Monday, April 11, 2016

Arbitrator Awards BART POA Nearly $1.1 Million Dollars in Illegal Subcontracting Grievance

The BART Police Officers’ Association secured an award of nearly $1.1 million for its members at arbitration. Arbitrator Ron Hoh ruled for BPOA, finding the Bay Area Rapid Transit District  subcontracted BPOA bargaining unit work in violation of the union's MOU.  

The Bay Area Rapid Transit District decided to replace the nearly forty year old fire alarm systems at seven stations on the San Francisco side of its operations.  The District entered into a contract with Blocka Construction Company to retrofit fire alarm systems at the stations.  When decommissioning the old alarms, the District circumvented the MOU between the District and BPOA by requiring Blocka to subcontract non-union security personnel to act as “Firewatch” while the decommissioned alarms were replaced.

As soon as the BPOA discovered this MOU violation, a grievance was filed demanding the positions immediately be provided to BPOA members along with traditional make-whole remedies. Knowing the MOU prohibits subcontracting, the District attempted to avoid its contractual obligations by supplanting the CSOs with security personnel disingenuously labeled “Firewatch.”  The District could not refute the evidence confirming that the jobs the District subcontracted out were actually jobs historically performed by CSOs.  The Arbitrator stated:

“[t]he evidence thus shows that CSO’s regularly monitor from fixed-site posts [at] various District locations for both safety and security reasons, including safety functions whose goal is to keep the public away from both stations and rail right-of-way at construction locations and when station and track related repairs and necessary.  In addition, their job description includes the duty of ‘monitor(ing) construction sites when contractors are not working at night’ - a major element of the station alarm replacement project involved here - and ‘report(ing) situations requiring...emergency assistance.’  It cannot be disputed that the existence of fires on District property ‘...require(s)...emergency assistance.’”

The District's Project Manager claimed the two positions are wholly unrelated.  But, Arbitrator Hoh admonished the District, stating:

“It is apparent that her (Patrice McElroy) decision during the grievance procedure that the fire watch duties were closest to those of the District Safety Monitor was founded upon less than fully necessary information...The duties involved here do not better fit those of Safety Monitors as claimed by the District.  The fire watch function has nothing to do with either ‘assist(ing) independent contractors in safety areas,’ serving as ‘liaison between the District and (contracted) construction crews’ or reporting to the District and/or those contractors any incidents, injuries or violations of safety work practices.’”

Mastagni Holstedt, APC is privileged to have represented BPOA and its members in obtaining the largest grievance arbitration award in BPOA’s history.  Sean Currin of Mastagni Holstedt, APC represented the BART POA in this matter.    

Friday, April 1, 2016

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."