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.”

Governor Brown Vetoes PORAC Endorsed Bill Allowing Peace Officers to File Unfair Practices with PERB

On October 14, 2017, the Governor vetoed A.B. 530, a Bill introduced by Jim Cooper to provide Penal Code 830.1 peace officers access to PERB.  Mastagni Holstedt assisted in the drafting of this PORAC supported this Bill and both David E. Mastagni and Kathleen Storm testified in favor of the Bill extending PERB's jurisdiction to all peace officers while preserving their ability to seek injunctive relief in court.

PERB possesses expertise in enforcing the MMBA and affords other local public employees access to a cost-effective administrative process to  enforce their bargaining and representational rights.  In light of the prohibition against peace officers engaging in certain job actions in response to unfair practices, A.B. 530 also authorized all peace officers to "seek injunctive relief or a writ of mandamus to preserve the status quo or prevent irreparable harm pending a final determination by the board on any issue upon which a court has not made a ruling."  Currently, non-830.1 peace officer unions may obtain similar injunctive relief, but only if PERB agrees to bring such an action.

Unfortunately, the Governor denied 830.1 peace officers access to PERB by vetoing the Bill.  He explained his veto as follows: "I am returning Assembly Bill 530 without my signature. This bill authorizes peace officers to bring unfair practice charges to the Public Employment Relations Board while preserving their existing right to directly petition a superior court for injunctive relief. No other group has both of these rights and I’m unconvinced that providing such a unique procedure is warranted."

Court of Appeal: El Dorado County Violated DSA's Rights

In El Dorado County Deputy Sheriff's Association v. County of El Dorado, the Court of Appeal reversed the trial court to find the County violated the Meyers-Milias-Brown Act by eliminating deputy sheriff positions without meeting and consulting with DSA.  The Court decided the County's actions are invalid and the County must meet and consult with the DSA on the issue.

In 2011, the County deleted several positions from the DSA's bargaining unit as part of a plan to civilianize perimeter security at county courthouses.  The County claimed it did not have to give the DSA notice it was deleting the positions.  However, the County had a local labor relations rule stating "The [County] shall, after notice and consultation with affected employee organizations, allocate new classifications or positions, delete eliminated classifications or positions..."  The Court held this local rule required the County to give notice and engage in consultation with the DSA before it eliminated its positions.

The County tried to get out of its obligations by claiming that MMBA section 3505 does not require the County to engage with the DSA before deleting positions and that requiring the County to consult with the DSA somehow interfered with the authority of the board of supervisors over the County's budget.  The Court rejected both claims.

As the Court noted, Government Code section 3507.1 allows local governments to create their own, local labor relations rules as long as those rules comply with the Meyers-Milias-Brown Act.  As a result, different local governments often have somewhat different rules for labor relations.  In this case, the Court of Appeal made clear section 3507.1 "requires a local public agency to follow its own rules."  Thus, it doesn't matter if the same rule would apply in another jurisdiction without the same local rule.

Mastagni Holstedt, APC attorneys Kathleen N. Mastagni Storm and Jeffrey R. A. Edwards represented the El Dorado DSA in the appeal.

Brown Signs Bill to Stop Scapegoating of Collective Bargaining

Last Friday, Governor Brown signed SB 331, the "Civic Reporting Openness in Negotiations Efficiency Act".  Legislators introduced the Act after some local governments adopted policies targeting labor negotiations, while keeping negotiations with city managers and outside contractors secret. These ordinances typically required information about pending collective bargaining be released to the public even before tentative agreements were reached. Many observers have been concerned these policies, while pitched as promoting transparency, were designed to prevent effective collective bargaining and obscure controversial management compensation and risky outside contractor spending.

Now, under the Act, local governments that claim to be concerned about transparency in contract negotiations cannot only target labor groups, but must apply the same rules equally to all contract negotiations.  Under the Act, any local government that has adopted a such an ordinance must also report on contracts made with private entities. A public agency must have an independent auditor report on the cost of any proposed contract, disclose all offers and counter offers, and approve the contract in open session. The bill states these procedures give the public a meaningful opportunity to participate in approving contractions.

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.

Court of Appeal Publishes Indio Opinion After Requests Filed by PORAC LDF, Upland POA

The California Court of Appeal issued an order directing the publication of its earlier case Indio Police Command Unit Association v. City of Indio. As previously noted on this blog, in that case the court upheld an award of attorney's fees based on the injunction noting that the association's lawsuit enforced an important public interest.

Regarding the labor relations issue, the Court of Appeal held that the City violated its meet and confer obligations under the Meyers-Milias-Brown Act (MMBA). The police chief advised the PCU's counsel of his intention to implement a "strategic reorganization" plan of the department's command structure, which would eliminate the captain and four lieutenant positions, and result in the demotion of certain PCU members and the layoff of one PCU member. The police chief then asserted that he could implement this reorganization plan without providing an opportunity to bargain.

The Court of Appeal rejected the City's argument. Generally, an employer's action is subject to the mandatory bargaining requirements of the MMBA if it will have a significant effect on wages, hours, and other terms and conditions of employment, including a permanent transfer of work away from a bargaining unit. Here, the City plan would eliminate certain positions represented by the PCU, demote some of the officers, resulting in the loss of wages and seniority, and layoff at least one PCU member. The plan, therefore, would have a significant impact on wages, hours, and other terms and conditions of employment and the City had an obligation under the MMBA to meet and confer over it.

Originally the case was unpublished, meaning that no other party could cite to it as support for their legal arguments. However, recognizing the importance of this case to public safety labor associations, PORAC LDF and the Upland POA filed requests that the court publish its decision. On October 9, 2014 the court granted that petition allowing all attorneys to rely on this strong precedent to enforce the rights of public service employees.  Mastagni Holstedt attorney Jeffrey R. A. Edwards filed the request on behalf of PORAC LDF. Upland POA President Moe Duran filed the request on behalf of Upland POA.

Court of Appeal Upholds Union's Attorney Fees Award After City Failed to Meet and Confer

On September 15, 2014, in Indio Police Command Unit Association v. City of Indio, the California Court of Appeal upheld a $102,900 attorney fees award to a police officer association. The association obtained an injunction against the City of Indio for violating the MMBA meet and confer requirements.

In City of Indio, the City notified the Indio Police Command Unit Association that it planned to implement a "strategic reorganization" of the Department's command structure. The plan eliminated the Captain and four Lieutenant positions. The plan also reduced command staff from five sworn officers to two sworn officers and one unsworn supervisor. The Department's legal counsel claimed the decision to reorganize was not subject to the MMBA meet and confer requirements. The City agreed only to negotiate the impact of the reorganization. The association obtained an injunction preventing the City from implementing the reorganization plan until it met and conferred in good faith. The City finally complied and the parties reached an agreement.

The court awarded attorney fees to the association based on the private attorney general statute. The court found the association enforced important rights affecting the public interest. The court also found the litigation benefited not only the association and its members, but all other employee associations within the City. Awarding attorneys' fees in such cases encourages employee associations to enforce the MMBA, even when the financial burden of filing a lawsuit outweighs any possible recovery.

Governor Vetoes Union Rep-Member Privilege, Signs Bills on Brady List Protections, Bargaining, Release Time

The Governor took action on several bills affecting public safety labor rights.  The Governor vetoed AB 729, which would have protected labor leaders from having to testify about communications with members.  In his veto message, the Governor wrote, "I don't believe it is appropriate to put communications with a union agent on equal footing with communications with one's spouse, priest, physician or attorney.  Moreover, this bill could compromise the ability of employers to conduct investigations into workplace safety, harassment and other allegations."  The Governor's veto underscores the importance of connecting employees with a union lawyer on the onset of disciplinary investigations to ensure privileged communications.

The Governor also vetoed AB 1373 which would have extended the statute of limitations for survivors of public safety officers to file for death benefits related to tuberculosis, cancer, and blood-borne diseases. The bill was co-sponsored by CPF and PORAC.

The Governor signed AB 313 which amended POBR to prohibit disciplining peace officers solely because they are placed on a Brady list.  The law does not prohibit employers from disciplining peace officers for the underlying conduct which may have caused them to be put on a Brady list or considering the Brady list for determining how much discipline someone gets.  PORAC sponsored the bill. Loni Hancock (D-Berkeley), Donnelly (R-Barstow), Bill Monning (D-Santa Cruz), Tom Ammiano (D-San Francisco), and Mark Leno (D-San Francisco) voted against the bill.

The Governor also signed AB 537 which requires agencies to approve tentative agreements within 30 days, preventing them from delaying final ratification of contracts after the parties have TA'd at the table.  The bill also requires that if an MOU has an arbitration clause, the arbitrator- not a court or the agency- must decide if the procedural requirements for arbitration are met.

The Governor also signed AB 1181 which amended the MMBA to require employers give labor leaders reasonable time off for testifying at personnel hearings, PERB hearings, and bargaining. The MMBA already required reasonable time off for meeting and conferring.

Governor Signs AB 1181 to Expand MMBA Rights

On September 9, 2013, Governor Brown signed AB 1181, expanding labor associations' rights under the Meyers-Milias-Brown Act.  AB 1811 requires employers to give labor leaders reasonable time off work to participate in proceedings before PERB and testifying before personnel commissions.  Associations have to give reasonable notice.  This bill expands on associations' pre-existing right to reasonable time off for negotiations.

PERB: No Duty to Bargain Over Retired Peace Officers' CCWs

In Riverside Sheriffs' Association v. County of Riverside (2013) 38 PERC ¶ 21, PERB ruled an employer does not have to meet and confer with a union about the CCW policy for retirees because retirees are not in the bargaining unit.  PERB reaffirmed that employers do not have to negotiate policies affecting retirees or other employees outside a union's bargaining unit unless those decisions affect current bargaining unit members in a significantly adverse way.

PERB: Sheriff’s Office Must Meet and Confer Over Peace Officer Background Evaluation Process for Correctional Officers

In County of Santa Clara (July 25, 2013) PERB Dec. No. 2321-M, the Public Employment Relations Board ruled a background evaluation process for transitioning correctional officers to correctional deputies with peace officer status is a mandatory subject of bargaining under most circumstances, overruling a contrary decision by PERB Office of General Counsel.

Santa Clara is one of the counties in California that employs non-peace officer correctional officers in county jails. In 2010, the Sheriff’s Office decided to transition to correctional deputies under Penal Code section 830.1(c) and had some discussions with the Santa Clara Correctional Peace Officers Association about the process for transitioning existing employees. Initially, the Sheriff’s Office claimed the process was voluntary and if officers wanted to stay as correctional officers they would be grandfathered in.

But then, the Sheriff’s Office told officers if they did not apply to be peace officers they would be denied promotions, lose assignments, and could lose their jobs. When the union would not concede on some of the details of the process, the Sheriff’s Office imposed, claiming they did not have to meet and confer with the union or go through impasse procedures.

PERB rejected the Sheriff’s Office’s claims. PERB ruled how the Sheriff’s Office would conduct the background evaluation process for becoming a peace officer was a mandatory subject of bargaining. PERB explained the evaluation process was different than a typical background process because it was for current employees.

PERB also made new law, distinguishing an earlier case about background checks. In Sutter County In-Home Supportive Services Public Authority (2007) PERB Dec. No. 1900-M, PERB said some background checks are not subject to meet and confer. In this case, PERB explained key elements of how to do a peace officer background process are discretionary. PERB also found the correctional officers already had a comprehensive background evaluation when they were first hired and that jails were fundamentally different than people’s homes.

Therefore, PERB ruled “that where an employer imposes on employees, who have already undergone a background evaluation as a condition of employment, a further such evaluation as a condition of continued assignment to the employee’s present position, the employer’s decision [is] within the scope of representation under the MMBA."

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

California Supreme Court: Charter Cities Can Have Binding Arbitration

In City of Los Angeles v. Superior Court (Engineers & Architects Association) (June 20, 2013) --- P.3d ---, 2013 WL 3064811, the California Supreme Court ruled charter cities with binding arbitration cannot refuse to arbitrate contract grievances. The ruling overturns an earlier Court of Appeal decision that decided charter cities cannot “delegate” wage and hour disputes to arbitrators.

The case centered on the City of Los Angeles’ unilateral decision to implement furloughs in 2009. The Engineers & Architects Association was in contract and filed a grievance challenging the furloughs. But, even though the contract had binding arbitration, the City refused to arbitrate, claiming it had special powers to impose furloughs and the arbitration clause did not apply. The union sued and won at the trial court, but the Court of Appeal intervened and ruled it was illegal for the City to delegate its power to set wages to an arbitrator, citing cases that require the governing body of a city or county exercise its discretion to set employee wages.

The Supreme Court overturned the Court of Appeal. The Court ruled that by ratifying the MOUs, the City made discretionary choices in the exercise of its salary-setting and budget-making authority and was therefore bound by the MOU. The Court also rejected the City’s claim it could not agree to an MOU which would impair its ability to take all necessary actions to carry out its mission in an emergency. The City also claimed that, because the mayor has to propose a budget annually, and the Council has to enact it annually, the MOU cannot restrict the choices available to the mayor and Council in later years. The Court quickly dispatched with this claim, pointing out that the City’s position, if correct, would make any multi-year deal with contractors, creditors, and vendors unenforceable.

AB 76 Guts Local Labor Associations' Access to Public Records

AB 76 makes key provisions of the California Public Records Act optional for local governments.  Among the provisions that would be optional under the new law are the requirements local agencies respond to public records requests within 10 days and provide requestor’s with electronic versions of public records.  These provisions are critical to labor associations who need prompt responses to public records requests, especially during contract negotiations.  The Assembly and Senate passed the bill, which contains other provisions related to the budget.  It is currently on the Governor’s desk awaiting signature. 

Since the provisions received significant attention earlier this week, Assembly Speaker John Perez promised to pass a replacement bill that leave the Public Records Act intact.  However, it looks like the State Senate will not act on his replacement bill.  Senate President Pro Tem Darryl Steinberg announced today the Senate won’t take up Perez’s bill, noting the changes to the Public Records Act are designed to save money, not stifle access to records.  That’s because if the provisions are mandatory, the State has to reimburse local governments for compliance, but if its optional, the State doesn’t have to reimburse them.  While local labor associations have other access to records under the MMBA and state labor laws, unlike the MMBA, the CPRA has a powerful enforcement mechanism giving associations teeth when they have to force an employer to turn over public records.

Court: No Right to Pre-Interview Access to IA File

In Association of Orange County Deputy Sheriffs v. County of Orange, (June 12, 2013) G047167, the Court of Appeal ruled the County did not have to meet and confer with the DSA before it banned deputies from reviewing IA files before their IA interviews.  In Orange County, there was a longstanding practice where peace officers being IA'd could review the IA file before their interview.  Then, in 2011, the Sheriff banned anyone under investigation from reviewing the file before their IA interview.  The DSA sued, arguing the County had to meet and confer before making this kind of change to a past practice.

The Court decided the County did not have to meet and confer of this kind of a change to a past practice.  The Court reasoned that restricting access to IA files before the IA interview is not a "working condition" under the MMBA.  The Court looked to two other cases in reaching its conclusion.  In Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, the California Supreme Court ruled employers do not have to give officers pre-interview discovery.  Similarly, in Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, the court ruled law enforcement agencies can ban so-called "huddling" between counsel and officers after critical incidents.  In this case, the Court said pre-interview access to an IA file was like pre-interview discovery and the no "huddling" rule.  As a result, the Court decided it is not a "working condition."

The Court did agree the meet and confer requirement extends to changes in existing and acknowledged past practices, even if they are not formalized in a written agreement or rule.  However, the Court decided agencies only have to meet and confer if the past practice counts as wages, hours, or terms and conditions of employment.  Since the Court decided pre-interview access to the IA file did not count as a working condition under the MMBA, it ruled meet and confer rules did not apply.  Still, the Court left the door open to associations and agencies including these requirements in their MOUs if they chose to.

PERB to Hold Oral Arguments on Jurisdiction Over Peace Officers

PERB will hold oral arguments in Lompoc Peace Officers Association v. City of Lompoc, to decide whether PERB has jurisdiction over "mixed units," bargaining units composed of both sworn and non-sworn employees.  This is the first time in about ten years PERB has scheduled oral arguments.

Government Code section 3511 is at the heart of the issue.  In 2000, the Legislature gave PERB jurisdiction over labor disputes in agencies covered by the MMBA.  But it made an exception.  Government Code section 3511 says those changes "shall not apply to persons who are peace officers as defined in Section 830.1 of the Penal Code."  There have been some disputes about what section 3511 really means.

In this case, the issue is whether PERB has authority to make peace officers whole in a bargaining unit composed of both peace officers and non-peace officers.  PERB initially decided the employer broke the law and ordered it to make the affected employees whole, but only the non-sworn employees.  The POA appealed, arguing the same remedy should apply to all of the employees in the bargaining unit, including the peace officers.  Oral argument will take place at PERB's Sacramento headquarters on June 13, 2013 at 2:00 p.m.

PERB: Employers Must Meet and Confer Over On-The-Job Cameras

In Rio Honda Community College Dist. (March 21, 2013) PERB Dec. No. 2313, PERB decided employers must meet and confer with labor associations over the impacts of video cameras, including whether they might create new kinds of evidence in discipline cases.  PERB's reasoning should apply equally to in-car cameras and GPS devices.

The Board held the union had a legitimate concern the new cameras could be used to monitor employees' compliance with workplace rules, and would create previously unavailable evidence to support discipline or evaluations.  How video recordings might be used in discipline and evaluation is therefore a negotiable effect of the decision to install the cameras.

PERB's decision expands an earlier ruling about use of technology to monitor employees.  In Trustees of the California State University (2003) PERB Decision No. 1507-H, PERB held rules about internet use were negotiable.  Here, PERB said the impacts of using video cameras presents "the same concerns" as "monitoring employee internet usage."  As a result, under this ruling, unions likely can demand to meet and confer about the impacts of other types of electronic surveillance, such as in-car cameras and GPS devices.

PERB Charges San Jose With Labor Law Violations Over Pension Initiative

On March 8, 2013, the Public Employment Relations Board issued a complaint against the City of San Jose related to Measure B, that City's attempt to strip employees of their retirement security.  The complaint alleges the City "knowingly provided inaccurate information" to the union about "its fiscal obligations regarding retirement benefits."  The City has been widely criticized for using pension numbers "not based on reality."

The complaint also alleges the City refused to meet and confer with the union and moved forward with Measure B without completing the labor relations process.  Accordingly, the complaint alleges the City violated Government Code sections 2503, 3505, and 3506.5.  Now the City must respond to the allegations with 20 days and the case will proceed to a hearing in front of judge with the Public Employment Relations Board.

PERB Rejects Employer Claim Factfinding Is Limited to Impasse Over CBAs

In San Diego Housing Commission v. Public Employment Relations Board, San Diego Superior Court Case No. 37-2012-00087278, the Housing Commission claims mandatory fact-finding only applies to negotiations over a master collective bargaining agreement.  In a recent filing, however, PERB rejected the employer's claims and clarified that AB 646 applies to all collective bargaining disputes, not just impasse in collective bargaining agreement negotiations.  The case started after a union representing Housing Commission employees and the Commission reached impasse over the effects of a layoff.  The union requested factfinding and filed the appropriate paperwork with PERB.  The Commission then filed a lawsuit against PERB, trying to get a judge to order it not to process the request so it could impose without factfinding.

The Meyers-Milias-Brown Act gives unions the right to "request that the parties' differences be submitted to a factfinding panel."  (Gov. Code § 3505.4.)  In this case, the employer wants to add the words "about a master collective bargaining agreement" to qualify "differences" and limit the scope of mandatory fact-finding so that it can impose on the union without a neutral evaluation.  However, PERB explained to the Court that "an MOU is simply a written memorialization of the parties' agreement following negotiations on matters within the scope of representation."  The MMBA's requirement to meet and confer is not limited to collective bargaining agreements typically negotiated once a year or less frequently, indeed, as PERB noted, the term "collective bargaining agreement" does not even appear in the MMBA. Therefore, PERB argued, since factfinding applies to all disputes, "once an employee organization requests the parties' 'differences' be submitted to factfinding...participation in factfinding is mandatory."  The next hearing in the case is March 1, 2013.

PERB Reaffirms Employers Must Negotiate Number of Affected Employees in Layoffs

In Salinas Valley Memorial Healthcare System (2012) PERB Dec. No. 2298-M, the Public Employment Relations Board reaffirmed and elaborated about employers' duty to negotiate with unions about layoffs related to labor costs.

PERB has held employers do not have to negotiate about the decision to layoff.  However, employers still have a duty to meet and confer with unions about the implementation, impacts, and effects of a layoff.  Some of the established layoff effects are post-layoff workload and safety and conditions of remaining employees.  This case clarifies what counts as implementation and impacts that the employer must meet and confer about.

Here, the employer initially said it wanted to layoff 79 people "at the end of the year."  The union demanded to meet and confer over the timing, number, identity of the employees to be laid off.  The employer claimed it did not have to meet and confer about those details, asserting a "management prerogative."  PERB rejected that claim.  PERB explained "the implementation (timing of the layoff, and the number and identity of  employees to be laid off) and the impact and effects on remaining employees, including workload and safety, were mandatory subjects for meeting and conferring prior to the implementation of the layoff."  As a result, PERB decided the union stated a prima facie case for an unfair labor practice.

Court of Appeal Upholds Injunction to Stop City from Outsourcing Jobs

In Costa Mesa City Employee’s Association v. City of Costa Mesa et al. (CA4/3 G045730), the Fourth District Court of Appeal upheld a preliminary injunction enjoining the City of Costa Mesa (the City) from outsourcing City jobs.  The Court’s order stops the City from outsourcing work preformed by Costa Mesa City Employees’ Association (CMCEA) or laying off CMCEA members as a result of outsourcing.

Costa Mesa wanted to outsource several city services. CMCEA filed suit to stop the City’s outsourcing plan for violations of Government Code sections 37103 and 53060. The lawsuit also alleged the plan violates the parties’ Memorandum of Understanding (MOU) because the City did not meet with CMCEA to determine which jobs should be contracted out and how to mitigate layoffs; rather, it unilaterally decided to outsource many jobs. The trial court granted a preliminary injunction and the Fourth District affirmed.

In its opinion, the Fourth District decided there would be irreparable harm if CMCEA members lost their jobs.  The Court also decided a preliminary injunction was appropriate because losing a job and income is a greater harm than the citizenry’s interest in cost-effective government.

The Fourth District found that the City’s outsourcing plan violated both the parties’ MOU and state law. The Court found that the City violated the MOU because there was no evidence the City included CMCEA in the decision-making process.  The Court also found that Government Code sections 37103 and 53060 generally prohibit cities from contracting with a private entity, unless the contract is for “special services.”  The Court decided the only things that counted as “special services” in Costa Mesa are operation of the City’s jail and administration of its payroll services.  As a result, the Court concluded that there was enough evidence that CMCEA would win its lawsuit since CMCEA members were able to do the work.