In Response to Janus, Governor Brown Signs SB 866 which Bolsters Union Dues Deductions

 In the wake of the landmark decision of Janus v. AFSCME (readMastagni Law Blog Post RE: Janus v. AFSCME), Governor Brown signed SB 866 into law. The legislation was incorporated into the recently enacted state budget. The new law authorizes employee organizations to request payroll deductions and requires public employers to honor such request. Significantly, the new law requires agencies to honor the organization's dues deductions request based on the organization's certification of individual employee authorizations and to direct employee requests to cancel or change deductions for employee organizations to the employee organization, rather than to the public employer.   SB 866 applies to the vast majority of employers covered by PERB.

Specifically, the SB 866 makes several changes to the union dues deduction process including:

1.                  Employers must allow for payroll deductions for union dues;

2.                  Any request to begin dues deductions or cancel dues deductions must be made to the union, and not the employer;

3.                  The union is responsible for letting the employer know the amount of dues deductions for employees;

4.                  The employer must accept the information provided by the union on dues deductions for employees;

5.                  If a union states it has written authorization for begin deductions, it is not required to provide the employer a copy of the individual authorization unless a dispute arises about the existence or terms of the authorization;

6.                  The union must indemnify the employer for any claims made by employees as a result of the payroll deductions;

7.                  If an employer “chooses to disseminate mass communications to public employees or applicants to be public employees concerning public employees’ rights to join or support an employee organization, or to refrain from joining or supporting an employee organization, it shall meet and confer with the exclusive representative concerning the content of the mass communication;”

8.                  If the parties cannot reach agreement and the employer decides to go ahead with its proposed mass communication, it must also distribute a communication of reasonable length provided by the union.

SB 866 became effective immediately after Governor Brown signed it into law on June 27, 2018.

PERB Approves Demand for Fact Finding Over Gun Policy

In 2016, the Ventura County Professional Peace OfficersAssociation (“Association”) and the County of Ventura began negotiating a Firearm Manual. In January of 2017, an impasse was declared over negotiations regarding a specific chapter covering the conduct of armed probation officers.

In February of 2017, the Association filed a request for factfinding with the Public Employees Relations Board (“PERB”). The request was made pursuant to Section 3505.4 of the Meyers-Milias-Brown Act (“MMBA”), as well as, PERB Regulation 32802.

Ventura County objected to the factfinding request. It argued that the policy at issue in the Firearm Manual addressed the use of force by sworn staff. According to the County, matters concerning use of force are not within the scope of representation and therefore not subject to factfinding under the MMBA.  The Association responded that because the Firearm Manual involves the use of deadly force standard applicable in the discharge of a firearm, it is a matter of employee safety and therefore within the scope of representation.

PERB’s Office of the General Counsel issued an administrative determination approving the Association’s request for factfinding. It held that it was not required to determine whether a matter is within the scope of representation before approving a factfinding request. Since the Office of the General Counsel’s role is limited to determining whether the conditions of MMBA section 3505.4 and PERB Regulation 32802 have been met, it was not empowered to determine whether the dispute or difference subject to factfinding is a matter within the scope of representation. As a result, it approved the Association’s request that the parties’ bargaining dispute be submitted to a factfinding panel.

The County appealed this administrative determination.  According to the County, the Office of the General Counsel should have first assessed whether the matter submitted to the factfinding was a matter within the scope of representation.

In ruling against the County, PERB noted that although factfinding is ultimately required only for disputes over matters within the scope of representation, the Office of General Counsel is not required in every case to make a definite determination to that effect before approving a factfinding request. Such a process is unwieldy and generally inconsistent with the time-sensitive nature of the factfinding process.

According to PERB, the principal purpose of factfinding is to assist the parties in reaching a voluntary and prompt resolution to their dispute through intervention of a neutral. To require a preliminary determination as to whether a matter is within the scope of representation before approving a factfinding request “would encourage both delay and gamesmanship, thus defeating the principal purpose of factfinding.”

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.

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 Holstedt, County 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.

David E. Mastagni Spars with Senator John Moorlach During Committee Hearing on Peace Officer PERB Jurisdiction

Mastagni Holstedt partner David E. Mastagni testified before the Senate Public Employment and Retirement Committee on Monday, July 10, 2017 regarding A.B. 530.

A.B. 530 is a PORAC supported bill introduced by Assemblymember Jim Cooper (D-Elk Grove), a retired sheriff's captain, that allows peace officers to file unfair practice charges at PERB.  This important bill clarifies existing conflicts regarding peace officer jurisdiction to pursue unfair practice charges and avoid the duplicative files required under current law for mixed units and charges affecting both the union and individual peace officers.

During his testimony, Mr. Mastagni and California State Senator John Moorlach from Orange County engaged in a spirited exchange over the efficacy of the bill.

Court of Appeal: No Requirement to Meet and Confer on Citizen Sponsored Initiatives

In City of San Diego v. PERB, an appellate court said a citizen sponsored initiative to end pensions for new government employees did not require the city of San Diego (City) to meet and confer with the unions whose members would be affected.  

In November of 2010 then Mayor of San Diego Jerry Sanders announced his plan to place a citizen sponsored initiative on the June 2012 ballot.  The initiative was called the Citizens Pension Reform Iniative (CPRI).  CPRI, if passed, would amend San Diego’s city charter.  The main effect of this amendment was eliminating the pension program for specified future employees, and replacing the program with a 401(k) plan.  

Mayor Sanders, along with many prominent city employees, spent significant time and used considerable resources to gain support for the initiative.  Eventually, enough signatures were collected to place the matter on the June 2012 ballot.  Several unions demanded to meet and confer with City Council before CPRI was placed on the ballot.  If CPRI passed Mayor Sanders would have effectively ended future pensions for city employees without any discussion with union representatives. 

City Council declined to meet with the union representatives, citing a law which requires a citizen sponsored initiative to be placed on the ballot if procedural requirements were met.  Here, the requirements were met, so CPRI was placed on the ballot and passed by the voters.

Several affected unions filed an unfair labor practice charge with PERB.  The City claimed it had no discretion to keep CPRI off the ballot.  According to the City, Mayor Sanders was acting in his capacity as a private citizen.  Since this was was not a government action, they argued, there was no requirement to meet and confer.

PERB found Mayor Sanders was acting as an agent of the City.  Essentially, the City used one of its stronger political figures to create, support, and pass a citizen sponsored initiative.  By doing so the City bypassed the MMBA’s requirement to meet and confer, and ended the pension program for most of the City's future employees.  PERB found this to be a violation of the MMBA, and ordered the City to repay employees for lost compensation, including pension benefits.  The City appealed.

On appeal one of the main argument was over a 1984 case commonly referred to as Seal Beach.  Seal Beach declared, before a governing body can place a charter amendment on the ballot it must satisfy the meet-and-confer obligations under the MMBA.  The unions argued Seal Beach was applicable in the present case.  In other words, 33 years of precedent said governing bodies cannot bypass unions by placing charter amendments on the ballot which will impact the terms and conditions of employment.  The Appellate Court disagreed.

First, the decision dismissed any argument that mayor Sanders was acting as an agent of the City. Concluding CPRI was neither ratified by the City, nor an action of its agent, the court next addressed whether Seal Beach applied.  

The decision said, what took place in San Diego was different from Seal Beach.  CPRI was a citizen sponsored initiative.  In Seal Beach, the city council was using its own authority to place matters on the ballot without an initiative.  Thus, CPRI was not a proposal by a governing body.  Accordingly, there was no obligation to meet and confer.

PERB's decisions are given significant deference on appeal.  Their factual findings are considered final if there is any substantial evidence to support them.  Despite this strong presumption, the court overturned PERB's decision.

Stay tuned as the unions are likely to seek review in the Supreme Court of California.

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.

Union Violated Duty of Fair Representation by Not Providing Notice and Opportunity for Members to Voice Concerns

The Public Employment Relations Board recently clarified that a union violates its duty of fair representation of its members when it fails to give at least some notice and opportunity for members to voice their concerns about an agreement under negotiation.

The United Teachers of Los Angeles ("UTLA") is the exclusive representative for L.A. Unified School District’s ("LAUSD") certificated employees, including around 4,000 “career” substitute teachers. In mid-2009 LAUSD laid off 1,800 teachers. Shortly after that the UTLA President signed a side letter with LAUSD giving priority for substitute assignments to laid off probationary substitute teachers. This changed the priority rule from one based on seniority. However, the President did not consult with UTLA representatives for substitute teachers nor request input from UTLA members.

When UTLA substitute teachers discovered this months later, one of them (Mr. Kennon Raines) filed an individual unfair practice charge against UTLA. Along with 149 other UTLA substitute teachers, he alleged that UTLA had violated its duty of fair representation.

PERB first ruled in Raines v. UTLA (2016) that UTLA did not violate the duty of fair representation by agreeing to the substantive terms of the side letter. PERB held that the terms were reasonable, even though they were not favorable toward career substitute teachers.

However, PERB also ruled that UTLA violated the duty of fair representation by failing to give notice to its members about the side letter. A violation of this duty involves conduct by the union that is arbitrary, discriminatory, or in bad faith. Here, although side letters do not require a ratification vote, the duty of fair representation "implies some consideration of the views of various groups of employees and some access for communication of those views." Because the UTLA President failed to provide any notice or opportunity for UTLA members to voice their concerns, he violated the duty of fair representation.

When negotiating an agreement that will substantially affect the terms and conditions of employment, a union should always provide at least some notice and opportunity for its members to voice their concerns. Union members must be given the opportunity to voice their concerns even about agreements that do not require a ratification vote.

Appellate Court: Pulbic Agencies Cannot Avoid MMBA Fact-Finding Over Individual Bargaining Disputes

In a closely watched opinion, the Fourth District Court of Appeal held the provisions in the Meyers-Milias-Brown Act (MMBA) for impasse resolution through advisory fact-finding apply to impasses arising during the negotiation of any bargainable matter, and are not limited to impasses arising during the negotiation of a comprehensive memorandum of understanding (MOU).  Overturning the trial court, San Diego Housing Commission v. Public Employment Relations Board held the fact-finding provisions apply to impasses arising during the negotiation of any bargainable matter.  The court stated its holding is consistent with the parties’ obligation to bargain on any bargainable issue, and prepare an MOU to reflect that agreement.


The Court decisively ruled in favor of PERB, which had issued its own precedential decision effectuating this broad application of the fact-finding procedures.  The opinion sends an important message to local agencies seeking to avoid the fact-finding obligations by holding back proposals from negotiations only to submit them after an MOU has been ratified.  A common tactic of agencies seeking to impose controversial policies that may drive contract negotiations to impasse, such as subcontracting unit work, has been to present the proposal while the parties are in contract, attend a few perfunctory meet and confer sessions, and then immediately impose the policy without fact-finding.  


This opinion will provide strong incentive for agencies to bring all their proposals to the table to be resolved in the give and take of negotiations and discourage efforts at piecemeal imposition.  The employer's contention that fact-finding should be limited to just MOU negotiations and not discrete bargainable issues conflicts with the purpose of the MMBA, which is to promote full communication between the agencies and unions through a reasonable method of dispute resolution.

In a companion case, Co. of Riverside v. Public Employment Relations Bd., the Appellate Court adopted the same holding.  In Riverside, the court also dispatched the agency's contention that the entire fact-finding statute is unconstitutional.  Unfortunately, some public agencies reflexively challenge any modification in their bargaining obligation as a purported violation of their authority to set compensation under the home rule of California Constitution. For example, the Fire Fighters Procedural Bill of Rights was unsuccessfully challenged as violating the home rule. The court dismissed this argument stating "fact-finding provisions do not violate this section of the California Constitution because the provisions do not divest a county or a city of its final decisionmaking authority."  

Fair Share Fees Safe After 4-4 Decision in Friedrichs v. CTA

In a brief, one-sentence ruling, the United States Supreme Court upheld fair share fees in California.  In Friedrichs v. California Teachers Association, a teacher who benefited from the contract CTA negotiated, asserted a right to "free ride" and pay nothing to the union.  But courts have long decided all employees who benefit from a union contract have to pay a fair share, even if they opt out of union membership.  In California, PERB has detailed regulations for how public sector unions determine and charge these fair share fees.

The Court's ruling stated, "The judgment is affirmed by an equally divided Court."  Initially, many expected the Court to rule against labor in a 5-4 decision, but the death of Justice Scalia resulted in a 4-4 tie among the justices.  The ruling means the decision by the Ninth Circuit Court of Appeals stands and unions may continue to charge fair share fees.

PERB Invalidiates San Diego’s Attempt to Bypass Bargaining Over Pensions by Voter Initiative

On December 29, 2015, the Public Employment Relations Board (PERB)ruled in City of SanDiego (2015) PERB Decision No. 2464-M, that the City violated the Meyers-Milias-Brown Act by slashing its plans through ballot initiative rather than bargaining. The three-member Board panel was unanimous in its decision, and ordered the City pay back employees for lost benefits plus interest. The City Attorney has already announced his intent to appeal the decision to the courts, since the value of the benefits the City stripped from its employees is likely in the hundreds of millions.

In 2010, then-Mayor Jerry Sanders began campaigning to “reform” employee pensions. This included a proposal to get rid of City employee pensions and replace them with much cheaper 401(k)-style benefits. In 2011, Sanders and his political allies created the Comprehensive Pension Reform Initiative, later known to City voters as Prop B. Though the Mayor is the Chief Executive of the City—and therefore the chief negotiator for the City in bargaining with employee unions—Sanders did not present his plan as a bargaining proposal to unions, and refused to negotiate when asked. 

The MMBA requires local agencies to meet and confer in good faith with employee organizations over wages, hours, and other terms and conditions of employment. Retirement benefits are unquestionably part of that duty to bargain. Under Seal Beach, public entities have long been required to satisfy bargaining obligations prior to seeking charter changes to employee compensation.  The courts and PERB recognized that if employers could bypass bargaining through legislative or voter enactments, the MMBA could be easily circumvented.  Thus, public entities must bargain over charter changes they wish to submit to a public vote if they impact compensation.

The City attempted to avoid its legal requirements under Seal Beach by miscasting the Mayor's Prop B as the action of private citizens, not public officials, and therefore argued it did not have to bargain with the unions. Sanders himself claimed during the campaign and in the PERB hearing that he was acting as a private citizen, not as the Mayor. PERB saw through the ruse, due to overwhelming testimony proving that Sanders worked on the proposal extensively in his capacity as Mayor, included his staff in the process, and made the Council aware of his intent. This was just a scheme to get around the City’s duty to bargain.

Though the fight isn’t quite over, PERB's ruling vindicates the long standing holding of Seal Beach and represents an important win for public sector collective bargaining rights in California.  PERB’s decision will likely next be heard by the Fourth District Court of Appeal.

Supreme Court to Decide Challenge to CTA's Fair Share Fees

On June 30, 2015, the United States Supreme Court agreed to hear a constitutional challenge to the California Teachers Association's ability to collect fair share fees from non-members who benefit from CTA contracts.

Fair share fees, also called agency fees, are fees paid by employees who benefit from a union contract, but opt out of full membership.  Many unions, particularly in public safety, have voluntary membership rates above 99%.  But other unions have lower voluntary member rates for a variety of reasons and rely on fair share fees to finance contract negotiations and other core union activities.

Courts have long considered fair share fees constitutional in the public sector since the Supreme Court's 1977 decision Abood v. Detroit Bd. Of Ed., 431 U.S.209, 232.  But courts require unions who collect them to divide their core labor activities from other other activities and assess a fair share fee that only covers the cost of core activities.  In California, these rules are part of PERB's regulations. They require unions to give non-members written notice about agency fees and, depending on their size, prepare audited financial statements.  In this way, the courts balance the rights of non-members with the needs of the unions that provide critical services.

But the Supreme Court indicated recently it may change that balance and let non-members free ride on union benefits.  Last year, in Harris v. Quinn, the Supreme Court held the First Amendment prohibited fair share fees from some types of organized workers.  In the opinion, the Court disparaged fair share fees and invited another challenge.  But that case involved home health care workers who did not have a traditional union-member relationship and did not apply to other types of employees.  Now, the Court will hear a direct challenge to fair share fee requirements under California's regulatory scheme in its October term.

PERB Clarifies Jurisdiction Over "Mixed Unit" Associations with Peace Officer and Non-Peace Officer Members

In County of Santa Clara (2015) PERB Decision 2431-M, the Public Employment Relations Board  found PERB has jurisdiction over charges brought by labor associations representing mixed units.

This case involved the Santa Clara County Correctional Peace Officers Association, which represents one bargaining unit, the Correctional Employees Unit.  That unit is composed of peace officers under Penal Code section 830.1(c) and non-peace officer correctional officers.  This type of unit is sometimes called a "mixed unit."

There has been a dispute about whether PERB has jurisdiction over charges brought by or against labor associations representing peace officers, but also other employee classifications. The reason there is a dispute is that Government Code section 3511, part of the MMBA, exempts "persons who are peace officers" from the 2001 changes to the MMBA that gave PERB jurisdiction over the Act. Some parties claimed this meant PERB does not have jurisdiction over claims brought by labor associations representing mixed units, since those units contain peace officers.  The Board heard oral argument on this issue two years ago, but that case settled before the Board issued a decision.

Since this case also involved a mixed unit, the Board clarified its jurisdiction over these units.  The Board wrote "we make explicit PERB's authority to hear charges, such as the present one, that are brought by employee organizations, including employee organizations representing or seeking to represent units including persons who are peace officers."

The Board explained, "MMBA section 3511 precludes jurisdiction only with respect to charges brought by peace officers, not employee organizations."  The Board found support for this distinction in the MMBA's own definition of person which refers to a natural person, distinguishing it from an entity, such as a labor association.  Likewise, the Board noted the Legislature gave it jurisdiction over factfinding requests without a restriction on mixed units.

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

PERB Tackles Vested Rights Issues in Finding Unions Refused to Bargain Over Employee Pension Contributions

On June 3, 2015 in County of San Luis Obispo (2015) PERB Decision No. 2427-M, PERB held two unions unlawfully refused to bargain over employee pension contributions. In reaching this decision, PERB ruled San Luis Obispo's independent retirement system did not provide employees with vested rights for employee contributions. This case demonstrates PERB's willingness to decide vested rights issues, potentially providing labor organizations with an alternative forum to litigate such issues.

The County of San Luis Obispo maintains the San Luis Obispo Pension Trust ("Trust") as its own independent retirement system. The County requested to bargain with two unions over a proposed increase in employee contributions to the retirement system. The unions argued, among other things, that the employee contributions constituted vested contractual rights and the unions could not lawfully bargain over such vested rights. During this time, the unions were litigating cases in superior court over similar issues. If the unions agreed to bargain over employee contribution rates, they risked weakening their position in the pending superior court litigation.

The outcome of the case hinged on whether the Trust provided vested rights regarding certain employee contribution rates. If PERB determined the pension benefits were vested at the current employee contribution rates, the unions would have been within their rights to refuse to bargain over proposed increased contributions for the same fixed level of pension benefit. However, PERB held the current employee contribution rates were not vested and immutable under the Trust's governing documents. PERB determined the Trust's language did not show a clear intent to create vested rights in particular contribution rates or benefits. Since the employee contributions were negotiable, PERB ruled the unions unlawfully refused to bargain over the County's proposed changes to the contribution rates.

This case demonstrates PERB's willingness to decide vested rights issues in determining whether a refusal to negotiate pension benefits constitutes an unfair labor practice. Although the County prevailed under the circumstances in County of San Luis Obispo, this case could benefit labor organizations in the future by providing an administrative forum with labor expertise to determine vested rights issues. This decision also shows the danger for labor organizations and employers to refuse to negotiate over proposals where bargaining obligations are unclear.

PERB Greatly Expands Representation Rights to Include Interactive Process Meetings

The Americans with Disabilities Act requires an employer to accommodate an employee’s disability. The employer must meet with an employee and discuss reasonable accommodations. Does an employee get a representative at these meetings? The Public Employment Relations Board answered this question with a resounding “yes” in Sonoma County Superior Court (2015) PERB Decision No. 2409-C.

In the case, a trial court employee was diagnosed with a serious illness. She requested a meeting with her employer to discuss reasonable accommodations. She wanted a union representative during the meetings. The employer said no. The union filed an unfair practice charge.

PERB held an employee has a right to representation during an interactive process meeting. An employee may have a representative present in two contexts. First, an employee has a right to a representative during a discipline proceeding. Second, the employee has a right to a representative when engaging in labor activities. This includes activities like filing a grievance or bargaining.

PERB decided an ADA meeting is like a grievance. The meeting is a negotiation on the appropriate accommodation. This directly concerns working conditions. This is the perfect scenario for a labor representative. The representative has unique knowledge of the labor relationship. The representative can use this knowledge to negotiate with the employer. Thus, the employee must be allowed a representative during an interactive meeting.

Employees are often stressed and concerned when engaging in the interactive process. Employers can take advantage of this stress and exploit the employee. A representative can protect the employee and level the playing field during these negotiations. 

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.

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.

PERB Vindicates Right of Public Safety Professionals to Wear Union Insignia on Duty

In a decisive win for labor, the Public Employment Relations Board (PERB) overturned an administrative law judge and held firefighters at Sacramento’s airports have the right to wear Sacramento Area Fire Fighters, IAFF Local 522 union logos on duty.

The case has statewide importance for two reasons. First, the ruling means public safety professionals, such as firefighters and peace officers who were a uniform, still have the right to wear union insignia 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.

In County of Sacramento (2014) PERB Decision No. 2393-M, firefighters wanted to wear union logos on the Class B uniform t-shirts, caps, and sweatshirts. Local 522 provides the apparel at cost to firefighters it represents throughout the Sacramento area. The Local 522 apparel conforms to uniform specifications and includes the union logo.

For a time, firefighters were allowed to wear the union logo apparel occasionally. In October, firefighters wore pink versions of their union logo apparel to support breast cancer awareness. There were no operational problems or complaints. Then, the County ordered the firefighters not to wear “hats, T-shirts and sweatshirts with the union logo” and announced it would discipline any firefighter who wore the union logo.

Local 522 filed an unfair practice charge with PERB, alleging the prohibition against wearing the Local 522 logo interfered with their rights under the Meyers-Milias-Brown Act, one of California’s public sector collective bargaining statutes. Local 522 members expressed their strong desire to support and show solidarity with their union which they had worked hard to join by wearing union apparel on duty.

The County claimed the firefighters did not have the right to wear union insignia on their Class B uniform. It claimed that since the firefighters wore public safety uniforms, the County had the right to ban union insignia since they were not part of the uniform. The County also claimed union members only have a right to wear small union pins, not other kinds of union apparel.

PERB rejected the County’s arguments and upheld the right of Local 522 members to wear the union logo. PERB held the “fundamental right to wear union insignia at work” applies equally to employees who wear public safety uniforms. PERB rejected the notion that a union member’s right to wear union insignia is limited to wearing pins, noting, “The County offers no logical argument why a protected right to wear union insignia transforms into an unprotected right because the insignia appears on clothing rather than an object that is attached to clothing.”

Thus, PERB held the County had to demonstrate there was a special circumstance justifying the restriction on wearing the union logo. The County provided no evidence of a special circumstance and the evidence showed several other agencies permit firefighters to wear union insignia at work without incident. Thus, PERB decided the County violated Local 522 members’ rights and ordered it to cease and desist and post notice of its violation of state law.

Local 522 was represented in the matter by Jeffrey R. A. Edwards, a senior associate at Mastagni Holstedt, APC.

PERB Rules City of Palo Alto Failed to Meet and Consult Over Impasse Procedure Modification

On August 6, 2014, PERB issued a decision in City of Palo Alto. This ruling is significant for public employees for two reasons. First, the decision confirms that meet and consult obligations under Government Code section 3507 the same as the meet and confer obligations under section 3505. Second, this holding expands the meet and confer obligations to impasse rules and procedures.

In mid-July 2010, the City of Palo Alto proposed to repeal interest arbitration procedures in the City Charter for police and firefighter employees. The City planned to place the measure on the ballot for voters. International Association of FireFighters, Local 1319, AFL-CIO representatives demanded to meet and confer with the City about the rule modifications. The City refused to meet with Local 1319. The City claimed interest arbitration was a permissive, not a mandatory, subject of bargaining and the meet and confer obligations did not apply. Instead, the City offered to address Local 1319 representatives' concerns during the public comment periods at its regular public meetings. After holding public meetings, the City approved the measure to repeal interest arbitration from negotiation procedures.

PERB held the City failed to meet and consult in good faith under section 3507 by refusing to meet with Local 1319. PERB held the duty to consult under section 3507 is the same as the meet and confer duties under section 3505. Section 3507 requires public agencies to provide reasonable written notice to each employee organization affected by the proposed agency rule or modification, and afford each organization a reasonable opportunity to meet and discuss the rule before adoption. The parties must meet and confer for a reasonable period of time and attempt to reach an agreement. While the Supreme Court, PERB, and California courts do not require employers to meet and confer regarding impasse procedures under section 3505, employers must meet and consult on these subjects under section 3507.

PERB: "Economic Exigency" Not Enough to Declare Impasse

In Selma Firefighters Association, IAFF, Local 3716 v. City of Selma, the Public Employment Relations Board ("PERB") took a hard line against employers’ citing economic exigency to declare impasse.

The City of Selma engaged in MOU negotiations with Selma Firefighters’ Association. During the bargaining process, the City abruptly ended negotiations and declared impasse. The City imposed it’s last, best, and final offer to the Selma Firefighters’ Association, claiming economic exigencies and a budget deadline warranted the impasse.

The City argued this budgeting deadline was relevant because the MOU must be agreed to prior to the next year’s budget being adopted. PERB found against the City. The Board held economic exigency did not warrant the City of Selma to declare impasse and impose its last, best, and final offer. In fact, the Board explained “it has long been noted that such economic exigency provides no justification for suspending the duty to bargain in good faith.” The Board also held an impending budget deadline did not justify the bargaining impasse. The Board ruled collective bargaining has no necessary linkage with the budgetary process.

This decision strengthens employee groups' bargaining position. The case creates a clear precedent that arguments like those utilized by the City of Selma are improper. Employers attempting to justify unilateral action based on claimed “fiscal emergencies” are not operating under an exception to their bargaining obligation. Additionally, an agreement does not need to be reached before a City’s final budget is adopted for the upcoming year.