NLRB Issues New Standard For Duty Of Fair Representation Charge Defenses

On September 14, 2018 the National Labor Relations Board issued a memo addressing duty of fair representation charges against labor unions. The National Labor Relations Act makes it illegal for labor unions to restrain or coerce employees when they exercise their rights granted to them by the Act. The law states that a labor organization has a duty to fairly represent employees.

The NLRB believes that their past approach to duty of fair representation cases has created
confusion for employees in what duties are owed to them by union representatives. In response, the memo instructed regional directors that unions should be required to show they have procedures or systems in place to track grievances. It was also explained that a union which does not communicate or respond to a complaining member is negligent, and the negligence would be considered arbitrary and willful. The NLRB stated that it will not accept after-the-fact communication as a correction for negligence. 

The position taken by the NLRB is inconsistent with how they have interpreted duty of fair
representation law in the past. The change means that labor organizations can now be subject to charges based on careless or unprofessional actions that had previously been viewed as just plain error. To avoid a negligence charge, labor organizations should evaluate the procedures and case tracking systems they currently have to ensure their timeliness and thoroughness.

PERB: Sheriff's Department Violated Correctional POA's Rights

In a recent decision, the Public Employment Relations Board found the County of Santa Clara violated the MMBA when it banned the union president from trading shifts with other employees.  Like many employers in public safety, the Santa Clara County Sheriff's Department allows employees to trade shifts to get special days off.  The Santa Clara County Correctional Peace Officers Association president made use of the day trades in part to connect with members working different shifts.  Then, the Department banned the union president from doing so ostensibly because he did not repay a day.  But the Department's reasoning fell apart under scrutiny and the Board held the Department's conduct constituted unlawful interference. 

The Board also disapproved of prior decisions that said interference with a union's rights did not necessarily follow from discrimination against a labor leader.  The Board found prior cases, including, Novato Unified School District, are "contrary to the overwhelming weight of PERB case law on this issue."  Therefore, the Board found the Department's retaliatory conduct also violated the union's rights.

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

Court of Appeal: No Requirement to Meet and Confer on Citizen Sponsored Initiatives

In City of San Diego v. PERB, an appellate court said a citizen sponsored initiative to end pensions for new government employees did not require the city of San Diego (City) to meet and confer with the unions whose members would be affected.  

In November of 2010 then Mayor of San Diego Jerry Sanders announced his plan to place a citizen sponsored initiative on the June 2012 ballot.  The initiative was called the Citizens Pension Reform Iniative (CPRI).  CPRI, if passed, would amend San Diego’s city charter.  The main effect of this amendment was eliminating the pension program for specified future employees, and replacing the program with a 401(k) plan.  

Mayor Sanders, along with many prominent city employees, spent significant time and used considerable resources to gain support for the initiative.  Eventually, enough signatures were collected to place the matter on the June 2012 ballot.  Several unions demanded to meet and confer with City Council before CPRI was placed on the ballot.  If CPRI passed Mayor Sanders would have effectively ended future pensions for city employees without any discussion with union representatives. 

City Council declined to meet with the union representatives, citing a law which requires a citizen sponsored initiative to be placed on the ballot if procedural requirements were met.  Here, the requirements were met, so CPRI was placed on the ballot and passed by the voters.

Several affected unions filed an unfair labor practice charge with PERB.  The City claimed it had no discretion to keep CPRI off the ballot.  According to the City, Mayor Sanders was acting in his capacity as a private citizen.  Since this was was not a government action, they argued, there was no requirement to meet and confer.

PERB found Mayor Sanders was acting as an agent of the City.  Essentially, the City used one of its stronger political figures to create, support, and pass a citizen sponsored initiative.  By doing so the City bypassed the MMBA’s requirement to meet and confer, and ended the pension program for most of the City's future employees.  PERB found this to be a violation of the MMBA, and ordered the City to repay employees for lost compensation, including pension benefits.  The City appealed.

On appeal one of the main argument was over a 1984 case commonly referred to as Seal Beach.  Seal Beach declared, before a governing body can place a charter amendment on the ballot it must satisfy the meet-and-confer obligations under the MMBA.  The unions argued Seal Beach was applicable in the present case.  In other words, 33 years of precedent said governing bodies cannot bypass unions by placing charter amendments on the ballot which will impact the terms and conditions of employment.  The Appellate Court disagreed.

First, the decision dismissed any argument that mayor Sanders was acting as an agent of the City. Concluding CPRI was neither ratified by the City, nor an action of its agent, the court next addressed whether Seal Beach applied.  

The decision said, what took place in San Diego was different from Seal Beach.  CPRI was a citizen sponsored initiative.  In Seal Beach, the city council was using its own authority to place matters on the ballot without an initiative.  Thus, CPRI was not a proposal by a governing body.  Accordingly, there was no obligation to meet and confer.

PERB's decisions are given significant deference on appeal.  Their factual findings are considered final if there is any substantial evidence to support them.  Despite this strong presumption, the court overturned PERB's decision.

Stay tuned as the unions are likely to seek review in the Supreme Court of California.

Kathleen N. Mastagni Storm Testifies at Capitol on Peace Officer PERB Jurisdiction

On April 19, 2017, Mastagni Holstedt partner Kathleen N. Mastagni Storm testified before the Assembly Committee on Public Employees, Retirement, and Social Security on AB 530, a proposal to allow peace officers to file unfair practice charges at PERB.  The bill is sponsored by Jim Cooper (D-Elk Grove), a retired sheriff's captain.

In her remarks, Storm explained, "AB 530 is important because it affects my clients' ability to enforce their collective bargaining rights and resolves serious uncertainty about the law."  She said, "superior court is too costly and results in justice being denied because unions can't afford to sue [but] there is a high rate of resolution [at PERB] because the agency is adept at analyzing labor disputes."

She also addressed "the uncertainty in section 3511 [of the MMBA]."  She explained the law is vague because it exempts from PERB's jurisdiction "persons who are peace officers" but does not define that term.  "As things stand now, if a peace officer labor leader experiences retaliation, there would be parts of the case that the union has to bring at PERB and other parts the labor leader would have to bring separately in superior court.  This legislation solves these problems."

Kathleen N. Mastagni Storm manages the Labor Department at Mastagni Holstedt, APC.  Her practice focuses on unfair practice litigation, officer-involved shootings, and trial litigation in state and federal courts.

NLRB Improves Backpay Formula for Unlawfully Terminated Workers

In a recent 3-1 decision, the National Labor Relations Board ("NLRB") modified its backpay formula to make unlawfully terminated workers whole. In King Soopers, the NLRB found that its previous formula was inadequate to fully compensate workers who were unlawfully terminated. Specifically, the Board found search-for-work expenses and interim work expenses should be treated as a separate component of the backpay award, rather than an offset against interim wages.

When an employee is terminated for union activities, he or she is required to find and maintain interim employment to mitigate damages while the unfair labor practice case is decided. The pay the discriminatee receives from interim employment is deducted from the backpay award. However, the search for interim employment, and sometimes the interim employment itself, often causes the discriminatee to endure additional financial hardship. This is especially true if the discriminatee is forced to relocate, commute longer distances, or pay for additional training for the interim employment.

In the past, the NLRB treated search-for-work expenses and interim employment expenses as offsets to interim earnings. This prevented discriminatees who were unable to find interim employment to receive any compensation for search-for-work expenses. Similarly, discriminatees whose interim job wages were less than their total expenses were not compensated for the amount of expenses that exceeded their interim wages.

The Board now treats search-for-work expenses and interim work expenses as a separate component of the backpay award. The purpose of make-whole relief is to restore, as nearly as possible, that which the discriminatee would have earned if he or she had not been unlawfully terminated, and to deter future unfair labor practices. The Board found that this new formula better serves both purposes. As a result, discriminatees who prevail on their unfair labor practices will be fully compensated for the financial hardships caused by their unlawful terminations.

The Public Employment Relations Board currently treats search-for-work expenses and interim employment expenses as offsets to interim earnings. But PERB will likely follow suit and treat search-for-work expenses and interim job expenses as a separate component of the backpay award to ensure discriminatees are fully compensated.

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.

PERB: Blanket Restrictions on Communications Interfere with Protected Rights

The Public Employment Relations Board's recent decision in Los Angeles Community College District (2014) PERB Decision No. 2404 held blanket restrictions on communications may interfere with employees' right to engage in concerted activity. This long awaited decision brings PERB alongside National Labor Relations Board precedent holding "blanket" instructions to employees to maintain confidentiality during a workplace investigation may interfere with protected activities if they are overbroad and the employer lacks a proper business justification.

In Los Angeles Community College District, a professor disagreed with the District reducing his work hours and salary. He made statements to students and handed out materials criticizing District administration. The District placed the professor on administrative leave pending a fitness for duty evaluation and issued the following admonishment: "You are hereby directed not to contact any members of the faculty, staff, or students."

PERB ruled the directive interfered with the professor's protected activities. PERB found the District's directive was overbroad and contained no qualifiers limiting its scope. Although the directive did not explicitly restrict protected rights, PERB found "the directive not to contact faculty, staff or students would reasonably be construed to prohibit the employee from participating in a variety of protected activities including discussing working conditions with his coworkers or union, or initiating a grievance." In addition, the District lacked a business justification for the directive.

This case law may have practical application to public safety professionals subject to personnel investigations because many agencies issue admonish them from communicating with coworkers during the investigation. Employee organizations should insist that internal affairs confidentiality directives are narrowly tailored, for example, limited to witnesses who have not been interviewed. Overbroad gag orders will likely give rise to an unfair labor practice.

NLRB: Employees May Use Employer Email on Nonworking Time

On December 11, 2014, the National Labor Relations Board issued a greatly anticipated decision in Purple Communications , Inc. v. Communications Workers of America, AFL-CIO. The Board held employees may use employer email systems for statutorily protected communications on nonworking time, unless the employer shows a business justification for prohibiting it. In reaching this decision, the Board overruled prior case law to respond to technological changes in society.

The Board overruled its 2007 decision in Register Guard, finding it "was clearly incorrect." Register Guard held an employer may completely prohibit employees from using the employer's email system for concerted activities protected under Section 7 of the National Labor Relations Act. Register Guard allowed employers to completely ban employees from using the employers email system for these purposes without demonstrating any business justification, so long as the ban was not applied discriminatorily.

Purple Communications overruled Register Guard, finding it undervalued employees' core Section 7 right to communicate in the workplace about their terms and conditions of employment, and granted too much weight to employers' property right. The Board noted statistics showing email has become the most pervasive form of communication in the business world. The Board also discussed the Supreme Court's decision in City of Ontario, California v. Quon, which found some personal use of employer email is common and usually accepted by employers.

The Board stressed its holding in Purple Communications is "carefully limited." The holding only applies to employees who have already been granted access to the employer's email system and does not require employers to provide such access. Also, an employer may justify a total ban on nonwork use of email by showing the ban is necessary to maintain production or discipline.  Employers may also impose uniform and consistent controls over its email system to the extent necessary to maintain production and discipline. The holding is limited to email access, and does not extend to other forms of electronic communication. Although a small step, this decision shows the Board's willingness to adapt to ever-increasing technological changes.

This decision is about access to employers' email systems, not confidentiality of those emails.  It is possible some employers will read emails sent through their email systems and labor leaders should use caution about what they send on an employers' email system.

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.

PERB Follows NLRB to Require Employers Give Electronic Notice of Unfair Labor Practices

In Stationary Engineers Local 39 v. City of Sacramento (December 24, 2013) PERB Dec. No. 2351-M, PERB formally adopted the NLRB's rule from J & R Flooring, Inc. d/b/a Picini Flooring (2010) 356 NLRB No. 9, to require electronic notice postings.  As it explained, PERB "update[d] PERB's traditional posting requirement to better conform to the realities of the 21st-century workplace."

The rule requires "that where the offending party in unfair practice proceedings, whether it be an employer or employee organization, regularly communicates with public employees by email, intranet, websites, or other electronic means, it shall be required to use those same media to post notice of the Board's decision and remedial order."

This does not replace current rules about notice posting, but instead "shall be in addition to the Board's traditional physical posting requirement."