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.

Fox News Profiles Stockton POA's "Bellwether" Victory On Contract Rights

Fox News Commentator Tom Sullivan recently interviewed Mastagni Law partner David P. Mastagni about the Stockton POA's victory over the City of Stockton in a closely-watched case with national implications. Watch the full clip below:

As Tom Sullivan explained, the case started after the City of Stockton "'declared a "fiscal emergency" thinking it would allow them to impose pay cuts on their city's finest." However, the POA fought back, filing suit to force the City to honor its contract with the POA. The Court recently rejected the City's claims, finding the Stockton POA "was within its right to refuse" to reopen its contract.

Mastagni Law attorneys David E. Mastagni, William M. Briggs, Isaac S. Stevens and B.J. Pierce represent the Stockton Police Officers' Association in the case.

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.

US Supreme Court: Warrant Required for GPS Tracking

In a 9-0 decision, the Supreme Court held that attaching a GPS device to a vehicle, and using it to monitor the vehicle’s movements on public streets, constitutes a search under the Fourth Amendment.  As a result, the Court held it is unconstitutional to attach a GPS device to a vehicle without a warrant or consent.

The case started after the FBI obtained a warrant, but the warrant only authorized installation of the device in the District of Columbia and within 10 days of when the warrant was issued.  Instead, agents installed the device on the 11th day and in Maryland.  Consequently, the Court treated the case as though there was no warrant.

The agents tracked the vehicle’s movements for 28 days.  Later, they secured an indictment of the defendant and others on drug trafficking conspiracy charges based in part on evidence obtained with the GPS device.  The District Court suppressed the GPS data obtained while the vehicle was parked at the Defendant's residence, but decided the remaining data was admissible because the Defendant had no reasonable expectation of privacy when the vehicle was on public streets.  The Defendant was convicted and appealed.

Justice Scalia, writing for the majority, reasoned one's vehicle is a type of personal "effect" the Fourth Amendment specifically mentions, and that, therefore, attaching a GPS device to one's vehicle is the type of encroachment that would count as a search under the Fourth Amendment at the time it was adopted.  The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  Justices Roberts, Kennedy, Thomas and Sotomayor joined his opinion.

Justice Alito wrote an opinion reaching the same result from a different perspective.  He decided the use of the GPS device was unconstitutional because the length of the monitoring made it a degree of intrusion that a reasonable person would not have anticipated.  Justices Kagan, Ginsburg, and Breyer joined his opinion.

Sacramento County LEMA Vindicates Right to Investigate and File Grievances Without Fear of Retaliation

Sacramento County Law Enforcement Managers Association (LEMA) President Michael Ziegler obtained a settlement protecting the right of union officers to investigate and pursue unpopular grievances in his lawsuit against former-Sheriff John McGinness and the County of Sacramento.

In March 2010, Ziegler filed a grievance on behalf of himself, LEMA, and LEMA’s members alleging violations of Sheriff’s Office policies relating to the handling of FEO files of a LEMA member running for sheriff. On the same day Ziegler appealed the denial of the grievance, it served Ziegler with a notice of interrogation. The notice said Ziegler was “suspected of misconduct” and indicated that the interrogation was related to Ziegler’s communications with a witness during his investigation of LEMA’s grievance. Between April 2010 and August 2010, Ziegler received three more notices of interrogation. Ziegler objected to the investigation.

All four notices told Ziegler he was prohibited from discussing the matter with anyone other than his representative. As a result, Ziegler was prohibited from discussing the substance of the investigation with LEMA’s board of director or members. Ziegler submitted to interrogation on August 18, 2010 under threat of discipline for insubordination.

Ziegler filed a petition for writ of mandate against the County of Sacramento and then-Sheriff John McGinness on August 10, 2010.   Ziegler’s petition alleges the County violated the Meyers-Milias-Brown Act by opening a retaliatory investigation against Ziegler for his efforts to investigate the improper handling of LEMA member’s personnel records. Ziegler also claimed the Sheriff’s actions impermissibly interfered with his representation of his members. The petition sought, among other things, a writ compelling the County to cease and desist from unlawfully retaliating against Ziegler and expunge all records of its investigation of Ziegler and a determination that the County willfully and maliciously violated the MMBA.

With encouragement from the Court, the parties participated in mediation and reached a global resolution of the suit. Under the settlement all references to the disciplinary investigation of Ziegler will be removed from his files and the County paid all mediation costs and Ziegler’s attorney fees for the mediation. The County is also required to email every member of LEMA a copy of the agreement, which includes the County’s acknowledgement that (1) “The investigation of an employee representative over engaging in concerted labor activity, including but not limited to the investigation of a potential grievance or the filing of a grievance is unlawful” and (2) “Employee representatives shall not be subject to the threat of discipline for exercising rights under the MMBA or any grievance process.”

Mastagni Law attorneys David E. Mastagni and Isaac S. Stevens represented LEMA President Mike Ziegler is the matter.

Court Dismisses DEA Agent's Lawsuit Over Leaked Shooting Video

On January 17, 2012, the federal appellate court for the District of Columbia dismissed a privacy lawsuit brought by a DEA after a video of him accidentally discharging his weapon was released on the internet.  The agent discharged his weapon, injuring himself, during a presentation to students at a local school.  One of the parents was recording the presentation and turned the video over to the DEA shortly after.  It was later copied and distributed to various people within the DEA.  The officer never learned how it was released publicly, but the video was widely viewed on the internet.

The officer brought claims under federal and Florida law, alleging a public disclosure of private facts.  While the court noted the DEA's conduct was"far from a model of agency treatment of private data," the court dismissed the claim, noting "[n]o liability attaches 'for giving further publicity to what [a] plaintiff himself leaves open to the public eye.'”

Federal Court Signals End for CDCR Receivership

The federal judge overseeing the federal receivership of California's state prison system announced today "the end of the Receivership appears to be in sight" after six years of federal intervention in California's prison system.  The federal court took control over parts of the state prison system after finding constitutional violations and appointed a receiver to oversee significant structural changes.  The state challenged the court's order, ultimately resulting in the United States Supreme Court case Brown v. Plata, which upheld the receivership.

Court of Appeal Vindicates Firefighter's Workers' Comp Rights

Where does the personal end and the legally compensable begin? In Richard Warner v. W.C.A.B. et al., California’s Second Appellate District recently had a chance to weigh in on this crucial workers’ comp question as it relates to a work-from-home firefighter.

Richard Warner is a Los Angeles County firefighter who works and lives on small, picturesque Santa Catalina Island. To ensure that the approximately 4,000 residents of the island have fire protection, LA County required Warner, along with one other firefighter, to live on the island. Warner’s house is both residence and partial workplace. Island denizens visit him there when they need his services, and he often responds to incident calls directly from home, without traveling to the island’s modest fire station.

In February of 2010, Warner’s wife asked him to help her trim the wisteria that grows wildly around their house. Warner, after falling off a ladder, injured his neck and his back, as well as his wrist, elbow, and shoulder on his left side.

The County tried, with initial success, to avoid paying disability or medical costs to Warner, under the claim that this injury was due to a personal act—a favor Mr. Warner did for his wife—rather than part of his employment obligations. The Workers’ Comp Appeals Board sided with the County, concluding that although Warner suffered his injury in the course of employment, it did not arise out of employment, because trimming the wisteria was something he did for private purposes.

The Second Appellate District overturned the Board and upheld Warner’s rights. The Court invoked the time-honored Dual Purpose Doctrine: if an action serves both personal and employment-related ends, it is an act which “arises out of work” for compensation purposes. There was no question that Warner worked from his home. It was equally incontestable that the County benefited from having this fire station-cum-residence be both easily accessible and aesthetically pleasing.

In other words, trimming the wisteria served both Warner’s ends and those of his boss—the fact that Warner acted at his wife’s request did not negate this fact. His employer must pay him workers’ comp.

The court’s decision is unpublished, but it nevertheless represents a significant vindication of the rights of workers in a time when they are under increasing attack. Workers’ comp exists to help those who are hurt serving their bosses’ interests. Employers who compel their subordinates to mingle duty and leisure should not be able to cry “Personal purposes!” when the same mingled deeds lead to mangled results.

Fox40: Stockton's "fiscal emergency declaration may come back to bite the city big time"

Fox40 reporter Rowena Shaddox reported Friday about the Stockton Police Officers' Association major court victory over their right to enforce their contract. The report includes interviews with Sgt. Bill Hutto and Ofc. Mark McLaughlin. See the entire video below and here.

 

Stockton POA Wins Round 1 Against City

The Stockton Record reported Thursday that the "police union appears to have prevailed in the first round today of its ongoing courtroom battle with Stockton in a dispute over the city’s right to break its contract with the police union during its financial crisis." In that case, the Court found in favor of the Stockton POA on a key issue.  Mastagni Law attorneys David E. Mastagni, William M. Briggs, Isaac S. Stevens and B.J. Pierce represent the Stockton Police Officers' Association in the matter.  Read the entire article here.

Court Rejects "Fiscal Emergency" Reopener, Upholds Stockton POA's Right to Enforce Contract

In a closely-watched case with national implications, the San Joaquin Superior Court dismissed the City of Stockton's claim it could unilaterally reopen a closed contract.  In Stockton Police Officers' Association et al. v. City of Stockton et al., the City claimed it could force the Stockton Police Officers' Association to reopen a closed contract and renegotiate because the City declared so-called "fiscal emergency."

The Court rejected the City's claims, finding the union "was not required to accept the City's invitation to discuss or renegotiate the terms of a closed contract, notwithstanding the City's declaration of fiscal emergency" and "was within its right to refuse" to reopen its contract, dismissing the City's claim.

The City of Stockton's claims are part of an emerging trend by some public sector management firms to try to expand the definition of "emergency" and create a new tool for public agencies seeking to get out of contractual obligations. Tellingly, however, the Court noted the City "has not identified any contractual or statutory basis for its claim that SPOA must meet and confer, bargain, or renegotiate a closed labor agreement."

Mastagni Law attorneys David E. Mastagni, William M. Briggs, Isaac S. Stevens and B.J. Pierce represent the Stockton Police Officers' Association in the matter. The case was previously profiled by Fox News commentator Tom Sullivan.

Court of Appeal: Retirement Does Not Void Right to Arbitration

In Service Employees Intern. Union, Local 1021 v. San Joaquin County (3rd DCA, C066861) December 28, 2011, 2011 WL 6812543, the Court of Appeal found an employee’s retirement does not automatically void, or act as a waiver, of the employee’s contractual right to arbitration under an MOU.

The case arose after an employee was terminated from his job as a craft worker for allegedly stealing recyclable material. He then invoked a provision of the MOU and requested arbitration of the decision to terminate him. The employee also filed for retirement benefits. The County denied the employee’s request for arbitration, and the trial court found for the County by denying the union’s petition to compel arbitration.

On appeal, the County argued once the employee had retired from his job, he was no longer “an employee” under the MOU and had forfeited any rights to arbitration under the MOU. The Court disagreed, holding an employee’s retirement does not automatically void, or act as a waiver, of the employee’s contractual right to arbitration under an MOU. The Court found the employee appropriately invoked his right to arbitration and accordingly reversed the lower court’s denial of the petition to compel arbitration.

CDCR Failed to Provide Reasonable Accommodations

In Cohen v. CDCR (2nd DCA, B226762) December 22, 2011, 2011 WL 6739621, the Court of Appeal found CDCR failed to provide reasonable disability accommodations to a correctional employee. The employee sufferred an injury which limited her ability to carry heavy items and requested accommodations. Her doctor determined she could perform the essential job functions and suggested a reasonable accommodation of a cart to assist her in moving about the large facility.

However, CDCR ultimately moved her office to an area of the prison approximately one mile away from where she treated her patients which made it difficult for her to complete work in her office. She also had to find a bench or a vacant room to complete her work resulting in her having to transport all of her files as she moved about the facility. During this time, she missed several days of work and ended up taking 392 more hours of leave than she was allowed.

The Court found that if CDCR had reasonably accommodated the employee's limitations, her attendance would have been sufficient. The Court further found the employer had not offered a reasonable accommodation, noting all other employees had an office space in an appropriate place to meet with patients.

Court of Appeal Finds Police Chief's Termination Violated POBR

In Robinson v. City of Chowchilla, (5th DCA F059608) December 23, 2011, 2011 WL 6450602, the Court of Appeal held the city violated POBR when it terminated Robinson, the city's police chief, without the requisite notice, statement of reasons, and opportunity for an administrative appeal. Following termination Robinson filed a petition for a writ of mandate claiming violations of POBR. POBR has special provisions for chiefs of police. Specifically, Government Code section 3304(c) provides:

“No chief of police may be removed by a public agency, or appointing authority, without providing the chief of police with written notice and the reason or reasons therefor and an opportunity for administrative appeal. For purposes of this subdivision, the removal of a chief of police by a public agency or appointing authority, for the purpose of implementing the goals or policies, or both, of the public agency or appointing authority, for reasons including, but not limited to, incompatibility of management styles or as a result of a change in administration, shall be sufficient to constitute ‘reason or reasons. Nothing in this subdivision shall be construed to create a property interest, where one does not exist by rule or law, in the job of Chief of Police.”

The City claimed the notice and appeal provisions apply only if a police chief has a protected property or liberty interest. The Court of Appeal, however, rejected this argument, finding the last sentence of the subsection merely clarified that no new property interest was being created, but has no effect on procedural protections set forth elsewhere in the subdivision.

The Court also held the City removed Robinson from office, thereby violating POBR, when it forced Robinson to leave his physical office, took the authority of police chief away from him, and gave both the physical office and the authority of police chief to someone else, irrespective of when it stopped paying him.