AB 2154 Provides Minimum Paid “Release Time” for Union Activities

On February 12, 2018, Assembly Member Rob Bonta introduced AB 2154. The proposed legislation standardizes and expands “release time” for employees engaging in union activities without loss of compensation. AB 2154 mandates that that an employer provide a “reasonable” number of employees paid time off in order to conduct union activities including: 1) investigating potential or existing grievances; 2) meeting and conferring on matters within the scope of representation; and 3) testifying before public agencies.

PERB Upholds Employer Ability to Avoid Meet and Confer Obligations Over Minor And informal Policy Changes.

In SEIU Local 1021 v. County of San Joaquin, PERB found that in order to establish past practice, a party must show that both the Union and the Employer knew of an agreed to the practice. It is not enough to show that the practice went on without correction by management for several years.

In Local 1012, the SEIU alleged that the County had unilaterally eliminated a past practice of allowing District Attorney’s Office employees to have flexible schedules to help employees with childcare responsibilities. PERB noted that while employees had been permitted to come in late and make up time during lunch, management did not have any knowledge of the practice and never authorized it. A senior clerical worker (non-management) had apparently authorized the practice without expressly discussing it with management first. While management may have become aware of the practice, they never authorized it and thus it could not be considered a past practice. This allowed management to lawfully eliminate the flexible scheduling.

This case sets a troubling precedent that allows management to get away with eliminating or changing workplace policies informally implemented by managers by allowing them to claim that they never explicitly authorized it, even if they were aware of it. This creates a backdoor way for less scrupulous employers to implement unpopular policies or eliminate employee-friendly policies by doing so on an informal basis and thus, avoiding the duty to bargain over such changes.

In Montebello City Employees Assn. v. City of Montebello, PERB ruled that a union failed to prove an unfair labor practice where a unilateral change of policy changing the job duties of two employees.  PERB also clarified that the proper test for an alleged unilateral change of policy is a five element test for per se violations of the duty to bargain, not a totality of the circumstances test.

The Union brought an unfair practice charge against the city alleging that they unilaterally changed the duties of clerical assistants effectively requiring that they do additional work without a change in classification or pay. PERB found that the change was at most an isolated departure from the status quo with no generalized effect or continuing impact on the terms and conditions of employment. Additionally, the city later stripped the affected employees of the extra duties when it could not get a reclassification approved for budgetary reasons. Thus there was no continuing impact on the terms and conditions of employment except for one or two isolated cases where the employees still had increased duties.

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.

PERB Rules City of Palo Alto Failed to Meet and Consult Over Impasse Procedure Modification

On August 6, 2014, PERB issued a decision in City of Palo Alto. This ruling is significant for public employees for two reasons. First, the decision confirms that meet and consult obligations under Government Code section 3507 the same as the meet and confer obligations under section 3505. Second, this holding expands the meet and confer obligations to impasse rules and procedures.

In mid-July 2010, the City of Palo Alto proposed to repeal interest arbitration procedures in the City Charter for police and firefighter employees. The City planned to place the measure on the ballot for voters. International Association of FireFighters, Local 1319, AFL-CIO representatives demanded to meet and confer with the City about the rule modifications. The City refused to meet with Local 1319. The City claimed interest arbitration was a permissive, not a mandatory, subject of bargaining and the meet and confer obligations did not apply. Instead, the City offered to address Local 1319 representatives' concerns during the public comment periods at its regular public meetings. After holding public meetings, the City approved the measure to repeal interest arbitration from negotiation procedures.

PERB held the City failed to meet and consult in good faith under section 3507 by refusing to meet with Local 1319. PERB held the duty to consult under section 3507 is the same as the meet and confer duties under section 3505. Section 3507 requires public agencies to provide reasonable written notice to each employee organization affected by the proposed agency rule or modification, and afford each organization a reasonable opportunity to meet and discuss the rule before adoption. The parties must meet and confer for a reasonable period of time and attempt to reach an agreement. While the Supreme Court, PERB, and California courts do not require employers to meet and confer regarding impasse procedures under section 3505, employers must meet and consult on these subjects under section 3507.