickets will be followed in the afternoon by civil disobedience at an undisclosed location and members converging on Beaudry, where we will bring the fight to Cortines’ and the School Board’s doorstep.” That should be interesting.

Election Watch: Sacramento County Measure A

noreply@blogger.com (Tim Yeung) — Thu, 14 May 2009 17:27:00 +0000

In 1998, Sacramento County become one of the first counties (if not the first) in California to adopt binding arbitration as a mechanism to settle labor disputes. In the case of Sacramento County, the binding arbitration measure applied only to its deputy sheriffs. On May 19th, Sacramento County voters will decide the fate of Measure A, which would extend the County’s binding arbitration charter provision to cover probation officers and law enforcement management. The local newspaper—the Sacramento Bee—has come out strongly against Measure A. The Bee has also been running articles and editorials criticizing public safety salaries and overtime, particularly in the Sacramento metro fire department. However, other than the Bee there appears to be no organized opposition to Measure A.

Given the state of the economy and voter hostility to the state propositions, my initial thought is that Measure A may have a tough time passing. But given the expected tiny voter turnout and the fact there is no organized opposition, its anyone's call as to what will happen. Also, since Sacramento County has had binding arbitration for its deputy sheriffs for over a decade and the City of Sacramento also has binding arbitration, the voters may not see Measure A as controversial. So keep you eyes out for the result on Measure A, it may be a harbinger of things to come.

SB 656: Removing “Mixed-Units” of Law Enforcement From PERB

noreply@blogger.com (Tim Yeung) — Mon, 04 May 2009 03:46:00 +0000

SB 656 (DeSaulnier) would remove from PERB’s jurisdiction a bargaining unit comprised of a majority of peace officers as defined by Penal Code section 830.1. (830.1 officers.) Currently, the MMBA already excludes 830.1 officers from PERB’s jurisdiction. (Gov. Code, §3511.) However, what happens when you have a dispute involving a bargaining unit comprised of both 830.1 officers (who are exempt from PERB) and other employees covered by PERB? This bill tries to address that situation.

I’m pretty sure I can take some credit for this bill’s introduction. Last year I litigated this issue before PERB on behalf of the County of Sonoma (County) in an unfair practice charge filed by the Sonoma County Law Enforcement Association (SCLEA). (PERB Case No. SF-CE-523-M.) The case involved the County’s imposition of its last, best and final offer upon impasse. Most of the classifications in the SCLEA unit were covered by PERB, but some were not. Also, about a third of the classifications in the unit were covered by SB 440, the binding interest arbitration statute. SCLEA’s argument was that the County could not impose its last, best and final offer on the unit because the County had to first submit the dispute to binding arbitration under SB 440. The ALJ held that even if the County had to go to binding arbitration under SB 440, it only had to do so with respect to those officers covered by SB 440. For those officers not covered, the County could go ahead and impose its last, best, and final offer. There was also a jurisdictional issue over whether the inclusion of some 830.1 officers would preclude PERB from jurisdiction over the entire unit. PERB held that the inclusion of some 830.1 officers in the unit would not deny PERB jurisdiction over the remaining individuals in the unit. The case is now before the PERB Board on exceptions filed by the parties.

Comments:

1. I’m ambivalent over this bill. CSAC has already taken a position against it. I guess if I had to take a position, I would oppose this bill on the principle that it’s bad public policy to have certain employees covered by PERB and not others. However, part of me says that if the unions want to exclude more people from PERB, let them do it. After all, the unions were the ones who wanted to bring the MMBA under PERB’s jurisdiction in the first place. Here’s a direct quote from the Assembly Analysis (dated 8/26/2000) of SB 739 (Solis), which placed the MMBA under PERB’s jurisdiction:

“Proponents argue that the MMBA has ‘no effective enforcement procedures except for court action, which is time-consuming and expensive. One of the basic principles of an effective collective bargaining law should be to provide for enforcement by an administrative agency with expertise in labor relations. The appropriate role for the courts is to serve as an appellate body.’”

So the argument in favor of SB 739 was that having to go to court was time consuming and expensive; and that it was a basic principle of collective bargaining that there should be an administrative remedy. Now more law enforcement want to leave PERB and go back to the courts? Part of me says let them do it.

2. I think what really is driving this bill is the prospect of binding arbitration under SB 440. (That prospect was greatly dimmed by an appellate decision last week finding SB 440 unconstitutional; that decision may change the calculus behind this bill.) SCLEA wanted everyone in its unit to benefit from binding arbitration under SB 440. The problem is that SB 440 covers a different set of law enforcement officers than the MMBA excludes. For example, with SCLEA, there were some law enforcement classifications covered by both SB 440 and PERB. Some were covered by SB 440, but not PERB. And some were covered by PERB, but not SB 440.

Instead of this bill, I think the better policy solution would be to reconcile the definition of officers excluded from PERB with those covered by SB 440. In others words, the definition of peace officers covered by SB 440 should be the same as those excluded from PERB. Then you wouldn’t have employees covered by one but not the other. Keep in mind, I’m strongly opposed to SB 440; but if I’m going to have binding arbitration forced upon me I would rather have it be a well-drafted law.

3. Finally, I’ll point out what I believe is a flaw in the drafting of SB 656. Gov Code section 3511 currently states:

“The changes made to Sections 3501, 3507.1, and 3509 of the Government Code by legislation enacted during the 1999-2000 Regular Session of the Legislature shall not apply to persons who are peace officers as defined in Section 830.1 of the Penal Code."

As amended, it would state:

“The changes made to Sections 3501, 3507.1, and 3509 of the Government Code by legislation enacted during the 1999-2000 Regular Session of the Legislature shall not apply to a bargaining unit which is comprised of a majority of persons who are peace officers as defined in Section 830.1 of the Penal Code."

The flaw is that the bill removes the term “persons.” Under the MMBA, the two most common types of unfair practices are: 1) discrimination and/or retaliation against individuals for union activities, and 2) unilateral changes in the terms and conditions of employment. Discrimination charges are brought on behalf of individuals or groups of individuals, and can be litigated by either the individual or the union. In contrast, unilateral change charges are brought on behalf of the union which is the only entity with standing to do so. As amended, section 3511 would clearly exclude unilateral change charges involving units with a majority of 830.1 officers. However, what if an individual 830.1 officer wanted to bring a charge of discrimination or retaliation? Under the former section 3511, they would be excluded from PERB because it covered “persons” who are 830.1 officers. As amended, it’s not so clear. Arguably, because SB 656 only excludes a "bargaining unit," it might not cover individual cases of discrimination. Thus, it could be argued that section 3511 wouldn’t apply to any unfair practice charge brought on behalf of an individual 830.1 officer and that such charges would fall under PERB's jurisdiction. I doubt that was the intent of the sponsor or author (but who knows, maybe it was?). What I think they should have done is amend section 3511 to state, “. . . shall not apply to persons who are peace officers as defined in Section 830.1 of the Penal Code or any bargaining unit which is comprised of a majority of persons who are peace officers as defined in Section 830.1 of the Penal Code.” That would keep all 830.1 officers excluded from PERB while adding any bargaining unit comprised of a majority of 830.1 officers.

AB 155: Unions Respond to Vallejo’s Bankruptcy Filing

noreply@blogger.com (Tim Yeung) — Thu, 30 Apr 2009 21:05:00 +0000

California unions have responded to the City of Vallejo’s bankruptcy filing with the introduction of AB 155 (Mendoza). Under AB 155, a municipality would have to obtain approval from the California Debt and Investment Advisory Commission before filing for bankruptcy. The commission consists of the state treasurer, the Governor or the Director of Finance, the State Controller, two local government finance officials, two Assembly Members, and two Senators. AB 155 is supported by a number of unions, including the California Professional Firefighters and CDF Firefighters Local 2881, both of whom are co-sponsoring the bill. The California Association of Counties and the League of Cities are leading the opposition.

Obviously, the unions are worried that more municipalities will follow Vallejo into bankruptcy in an effort to void labor contracts. AB 155 goes a long way towards preventing that. By requiring approval by the California Debt and Investment Advisory Commission, unions hope to prevent municipalities from filing for bankruptcy altogether or at least delay the process long enough to give them more leverage.

I think AB 155 is a bad idea. More important, I think organized labor has vastly overreacted to Vallejo’s bankruptcy filing. The fact is that few municipalities are likely to follow Vallejo into bankruptcy. Yes, everyone is talking about it and a few have even looked into it, but I doubt many will actually do it. Here’s why.

While newspapers have correctly reported that Vallejo’s public safety labor contracts (fire and police) tied the City to high wages, that’s really only half the story. If the contracts just provided for high salaries, Vallejo probably wouldn’t be in bankruptcy. This is because Vallejo could have just exercised its management right to lay-off firefighters and police officers if the total costs of the contract were more than the City could afford. In Vallejo’s case it couldn’t do that. (Vallejo also has binding interest arbitration—but that’s a post for another day . . .)

That’s what the newspapers have failed to properly report. Vallejo’s real problem was that its public safety contracts provided for high salaries and required minimum staffing levels. In the case of firefighters, the contract (as interpreted by an arbitrator) required that the City staff 28 firefighters at all times. To my knowledge there are only a handful of other agencies in the state with contracts that provide for minimum staffing levels. As an employer, having such a provision obviously ties your hands. After all, there are really only two components to an employer’s personnel costs: the cost per employee and the number of employees. As long as you control one of these variables, you can always reduce your personnel costs—either by reducing the cost per employee or reducing the workforce. In Vallejo, it couldn’t reduce its public safety costs because the contracts locked the City into high salaries and minimum staffing levels.

This unique situation is why I don’t think many other municipalities will file bankruptcy. Even if you’re a municipality with a labor contract that now seems unaffordable, you still have the ability to reduce your total costs by reducing your workforce. Granted, laying-off employees is not something any municipality wants to do, but at least it’s an option. It wasn’t an option for Vallejo.

SB 440 Interest Arbitration Statute is Unconstitutional

noreply@blogger.com (Tim Yeung) — Mon, 27 Apr 2009 19:37:00 +0000

County of Sonoma v. Superior Court (Sonoma County Law Enforcement Association) (Case No. A122450) (Issued on 4/24/09) ("County of Sonoma")

This is the first appellate decision on the constitutionality of SB 440. SB 440 provides for compulsory binding arbitration of labor disputes between employee organizations representing firefighters and law enforcement officers and the local agencies employing them. In County of Riverside v. Superior Court (2003) 30 Cal.4th 278 ("Riverside"), the California Supreme Court held an earlier version of the statute (SB 402) unconstitutional because it impermissibly infringed upon home rule powers reserved to local governments by article XI of the California Constitution. In response, the Legislature enacted SB 440. The primary change was that under the previous version (SB 402), the arbitration panel’s decision was binding on the public entity. Under SB 440, the arbitration panel’s decision is binding unless the governing body unanimously rejects it. The court in County of Sonoma found that even with this change, the statute is still unconstitutional.

Decision:

At issue in County of Sonoma were two provisions of the California Constitution: Section 1(b) of Article XI and Section 11(a) of Article XI. Those sections state:

Section 1(b). “. . . The governing body shall provide for the number, compensation, tenure, and appointment of employees.”

Section 11(a). "The Legislature may not delegate to a private person or body power to make, control, appropriate, supervise, or interfere with county or municipal corporation improvements, money, or property, or to levy taxes or assessments, or perform municipal
functions."

The first issue the court considered was whether SB 440 involved a matter of “statewide concern.” The court acknowledged that on matters of statewide concern the Legislature may infringe “to a limited extent” on the power the Constitution reserves to counties and charter cities. However, as the court did in Riverside, the court in County of Sonoma rejected the union’s argument that SB 440 involved a matter of statewide concern. Instead, the court affirmed the principle that compensating county employees is a municipal function.

[Side note: The union argued that SB 440 addressed the issue of police and firefighter strikes which was a matter of statewide concern. It was an odd argument since—as the court noted—police and firefighters do not legally have a right to strike. In rejecting the union's argument, the court stated, “We are unwilling to base a finding of statewide concern on the assumption that police officers and firefighters will disobey the law.”]

After finding that SB 440 did not involve a matter of statewide concern, the court then turned to whether the statute violated sections 1(b) and 11(a) of Article XI of the California Constitution. In discussing Section 1(b), the court noted that the purpose of the provision was to limit the power of the Legislature. The court affirmed that Section 1(b) is a “home rule” measure designed to deprive the Legislature of the power to set compensation for county employees and to entrust that authority to county governing bodies. In analyzing SB 440, the court focused on the term “governing body” and what that meant. After discussing a variety of cases and secondary sources (including a reference to Madison, Federalist No. 10), the court concluded that the term “governing body” must mean a majority of that body. Specifically, the court held that:

“Although the constitutional provision does not specifically say that only a majority of the governing body, as opposed to a minority thereof, may set compensation, for the reasons we discuss below, no other construction of section 1, subdivision (b) is reasonable, or indeed even permissible. Permitting a minority of a governing body to set the compensation of county employees by making the arbitration panel’s decision binding on the county would be inconsistent with both longstanding statutory rules of interpretation and established California case law, as well as deeply offensive to basic principles of representative democracy.”

Next, the court turned its attention to Section 11(a). The court had little trouble finding that SB 440 constituted an unconstitutional delegation of the County’s powers to a private body. The court rejected SCLEA’s argument that the County’s ability to reject an arbitration decision cured the unconstitutional delegation.

Comments:

1. This case is a great victory for cities and counties. The court’s decision was detailed, thorough, and—in my humble opinion—absolutely correct.

2. Assuming this case stands, it will effectively end the efforts of unions to achieve binding interest arbitration through the Legislature. The court’s holding that “governing body” means a majority of the governing body will prevent the unions from amending SB 440 to require a supermajority instead of an unanimous vote. Also, even if SB 440 is amended to allow rejection of an arbitration decision by a simple majority vote, it would still be an unconstitutional delegation of the County’s powers under Section 11(a), as I read the decision.

3. I expect unions will now turn to localized efforts to achieve binding interest arbitration. Many unions took that approach after the initial Riverside decision. Indeed, the voters in many cities and counties (mainly in Northern California ) have already adopted binding interest ordinances. However, given the current economic environment, my gut feeling is that getting voters to approve binding interest arbitration ordinances will be next to impossible.

4. There is no doubt that the union in this matter, the Sonoma County Law Enforcement Association, will petition to the California Supreme Court for review. I wouldn’t be surprised if the Court granted review to settle this issue once and for all. My expectation is that if the Court granted review, it would affirm.

5. One final note, the court’s decision contains a good discussion of the difference between “interest” and “grievance” arbitration with citations to cases in other states and secondary sources. So if you’re looking for a case to cite on that issue, take a look at the decision.

Court Strikes Down SB 440 Interest Arbitration Statute

noreply@blogger.com (Tim Yeung) — Fri, 24 Apr 2009 23:28:00 +0000

Just in . . . the court of appeal has struck down SB 440. Excerpts from the decision:

"In County of Riverside v. Superior Court (2003) 30 Cal.4th 278 (Riverside), the California Supreme Court held an earlier version of that statute unconstitutional, because the statute impermissibly infringed upon home rule powers reserved to local governments by article XI of the California Constitution. (Riverside, at p. 282.) The Legislature amended the statute in response to the Supreme Court’s decision. But the County contends the amended version continues to intrude upon its constitutional authority to establish compensation and terms of employment for county employees. We agree with the County and will therefore grant its petition for writ of mandate."

. . .

"The foregoing discussion makes clear that section 1299.7 interferes with the constitutional authority of governing bodies to set county employee compensation under section 1, subdivision (b), because the statute permits less than a majority of the governing body to set employee compensation by making the arbitrators’ decision final and binding upon the county. Section 1299.7, subdivision (b) provides that the arbitration panel’s decision will become final and binding unless the governing body acts in accordance with subdivision (c). (§ 1299.7, subd. (b).) Subdivision (c) of that section permits the governing body to veto the arbitration panel’s decision only by a unanimous vote of all of the body’s members. (§ 1299.7, subd. (c).) Therefore, the terms of the statute empower a minority of a board of supervisors to make the arbitrators’ decision binding on the county, even if the majority of that body disagrees."

More to come after I digest the decision . . .

The Fight Over Parking Spots: Round 2

noreply@blogger.com (Tim Yeung) — Sat, 18 Apr 2009 23:27:00 +0000

Trustees of the California State University (2009) PERB Decision No. 1876-Ha (Issued on 4/15/09)

Is where an employee can park his or her car—as opposed to how much the employee must pay to park—a subject within the scope of representation (ie negotiable) under HEERA? In Trustees of the California State University (2006) PERB Decision No. 1876-H (Trustees I), the Board answered in the negative. There, the Board analyzed whether the location of employee parking qualified as a “term and condition” of employment under a three-part test. Under that test, a subject is within the scope of representation if it: (1) involves the employment relationship; (2) the subject is of such concern to management and employees that conflict is likely to occur, and the mediatory influence of collective negotiations is the appropriate means of resolving the conflict; and (3) the employer's obligation to negotiate would not significantly abridge its freedom to exercise those managerial prerogatives essential to the achievement of its mission. In Trustees I, the Board found that the location of employee parking did not meet the first prong of the test—involve the employment relationship—and dismissed the charge.

The union appealed and in California Faculty Ass’n v. Public Employment Relations Board (2006) 160 Cal.App.4th 609, the court of appeal overturned Trustees I. The court found the Board’s holding that the location of parking did not involve the employment relationship to be “clearly erroneous” because it conflicted with both federal precedent and the Board’s own precedent. The court then remanded the case back to the Board to consider other factors which the Board had not reached in its decision.

In Trustees of the California State University (2009) PERB Decision No. 1876-Ha (Trustees II), the Board considered the two other prongs of the three-part test for determining whether a subject matter is a term and condition of employment. First, the Board considered the second-prong of the test which asks whether the subject is of such concern to employees and management that conflict is likely to occur. The Board noted that the location of parking had often changed over the years and there was little evidence that the subject spawned grievances in the past. In addition, the Board held that even if the subject was likely to cause conflict, negotiations were not the proper method of resolving the conflict because the needs of students would not be properly represented.

Next, the Board considered the third-prong of the test which is whether requiring negotiations would abridge a fundamental management prerogative. The Board found that it would. Specifically, the Board found that the primary reason that CSU built the new parking facilities was to provide parking to students. Requiring CSU to negotiate over whether employees could park in these facilities would, according to the Board, significantly abridge CSU’s freedom to manage its campus operations. Because the Board found that the union had failed to establish the second and third prongs of the test, it dismissed the charge.

Comments:

1. I thought the Board’s holding on the second-prong of the test—whether the subject is of such concern to management and employees that conflict is likely to occur—was interesting. I don’t recall another case with a similar holding. (There may be one out there I just don’t ever recall one). Usually, the parties just concede the second prong on the assumption that since you’re currently fighting over it, it must be something likely to cause conflict. I’m not sure how viable this argument is going to be in the future on other subjects. My personal feeling is that this was a very limited holding on this specific issue and I don’t expect PERB to find many other subjects failing the second-prong.

2. The more important holding in this case involves PERB’s finding that students are third parties who can be taken into consideration in determining whether a subject infringes on fundamental management rights. How far this will be taken in the future remains to be seen. However, I can certainly see this having an impact under HEERA and EERA where student learning is involved. I can also see this argument being made under the Dills Act and MMBA in the context of providing services to the public. I expect in all these situations management will argue that requiring negotiations on certain subjects will infringe on the its fundamental mission to teach students, provide services, etc.

3. Because the court of appeal overturned the Board once already in this matter, I expect that CFA will again appeal. It’s interesting to note that the MOU between CSU and CFA that was in effect when this dispute began in 2002 has long expired. A new MOU has been negotiated and is in effect to 6/30/10. The new MOU does not mention parking locations, which means that how this decision ends will still have real meaning.

4. One final note, the California Supreme Court issued its Claremont decision in 2006; about a year and a half before the court of appeal issued its decision overturning Trustees I. Claremont dealt with the scope of representation under the MMBA, not HEERA, but the two statutes are very similar and both are (somewhat) modeled after the NLRA. The test imposed by the Court in Claremont is a little different than the Anaheim test historically used by PERB. In the future, it will be interesting to see if the courts or PERB attempt to reconcile these two tests.

(Correction: My initial post incorrectly said that the court of appeal decision was issued in 2006, a few months before Claremont was issued. That's incorrect. The court of appeal decision was issued in 2008. The version of the court of appeal decision on Westlaw actually has an incorrect date of 2006 in the body of the decision which is what threw me off.)

Alexander v. Gardner-Denver is Dead (No Fooling)

noreply@blogger.com (Tim Yeung) — Thu, 02 Apr 2009 05:44:00 +0000

14 Penn Plaza LLC v. Pyett (U.S. Supreme Court Case No. 07-581) (Issued 4/1/09)

Can an individual employee be forced to arbitrate an employment discrimination claim (e.g. a Title VII complaint for race discrimination) where the employee is covered by an arbitration provision in a CBA or MOU that expressly covers such claims? If you had asked me this question yesterday I would have said absolutely not, citing to Alexander v. Gardner-Denver (1974) 415 U. S. 36 (Gardner-Denver). Today it’s different. That’s because of the Supreme Court’s decision in 14 Penn Plaza LLC v. Pyett issued on April 1st. At issue in 14 Penn Plaza was the following provision in a CBA between an employer and SEIU:

“§30 NO DISCRIMINATION. There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, . . . or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures (Articles V and VI) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.”

The Court of Appeal, relying on Gardner-Denver, had ruled that the above provision was unenforceable. The Supreme Court reversed in a 5-4 decision authored by Justice Thomas and joined by Roberts, Scalia, Kennedy, and Alito.

The majority opinion first held that Gardner-Denver was not controlling since that decision did not involve an arbitration provision that expressly covered discrimination claims. After distinguishing Gardner-Denver, the Court went on to attack the “broad dicta” contained in the Gardner-Denver decision and argued that the dicta “rested on a misconceived view of arbitration that this Court has since abandoned.”

The majority opinion drew a dissent authored by Souter and joined by Stevens, Ginsburg and Breyer. According to the dissent, “The issue here is whether employees subject to a collective-bargaining agreement (CBA) providing for conclusive arbitration of all grievances, including claimed breaches of the Age Discrimination in Employment Act . . . lose their statutory right to bring an ADEA claim in court, §626(c). Under the 35-year-old holding in Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), they do not, and I would adhere to stare decisis and so hold today."

Comments:

1. This decision is huge. Gardner-Denver has been a foundational decision in labor law for over 35 years. It’s one of the first cases you read in any labor law class. For all those years, the dominant view has always been that under Gardner-Denver an individual employee's statutory right to bring an employment discrimination claim in court trumped any arbitration provision in a union contract.

2. Given the significance of this decision, I was surprised that the dissent was so tame. I would have expected more fireworks. Perhaps the dissent was comforted by the fact that the majority decision rested on statutory interpretation of the NLRA and ADEA. Given the political make-up of Congress and the Presidency, the dissent may be thinking that there is a good chance this decision will be overturned.

3. In the meantime, I expect a rush among private sector employers to try to get provisions like the one in 14 Penn Plaza into their CBA’s. This is because private sector employers have never lost their love affair with binding arbitration, despite the hostility the courts have shown towards binding arbitration in the employment context.

4. I think the initial reaction among public sector employers will be the same. However, I think once public sector employers consider the pros and cons of such provisions, whether to pursue one will depend on individualized factors for each entity. For example, from a purely monetary standpoint, an employer would probably save money if all employment claims had to be arbitrated, but not necessarily so. Certainly, I think judgments would be lower with an arbitrator versus a jury. Attorneys fees would be lower, but not necessarily by much depending on how much discovery is allowed. However, assuming arbitration is cheaper than civil litigation more cases may go to arbitration than would have been filed in court. An example of this can be seen with the MMBA. Prior to PERB taking jurisdiction over the MMBA, few unions brought unfair practice charges in court because it was time-consuming and expensive. Now, with PERB providing an administrative remedy, far more unfair practice charges are being filed every year than were filed with the courts prior to PERB's assumption of jurisdiction.

5. In addition, if the arbitration provision is structured such that a union has a duty of fair representation with respect to employment discrimination claims, I think far more claims would be arbitrated than would be litigated in court. This is because traditional plaintiff-side attorneys - who all work on contingency - only select the best cases. In contrast, if there was a duty of fair representation, I think a union would be forced to arbitrate some cases that a traditional plaintiff-side attorney would not take.

6. Finally, all this may be moot in California unless the California courts follow the lead of the Supreme Court. This is because most employment claims in California are brought under the Fair Employment and Housing Act since it is much broader than federal law. It is not at all clear whether California courts would follow the reasoning in 14 Penn Plaza with respect to FEHA claims. If the California courts didn't go along, I think the effect of 14 Penn Plaza in California will be very limited.

Just in Case You Didn't Know . . .

noreply@blogger.com (Tim Yeung) — Mon, 23 Mar 2009 17:24:00 +0000

International Union of Operating Engineers v. County of Plumas (Case No. 07-16001) (9th Cir. 2009)

The introduction to this recent Ninth Circuit case says it all:

“James M. Cain, whose novels were often adapted into film noir, described his body of work by saying ‘I write of the wish that comes true—for some reason, a terrifying concept.’ The plight of Plumas County would have doubtless piqued his interest."

"Plumas County thought that federal court would provide a more hospitable forum for its defense against a suit seeking to compel arbitration, so it removed the action to federal court. The district court ordered Plumas County to arbitrate. Now, the County argues that the district court had no business deciding the question because the court lacked subject matter jurisdiction over the case that the County removed. We conclude that Plumas was not barred from raising the jurisdictional argument and that the district court lacked subject matter jurisdiction. We remand to the district court the question of whether attorneys fees should be assessed.”

If you have a few minutes in your day, this case is worth a read. The Ninth Circuit was clearly annoyed at having to issue a decision on what should have been obvious – that the National Labor Relations Act does not apply to public entities – and directs some choice language at both parties.

Layoffs Are a Management Right

noreply@blogger.com (Tim Yeung) — Sat, 21 Mar 2009 00:00:00 +0000

International Association of Fire Fighters, Local 188, AFL-CIO v. PERB (2009) __ Cal.App.4th __. (Challenge to City of Richmond (2004) PERB Decision No. 1720-M.)

Facing significant economic constraints, in late 2003 the City of Richmond decided to lay off 78 city employees, including 18 firefighters. The firefighter’s union, Local 188, made a request to bargain over the City’s decision to lay off firefighters but failed to request to bargain the effects of the layoff decision. When the City declined to bargain over the decision, Local 188 responded by filing an unfair practice charge with PERB, asserting that the reduced staffing level presented a threat to employee safety and affected workload, and therefore the layoff decision itself was subject to bargaining. A PERB regional attorney dismissed that aspect of the unfair practice charge, holding that the decision to lay off personnel is not within the scope of bargaining. The regional attorney further held that while the effects of such a decision are subject to bargaining, Local 188 never demanded to bargain over effects. On appeal, PERB sustained the dismissal, declining to issue a complaint that would have sent the matter to a full hearing. Local 188 then sought to compel PERB to issue a complaint.

The most significant facet of the court’s opinion is its interpretation of the California Supreme Court’s decision in Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608. The Vallejo Court held that due to the dangerous nature of firefighting, “to the extent [] that the decision to lay off some employees affects the workload and safety of the remaining workers, it is subject to bargaining . . .” Vallejo, supra, 12 Cal.3d at p. 622. Local 188 argued that the Vallejo decision thus requires public employers to bargain over firefighter staffing, meaning that the employer cannot lay off firefighter personnel unless and until it bargains fully over that decision – an interpretation that would cause extensive delays before layoffs could be implemented, and that would intrude on the basic management prerogative of determining the necessity for layoffs. Rejecting Local 188’s argument, the court of appeal held that, under Vallejo, the decision to reduce staffing levels through layoffs is a managerial prerogative and not subject to bargaining. The court further confirmed that the Union may bargain over residual safety and workload issues which occur for the “remaining employees” after the reduction in staffing is achieved.

Comments

This decision should finally bring an end to the 30-year debate over the meaning of the Vallejo decision. For years, unions - particularly firefighters - have asserted that layoffs are negotiable if the workload and safety of remaining employees is affected. In contrast, management has always interpreted Vallejo to mean that only the effects of a layoff decision are negotiable (e.g. safety and workload) and that the layoff decision itself remains a management right. Here, the court unequivacally held that layoffs decision are a management right. Hopefully end of the story.

Card Check Already a Reality in California’s Public Sector

noreply@blogger.com (Tim Yeung) — Fri, 20 Mar 2009 03:58:00 +0000

As I noted in my previous blog entry, both unions and employers are gearing up for a huge fight over the Employee Free Choice Act (EFCA). Because the EFCA amends the National Labor Relations Act, which does not cover the public sector, it will not directly affect California public employers. Even if it did, California public employers have been living with card check for years. In California, all the statutes covering the public sector, except for the Dills Act, require the recognition of an exclusive representative solely by a showing of majority support (ie card check). (See MMBA (Gov Code 3507.1); EERA (Gov. Code 3544; 3544.1); HEERA (Gov Code 3573; 3574 (Note: HEERA is unique in that the employer can initially challenge recognition by card check if it reasonable doubts that the union has majority support); TCEPGA (Gov Code 71636.3); TCIELRA (Gov Code 71823); TEERA (PUC Code 99564.1).)

Arguably, card check in the public sector is not that significant because the vast of majority of public sector employees in California are already unionized, and have been for years. In the private sector, the advent of card check will surely spawn a wave of organizing efforts around the country. While not all of those efforts will be successful even with card check, many of them will be. The possibility of unionizing thousands of unorganized workplaces throughout the country is why the EFCA is such a huge issue.

Also, I was reminded today that a few years ago the Legislature amended the Agricultural Labor Relations Act to provide for mandatory interest arbitration (or what the Legislature referred to as “mandatory mediation” – a misnomer if there ever was one) of the first contract after a new exclusive representative has been certified. I’m not sure how many times, if any, that law has been utilized since its enactment. But anyone wondering what the interest arbitration system under the EFCA might look like can take a look at the ALRB’s statutes and regulations to get an idea.