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.

Ninth Circuit: Reporting Safety Concerns to Supervisor May Not Be Protected by First Amendment

In Hagen v. City of Eugene (9th Cir. 12-35492 12/3/13), the Court of Appeals held when an employee makes statements within the chain of command, regarding an issue of employment, and has a duty to make those statements, they do not first amendment protections.

Officer Hagen was a K-9 Officer who worked on the SWAT team. Over ten years, the SWAT team had 4 accidental discharges, two of which injured a fellow officer. Ofc. Hagen brought up his concerns about safety several times to his supervisor, Sgt. Eichorn, but no one told him of any proposed remedies. When Ofc. Hagen continued to press the issue, Sgt. Eichorn became irritated and annoyed. Then, the Department suspended the K-9 team two months and Ofc. Hagen was removed from the K-9 team permanently in retaliation.

Ofc. Hagen filed lawsuit, saying the Department retaliated against him for an exercise of his First Amendment right to free speech. But, the Ninth Circuit said when Hagen reported the Department safety concerns, he was acting as an employee, not a private citizen, and therefore had no First Amendment protections. The court based its decision on the Department being a highly hierarchical employment setting, and said his statements were within the chain of command concerning his employment and safety. Furthermore, Hagen was required to report all safety concerns under Human Resources Policies and Procedures. Therefore, Hagen’s speech was made within the employment setting, pursuant to a duty to do so, and was not protected by the first amendment.

This case was just about First Amendment protection.  Employees have additional protections when they concertedly complain or engage with their union about workplace issues.

Ninth Circuit: First Amendment Protects Peace Officer Labor Leaders from Retaliation

In Ellins v. City of Sierra Madre (Mar. 22, 2013) 2013 WL 1180299, the Court of Appeals ruled it is unconstitutional for an employer to retaliate against a peace officer union president for comments made as part of his role as union president.

The case involved John Ellins, a Sierra Madre police officer who led a no confidence vote of the police officers union against the Chief of Police, Marilyn Diaz. Then, Diaz delayed granting Ellins a certification that would result in a 5% raise. Ellins sued alleging the delay was an unconstitutional retaliation for the exercise of his first amendment rights. While waiting for the approval of his raise Ellins served a suspension he received years before. During the trial the city granted his pay-raise and backdated it to the date Ellins completed his suspension.

The court ruled Ellins is protected by the first amendment because comments made by a police officer acting as a union representative are not pursuant to the officers' official duties. Hence the officer is speaking as a private citizen. Furthermore, even though his pay-raise was backdated Ellins still suffered an “adverse employment action”. The court reasoned that an adverse employment action exists whenever any economic benefit is withheld for any amount of time.

The court then concluded that the proximity in time of the adverse employment action and the protected speech was enough to infer the possibility of retaliation. However, the court did not find retaliation on its own and ordered that a trial be held on the issue.

Bill Introduced to Create "Union Agent-Represented Employee Privilege"

Assemblymember Roger Hernández introduced a new bill, AB 729, to create a new privilege, giving union representatives the right to refuse to disclose their communication with union members.  The law would create a new evidentiary privilege in California, like attorney-client, priest-penitent, and doctor-patient privilege.

The proposed law would give union representatives the "privilege to refuse to disclose any confidential information he or she may have acquired, whether or not the information was revealed in a communication between the union agent and a represented employee, in attending to his or her professional duties or while acting in his or her representative capacity" with some exceptions.  In discipline cases, the employee would have the right to insist the union representative not disclose communications.  In all other cases, the union is the sole holder of the privilege.

Assemblymember Eggman Introduces Bill to Slash Interest Due on Debts to Employees, Others

Under current law, when employees or labor associations win a judgement against a public entity, the agency has to pay interest on the debt until they pay it off.  The interest rate is set at 7% or 10%, depending on the type of case.  Now Assemblymember Susan Eggman has introduced AB 748 to let cities and counties pay minimal interest on these debts, jeopardizing employees' and unions' rights across the State.

Eggman's law would cap the interest a public agency has to pay at no greater than the rate on the "Pooled Money Investment Account."  That rate has been less than 1% for the past three years.  As a result, employees who are illegally terminated or denied their wages would receive much less interest on their awards than the interest they have to pay on their personal loans, mortgages, and credit card payments.  Cities win, employees lose.  Eggman previously served on the Stockton City Council were she voted to withhold employees' wages, even though they were guaranteed by labor contracts.

Voters Reject Prop 32

California voters overwhelmingly rejected Proposition 32, which would have restricted unions' access to payroll deductions for political activity.  Prop 32, widely known as the Special Exemptions Act, was the latest in a series of attacks on unions nationwide.  Public safety labor groups lead the charge in opposition to the proposition.

Michigan Voters Considering Constitutional Right to Collective Bargaining

After a string of stinging defeats at the ballot box, labor leaders in Michigan are trying to turn the tide by establishing a state constitutional right to collective bargaining.  Next Tuesday, Michigan voters will go to the polls to decide Proposal 2, which would create a state constitutional amendment locking in union rights in the state.  Proposal 2 would:

• allow police officers and firefighters to negotiate safe staffing levels
• establish a constitutional right to form a union and bargain collectively
• invalidate any attempts by the state legislature to limit collective bargaining rights
• override state laws about employees hours and conditions of employment 
• mandate binding arbitration for some police groups

If passed, Proposal 2 would be the first of its kind in the country.  The campaign to pass Proposal 2 got a big boost earlier today, when President Clinton endorses the measure.  

Sacramento Business Journal: Mastagni Law Brings in Muscle to Audit Cities' and Counties' Books

The Sacramento Business Journal reports Mastagni Law has teamed up with forensic accountants to audit the books of cities and counties claiming financial problems.  The article profiles Shayleen O. Mastagni who came in-house at the firm after working as a Senior Vice President at Perry-Smith Accounting and Bridget Sanders, Senior Manager at the accounting firm Wallace Valuation Advisors. According to Shayleen Mastagni,  "The question is are you going broke or blowing smoke with financial obligations not due for 30 years?"  To answer that question, both women scrutinize the books to see if agencies are hiding money or facing legitimate financial problems.

California Democratic Party Joins Police and Fire Unions to Oppose Prop 32

The Sacramento Bee reports that the California Democratic Party has voted to officially oppose Proposition 32, which would restrict union political fundraising by prohibiting use of payroll-deducted funds for political purposes.  CPF and PORAC are already aggressively opposing Prop 32.

PERB Wins First Round in Challenge to San Diego's Pension Initiative

In San Diego Municipal Employees Association v. Superior Court (4th DCA, June 19, 2012) 2012 WL 2308142, the Court of Appeal found PERB has initial jurisdiction to review a ballot initiative affecting public employee pensions and the trial court erred by blocking the PERB process.

The case started after the “Comprehensive Pension Reform Initiative” (CPRI) qualified for the ballot in San Diego. The initiative amends San Diego’s charter to impact retirement benefits for employees. The Municipal Employees Association (Association) filed an unfair labor practice charge alleging the City failed to meet and confer as required under the MMBA before placing the CPRI on the ballot.

PERB issued a complaint against the City and authorized its general counsel to file for an injunction. However, the trial court denied PERB’s motion to enjoin the City from placing the initiative on the ballot. The trial court also granted the City’s motions to stay the administrative proceedings and quash PERB's subpoenas. The Association then filed a writ in superior court.

The City argued PERB did not have jurisdiction over the Association’s claims as it involved a dispute over the constitutional free speech rights. The Court found while constitutional rights may be implicated it was not sufficient to divest PERB of its exclusive initial jurisdiction to consider the Association’s claims. The City also claimed go through the PERB process since PERB had already sought temporary injunctive relief and its neutrality was compromised. The Court disagreed the City’s argument that going before PERB would be futile. The Court also found the trial court erred in ordering a stay of the PERB administrative proceedings and let PERB proceed with the unfair practice charge.

PERB: Fire Chief Violated MMBA By Eliminating Union Time Bank

In Stanislaus Consolidated Firefighters (January 20, 2012) PERB Dec. No. 2231-M, PERB found a Fire Chief violated several sections of the MMBA when he eliminating a Union Time Bank after members filed a grievance over being denied the time off.

The Union and the Fire Department were in the middle of negotiations when the Fire Chief informed the Union he would be removing section 20-2 from the MOU. Section 20-2 allowed the union to use Department buildings for its meetings and also provided for station coverage during those meetings. The Fire Chief proposed the removal of the section after the last day for the parties to bring new proposals to the table. The Fire Chief claimed the removal of the section was not related to the regular on-going negotiations and was instead considered an operational need for the District. However, at no time during negotiations did the District present a proposal that section 20-2 be eliminated from the successor agreement.

The parties reached a tentative agreement which continued, in effect, the terms and conditions of the expired MOU, including section 20-2. Section 20-2 disappeared from the agreement after the Fire Chief reviewed and signed the agreement and presented the agreement to the Union to sign. The Union refused to sign the agreement until section 20-2 was reinserted into the agreement. The District then threatened to impose. Around the same time, union members had submitted time off requests to use the Union’s Time Bank to attend a “State of the District” address. When their requests were denied they filed a grievance on the issue. In response to the grievance being filed at step 3 the Department unilaterally decided to discontinue the Union Time Bank, which was provided for in the current MOU.

PERB decided section 20-2 presented a negotiable matter within the scope of representation and that section 20-2 was still in effect since the TA continued the terms and conditions of the expired MOU. PERB also found the District removed the section without giving the other party notice or an opportunity to bargain and that the Union had presented a prima facie case of discrimination and retaliation as well as interference. The Chief knew the requests for time off were for protected activity and unilaterally discontinued the leave bank in response to their request and subsequent filing of a grievance.

NLRB Issues New Report on Social Media Cases

The National Labor Relations Board issued a new report yesterday on its cases involving employees' use of social media and corresponding employer policies and practices.  The report notes many employer policies about social media use by employees are unlawful because they punish employees for engaging in protected concerted activity.  The report follows up on an August 18, 2011 report surveying similar cases.  The NLRB oversees most private-sector labor relations in the United States.  While public-sector labor relations in California are administered by the the Public Employment Relations Board, an independent state agency, PERB often looks to NLRB precedent in making decisions.