Court of Appeal Strikes Down POBR Waiver, Awards $362,000 in Backpay

In Jaramillo v. County of Orange (November 8, 2011) 2011 WL 5338998, the Fourth District Court of Appeal awarded an assistant Sheriff  backpay because the County denied him a pre-termination administrative hearing.  The Court also voided his purported waiver of POBR rights.

Former Orange County Sheriff Mike Corona appointed Jaramillo as Assistant Sheriff after he had supported him during an election.  However, Jaramillo and the Sheriff’s relationship began to deteriorate when the Sheriff requested he participate in  illegal activities. Jaramillo became tired of covering for the Sheriff and reported the Sheriff’s illegal activities. The Sheriff then fired the him without providing him with a pre-termination hearing. After he was terminated, he was charged with misappropriation of public resources and perjury before a grand jury to which he plead no contest as part of a settlement agreement.

The County claimed Jaramillo waived his POBR rights when he signed two documents upon being appointed as Assistant Sheriff. Both documents contained provisions stating he was an “at-will” employee and he “could be released from his position at any time without notice.” Neither of the documents he signed made any reference to POBR. The Court determined the waivers were blanket waivers and undermined the purposes of POBR. The Court distinguished County of Riverside v. Superior Court, noting that case permitted only specified and narrow waivers of POBR rights.

The Court also found denying Jaramillo's right to a pre-termination hearing violated POBR, 14th Amendment due process, and Labor Code Section 1102.5 (on the basis the Assistant Sheriff had been fired for whistleblowing on the Sheriff’s illegal activities.) The Court awarded backpay from the date of Jaramillo's termination to the date he plead no contest to two state law felonies as well as injunctive relief in the form of amending the waivers for future management employees.

Legal Issues on the Horizon for AB 646

AB 646 provides factfinding for all public employees covered by the Meyers-Milias Brown Act, unless the parties have binding interest arbitration. On November 8, 2011, the Public Employment Relations Board (PERB) held a meeting in Oakland on the implementation of AB 646. The meeting previewed two issues public safety unions will likely face as the law goes into effect:

1) Can employers dodge fact-finding by refusing to go to mediation?

AB 646 provides for factfinding after mediation. However, many local rules make mediation voluntary, raising a concern some employers may refuse to go to mediation to avoid fact-finding and then move unilaterally to impose terms and conditions as soon as impasse is reached in negotiations. Government Code section 3505.7 states, “After any applicable mediation and factfinding procedures have been exhausted, but no earlier than 10 days after the factfinders’ written findings of fact and recommended terms of settlement have been submitted to the parties pursuant to Section 3505.5 a public agency . . . may, after holding a public hearing regarding impasse, implement its last, best, and final offer. . .” This language mandates factfinding, a review of a factfinders’ report and a public hearing prior to an employer imposing terms and conditions of employment. Thus, if an employer refuses to engage in factfinding, it cannot comply with the terms of the statute and should be barred from imposing terms.

2) Does AB 646 affect PERB jurisdiction over Penal Code section 830.1 peace officers?

Government Code section 3511 exempts Penal Code section 830.1 peace officers from PERB’s exclusive jurisdiction, allowing them to go to superior court instead. Since AB 646 was adopted, some have argued it gives PERB more authority over peace officers because it requires PERB to “select a chairperson of the factfinding panel.” However, the more sensible view is that AB 646 does no more than it says: PERB appoints the chair of factfinding panels, but if an unfair labor practice arises during the factfinding process, Penal Code section 830.1 peace officers’ labor associations can continue to seek remedies in superior court.

The next step in implementing AB 646 is for PERB to adopt regulations interpreting the statute. PERB is accepting comments and suggests until November 18, 2011 as it prepares to roll out regulations prior to the law's effective date of January 1, 2012.

Labor-Backed Pension Reform Wins, Adachi Initiative Fails in San Francisco

On Tuesday, San Franciscans considered two voter initiatives about public employees' pensions: Measure C, backed by local labor unions, and Measure D, the so-called Adachi Initiative.  Measure C passed with 68% of the vote and Measure D failed, attracting only 33%.

Measure C requires employees to pay a small portion of their salaries to offset healthcare costs and requires most employees pay 7.5% of their salaries to the pension system until the system's investments recover from the recession.  Measure C was endorsed by labor, including the San Francisco Police Officers Association and San Francisco Fire Fighters, IAFF Local 798.

San Francisco's Public Defender, Jeff Adachi, spearheaded Measure D, which would have taken even more away from San Francisco's public employees and targeted public safety professionals in particular.  Measure D would have required most employees pay at least 7.5% and police and fire 10% of their salaries even after the pension system recovers.  It would also have reduced pension benefits.  Adachi's previous attempt to slash pension failed in 2010.

Ohioans Reject Anti-Union Law In Landslide Election

In their November 8, 2011 general election, voters in Ohio voted overwhelming to overturn a state law restricting public-sector employees' collective bargaining rights.  By a vote of 63% to 37%, voters rejected Ohio Senate Bill 5, which severely restricted collective bargaining rights in that state.  The 250-page bill increased the number of police and fire department employees prohibited from joining unions, prohibited unions from ensuring members pay their fair share for representation, and allowed employers to pick and choose what they wanted to bargain over, and, in some cases, whether they wanted to bargain at all.  Under Ohio law, the election means the S.B. 5 will not go into effect and current labor laws will remain in place.

Union Ordered to Pay Attorney's Fees to Expelled Members

In CDF Firefighters v. Maldonado (October 26, 2011, F061183) 2011 WL 5079589, the Court of Appeal held CDFF had to pay attorneys fees after losing a breach of contract case against former members, even though it voluntarily dismissed a related claim. The case turned on the interpretation of Civil Code section 1717. The section entitles some prevailing parties in breach of contract cases to attorney’s fees. However, there is an exception when “an action has been voluntarily dismissed.”

CDF Firefighters sued two former members for breach of contract after they failed to pay fines levied against them by the union. CDFF fined two members $22,000 to cover expenses for a trusteeship and $743 to reimburse another member for expenses. The two members were ultimately expelled from the union. The former members challenged their expulsion and sought to overturn the $22,000 fine in court. The trial court found the $22,000 fine improper. CDFF then dismissed the claim for $743 and the expelled members moved to recover the attorney’s fees they incurred.

CDFF argued that since it voluntarily dismissed the claim for $743, the expelled members were not “prevailing parties” and could not recover attorneys fees under Civil Code section 1717. They emphasized that their claim for the $22,000 and $743 were brought as one cause of action and argued that by dismissing the cause of action, they triggered the exception to Civil Code section 1717. The court, however, determined the claims for $22,000 and $743 arose from “two separate and distinct obligations,” regardless of how they were plead. As a result, the court concluded, voluntarily dismissing with regard to the $743 fine did not trigger the exception with regard to the $22,000 fine and ordered CDFF to pay attorneys fees.