Wednesday, November 23, 2016

Court of Appeal: MMBA Requires Bargaining Over Binding Arbitration

In City of Palo Alto v. Public Employment Relations Board, the Court of Appeal held binding interest arbitration is a mandatory subject of bargaining under Government Code section 3507.  As a result, the Court found the City violated the Meyers-Milias-Brown Act when it pushed through a local initiative to repeal binding interest arbitration while refusing to bargain with Palo Alto Firefighters, IAFF Local 1319.  The Court upheld PERB's factual determinations and rejected the City's arguments.  The Court also directed PERB to issue a new remedial order to correct a technical issue.

Palo Alto adopted binding interest arbitration by charter amendment for public safety officers in 1978.  The charter required that a neutral arbitrator would decide disputes about wages, hours, and other terms and conditions of employment if the City and the unions reach impasse in contract negotiations.  In 2011, the City tried to take binding arbitration away so that it could unilaterally impose terms on the firefighters.

At the time, the City claimed it did not have to meet and consult with the union about the change and ignored repeated demands to bargain.  The City claimed an earlier case about binding arbitration under MMBA section 3505 meant it did not have to bargain with the union.

But the Court rejected the City's claims.  The Court decided PERB properly decided that "mandatory subjects for consultation under section 3507 are distinct from mandatory subjects of meeting and conferring under sections 3504 and 3505."  As a result, the Court held, the City had a duty to bargain with Local 1319 under 3507 even though it did not under 3505.

The Court also rejected the City's claim that bargaining under section 3507 is substantially different than bargaining under section 3505.  In its briefs, the City claimed that a "meet and consult" under section 3507 was much less robust than a "meet and confer" under section 3505.  But the Court disagreed, deferring to PERB's determination that the two processes were very similiar, if not identical.  Since the City failed to even meet with the union, the Court held the City clearly violated its duty.

The Court also directed PERB to correct its remedial order.  In its decision, PERB ordered the City to rescind a resolution floating the ordinance.  But the Court noted PERB cannot order a City to rescind a resolution, but it can declare that a resolution is void.  As a result, the Court directed PERB to issue a new order.  Accordingly, the case will go back to PERB for a further order remedying the City's violations of the MMBA.

Mastagni Holstedt attorneys David E. Mastagni, Issac S. Stevens, and Jeffrey R. A. Edwards represented Local 1319 in the appeal.  Mr. Edwards represented Local 1319 in oral argument.

LA Times Quotes David P. and David E. Mastagni on Supreme Court Pension Case

On November 22, 2016, the Los Angeles Times turned to David P. and David E. Mastagni for analysis about the pending California Supreme Court appeal in the MCERA pension case.  The LA Times asked about the Court's decision to consolidate the Marin and Alameda cases.

The Times wrote: "David P. Mastagni, who represents Alameda County deputy sheriffs in the pending case, said the Supreme Court’s decision to wait for a ruling “really to me signals they understand the gravity and significance of the issues.”

Given the complexity and importance of the dispute, he said, he was not surprised that the court of appeal has yet to schedule a hearing. The court is required to issue a decision within 90 days of a hearing.

David E. Mastagni, the elder lawyer’s son and law partner, said it was not uncommon for the California Supreme Court to postpone a decision until a lower court acts first in a similar case.

“It gives them a more complete record,” he said. “They want to have another fully developed factual background.”

Tuesday, November 22, 2016

The California Supreme Court has granted review in MAPE v. MCERA involving the Constitutionality of PEPRA

On November 22, 2016, the California Supreme Court issued an order granting review of the MCERA pension case.  The order stated:

"The petition for review is granted. Further action in this matter is deferred pending the decision of the Court of Appeal, First Appellate District, Division Four, in Alameda County Deputy Sheriff's Association et al. v. Alameda County Employees' Retirement Association et al., A141913 (see Cal. Rules of Court, rule 8.512(d)(2)) or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court. Votes: Cantil-Sakauye, C.J., Werdegar, Chin, Corrigan, Liu, Cuéllar and Kruger, JJ."

Mastagni Holstedt, APC, represents Alameda County Deputy Sheriff's Association in the aforementioned appeal.  The ACDSA action has been consolidated with several similar PEPRA challenges.

Thursday, November 17, 2016

Court Holds Punitive Transfer Does Not Require Administrative Appeal

In Perez v. City of Westminster, the Court of Appeal held that even if an officer is accused of misconduct by his department, loses overtime opportunities, is transferred from SWAT and honor guard, not assigned trainees despite being a FTO, does not get to appeal  his discipline.  The Court relied on a strained interpretation of "punitive" action, chipping away at POBR rights and the well-established right to a White hearing.  The decision creates a conflict in the courts that will likely have to be resolved by the Supreme Court.

Internal affairs interviewed Officer Perez regarding a citizen complaint of excessive force during an arrest. The complainant claimed another Westminster officer had hit him in the face. Perez stated that he did not see this happen. The investigators told Perez the video and other officers’ testimony suggested Perez did see it. Perez reaffirmed he did not see the alleged excessive force.

Then, the City served Perez with a Notice of Intent to fire him. After a Skelly hearing, the Chief of Police reversed the findings based on insufficient evidence to sustain them. However, the Chief removed Perez from the SWAT team and honor guard. In addition, he refused to assign Perez and trainees in the FTO program and Perez lost significant overtime opportunities.

Perez argued the transfer from SWAT and loss of overtime opportunities was “punitive action” under POBR and that he should get to appeal. At trial, the Chief testified he removed Perez from the SWAT team because he had "lost confidence" in Perez’s honesty and ability to work cooperatively with others. He also testified Perez was removed from the honor guard because he thought there “was compelling information he had not been truthful” in the investigation. Ultimately, the Chief admitted his “lack of confidence” stemmed from the interval affairs investigation that he was unable to sustain, but denied Perez the right to appeal and have a neutral person decide. 

However, the court held that the loss of overtime and prestige did not render the transfers punitive, and that the Chief’s testimony showed the transfer was not “punitive,” but based on his lack of confidence in Perez.

This decision chips away at POBR rights long-established since White v. Sacramento.  In 1982, the California Supreme Court held that it violated POBR to transfer an officer to a lower paid position without giving them an opportunity to rebut the allegations against them.  The Court emphasized why POBR and the right to appeal are so important, noting "Erroneous action can only foster disharmony, adversely affect discipline and morale in the workplace, and, thus, ultimately impair employer-employee relations and the effectiveness of law enforcement services."  David P. Mastagni represented Dep. White.

But here, the Court of Appeal permitted a Department to discipline an officer based only on the Chief's personal hunch and without any right to appeal.  As a result, it is likely the Supreme Court will have to resolve the conflict.    

Friday, November 11, 2016

CBS13 Interview David P. Mastagni About #Calexit

On Thursday, CBS13 interviewed Mastagni Holstedt partner David P. Mastagni about growing talks about California's possible secession from the union, popularly called #Calexit.  The article noted Calexit supporters gather at the state Capital Wednesday calling for California to secede.  "There's no provision in the U.S. Constitution that allows secession, Mastagni said.  He went on to explain that secession requires a Constitutional amendment approved by two-thirds of the Senate and House of Representatives and three-quarters of the States.

“Anything a state does during a period of secession is a nullity, it means nothing unless a secession is successful,” Mastagni said.  Mastagni also says if Californians continue pushing for a secession knowing it’s unconstitutional, “the federal government would come in like they did in reconstruction era and reestablish California as a state.”  Watch the full video here.

Friday, October 14, 2016

PERB Upholds Employer Ability to Avoid Meet and Confer Obligations Over Minor And informal Policy Changes.

In SEIU Local 1021 v. County of San Joaquin, PERB found that in order to establish past practice, a party must show that both the Union and the Employer knew of an agreed to the practice. It is not enough to show that the practice went on without correction by management for several years.

In Local 1012, the SEIU alleged that the County had unilaterally eliminated a past practice of allowing District Attorney’s Office employees to have flexible schedules to help employees with childcare responsibilities. PERB noted that while employees had been permitted to come in late and make up time during lunch, management did not have any knowledge of the practice and never authorized it. A senior clerical worker (non-management) had apparently authorized the practice without expressly discussing it with management first. While management may have become aware of the practice, they never authorized it and thus it could not be considered a past practice. This allowed management to lawfully eliminate the flexible scheduling.

This case sets a troubling precedent that allows management to get away with eliminating or changing workplace policies informally implemented by managers by allowing them to claim that they never explicitly authorized it, even if they were aware of it. This creates a backdoor way for less scrupulous employers to implement unpopular policies or eliminate employee-friendly policies by doing so on an informal basis and thus, avoiding the duty to bargain over such changes.

In Montebello City Employees Assn. v. City of Montebello, PERB ruled that a union failed to prove an unfair labor practice where a unilateral change of policy changing the job duties of two employees.  PERB also clarified that the proper test for an alleged unilateral change of policy is a five element test for per se violations of the duty to bargain, not a totality of the circumstances test.

The Union brought an unfair practice charge against the city alleging that they unilaterally changed the duties of clerical assistants effectively requiring that they do additional work without a change in classification or pay. PERB found that the change was at most an isolated departure from the status quo with no generalized effect or continuing impact on the terms and conditions of employment. Additionally, the city later stripped the affected employees of the extra duties when it could not get a reclassification approved for budgetary reasons. Thus there was no continuing impact on the terms and conditions of employment except for one or two isolated cases where the employees still had increased duties.

Tuesday, October 11, 2016

Third Circuit Rules Employers Can't Claim Credits Against FLSA Violations Based on Paid Meal Periods

Employees at a DuPont manufacturing plant spent between 30 and 60 minutes each shift donning and doffing protective gear without compensation.  The Third Circuit Court of Appeals ruled the employees were entitled to overtime compensation for this work.

The employer tried to avoid its overtime liability under the FLSA by arguing that it should be allowed to offset the paid meal period it had agreed to provide its employees against the donning and doffing time.  The paid meal periods were not required under the FLSA to be treated as hours worked, but the employer had agreed to a policy treating them as such.

The court held nothing in the FLSA authorized the type of offsetting the employer claimed.  The FLSA explicitly states an employer may use certain compensation already given to an employee as a credit against its overtime liability, but the credits are limited to categories of compensation that are “extra compensation provided by a premium rate", such as daily overtime.  The court refused to allow any credit, holding that nothing in the FLSA permits employers to credit compensation that it included in calculating an employee’s regular rate of pay against its overtime liability.   Pay for the meal breaks was included in the employees’ regular rate of pay, and thus could not qualify as “extra compensation.”

This decision clarifies an important issue that arises in FLSA damage calculations wherein employers seek credits for any compensation agreements or policies that exceed FLSA minimums.  This decision confirms that employers can not claim a credit against their FLSA violations simply because they have agreed to compensate idle time, such as meal periods where employees are relieved of all duties.