Wednesday, November 15, 2017

PERB: Sheriff's Department Violated Correctional POA's Rights

In a recent decision, the Public Employment Relations Board found the County of Santa Clara violated the MMBA when it banned the union president from trading shifts with other employees.  Like many employers in public safety, the Santa Clara County Sheriff's Department allows employees to trade shifts to get special days off.  The Santa Clara County Correctional Peace Officers Association president made use of the day trades in part to connect with members working different shifts.  Then, the Department banned the union president from doing so ostensibly because he did not repay a day.  But the Department's reasoning fell apart under scrutiny and the Board held the Department's conduct constituted unlawful interference. 

The Board also disapproved of prior decisions that said interference with a union's rights did not necessarily follow from discrimination against a labor leader.  The Board found prior cases, including, Novato Unified School District, are "contrary to the overwhelming weight of PERB case law on this issue."  Therefore, the Board found the Department's retaliatory conduct also violated the union's rights.

Mastagni Holstedt Senior Associate Jeffrey R. A. Edwards represented the Santa Clara County Correctional Peace Officers Association in the matter.

Thursday, November 9, 2017

New Bill Expected to Provide Peace Officers with Increased Coverage for Injuries

The tragic mass shooting in Las Vegas has affected lives across the country.  This includes over 200 California peace officers who were attending the concert.  Recently, four Orange County deputies filed workers’ comp claims after suffering injuries during the shooting.  According to Orange County officials, peace officers are entitled to benefits if injured while protecting life or property, regardless of whether on or off duty.  However, the benefits require the injury to have occurred while in the State of California.  Orange County denied the deputies’ claims because the injuries occurred in Nevada.

Tom Daley (D-Anaheim) and the Orange County deputies believe Orange County officials are not applying the law correctly, and argue the claims should be covered.  In order to prevent any further denials of claims, Assemblyman Daley is preparing legislation that would erase any ambiguity in the law.  His bill will guarantee coverage to police officers injured while protecting life or property, regardless of where the injury occurred. 

The bill is expected to be introduced in early 2018.  If the bill is successful police officers would receive the benefits of workers’ comp for injuries from engaging in the apprehension of law violators, protecting life or property, or preserving the peace.  Whether the injury occurred outside the State of California will no longer be cause to deny a claim.

Friday, November 3, 2017

Decision Limits Who May Represent Subject Officers During IAs

A recent decision limited a peace officer’s ability to challenge a department’s internal affairs process.  In Barcelona v. California Department of Justice, the court held an employee could not sue his department without showing they were harmed.  Additionally, the court held it was permissible for a department to prevent a witness from being the subject officer’s representative during the interview.

Alan Barcelona was employed by DOJ.  A citizen complaint led to an internal affairs investigation (IA) being opened.  The first person interviewed was the citizen.  During the interview the citizen told investigators that another person, Kasey Clark, witnessed the alleged misconduct.  Mr. Clark was subsequently interviewed as a witness.  Following Mr. Clark’s interview, Mr. Barcelona continued to desire Mr. Clark as his representative.

DOJ did not let Mr. Clark serve as Mr. Barcelona’s representative.  DOJ cited its notice, which said Mr. Barcelona could have any representative not involved in the investigation.  Mr. Barcelona went forward with the interview using a different representative.  Eventually the IA was completed without Mr. Barcelona being disciplined. 

Mr. Barcelona brought a lawsuit challenging DOJ’s policy.  The lawsuit alleged two separate violations.  First, the policy violated Mr. Barcelona’s First Amendment Rights by denying free association.  Second, the policy violated the Public Safety Officers Procedural Bill of Rights (POBR). Mr. Barcelona claimed POBR gave him the right to use Mr. Clark as his representative in the IA.

The court struck down Mr. Barcelona’s First Amendment claim.  According to the court, Mr. Barcelona failed to show an actual or imminent injury to a legally protected interest.  This was because Mr. Barcelona was not disciplined.  Had discipline occurred, he would have standing to challenge DOJ’s policy.  However, without standing the court would not look at the issue.

The court also denied Mr. Barcelona’s POBR claim.  POBR grants officers the right to have a legal representative during an IA, so long as the representative is not subject to the same investigation.  Mr. Barcelona argued that witnesses in an IA were not “subject to the same investigation.”  However, the court disagreed.  Persons “subject to the same investigation" include witnesses.  DOJ’s policy, preventing witnesses from serving as representatives, was allowed to continue.

Tuesday, October 24, 2017

Governor Brown Vetoes PORAC Endorsed Bill Allowing Peace Officers to File Unfair Practices with PERB

On October 14, 2017, the Governor vetoed A.B. 530, a Bill introduced by Jim Cooper to provide Penal Code 830.1 peace officers access to PERB.  Mastagni Holstedt assisted in the drafting of this PORAC supported this Bill and both David E. Mastagni and Kathleen Storm testified in favor of the Bill extending PERB's jurisdiction to all peace officers while preserving their ability to seek injunctive relief in court.

PERB possesses expertise in enforcing the MMBA and affords other local public employees access to a cost-effective administrative process to  enforce their bargaining and representational rights.  In light of the prohibition against peace officers engaging in certain job actions in response to unfair practices, A.B. 530 also authorized all peace officers to "seek injunctive relief or a writ of mandamus to preserve the status quo or prevent irreparable harm pending a final determination by the board on any issue upon which a court has not made a ruling."  Currently, non-830.1 peace officer unions may obtain similar injunctive relief, but only if PERB agrees to bring such an action.

Unfortunately, the Governor denied 830.1 peace officers access to PERB by vetoing the Bill.  He explained his veto as follows: "I am returning Assembly Bill 530 without my signature. This bill authorizes peace officers to bring unfair practice charges to the Public Employment Relations Board while preserving their existing right to directly petition a superior court for injunctive relief. No other group has both of these rights and I’m unconvinced that providing such a unique procedure is warranted."

Thursday, September 28, 2017

U.S. Supreme Court Grants Review Over Mandatory Public Sector Union Fees

The U.S. Supreme Court will again take up the question of whether making public sector workers pay fees to unions violates their First Amendment rights. Since 1977, the Supreme Court has upheld "union shops" where non-members may be assessed agency fees to recover the costs of "collective bargaining, contract administration, and grievance adjustment purposes" while allowing objectors to union membership to prevent having their dues used for political purposes. (see, Abood v Detroit Board of Education.)

Abood was challenged recently in Friedrichs v California Teachers Association, but last year he Supreme Court split 4-4.  The case that could overturn Abood is called Janus v AFSCME and comes out of the 7th Circuit.

Friday, September 8, 2017

Mastagni Holstedt Partner Kathleen Mastagni Storm Selected Among "Best of the Bar"

Mastagni Holstedt partner Kathleen Mastagni Storm was selected among the Best of the Bar by the Sacramento Business Journal.  She manages the Labor Department at the firm.  She has been honored by Top Lawyers and was selected to Super Lawyers Rising Stars.  She was previously profiled by the Journal in 2015.                                                                                                                                                                                                 Kathleen's practice focuses on public and private union organizing, unfair practice litigation before the National Labor Relations Board and Public Employment Relations Board, collective bargaining and contract enforcement. Kathleen’s practice also includes litigation in California and federal courts.
Kathleen represents clients in officer-involved shootings, disciplinary matters and discrimination cases. Kathleen lectures on the Firefighters’ Procedural Bill of Rights Act, Public Safety Officers Procedural Bill of Rights Act, unfair labor practices and fact-finding. 

Tuesday, September 5, 2017

PERB Again Upholds Its Jurisdiction to Hear Unfair Labor Practices Charges Brought by 830.1 Peace Officers Unions

In Association of Orange County Deputy Sheriffs v. County of Orange (July 19, 2017) PERB Case No. LA-CE-1101-M, PERB's Chief ALJ Shawn P. Cloughesy confirmed that police officer and deputy sheriff associations representing members who are Penal Code Section 830.1 peace officers have jurisdiction before PERB.  Orange County argued that PERB lacks jurisdiction over AOCDS because the bargaining units represented by the Association includes Deputy Sheriff I and II, Investigator, Investigator I, Sergeant, District Attorney Investigator, Investigator-Polygraph Operator, and Supervising Attorney's Investigator and Sergeant, who are classified as peace officers under Penal Code section 830.1.  MMBA section 3511 excludes “persons who are peace officers” from PERB's jurisdiction.

Relying on a case won by Mastagni HolstedtCounty of Santa Clara (2015) PERB Decision No. 2431-M, PERB upheld its authority to hear charges “that are brought by employee organizations, including employee organizations representing or seeking to represent units including persons who are peace officers.” PERB specified that its authority applies to both adjudicating and remedying unfair practices in those cases.  PERB exercised jurisdiction over two AOCDS units, one comprised exclusively of peace officers, the other containing both peace officer and non-peace officer positions. Thus, the exemption under Section 3511 only excludes from PERB individual MMBA actions brought by persons who are 830.1 peace officers. As a result, an unlawful interference or retaliation against an officer of a peace officer union could result in duplicative litigation with the individual officers' action being brought before superior court and the union's action being adjudicated by PERB. Pending legislation in A.B. 530 would bring all unfair practices involving 830.1 peace officers and their unions before PERB while preserving the ability to seek injunction relief.