PERB Sides with Corrections Officers in Overtime Dispute with Fresno County

A recent Public Employees Relations Board (PERB) decision makes clear an employer's obligation to bargain over proposed changes to overtime sign-up and payment policies. In Service Employees International Union Local 521(Union) v. County of Fresno (County), the Administrative Law Judge (ALJ) decided in favor of the Union, finding the County committed an Unfair Labor Practice (ULP) in violation of Meyers-Milias-Brown Act (MMBA) provisions when it unilaterally changed both the overtime sign-up procedure for supervising juvenile correctional officers (SJCOs) and how it paid SJCOs when they worked more than eight hours in a period of continuous work that began before and ended after midnight, and by refusing to arbitrate grievances concerning both issues. However, the ALJ concluded that the Union failed to show that the County violated the MMBA with regard to its request for information.

Fresno County's Probation Department runs the Juvenile Justice Campus, a 24-hour residential facility for juvenile offenders. The sworn staff includes Juvenile Corrections Officers (JCOs), Senior Juvenile Corrections Officers (Sr. JCOs), Supervising Juvenile Corrections Officers (SJCOs), and Deputy Probation Officers (DPOs). SJCOs manage JCOs, schedule shifts, act as watch commanders at the Juvenile Justice Campus, and are represented by the Union.

From 2014 to 2018, a standing practice regarding priority for overtime opportunities was memorialized in a 2014 email from the then Assistant Director of the Juvenile Justice Campus. When the need for overtime in JCO and Sr. JCO shifts was known in advance, JCOs and Sr. JCOs had a window to volunteer for the shifts before SJCOs could reserve the remaining spots. Emails announcing overtime opportunities were typically sent out 21 days before the overtime shift, resulting in SJCOs having about 18 days to decide whether they wanted to take the overtime shift and make personal arrangements for that purpose. In May 2018, a memo was distributed by the Chief Probation Officer to the various corrections officers at the Juvenile Justice Campus modifying the overtime sign-up practices, resulting in SJCOs losing the ability to sign up for overtime until the day of. In effect, SJCOs no longer had advance notice to make personal arrangements to accommodate the overtime shift, and the amount of overtime worked by SJCOs decreased. The Chief Probation Officer failed to provide notice to the Union before distributing the memo based on the advice he received from a human resources employee working for Fresno County that interpreted the MOU's language to provide the unilateral ability to make such a change based on the management rights clause present in the MOU and the County's interpretation of the word "day" in the MOU to mean a period of time beginning at 12:01 a.m. and ending at 12:00 a.m.

Additionally, as it pertains to overtime, the MOU states, "Overtime is authorized work performed by employees in excess of eight hours a day or over 40 hours in a work week." The longstanding practice adhered to by the parties was to pay SJCOs overtime for all time in excess of eight hours in a continuous period of work, even if part of the work occurred before midnight and part occurred after midnight. However, on June 8, 2018, a SJCO worked a double shift, beginning at 4:00 p.m. on June 8th and ending at 8:00 a.m. on June 9th, for a total of 16 hours. The SJCO claimed the second eight hours as overtime, per the terms of the MOU. When the SJCO was paid for that period, the County paid the second eight hours as regular time. When the Union questioned this practice, the County reiterated the SJCO was not entitled to overtime due to the SJCO working eight hours on June 8th and another eight hours on June 9th, which the County deemed to be two separate shifts on two separate days, rather than one continuous shift where the time in excess of eight hours would be categorized as overtime.

In light of these two issues, the Union filed separate grievances on behalf of the SJCOs. Regarding the overtime sign-up grievance, following the Step 3 grievance proceedings, the Union asserted that the parties agreed to stay the grievance. At the same time, the involved personnel attempted to remedy the situation amongst themselves. Following the passage of 10 working days, the County moved to close the file claiming the Union failed to advance the grievance to Step 4 in a timely manner.

As it pertains to the consecutive hours/overtime grievance, following Step 4 of the grievance process, the Union requested to move the grievance to arbitration. The County, however, claimed the Union failed to contact State Mediation for a list of arbitrators in a timely manner. Thus, their request exceeded the stated deadline, resulting in the County's refusal to arbitrate the matter.

In support of the consecutive hours/overtime grievance, the Union sent the County an information request seeking records, policies, and documents regarding payroll and overtime encompassing the previous five years, to be produced within 30 days. The County acknowledged the request and indicated the day before they were required to produce the documents that, the volume and specificity of the information sought would require the County to collaborate with other departments and review extensive amounts of data, which required additional time. After approximately two months, the County produced a flash drive with the responsive information to the Union. The Union did not indicate if they were dissatisfied with the County's production. However, at some point during the hearing, the Union requested additional information specific to the SJCO's overtime payroll records. On the third day of the hearing, the County produced the requested records, which were subsequently introduced as exhibits. At that time, the Union indicated that their request was fully satisfied.

Ultimately, there were three issues evaluated in the case at hand. 1) Did the County violate the MMBA when it changed a) the overtime sign-up procedure and/or b) when it changed how it paid SJCOs for work performed after midnight in a continuous period of work greater than eight hours? 2) Did the County violate the MMBA by refusing to arbitrate the Union's grievances on procedural grounds? 3) Did the County violate the MMBA by failing or refusing to respond to the Union's request for information? The County argued that the Union's complaint was barred by the statute of limitations and additionally asserted two waiver arguments, specifically claiming that the contents of the MOU prevailed over the alleged practice and that the changes implemented by the County were permitted under the management rights clause provided in the MOU.

 With respect to the statute of limitations argument, a charging party must generally file an unfair practice charge for violations of the MMBA within six months from when the charging party knew or should have known of the violation. The County contended that the Union's charge was untimely due to the filing occurring beyond the six-month threshold and that they failed to advance the two grievances to Step 5, thus barring their claims for untimeliness. The ALJ found that the Union's claims were equitably tolled due to the parties engaging in the interactive grievance process at the time, which was a contractually obligated attempt to remedy the situation before pursuing litigation. Further, the ALJ held that as it pertains to the overtime sign-up procedure grievance, the Union credibly proved that the parties agreed to suspend the timeline following Step 3 to attempt to resolve the issue. Therefore, the County's claim that they failed to advance the grievance to Step 4 promptly failed and that the statute of limitations for that charge was also equitably tolled.

 The County's waiver arguments were similarly unpersuasive. The ALJ held that the County's belief that the MOU's language trumped the alleged practice was improper, given that the MOU did not specifically define the word "day." The County unreasonably relied on its salary resolution language, which defines a "day" as a period of time beginning at 12:01 a.m. and ending at 12:00 a.m. More specifically, the ALJ provided that the MOU's language did not clearly and unmistakably waive the County's duty to give the Union notice and an opportunity to bargain before changing what counted as a "day" for purposes of calculating overtime.

Shifting to the County's refusal to arbitrate the grievances, the decision provides that the Union failed to show that the County's refusal to process the grievances was a change from prior policy or practice. Yet, it was determined that the County had a duty to present its procedural arguments about the grievance to an arbitrator, and its refusal to do so violated section 3505.8 of the MMBA, which governs the enforceability of an MOU's arbitration agreement. It provides in pertinent part, "An assertion that the arbitration claim is untimely or otherwise barred because the party seeking arbitration has failed to satisfy the procedural prerequisites to arbitration shall not be a basis for refusing to submit the dispute to arbitration. All procedural defenses shall be presented to the arbitrator for resolution."

However, the ALJ found against the Union in its request for information claim. The holding provides that when a union requests relevant information, the employer must supply it timely and explain its reasons for not doing so. A failure to provide the necessary and relevant information absent a valid defense constitutes a per se violation of the duty to negotiate in good faith. Here, it was found that the County engaged with the Union and communicated the burdensome nature of the information request and that it was doing its due diligence to obtain the requested information. Moreover, the County provided information responsive to the Union's request. If that information was deemed to be unsatisfactory to the Union, the Union had an obligation to express its dissatisfaction, which it failed to do. The County was also responsive to the Union's request for additional, more specific information regarding the SJCO's overtime payroll records on the third day of the hearing, thus, satisfying its requirement to produce relevant information and its duty to negotiate in good faith.

Ultimately, the ALJ's proposed order required the County to rescind the 2018 memo and return to the overtime sign-up practices consistent with the 2014 email authored by the then Assistant Director of the Juvenile Justice Campus that provided SJCOs with advance notice of overtime opportunities. The County was also ordered to make the SJCOs whole by paying them for any overtime opportunities they lost as a result of the unlawful change and to resume paying overtime premiums to SJCOs for work after eight hours in a continuous period of work, even if that period of work crosses midnight, to include double shifts. Lastly, the County was required to pay the SJCOs backpay equal to the overtime premium for work after eight hours in a continuous period of work, including double shifts, with interest included at seven percent per annum.

The Union also sought attorney's fees, which PERB awards only if the charge is both without arguable merit and pursued in bad faith. It was determined that while the County's primary positions lacked arguable merit, they were reasonably relied upon and not put forth in bad faith. Therefore, the Union's request for attorney's fees was denied.

There are a number of practical implications from this decision. The failure to specifically define what constitutes a "day" is something that various employers may more stringently address in future collective bargaining, given the MOU's vagueness around that word in this particular matter and the County's reliance on that word to its own detriment. Moreover, when an employer attempts to change a standing practice to assign or sign-up for overtime, the need to bargain over such proposed changes seems like an explicit requirement based on this holding. Finally, suppose an employee's workday is going to pass midnight and exceed whatever the defined hours of a day are for that particular agency. In that case, employers should be particularly aware of such a scenario and ensure overtime is appropriately paid for the time worked in excess of the defined workday, consistent with its MOU, or they too can be held liable and required to pay a significant monetary penalty.

Ninth Circuit Provides Guidance on First Amendment Protections Afforrded Controversial Public Safety Social Media Posts

The phenomenon that is social media is not new nor novel in today's society. Yet, social media's impact on speech and its overlap with the First Amendment continues to evolve and present the American legal system with unique challenges and fact patterns that are separate and unique from more historical speech matters, particularly in the context of an individual's employment.

In Hernandez v. City of Phoenix, the Ninth Circuit Court of Appeals issued an opinion addressing the types of posts that involve matters of public concern and therefore are protected by the First Amendment. Hernandez provides important guidance on what type of speech is protected under the First Amendment and how government agencies/employers can implement social media policies that are in compliance with the First Amendment.

In 2013 and 2014, Sergeant Juan Hernandez of the Phoenix Police Department made a series of social media posts that denigrated Muslims and Islam. The posts were made off-duty, and Sgt. Hernandez did not directly create a nexus to his employment as a member of the Phoenix Police Department; however, other posts on his account did depict him in uniform. The posts did not create any controversy until 2019, when an organization called the Plain View Project obtained the posts and drew public and media attention to them. The Plain View Project monitors and collects certain law enforcement organizations' social media activity to create oversight and dialogue related to what they deem potentially problematic social media activity.

Following the release of these posts by the Plain View Project and the subsequent backlash received from the public, the Department conducted an internal affairs investigation and determined that Sgt. Hernandez violated its social media policy, specifically finding his posts "potentially reduced or contributed to the erosion of public trust, were inflammatory to certain groups, and/or created dissension in the community by promoting hate, violence, racism, bias, or beliefs inconsistent with the Phoenix Police Department's Purpose Statement and Guiding Values." Before discipline could be imposed, Sgt. Hernandez sued in federal court because the Department retaliated against him for his First Amendment-protected speech and that the Department's social media policy was unconstitutional as it was drafted in an overbroad and vague manner.

The federal district court granted the City of Phoenix's motion to dismiss, holding that the City of Phoenix did not retaliate against Sgt. Hernandez was in violation of the First Amendment because his speech did not constitute a matter of public concern. Additionally, the court concluded that the Department's social media policy was not overbroad or vague; Sgt. Hernandez then appealed to the Ninth Circuit.

The Ninth Circuit reversed in part, finding the district court erred in its dismissal of Sgt. Hernandez's First Amendment retaliation claim. Here, the Court employed the Pickering balancing test, where the government employee bears the initial burden of showing that he spoke on a matter of public concern in their capacity as a private citizen. If the employee successfully proves that requirement, the speech is entitled to constitutional protection, and the possibility of a First Amendment claim arises. Then, the burden shifts to the government employer to show that it had the justification for disciplining the employee for their speech. In order to sustain its burden, the employer must show that its legitimate interests in performing its mission outweigh the employee's right to speak freely.

The Ninth Circuit determined that Sgt. Hernandez's posts were, in fact, a matter of public concern, specifically holding that Sgt. Hernandez's posts "addressed matters of social or political concern that would be of interest to others outside of the Phoenix Police Department. Even if only 'a relatively small segment of the general public' might have been interested in the subject of Hernandez's posts, that is sufficient." Moreover, Sgt. Hernandez's posts were made on his own time, on his personal Facebook page, outside the workplace, and with an intended audience not just limited to fellow employees but the general public as a whole.

With the Pickering balancing test in mind and the Court establishing that Sgt. Hernandez's social media posts constituted a matter of public concern; rather than analyzing the remaining steps of the balancing test, the Ninth Circuit remanded the case back to the district court due to it dismissing Sgt. Hernandez's First Amendment retaliation claim at the motion to dismiss phase.

In its decision to remand, the Ninth Circuit provided the following guidance in regard to the content and value of Sgt. Hernandez's speech and the interests of law enforcement agencies' necessity to discipline an employee's speech in certain situations (citations omitted):

In remanding the case, we do not mean to suggest that the Department will face a particularly onerous burden to justify disciplining Hernandez for his posts, given the comparatively low value of his speech. Government employee speech that exposes wrongdoing or corruption within the employee's own agency lies at "the apex of the First Amendment" in this context. Needless to say, Hernandez's Facebook posts occupy a much lower rung on the First Amendment hierarchy, and indeed they touched on matters of public concern "in only a most limited sense." On the other side of the scale, a police department's determination that an officer's speech warrants discipline is afforded considerable deference and police departments may permissibly consider the special status officers occupy in the community when deciding what limitations to place on officers' off-duty speech. Speech by a police officer that suggests bias against racial or religious minorities can hinder that officer's ability to effectively perform his or her job duties and undermine the department's ability to effectively carry out its mission.

Regarding Sgt. Hernandez's challenge to the Department's social media policy, the Ninth Circuit agreed with most of the district court's decision as it relates to the Department's social media policy. The Court found the district court appropriately rejected Sgt. Hernandez's argument that the Department's social media policy was overbroad and/or vague by prohibiting posts that are "detrimental to the mission and functions of the Department,"; "Undermine the goals and mission of the Department or City,"; or "Undermine respect of public confidence in the Department." However, the Ninth Circuit found that the following provisions overbroad, "Employees are prohibited from using social media in a manner that would cause embarrassment to or discredit the Department in any way," as well as "Department personnel may not divulge information gained while in the performance of their official duties."

Under the Ninth Circuit's "public concern" analysis, social media posts public agencies consider problematic may nevertheless be First Amendment protected speech.  Public agencies must prove how specific social media posts impact and disrupt the agency's ability to operate effectively and interact with the public due to the protections associated with such speech. The Court did indicate hateful/bigoted speech receives a lesser degree of First Amendment protection and employers have an easier burden to prove disruption.  However, agencies that fail to narrowly draft their social media polices may be barred from enforcing the policies through discipline and may also be subject to liability for civil rights violations.