Monday, February 16, 2015

PERB: Blanket Restrictions on Communications Interfere with Protected Rights

The Public Employment Relations Board's recent decision in Los Angeles Community College District (2014) PERB Decision No. 2404 held blanket restrictions on communications may interfere with employees' right to engage in concerted activity. This long awaited decision brings PERB alongside National Labor Relations Board precedent holding "blanket" instructions to employees to maintain confidentiality during a workplace investigation may interfere with protected activities if they are overbroad and the employer lacks a proper business justification.

In Los Angeles Community College District, a professor disagreed with the District reducing his work hours and salary. He made statements to students and handed out materials criticizing District administration. The District placed the professor on administrative leave pending a fitness for duty evaluation and issued the following admonishment: "You are hereby directed not to contact any members of the faculty, staff, or students."

PERB ruled the directive interfered with the professor's protected activities. PERB found the District's directive was overbroad and contained no qualifiers limiting its scope. Although the directive did not explicitly restrict protected rights, PERB found "the directive not to contact faculty, staff or students would reasonably be construed to prohibit the employee from participating in a variety of protected activities including discussing working conditions with his coworkers or union, or initiating a grievance." In addition, the District lacked a business justification for the directive.

This case law may have practical application to public safety professionals subject to personnel investigations because many agencies issue admonish them from communicating with coworkers during the investigation. Employee organizations should insist that internal affairs confidentiality directives are narrowly tailored, for example, limited to witnesses who have not been interviewed. Overbroad gag orders will likely give rise to an unfair labor practice.

Monday, February 9, 2015

California Court of Appeal Strikes Blow to Employee Pension Rights

On January 22, 2015 the California Court of Appeal changed how the Legislature can change pension benefits under a contract.  The Legislature may change current contractual pension benefit formulas for new employees. But, the Legislature may not alter pension contribution requirements under a current contract.


In DeputySheriff’s Association of San Diego County v. County of San Diego the County and Deputy Sherriff's Association had a memorandum of understanding. The contract contained provisions related to pension benefits. The contract's pension formula for members was 3 percent at 55. The contract also required the employer to pay a percentage of the employee’s pension contribution.

The California Public Employees’ Pension Reform Act of 2013 went into effect on January 1, 2013. The Act required that new safety members receive less than 3 percent at 55. PEPRA also limits employer contributions. Employers may not cover an employee's required contributions. The DSA argued PEPRA unconstitutionally impaired the contract terms. If a contract is in place then the Legislature cannot alter it until it expires. 

The Court of Appeal did not agree with the DSA.  The Court said a benefit vests when the employee begins working under the terms of the contract. Future employees cannot claim a vested benefit until they begin working. Thus, the Legislature could alter the pension benefits for new members.

The Court of Appeal also found an impairment of the contributions under the contract. PEPRA's contributions provisions cannot conflict with current contract terms. PEPRA as applied here would change the terms of the agreement.  Therefore, PEPRA would not apply until the agreement expired on June 26, 2014.

Thursday, February 5, 2015

Supreme Court Addresses Private Sector Vested Rights

On Monday the Supreme Court struck a blow to vested health-care benefit rights under collective-bargaining agreements in the private sector. Previously, courts assumed health-care benefits in a collective-bargaining agreement vested for life absent language to the contrary. This case changes that presumption. Now, health care benefits will not vest for life unless clearly stated in the collective-bargaining agreement. 

The issue in M&G Polymers USA, LLC v. Tackett is how health-care benefits vest under a collective-bargaining agreement. The Court of Appeals for the Sixth Circuit said health-care benefits are vested unless the collective-bargaining agreement say they are not. This presumption protects the vested benefit right.


The Supreme Court reversed that presumption. The Court said the presumption had no basis in contract law. Thus, when a contract is silent as to the duration of benefits, a court may not infer that the parties intended for those benefits to vest for life. The Court did not reinterpret the contract.  Instead, it asked the Sixth Circuit to review the case under “ordinary principals of contract law.”
This opinion does not reflect California law in the public sector. Article 1, Section 9 of the California Constitution prohibits the legislature from passing a law which impairs the obligation of contracts. The California Supreme Court has clearly stated that once a public employee accepts employment and works for an employer, the employee’s rights are protected by the Contract Clause. (White v. Davis (2003) 30 Cal.4th 528, 566.) Among these protected rights are vested pension rights. (Betts v. Board of Administration of Public Employees’ Retirement System, (1978) 21 Cal.3d 859, 863.)

Additionally, this ruling does not change the presumption in California that a public employee’s right to health benefits may be based on the implied terms of a collective bargaining agreement. (Retired Employees Association of Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171.) However, an implied right to health-care benefits will only be inferred if there is a clear basis in the contract or convincing extrinsic evidence supporting the vested right.

Tuesday, January 27, 2015

Assemblymember Jim Cooper Stands Up For Law Enforcement

California Assemblymember Jim Cooper is standing up for law enforcement statewide.  Cooper, a retired Sacramento Sheriff's Department Captain, has taken the lead educating his colleagues in the Legislature about officer-involved shootings, how law enforcement departments respond to and investigate critical incidents, limits of body cameras, how much training is already required of law enforcement, and the role of socio-economic issues law enforcement did not create and cannot solve alone.  Cooper's stand comes as another assemblymember has introduced a bill requiring the Department of Justice to review every officer-involved shooting in California.

Friday, January 9, 2015

Mastagni Holstedt Attorney Jeff Edwards, Local 522 District Director Steve Loza Interviewed About Union Logo Win

On January 6, 2015, the Labor Relations Information System posted a podcast interview about the Sacramento Area Fire Fighters, IAFF Local 522's win in County of Sacramento (2014) PERB Decision No. 2393-M.  LRIS attorney Will Aitchison interviewed Mastagni Holstedt attorney Jeff Edwards and Local 522 District Director Steve Loza about the case.  

County of Sacramento vindicates the right of public safety professionals to wear union insignia on duty.  First, the ruling means public safety professionals, such as firefighters and peace officers who were a uniform, have the right to wear union insignia on their uniform on duty. Second, firmly established that the right to wear union insignia cannot be limited to pins, but includes other apparel such as T-shirts, caps, and clothing.

Friday, December 19, 2014

NLRB: Employees May Use Employer Email on Nonworking Time

On December 11, 2014, the National Labor Relations Board issued a greatly anticipated decision in Purple Communications , Inc. v. Communications Workers of America, AFL-CIO. The Board held employees may use employer email systems for statutorily protected communications on nonworking time, unless the employer shows a business justification for prohibiting it. In reaching this decision, the Board overruled prior case law to respond to technological changes in society.

The Board overruled its 2007 decision in Register Guard, finding it "was clearly incorrect." Register Guard held an employer may completely prohibit employees from using the employer's email system for concerted activities protected under Section 7 of the National Labor Relations Act. Register Guard allowed employers to completely ban employees from using the employers email system for these purposes without demonstrating any business justification, so long as the ban was not applied discriminatorily.

Purple Communications overruled Register Guard, finding it undervalued employees' core Section 7 right to communicate in the workplace about their terms and conditions of employment, and granted too much weight to employers' property right. The Board noted statistics showing email has become the most pervasive form of communication in the business world. The Board also discussed the Supreme Court's decision in City of Ontario, California v. Quon, which found some personal use of employer email is common and usually accepted by employers.

The Board stressed its holding in Purple Communications is "carefully limited." The holding only applies to employees who have already been granted access to the employer's email system and does not require employers to provide such access. Also, an employer may justify a total ban on nonwork use of email by showing the ban is necessary to maintain production or discipline.  Employers may also impose uniform and consistent controls over its email system to the extent necessary to maintain production and discipline. The holding is limited to email access, and does not extend to other forms of electronic communication. Although a small step, this decision shows the Board's willingness to adapt to ever-increasing technological changes.

This decision is about access to employers' email systems, not confidentiality of those emails.  It is possible some employers will read emails sent through their email systems and labor leaders should use caution about what they send on an employers' email system.

Wednesday, December 17, 2014

Court of Appeal Denies Administrative Appeal for Officers' Involuntary Transfers

On December 9, 2014, the California Court of Appeal held the Public Safety Officers' Procedural Bill of Rights Act ("POBR") does not afford officers the right to an administrative appeal of a transfer of assignment solely because the transfer may lead to negative employment consequences. In Los Angeles Police Protective League v. City of Los Angeles, the Court of Appeal denied two peace officers an administrative appeal for their involuntary transfers of assignments.

In City of Los Angeles, two officers were involuntarily transferred to different assignments. The City based one transfer on the officer's negative performance in the areas of counseling, communication, and management skills toward subordinate employees. The City transferred another officer because a discipline investigation supposedly damaged the officer's relationships with his coworkers. The City claimed his transfer provided an opportunity for a "fresh start with new coworkers."

POBR affords officers an opportunity for administrative appeal of "transfers for purposes of punishment." The officers alleged their transfers were punitive. As evidence, one officer asserted that the transfer would not allow her to work as many overtime hours and she would lose her department-issued take-home vehicle. The other officer showed he was placed on restrictive duty status, which prohibited him from carrying a gun, and the transfer damaged his reputation. Both officers asserted the transfers would adversely affect their opportunities for promotion in the department.

The court held the transfers were not punitive and the officers were not entitled to an administrative appeal. The court held the loss of possible overtime did not result in a "reduction of salary" because the officers were not entitled to particular amount of overtime and it varied depending on departmental needs. The court also found officers were not entitled to take-home vehicles, and it did not result in any reduction of salary. In addition, the City presented evidence that involuntary transfers would not hurt the officers' chances of promotion. This is an unfortunate case for peace officer's appeal rights.