contents

Features

5 Further Storm Warnings in the Territory of Retiree Health Care Benefits Richard Whitmore and Cepideh Roufougar

15 Truth & Consequences: The Practical and Legal Impact of a Good Investigation Rebecca Speer

Headliners

21 Supreme Court Upholds Limits on Agency Fee Spending Carol Vendrillo, CPER Editor

Recent Developments

Local Government

24 Action to Compel Arbitration Is Within PERB’s Exclusive Jurisdiction 27 Sheriffs Association Wins Attorney’s Fees in Bill of Rights Case 29 No Appealable Demotion for Reduction of Employee Work Responsibilities 32 Supreme Court Depublishes Sacramento POA Decision 33 Pitchess Motion Denied in Search and Seizure Case 35 Civil Service Commission Had Authority to Hear Appeal contents Recent Developments

continued

Public Schools

37 Four-Year Evidence Bar Not Absolute in Proceeding to Dismiss Teacher Accused of Sexual Misconduct 39 Legislature Puts Self-Representation Back Into EERA 41 West Contra Costa Teachers Vote to Strike

41 Oakland Inches Back Toward Local Control

Higher Education

43 CSU Academic Student Employees Battle for Fee Waivers 45 Scrutiny of U.C. Retirement System Continues 47 U.C. Increases Wages for Custodians and Other Low-Paid Employees

State Employment

50 Arbitrator Cannot Reform Contract That Has Been Approved by Legislature 53 State Forced to Raise Pay in Mental Hospitals 55 First Steps Taken to Modernize State Civil Service Hiring 58 Elected and Appointed Officials’ Salaries Jump contents Recent Developments continued

Discrimination

61 Supreme Court Interprets Time Limit Narrowly in Pay Discrimination Case 67 Employee Should Have Been Notified of Right to CFRA Leave

69 Disabled Employee Must Make Specific Request for Accommodation 70 Equitable Tolling Applicable to Time Limit for FEHA Claims 72 State Senate Passes Bill to Ban ‘Family Status’ Discrimination

General

73 Employee’s Reports of Physical Threats State Public Policy for Wrongful Discharge Claim 76 Wrongfully Terminated Disabled Employee Not Entitled to Backpay

Public Sector Arbitration

79 Grievant Reinstated After Termination for Sexual Harassment 80 Law Firm’s Mandatory Arbitration Clause Found Unconscionable

Departments

4 Letter From the Editor 85 Public Sector Arbitration Log 94 Public Employment Relations Board Cases 109 PERB Activity Reports 4 C P E R J O U R N A L No. 185

letter from the editor

CPER Readers: During the summer, the “feeling” around the university and at CPER undergoes a transformation. The majority of students have packed up their belongings and headed home, camp counselors can be seen herding their young charges wearing Cal Berkeley T-shirts along Telegraph Av- enue, and there suddenly are a welcomed surplus of parking spaces. Main- taining our focus during this time is always a bit of a challenge. But, once again, we’ve put together an August issue that reports on many exciting developments. Starting with the Supreme Court’s decision in Ledbetter, Justice Alito stands firm on the statute of limitations’ application in pay discrimination cases. The State Supreme Court also took an unexpected move and depublished the Court of Appeal decision in the Sacramento POA case, which found retiree hiring beyond scope under the MMBA. Teachers are primed to walk out in the fall in the West Contra Costa School District, and CSU tutors might hit the bricks over fee remissions. PERB’s exclusive jurisdiction was established by the Court of Appeal in a case bearing on the San Francisco charter’s interest arbitration process. And, an arbitration decision was vacated by the appellate court for clash- ing with provisions of the Dills Act. With retiree health care costs making national news, we’ve included a follow-up article that offers additional insights into this matter of criti- cal concern. And, don’t miss the valuable review of workplace investiga- tions that outlines several important pointers. I hope this piques your interest and encourages you to take us along as you enjoy the summer. Just remember to wear your sunscreen.

Sincerely,

Carol Vendrillo CPER Editor August 2007 c p e r j o u r n a l 5

Further Storm Warnings in the Territory of Retiree Health Care Benefits

Richard Whitmore and Cepideh Roufougar

As reported in the last issue of CPER, the “storm” over post-retirement health care benefits is not going to abate anytime soon. As costs continue to rise and retirees live longer, public agency employers and employees are faced with a financial burden that few predicted and even fewer are currently able to meet. Changes in governmental accounting principles — namely the Governmental Accounting Standards Board’s GASB 45 — have brought the issue and the costs associated with providing retiree health care benefits to the forefront. Richard Whitmore is a In “Weathering the Gathering Storm Over Post-Retirement Health Care Benefits —Vested or Not,” Jeff Sloan, Genevieve Ng, and Merlyn Goeschl did a named partner in the labor and thorough job of discussing GASB 45 and the perils of the “pay as you go” approach, employment law firm of Liebert particularly in the context of the County Employees Retirement Law (CERL) and Cassidy Whimore. Cepideh the Meyers-Milias-Brown Act. This article continues the discussion to focus on Roufougar is an associate with public employers that are covered by the Public Employees’ Medical and Hospital the firm. LCW represents public Care Act (PEMHCA). A solution to the retiree health care debacle may prove even harder to find under the PEMHCA’s more rigid statutory scheme. agency management throughout California. The authors would What Are Retiree Health Care Benefits? like to thank LCW partner Steve Berliner for his assistance with Pensions are the most widely known post-employment benefit provided by this article. employers. Retiree health care benefits are the most common form of other post- employment benefits (OPEBs) provided by employers. Retiree health care benefits are generally established through a promise by an employer to provide an employee with a certain level of continued benefits upon retirement. Employees work for an employer for a number of years with the expectation that the employer will fulfill this promise of providing continued benefits. 6 C P E R J O U R N A L No. 185

For many public employers, the promise of retiree health required to measure and report those costs associated with care benefits is found in collective bargaining agreements, providing retiree health care benefits, and any other OPEB. personnel policies, or resolutions or ordinances passed by Application of this new reporting requirement is being the agency’s governing body. The details of this promise, phased in, based on the total annual revenues of a including the manner in which it is made and the exact governmental agency.3 The stated purpose of this reporting language used to convey the benefit, all affect the employer’s requirement is to: obligation toward its employees. For those public employers who are covered by the Public Employees’ Medical and ...improve[ ] the relevance and usefulness of financial Hospital Care Act (PEMHCA),1 the promise of retiree health reporting by (a) requiring the systemic, accrual-basis care benefits is found, not only in the documents described measurement and recognition of OPEB cost (expense) over a period that approximates employees’ years of above, but also in the statutory provisions of the PEMHCA.2 service and (b) providing information about actuarial liabilities associated with OPEB and whether and to Why Are Retiree Health Care Benefits a Hot Topic? what extent progress is being made in funding the plan.4 In California, the cost of public pension benefits are funded traditionally through a combination of employer and GASB 45 requires only the reporting of unfunded OPEB employee contributions that are made liabilities. It does not require that on a regular basis during the term of an employers immediately begin funding individual’s employment. These regular those liabilities. However, as a result of contributions then are invested until the GASB 45 reporting requirements, such time as distributions occur in the Individual agencies many public agencies have to examine form of pension payments. This method that have not the true costs of retiree health care of funding pension benefits is benefits, including the costs of commonly described as “pre-funding.” pre-funded may be continuing to provide benefits to future Pre-funded contribution amounts are retirees. As the number of retirees determined by an actuarial analysis of looking at liabilities grows each year, almost all public the financial status of the pension plan. employers can expect eventually to be In sharp contrast, most retiree in the tens of millions paying more for health care benefits for health care benefits have not been pre- their retirees than for their current funded. Instead, many public employers and hundreds of employees. fund these retiree health care benefits To highlight the cost of providing on a “pay-as-you-go” basis. In other millions of dollars. retiree health care benefits, on May 7, words, employers fund retiree health 2007, the State of California reported care benefits only in those years in that for the 2007-08 fiscal year, the state which the benefits actually are being alone will spend approximately $1.4 provided to a retiree. Thus, unlike traditional pension plans, billion to provide those benefits to retired state employees and neither the employer nor the employee contributes money their dependents. In addition, the state reported an unfunded to pre-fund retiree health care benefits before those benefits liability of approximately $48 billion for future retiree health are provided. care benefits.5 While the financial liabilities faced by New governmental accounting standards have focused individual local agencies are not as great as the liabilities attention on the issue of retiree health care benefits. Under faced by the state, individual agencies that have not pre-funded Statement Number 45, issued by the Governmental may be looking at liabilities totaling in the tens of millions Accounting Standards Board, public employers now are and hundreds of millions of dollars. August 2007 c p e r j o u r n a l 7

Before discussing the limited actions that public agency deferred, and is subject to the condition that the employers can take to reduce the unfunded liabilities that employee continue to serve for the period required must be reported under GASB 45, it is helpful to look at how by the statute, the mere fact that performance is in whole or in part dependent upon certain retiree health care benefits are treated under both the general contingencies does not prevent a contract from legal theories of vesting and in specific retirement statutes. arising, and the employing governmental body may not deny or impair the contingent liability any more How Retiree Health Care Benefits Are Treated than it can refuse to make the salary payments which Under the Law are immediately due.12

The California Supreme Court has long held that In other words, once an employee begins work for a “public employment gives rise to certain obligations that public agency that provides pension benefits, the employee are protected by the Contracts Clause of the Constitution, and the employer automatically enter into a constitutionally including the right to the payment of salary that has been based “contract” for those benefits. The full benefit to be earned.”6 Anticipated pension benefits have been received by an employee will depend on the employee’s described as “an integral portion of contemplated satisfaction of certain terms, which generally include a compensation.”7 Thus, a public employee’s right to “pension” requirement that the employee perform services for a pre- or “retirement benefits” is one such identified period of time. A public agency protected obligation.8 employer that changes the terms of this The legal theory for granting contract while the employee is engaged constitutional protection to a public In Thorning, the in satisfying the requirements to receive employee’s pension rights is based on the full benefit of the contract may be the concept of vesting.9 The courts have state appellate court deemed to have unconstitutionally held that the right to pension benefits impaired its “contractual” obligation to vests upon employment.10 This holds held that retiree the employee. true even if an employee has not So far, the discussion has focused satisfied the prescribed service period health care benefits on the legal treatment of traditional 11 for receiving a full benefit. The vest in the same pensions; but what about retiree health California Supreme Court has care benefits? Are retiree health care described the interplay of vesting for manner as pension benefits and other OPEBs treated in the purposes of receiving a benefit and same manner as traditional pensions? vesting for purposes of determining the benefits. In one published California decision, amount of that benefit, along with the the Court of Appeal answered this contractual nature of vesting generally, question in the affirmative, and held that as follows: retiree health care benefits do vest in the same manner as pension benefits. The case, Thorning v. It is true that an employee does not earn the right to Hollister School Dist.,13 arose from a decision by a school a full pension until he has completed the prescribed district to discontinue paying health benefits to retiring period of service, but he has actually earned some pension rights as soon as he has performed substantial school board members. In Thorning, the court decided that services for his employer. [Citations.] He is not fully once the school board had adopted an “official declaration” of compensated upon receiving his salary payments policy that provided fully paid health benefits to retired board because, in addition, he has then earned certain members who had served a specified number of years, the school pension benefits, the payment of which is to be made board could not suspend payment of those benefits as to those at a future date. While payment of these benefits is members who had retired while that policy was in effect. 8 C P E R J O U R N A L No. 185

Making Changes to Vested Benefits In order for a modification to be considered reasonable, both prongs of the test must be satisfied. A modification Once a public employee has vested in the right to a satisfies the first prong when it relates “to considerations certain benefit, that benefit may not be altered without internal to the pension system, e.g., its preservation or impairing the employer’s contractual obligation.14 However, protection or the advancement of the ability of the employer the existence of this contractual obligation does not mean to meet its pension obligations.”19 The courts have struck that an employer may never change the type or level of benefits down modifications that are unrelated to the purpose and provided. In fact, over time, many employers have increased operation of a pension. retirement benefits. But what about an employer who attempts For example, in Wilson v. City of Fresno,20 the Court of to reduce benefits? To answer this question, it is helpful to Appeal disallowed an amendment to a pension plan that look at the very limited manner in which courts have allowed terminated all pension rights upon conviction of a felony employers to change pension benefits. after retirement. In striking this amendment, the court held: Circumstances in Which Changes Can Be Made The courts have struck The termination of all pension rights upon conviction of a felony Once a retirement benefit has vested after retirement does not appear down modifications to have any material relation to the in an employee, it may be reduced in only theory of the pension system or to two limited circumstances. The first that are unrelated its successful operation. Rather, the circumstance occurs when both parties change was designed to benefit the agree to the change. After all, there is no to the purpose city and, as stated in the city’s brief, impairment of a contract if both to meet the objections of taxpayers contracting parties mutually agree to and operation of a who would be opposed to the change in contract terms.15 This contributing funds for the mutual agreement may become pension. maintenance of a pensioner who 21 especially important when the change had been convicted of a felony. being made affects individuals who are currently retired. Since the theory of Although a modification may vesting is based in contracts, an employer seeking to change the satisfy the first prong of the test, employers proposing to vested benefit of a group of retirees presumably will need to reduce a vested benefit may have difficulty satisfying the enter into a new contract with each and every one of the retirees second prong. The judicially imposed requirement that affected. reductions in vested benefits must be offset by “comparable The second circumstance in which a change to a pension new advantages” to employees can render any attempt to benefit may be implemented occurs when, prior to the time of substantially reduce costs illusory. In determining if a retirement, the employer makes reasonable modifications to modification results in a comparable benefit or comparable benefits to maintain the integrity of the pension system.16 new advantage, the courts “must focus on the particular The reasonableness of a modification is determined on a employee whose own vested rights are involved.”22 The case-by-case basis.17 However, in order to be deemed courts will consider evidence of the effects of the modification “reasonable,” the courts have held that (1) modifications and resulting benefit on the particular employees whose “must bear some material relation to the theory of a pension vested rights are involved in determining if the modification system and its successful operation”; and (2) modifications is permissible. “which result in disadvantage to employees should be For example, in Barrett v. Stanislaus County Employees accompanied by comparable new advantages.”18 Retirement Assn.,23 the Court of Appeal upheld a retirement August 2007 c p e r j o u r n a l 9

board requirement that employees who were reclassified from The retirees filed suit, alleging that the district was obligated miscellaneous members to safety members pay the difference to continue providing fully paid PPO benefits. in employee contributions between the two classes. The court In support of their position, the retirees relied on held that the requirement to pay these arrears contributions language in a district policy that stated, “The District shall was a permissible change because the cost of the arrears underwrite the cost of the District’s Medical and Hospital payments was far outweighed by the enhanced retirement Insurance Program for all employees who retire from the benefit associated with receiving a safety retirement. District provided they have been employed in the District Similarly, in both Townsend v. County of Los Angeles24 and for the equivalent of ten (10) years or longer.” Amundson v. Public Employees’ Retirement System,25 the courts In finding for the district, the court in Sappington held upheld modifications to pension plans that related to changes that the language relied on by the retirees required only that in retirement ages. In Townsend, the court upheld a the district provide some type of insurance coverage, not a modification that reduced the specific type of coverage. The court held mandatory retirement age from 70 to that the district’s actions in providing full 65. This change was offset by an coverage for both HMO and PPO plans increase in the percentage of benefits Employers who did not create a contractual obligation to provided for each year of service, which do so, stating, “Generous benefits that resulted in enhanced benefits. In provide retiree health exceed what is promised in a contract Amundson, the court upheld a are just that: generous. They reflect a modification that imposed a later care benefits under magnanimous spirit, not a contractual retirement age. The court held that the mandate.”27 Thus, based on the disadvantage of the later retirement age CERL may have language of the policy, the court found was offset by a decreased employee much more flexibility that the district’s decision to provide contribution and a substantially higher only fully paid HMO benefits did not pension upon retirement. in reducing or constitute an impermissible change. The Language of the Benefit eliminating benefits. Comparing Retirement Laws Could Be Key One of the sources for Before an agency looks at determining the scope of a benefit will modifying retiree health care benefits, be the statute under which that benefit it first should look to its contractual obligation. The exact is provided. Depending on the applicable retirement law, terms of that obligation will impact the employer’s ability to this statute may allow an employer to take action to modify, make changes. The courts will interpret the language that or even eliminate, a vested benefit. As described below, the created the benefit when evaluating the permissibility of a two statutory schemes under which most public agency modification. employers provide retiree health care benefits are very In 2004, the court issued a decision allowing an employer different. Employers who provide retiree health care benefits to limit the health care benefits it offered retirees based on under the provisions of the County Employees Retirement the language of the agreement that authorized the benefit. In Law may have much more flexibility with regard to reducing Sappington v. Orange Unified School Dist.,26 the district had and/or eliminating retiree health care benefits. In contrast, been providing retirees fully paid PPO and HMO plans for employers covered by provisions of the PEMHCA may be 20 years. Due to increasing health insurance costs, the district more limited and face greater obstacles. decided to require a contribution for the PPO plan. However, the district continued to provide fully paid HMO benefits. 10 C P E R J O U R N A L No. 185

Specific vesting rules under the CERL. Government and whether the county’s action will be upheld remains to be Code Sec. 31691 allows for the provision of retiree health seen. care benefits by two different methods. Under Sec. 31691, Issues unique to PEMHCA covered agencies. The benefits can be provided either by an ordinance or resolution statutory requirements relating to retiree health benefits for adopted by the governing body of an agency covered by the those agencies covered by the PEMHCA vary significantly CERL, or by action of a board of retirement (the trustees of from the CERL. Under the PEMHCA, employers have two a retirement plan under the CERL).28 options for providing those benefits: either under the equal The ability of an employer to reduce or eliminate a contribution rule or pursuant to a vesting schedule.31 Each retiree health benefit granted under Sec. 31691 is expressly option poses unique issues for public employers. addressed by the CERL. Specifically, Sec. 31692 states: The equal contribution rule requires that an employer’s contribution under the PEMHCA “shall be an equal The adoption of an ordinance or resolution pursuant amount” for both employees and retirees.32 Employers who to Section 31691 shall give no vested provide benefits under the equal right to any member or retired contribution rule are required to member, and the board of supervisors provide a minimum contribution of or the governing body of the district Under the PEMHCA, $80.80 per employee and retiree during may amend or repeal the ordinance calendar year 2007, and a minimum or resolution at any time except that as to any member who is retired at the employers can provide contribution of $97 per employee and time of such an amendment or repeal, retiree during calendar year 2008. the amendment or repeal shall not be retiree benefits either Beginning in 2009, this minimum operative until ninety (90) days after contribution will be adjusted the board or governing body notifies under the equal annually.33 the member in writing of the The effect of the equal contribution amendment of repeal. In counties contribution rule or rule is, in essence, to decrease an with a population of 5,000,000 or more, employer’s ability to reduce retiree the adoption of an ordinance or pursuant to a vesting health care benefits. This barrier exists resolution pursuant to Section 31691 shall remain in effect for any member schedule. even if the employees were to agree to heretofore or hereafter retired for as the reduction and the reduced long as the board of supervisors or contribution amount satisfies the governing body provides similar types minimum contribution requirements. of benefits to any active member in current county The effects of the equal contribution rule are most obvious 29 service. [Emphasis added.] when considering a common technique used by employers to reduce pension liabilities, namely the creation of a second While there currently are no published cases tier of benefits that will be applicable only to future discussing application of Gov. Code Sec. 31692, this may employees. Since current employees and current retirees must change as more and more agencies look to reduce or receive the same contribution amount under the PEMHCA, eliminate retiree health care benefits and agencies attempt a tier that provides some employees a lesser contribution to take advantage of this statute. For example, on May 17, than retirees appears to violate the equal contribution rule. 2007, the board of supervisors for the County of Sacramento Employers subject to the PEMHCA that seek to create voted to eliminate retiree health care benefits for multiple benefit tiers may face legal challenges from new approximately 12,800 current employees but left benefits employees who are hired and provided benefits at the lower 30 unchanged for current retirees. Whether the affected levels. employees will seek judicial review of the county’s actions August 2007 c p e r j o u r n a l 11

As an alternative to the equal contribution rule, Public Employees Retirement System. Employers then are employers covered by the PEMHCA might consider required to provide a contribution that is equal to at least adopting a vesting schedule.34 Under this option, the actual 100 percent of the average cost of employee-only benefits. contribution paid on behalf of each retiree for health care The employer contribution for dependents is an additional benefits need not be equal to current employees or other 90 percent of the weighted average for dependents. The retirees. Instead, the actual contribution paid to a retiree is employer contribution under this formula is adjusted determined by the individual’s years of service. The vesting annually.37 Based on the formula, a maximum contribution schedule provides that an employee who has 10 years of is established. The applicable percentage of the maximum service credit at the time of retirement is entitled to receive a that must be paid to a retiree is determined by a retiree’s benefit equal to 50 percent of the employer’s contribution years of service, as discussed above. towards retiree health care benefits upon retirement. Based on increases in health care premiums, application Employees receive an additional 5 percent of contribution of the 100/90 formula results in a required employer for each additional year of service after contribution amount that is higher than 10 years of employment. Thus, the minimum contribution amount set employees who retire with 20 or more forth in Gov. Code Sec. 22892. Notably, years of service are entitled to receive Under a vesting because the 100/90 formula is based on an amount equal to 100 percent of the PERS’ premiums, the adoption of a employer’s contribution for health care schedule, the actual vesting schedule by those employers benefits. that currently provide a fixed amount Employers considering a vesting contribution paid to a could result in unexpected increases in schedule should be aware of two issues. required contributions over time. First, a vesting schedule generally is retiree is determined Finally, employers will need to applicable only to those individuals hired consider the interplay between the equal after the vesting schedule is adopted.35 by the individual’s contribution rule and a vesting The retirement health care benefits of years of service. schedule. Unlike the equal current employees or current retirees are contribution rule that provides the generally not affected by the adoption of minimum contribution for both a vesting schedule. Thus, the adoption of employees and retirees, the vesting a vesting schedule establishes a two-tier schedule option only addresses the benefits program based on an individual’s date of hire, with one minimum contribution that must be made for retirees. This level of future medical benefits for current employees and a leaves open the question of the minimum contribution for different level of benefits for employee’s hired after the date on current employees of an employer who has adopted a vesting which the vesting schedule is adopted. The creation of this two- schedule. In answer to this question, employees are likely to tier benefits system through application of a vesting schedule is assert that the equal contribution rule should be read in the only exception to the PEMHCA’s equal contribution rule. conjunction with the provisions that allow for adopting a The second issue that employers should keep in mind vesting schedule. Thus, these employees can be expected to regarding vesting schedules is the effect on the required argue that the employer’s contribution for current employees employer contribution. Contracting agencies that adopt a should be an amount that is no less than the maximum vesting schedule are required to provide a minimum contribution amount required under the 100/90 formula for contribution that satisfies the requirements of the 100/90 retirees. While there are no cases discussing the relationship formula set forth in Gov. Code Sec. 22893.36 This formula is between these statutes, this pro-employee approach to dependent on the weighted average premium of the four contributions appears to have been adopted by CalPERS in largest health benefit plans offered under the California guidelines contained in a circular letter.38 12 C P E R J O U R N A L No. 185

Looking to the Future: What Can Public Employers through unilateral action or through the meet and confer Do? process. Finally, other agencies are waiting to hear the Given that reducing or eliminating retiree benefits may recommendations of the Public Employees Post- be a difficult undertaking, many public employers are Employment Benefits Commission before taking any major exploring a variety of options to help minimize the future action. The commission was created by Governor impacts of benefits promised today. Schwarzenegger and consists of 12 members: six, including One option is to maximize pre-funding of retiree health the chairperson, appointed by the Governor, three appointed care benefits. By setting aside money now for future by the Speaker of the Assembly, and three appointed by the obligations, employers are able to take Senate President Pro Tem. The advantage of the financial benefits commission is responsible for associated with long-term investing. In preparing a report that (1) identifies the order to assist employers with the pre- In order to assist unfunded OPEB liability for funding option, CalPERS has created California’s governmental entities; (2) the California Employers’ Retiree employers with evaluates and compares approaches for Benefit Trust Fund. In early May of addressing these unfunded liabilities; 2007, the City of Thousand Oaks pre-funding options, and (3) proposes recommendations for became the first public agency addressing these unfunded liabilities. employer to participate in this newly CalPERS has The commission is required to provide created trust.39 this report to the Governor and the Another strategy being used by created the legislature by January 1, 2008.41 employers is to try to negotiate reduced benefits. Given the unique constraints California Employers’ Conclusion of the PEMHCA, the ability to Retiree Benefit Trust negotiate a reduction may be feasible There are no easy solutions to only for employers covered by the Fund. reducing the growing costs of retiree CERL. This strategy of negotiating health care benefits. No one approach reductions has been successful for the will apply to all public employers since County of Orange, which is covered by each faces unique obstacles. These the CERL. The County of Orange has entered into obstacles include the financial status of each agency agreements with the exclusive representative of most of its (including the amount of any unfunded OPEB liability), the employees. Based in part on these negotiated changes, the language of the benefit provided, and the statutes by which County of Orange has been able to reduce its unfunded the agency is governed. These factors, combined with the liability by more than one-half, from $1.4 billion to $598 increasing costs of premiums, the decreasing levels of plan million.40 benefits, and the real pressures that are placed on public Employers covered by the PEMHCA do not appear to employers, suggest there may be a long and difficult legal, have the statutory ability to do what the County of Orange financial, and emotional battle ahead. Only time will tell if did under the CERL. PEMHCA employers may want to public sector employers will be successful in reducing or consider pursuing statutory changes to the PEMHCA that eliminated retiree health care benefits. ❋ would allow them to create multiple benefit tiers, either August 2007 c p e r j o u r n a l 13

1 See Gov. Code Secs. 22750 et seq. 24 Townsend v. County of Los Angeles (1975) 49 Cal.App.3d 263. 2 See Gov. Code Secs. 22892. 25 Amundson v. Public Employees’ Retirement System (1973) 30 3 The effective date of GASB 45 for various public employers Cal.App.3d 856. depends on an agency’s annual revenue. GASB 45 began to take 26 Sappington v. Orange Unified School Dist. (2004) 119 effect on December 15, 2006, for those agencies with total annual Cal.App.4th 949. revenues of $100 million or more; after December 15, 2007, for 27 Id. At 955. agencies with annual revenues of $10 million or more, but less 28 See Gov. Code Sec. 31691. than $100 million; and after December 15, 2008, for agencies 29 Gov. Code Sec. 31692. with annual revenues of less than $10 million. (Id.) 30 “Retiree Benefit Curbed” by Ed Fletcher, Sacramento Bee, 4 See GASB Summary of Statement 45, www.gasb.org/st/ May 18, 2007. summary/gstsm45.html. 31 A variation of the equal contribution rule, referred to as the 5 “Questions and Answers: California’s First Retiree Health “unequal contribution rule,” allows employers to provide retirees Valuation,” dated May 9, 2007, Legislative Analyst’s Office, http:/ with a contribution that is less than the contribution provided to /www.lao.ca.gov/2007/ret_health_val/ret_health_val_050907.pdf. current employees, so long as employers’ annually increase the 6 Kern v. City of Long Beach (1947) 29 Cal.2d 848, 853. amount provided to retirees until the employers contribution for 7 Id. retirees is equal to that of current employees. Since, over time, 8 Miller v. State of California (1977) 18 Cal.3d 808, 815-16. this variation will have the same effect as the equal contribution 9 Kern v. City of Long Beach, supra, 29 Cal.2d at 855. rule, the unequal contribution rule is not discussed for purposes of 10 Dickey v. Retirement Board (1976) 16 Cal.3d 745, 749; Miller, this article. Moreover, this method is likely available only for supra, 18 Cal.3d at 817. employers first contracting with CalPERS for health care benefits. 11 Kern v. City of Long Beach, supra, 29 Cal.2d at 855. See Gov. Code Sec. 22892(c). 12 Ibid. 32 See Gov. Code Sec. 22892(b). 13 Thorning v. Hollister School Dist. (1993) 11 Cal.App.4th 1598. 33 Id. 14 Kern v. City of Long Beach, supra, 29 Cal.2d 848, 852-53. 34 See Gov. Code Sec. 22893. 15 Mulcahy v. Bardin (1932) 216 Cal. 517, 526; See also San 35 See Gov. Code Sec. 22893(a)(1). However, pursuant to Gov. Bernardino Public Employees Assn. v. City of Fontana (1998) 67 Code Sec. 22893, subd. (a)(6), an employer may choose, once per Cal.App.4th 1215, 1223 (“There can be no impairment of a contract year, to allow any previously hired employees the option to elect by a change thereof effected with the consent of one of the to be subject to the vesting schedule. contracting parties”). 36 Gov. Code Sec. 22893, subd. (a)(1). 16 Betts v. Board of Administration of PERS, (1978) 21 Cal.3d 37 Id. 859, 864. 38 See Guidelines issued by CalPERS in Circular Letter No. 17 Allen v. City of Long Beach (1955) 45 Cal.2d 128, 131. 600-006-02 regarding the repeal of Gov. Code Sec. 22825.5 and 18 Betts v. Board of Administration of PERS, supra, 21 Cal.3d at its replacement with Gov. Code Sec. 22893. (“For retirees and 864. active employees, the employer’s contribution may be the amount 19 Claypool v. Wilson (1992) 4 Cal.App.4th 646, 666. calculated using the 100/90 formula up to 100 percent of the total 20 Wilson v. City of Fresno (1954) 42 Cal.2d 180. premium.”) 21 Id. at p. 185. 39 CalPERS Press Release, dated May 7, 2007, titled “City of 22 Betts v. Board of Administration of PERS, supra, 21 Cal.3d at Thousand Oaks First to Join CalPERS Retiree Health Prefunding 864 (citing to Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, Plan.” 449-453). 40 “County’s Retiree Medical Debt Reduced,” by Peggy Lowe, 23 Barrett v. Stanislaus County Employees Retirement Assn. (1987) Orange County Register, March 21, 2007. 189 Cal.App.3d 1593. 41 Governor’s Executive Order S-25-06. 14 C P E R J O U R N A L No. 185

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To order CPER Pocket Guides, visit http://cper.berkeley.edu/. August 2007 c p e r j o u r n a l 15

Truth & Consequences: The Practical and Legal Impact of a Good Investigation

Rebecca Speer

An employee accuses a coworker of offensive sexual comments and overtures. A DFEH or EEOC complaint makes its way onto a manager’s desk. A valued, long- term employee alleges racial and gender bias in opportunities for advancement. Faced with these formal and informal complaints — and many like them — an employer in the public sector will be left to consider whether, and how, to conduct an investigation. The answers to these questions rely on both practical and legal considerations that, if handled well, can successfully move an organization toward informed and effective problem-solving and help the organization avoid difficulties that might otherwise derail productivity and create significant legal exposure. Rebecca Speer is the founder of Speer Associates, a San Importance of Investigations Francisco-based firm that specializes in helping employers First and foremost, a sound investigation helps ensure that management considers the right facts in making decisions affecting someone’s employment. prevent and manage employee When one employee accuses another of illegality or impropriety, an investigation misconduct and complaints. Speer’s that fairly and accurately determines whether the employee has engaged in wrongful practice is focused on conducting behavior — and the nature, frequency, and impact of that behavior — helps workplace investigations, and management make good decisions in response. Armed with the facts, management providing advice and counsel can determine the appropriate discipline and, more broadly, can consider steps to restore morale and productivity. Similarly, when an investigation — fairly and related to internal complaint accurately conducted — exonerates an employee accused of wrongdoing, the resolution practices and employee quality of the investigation fosters confidence in the decision to forego discipline behavioral mangement. and retain the employee in question. In addition to its pure factfinding function, an investigation sends the right messages: namely, that the employer takes employee complaints seriously; that it has a systematic and predictable method for resolving complaints; and that, as a 16 C P E R J O U R N A L No. 185

matter both of policy and action, it remains firmly committed Courts have emphasized that, among other actions, an to resolving questions of impropriety in an effective, fair, investigation can play an important role in demonstrating and thoughtful manner. In these ways, sound investigations an employer’s effort to prevent and correct offending become the cornerstone of good decisionmaking and effective behavior. management practices. Indeed, in Swenson v. Potter,3 the Ninth Circuit Court Beyond their practical impact though, investigations stated, “The most significant immediate measure an carry significant legal consequences in the discrimination employer can take in response to a sexual harassment and harassment context. When complaints of discrimination complaint is to launch a prompt investigation to determine and harassment progress to litigation, an employer’s earlier whether the complaint is justified.” In so holding, the Swenson response to an internal complaint or court emphasized the deterrent effect suspected misconduct can greatly affect of an investigation: “An investigation liability and damages. Indeed, is a key step in the employer’s response investigations often garner the spotlight and can be a powerful factor in in litigation. Beyond addressing As an overarching deterring future harassment….By underlying questions of liability (i.e. did principle, an opening a sexual harassment the alleged conduct occur?), plaintiffs in investigation, the employer puts all employment-related litigation will investigation helps employees on notice that it takes such heavily scrutinize the employer’s efforts allegations seriously and will not to investigate an earlier complaint made an employer sidestep tolerate harassment in the workplace. to HR; they will point to an employer’s An investigation is a warning, not by failure to investigate, or to investigate liability stemming words but by action.”4 In Swenson, the well, as evidence of a permissiveness court reversed a judgment in the towards — and tacit approval of — from inaction. plaintiff’s favor in a case involving misconduct. Alternatively, an employer coworker harassment on grounds that, who earlier had conducted a proper and while the employer had not disciplined effective investigation will offer the the employee accused of wrongdoing, investigation as proof that it had adequately discharged its duty it had conducted an effective investigation that revealed to promote a harassment- and discrimination-free environment. insufficient evidence to warrant discipline. The discussion below examines the benefits and legal This role of investigations in helping employers import of investigations. demonstrate an effective response to discrimination and harassment complaints can influence liability and damages Avoiding Liability and Damages Stemming From in several ways. Harassment and Discrimination Claims Avoiding an argument that the employer ratified misconduct. The U.S. Supreme Court has determined that Federal and California law requires employers to take an employer who fails to adequately respond to misconduct steps to prevent and properly respond to complaints of allegations can be deemed to have tacitly approved the discrimination and harassment. Under Title VII, harassment misconduct: that is, to have “adopted the offending conduct or discrimination complaints trigger an employer’s duty to and its results, quite as if they had been authorized take prompt corrective action that is reasonably calculated affirmatively as the employer’s policy.”5 As an overarching to end the misconduct;1 California’s Fair Employment and principle, an investigation helps an employer sidestep liability Housing Act deems it a separate statutory violation for an stemming from inaction. employer to fail to take “all reasonable steps necessary to prevent discrimination and harassment from occurring.”2 August 2007 c p e r j o u r n a l 17

Bolstering the ‘Faragher/Ellerth’ defense to certain corrective action.8 Among other steps, conducting an claims of supervisor harassment under Title VII. investigation when it learns of possible misconduct helps an Interpreting Title VII, the U.S. Supreme Court has held that employer to avert claims that it knew or should have known of when no tangible employment action has been taken against impropriety by a coworker or non-employee and failed to do a plaintiff employee, a defending employer may assert an anything about it. affirmative defense to claims of supervisor harassment by Avoiding punitive damages when liability for establishing that (1) the employer exercised reasonable care discrimination has been established. The U.S. Supreme to prevent and promptly correct any harassing behavior; and Court has ruled that an employer who makes “good faith (2) the plaintiff unreasonably failed to take advantage of any efforts to comply with Title VII” is not liable for punitive preventive or corrective opportunities damages, even when — contrary to provided by the employer or to those efforts — a managerial agent otherwise avoid harm.6 An effective engages in discriminatory conduct.9 investigation helps demonstrate that The U.S. Supreme Anti-discrimination practices also may the employer took meaningful steps to help an employer to avert punitive prevent and correct harassment, Court has ruled that damages under the FEHA by showing bolstering this critical defense to certain that the employer did not meet claims of supervisor harassment under an employer who wrongdoing with inaction.10 When Title VII. combined with other preventive steps, Mitigating damages under the makes ‘good faith performing an effective investigation may FEHA for supervisor harassment. The assist an employer in avoiding punitive California Supreme Court has ruled that efforts to comply with damages for discrimination and when no tangible employment action harassment claims. has been taken against a plaintiff Title VII’ is not liable employee, a defending employer in for punitive damages. Avoiding Liability for Wrongful claims brought under the FEHA may Termination Following the limit damages for sexual harassment by Dismissal of an Accused Employee asserting the “avoidable consequences doctrine.” To limit damages, the The California Supreme Court employer must show that (1) the employer took reasonable has held that a proper and effective internal investigation steps to prevent and correct workplace harassment; (2) the which produces a reasonable, “good faith belief” in grounds employee unreasonably failed to use the preventive and for termination can insulate an employer from liability for corrective measures the employer provided; and (3) the wrongful termination. reasonable use of the employer’s procedures would have Namely, in Cotran v. Rollins Hudig Hall International, prevented at least some of the harm in question.6 Under this Inc.,11 the court held that where good cause is required to ruling, conducting an investigation and otherwise responding terminate an employee, the employer must show that it acted appropriately to claims of harassment — while not sufficient reasonably and in good faith in firing an alleged harasser. In to avoid liability for supervisor harassment altogether under cases involving an implied contract to dismiss only for cause, California law — nonetheless can help limit damages. the employer need not prove that the alleged harassment (or Avoiding liability for coworker and non-employee other wrongdoing) actually occurred. Rather, to avert liability harassment. An employee seeking damages against an for wrongful termination, the employer simply must show employer for harassment by a coworker or non-employee must (1) it conducted an investigation that was appropriate under show that the employer knew or should have known of the the circumstances; and (2) it based its decision to terminate harassment and that it failed to take immediate and appropriate the employee on substantial evidence that it reasonably 18 C P E R J O U R N A L No. 185

believed to be true.12 Under Cotran, then, an employer in „ Kohler v. Inter-Tel Technologies (9th Cir. 2001) 244 F.3d situations involving an implied contract to dismiss only for 1167, 148 CPER 53. In Kohler, the court described the cause can avoid liability by showing that it terminated an employer’s investigation as “exemplary.” It praised the employee pursuant to a reasonable, good faith investigation. company for (1) promptly hiring a neutral third-party to In sum, in the discrimination and harassment context, a conduct the investigation when it was notified of the properly conducted investigation can (1) help ensure that an complaint; (2) immediately offering to allow the complainant employer meets its legal obligation to properly respond to a to return to her position but with a new supervisor, and complaint of misconduct; (2) bolster certain legal defenses offering backpay from the time of her resignation; (3) seeking and protections to liability offered under both federal and the complainant’s participation in the investigation and, when state laws; and (3) help an employer avoid liability for implied the complainant declined to participate, proceeding with the contractual claims of wrongful investigation anyway; (4) interviewing termination. an adequate number of witnesses; and (5) following the investigation, taking What Constitutes an Adequate While an adequate remedial steps by both Investigation? disciplining the employee wrongdoer investigation need not and training the entire workforce. Courts have yet to provide a checklist „ Cotran v. Rollins Hudig Hall or formula to guide an investigation. be ‘perfect,’ it must International, Inc. (1998) 17 Cal.4th 93, They have, however, produced broad 128 CPER 11. In Cotran, the court did commentary that collectively illuminates be reasonable and not provide a detailed description of an general standards which should apply in “adequate investigation,” but instead conducting an investigation. A review effective in terms identified broad principles of fairness of cases — illustrating both successful of the employer’s and due process which ensure that and not-so-successful investigations — investigative results are “reasoned” and provides a helpful starting point in ultimate remedial goal. “supported by substantial evidence,” defining the general parameters of a and “not trivial, arbitrary or capricious, good investigation. unrelated to business needs or goals, or Adequate investigations. pretextual.” „ Swenson v. Potter (9th Cir. 2001) 271 „ Silva v. Lucky Stores, Inc. (1998) 65 F.3d 1184. In discussing the sufficiency of the employer’s Cal.App.4th 256, 131 CPER 70. In determining the investigation, the court in Swenson cited such elements as (1) sufficiency of the employer’s investigation, the Silva court the speed in which the investigation was commenced; (2) the noted, among other factors, that the investigator (1) was opportunity granted to the complainant to “present her skilled and objective; (2) promptly interviewed the complaint, articulate her concerns, and express her view of complainant; (3) developed a sufficient evidentiary record; preferred outcomes”; (3) the scope of the investigation in (4) asked “relevant, open-ended, non-leading questions” and terms of the nature and number of witnesses; (4) the adequacy “attempted to elicit facts as opposed to opinions or of efforts made to corroborate the complainant’s and the suppositions”; (5) maintained confidentiality and encouraged alleged wrongdoer’s versions of events; and (5) the those he interviewed to contact him if they wanted to speak promptness of the employer’s response. Overall, the court with him again; (6) gave the accused employee prompt notice ruled that, while an investigation need not be “perfect,” it of the allegations and an opportunity to respond; (7) gave must be reasonable and effective in terms of the employer’s critical witnesses an opportunity to clarify, correct, or ultimate remedial goals. challenge information provided by other witnesses; and (8) considered and evaluated contrary information. August 2007 c p e r j o u r n a l 19

Problematic investigations. Promptness. What is considered appropriate timing for „ Sarro v. City of Sacramento (E.D. Cal. 1999) 78 F.Supp.2d an investigation to begin will vary from situation to situation. 1057. In Sarro, the court held that the investigation fell far But, generally speaking, the investigation should be short of its goal of “deterring future harassment” and instead commenced and completed as promptly as reasonably appeared aimed at deterring the reporting of harassment. possible. Among other deficiencies, the court noted (1) the investigator Neutrality and objectivity. The investigation should had not been trained in conducting sexual harassment be conducted by an investigator untainted by biases for or investigations; (2) the investigation was not reasonably against any particular person or point of view. Throughout tailored to assess the merits of the complaint; (3) the the process, the investigation should be marked by an open- investigation aimed to discredit and even to humiliate the minded, non-end-driven approach. complainant by focusing on irrelevant, Fairness and due process. The personal, and private aspects of her life; investigation should be conducted with (4) the investigation did not test the principles of fairness and due process credibility of the alleged wrongdoer, an Courts have spoken in squarely in mind. For instance, the issue “clearly relevant” given the nature investigator should give the complainant of the allegations; and (5) the broad terms about the an adequate opportunity to communicate investigation did not involve interviews his or her complaint and to offer with pertinent witnesses. general interrelated information relevant to it. Similarly, the „ Fuller v. City of Oakland (9th Cir. investigator should give the accused 1995) 47 F.3d 1522, 1529, 111 CPER characteristics that an employee an adequate opportunity to 51. In holding that the city’s respond to the allegations and bring investigation of the plaintiff’s adequate, or reason- forth relevant information. complaint was inadequate, the court Effectiveness of investigative noted that the investigator (1) failed to able, investigation techniques. The investigator should promptly interview the accused will possess. employ investigative techniques employee; (2) accepted the accused designed to effectively uncover the employee’s version of events without facts. That is, the investigator should taking reasonable steps to corroborate be skilled. For instance, investigative that version; (3) failed to interview a interviews should be conducted using percipient witness favorable to the plaintiff; and (4) failed to non-leading questions aimed at the relevant factual matters. give sufficient weight to evidence that contradicted the Overall, the investigation should reflect a well-organized accused employee’s version of events. and thoughtful approach. Rigor. The investigation should be adequately rigorous Lessons Learned in certain key respects: (1) in the number of witnesses questioned and the factual matters examined; (2) in the steps As these cases demonstrate, courts do not demand taken to corroborate the complainant’s and the alleged perfection from an investigation. After all, demanding that wrongdoer’s versions of the central events; and (3) in the employers conduct investigations on par with the exhaustive efforts made to account for conflicts in the information discovery typically undertaken in the litigation setting would received. render most internal investigations impractical. Instead, Candor. A good investigator creates an environment that courts have spoken in broad terms about the general, promotes witness candor. For instance, interviews should be interrelated characteristics that an adequate, or reasonable, conducted in a private setting, and witnesses should be investigation will possess. informed of the employer’s policy against retaliation. 20 C P E R J O U R N A L No. 185

Evaluation of the evidentiary record. Finally, an 1 Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 882, 88 CPER adequate investigation will include the proper development 48; Fuller v. City of Oakland (9th Cir. 1995) 47 F.3d 1522, 111 and evaluation of the information gathered. The results of CPER 51; Swenson v. Potter (9th Cir. 2001) 271 F.3d 1184. 2 Gov. Code Sec. 12940(k). the investigation will demonstrate the investigator’s 3 (9th Cir. 2001) 271 F.3d 1184. discerning eye in sifting through the evidence and properly 4 Ibid. weighing witnesses’ accounts in light of bias, supposition, 5 Faragher v. City of Boca Raton (1998) 524 U.S. 775, 789, 131 and hearsay. CPER 14. 6 Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, and Conclusion Faragher v. City of Boca Raton, supra, 524 U.S. 775, 131 CPER 14. 7 State Department of Health Services v. Superior Court; Theresa Conducted well, investigations are an indispensable v. McGinnis (2003) 31 Cal.4th 1026. employee relations and legal tool that serve multiple 8 Gov. Code Sec. 12940(j). 9 Kolstad v. American Dental Assn. (1999) 527 U.S. 526. objectives. First, they provide management with a thorough 10 See, e.g., Weeks v. Baker & McKenzie (1998) 63 Cal. App. 4th and accurate understanding of whether misconduct has 1128 (law firm liable for punitive damages when it knew that occurred, so that the organization can engage in effective partner was likely to sexually harass plaintiff but failed to take problemsolving regarding matters of consequence both to reasonable steps to prevent the misconduct). individual employees and the organization. Second, they 11 (1998) 17 Cal.4th 93, 128 CPER 11. promote a work environment in which employees and 12 Id. at 107-08. managers alike can comfortably report issues of concern with a sense of confidence in the organization’s ability to effectively examine and address problems. And, finally, they shore up certain legal defenses and help mitigate damages by demonstrating the organization’s effectiveness in, and commitment to, responsibly addressing questions of possible misconduct. ❋ August 2007 c p e r j o u r n a l 21

Supreme Court Upholds Limits on Agency Fee Spending

Carol Vendrillo, CPER Editor

In a case that was closely watched by labor organizations and right-to-work groups, the U.S. Supreme Court in a unanimous ruling upheld a Washington state law that required public sector unions to obtain individual nonmembers’ affirmative authorization to use their agency fees for election-related purposes. The justices found that the union had no constitutional right to agency fees and that the “modest In June, the U.S. limitation” imposed by the state law did not violate the First Amendment. Supreme Court ruled At the center of the high court ruling was a Washington state statute approved that a state law can by voters in 1992 that imposed restrictions on the Washington Education demand that a public Association’s ability to spend the agency fees it collects from nonmembers. The sector union get non- provision in contention prohibited a union representing public sector employees from using agency shop fees to make political contributions “unless affirmatively members' consent authorized by the individual.” before it uses ‘fair In two separate lawsuits that challenged the association’s expenditure of agency share’ fees for political fees for election-related purposes without obtaining nonmembers’ approval, the purposes. Supreme Court of Washington held that the approval requirement violated the First Amendment and disrupted the balance which has been established by federal agency fee and constitutional case law. The court had in mind Abood v. Detroit Board of Education (1977) 431 U.S. 209, 34 CPER 2, which allowed public sector unions to collect and use agency fees for purposes that are germane to their collective bargaining duties, and Chicago Teachers Union v. Hudson (1986) 475 U.S. 292, 68X CPER 1, which imposed specific procedural requirements on unions to ensure that nonmembers can prevent the use of their fees for purposes deemed impermissible under Abood. 22 C P E R J O U R N A L No. 185

High Court’s Opinion satisfied by a narrower remedy. This admonition on the courts “does not imply that legislatures (or voters) themselves In the opinion authored by Justice Antonin Scalia, the cannot limit the scope of that entitlement,” wrote Scalia. court began by describing a public sector union’s right to The Supreme Court also took exception to the argument “levy fees on governmental employees who do not wish to that the Washington statute improperly limits how the union join the union” as “undeniably unusual,” and characterized can use “its” money. Agency fees are in the union’s possession an agency shop agreement as “the power…to tax government only because Washington and its union-contracting employees.” The statutory obligation “is simply a condition government agencies “have compelled their employees to on the union’s exercise of this extraordinary power,” wrote pay those fees,” said the court. As applied to public sector Scalia, and “the notion that this modest unions, wrote Scalia, the Washington limitation upon an extraordinary statute cannot fairly be described as a benefit violates the First Amendment restriction on the way the union can is, to say the least, counterintuitive.” spend its money; “it is a condition Contrary to the Washington ‘The constitutional placed upon the union’s extraordinary Supreme Court, Justice Scalia did not state entitlement to acquire and spend read the agency fee cases as striking a floor for unions’ other people’s money.” constitutional balance because “unions The union’s contention that the have no constitutional entitlement to the collection and spending statute amounted to unconstitutional fees of nonmember-employees.” “We content-based discrimination met with have never suggested that the First of agency fees is not similar disapproval from Scalia. “We Amendment is implicated whenever do not believe that the voters of governments place limitations on a also a constitutional Washington impermissibly distorted union’s entitlement to agency fees the marketplace of ideas when they above and beyond what Abood and ceiling for state placed a reasonable, viewpoint-neutral Hudson require.” The court explained limitation on the State’s general that Hudson sets out a minimum set of imposed restrictions.’ authorization allowing public-sector procedures with which a union must unions to acquire and spend the money comply in order to satisfy Abood. “The of government employees.” The mere fact that Washington required electorate “sought to protect the more than the Hudson minimum does integrity of the election process,” wrote not trigger First Amendment scrutiny,” said the court. “The Scalia, “which the voters evidently thought was being constitutional floor for unions’ collection and spending of impaired by the infusion of money extracted from agency fees is not also a constitutional ceiling for state- nonmembers of unions without their consent.” The voters imposed restrictions.” did not have to enact an across-the-board limitation on the The court cautioned against reading too much into the use of agency fees to vindicate their more narrow concerns. cases that have invoked the proposition that an agency fee And, said Scalia, “no suppression of ideas is afoot, since the payer’s dissent to an expenditure “is not to be presumed” and union remains as free as any other entity to participate in the that it must affirmatively be made known to the union by the electoral process with all available funds other than the state- dissenting employee. By that admonition, Scalia explained, coerced agency fees lacking affirmative permission.” Given the justices meant only that it would be improper for a court the “unique context of public-sector agency-shop to enjoin the expenditure of the agency fees of all employees, arrangements,” the court concluded that the content-based including those who had not objected, when the statutory or nature of the Washington law did not violate the First constitutional limitations established by case law could be Amendment. August 2007 c p e r j o u r n a l 23

Justice Scalia, along with Justices Stevens, Kennedy, Varied Reactions Souter, Thomas, and Ginsburg, rejected the association’s argument that the Washington statute conflicted with the Predictably, reaction to the court’s decision has been Supreme Court’s prior campaign finance decisions. Scalia mixed. The National Right to Work Legal Defense and these five justices found that that precedent was “not on Foundation and other anti-union groups heralded the opinion point.” Justice Breyer, in a separate opinion with which Chief as “an important victory” for the First Amendment rights of Justice Roberts and Justice Alito joined, asserted that the workers. Some praised the ruling for rejecting the union’s union’s campaign finance argument should not be addressed argument that it enjoys a constitutional right to use the agency because it was raised for the first time when the case reached fee funds it collects for political activities. But others were the high court. disappointed that the court did not go farther and, according While the case was pending before the court, the to these right-to-work groups, strike down compulsory Washington lawmakers amended the law to provide that a union unionism altogether. “does not use agency shop fees when it uses its general treasury Indeed, some union leaders expressed relief that the high funds to make [political] contributions or expenditures if it has court rejected the argument that unions must obtain sufficient revenues from sources other than agency shop fees in individual affirmative consent to have any of their agency its general treasury….” Despite this amendment, the court fees used for nonrepresentational purposes. Other labor determined that the cases were not moot because the agency organizations noted that, in light of the statutory amendment, fee petitioners had sought monetary damages previously the court’s decision will have no prospective impact. collected by the association and because “it still matters In 1998 and 2005, California voters rejected ballot whether the Supreme Court of Washington was correct to hold initiatives that would have imposed similar restrictions on that [the former] version [of the law] was inconsistent with the unions’ expenditures of dues and agency fees. ❋ First Amendment.” (Davenport v. Washington Education Assn. [6-14-07] ___ U.S. ___, 127 S.Ct.. 2372.)

SAVE THE DATE Thursday, September 20

UNFAIR PRACTICE CHARGE PROCESSING CPER and PERB once again are cosponsoring this in-depth review of charge processing — from filing of unfair practices through board review of proposed decisions. If you missed it when it was presented in Northern California, last fall, here’s your chance to attend this highly praised program!

The program will be held at U.C. Irvine, Crystal Cove Auditorium For more information, and registration, go to the PERB website: http://www.perb.ca.gov 24 cper journal No. 185

Recent Developments

the terms of the city charter to submit Local Government all labor disputes to binding arbitra- tion. The city sought an order requir- ing the union to participate in the char- Action to Compel Arbitration Is Within ter-mandated impasse resolution pro- PERB’s Exclusive Jurisdiction cedures because negotiations with the city’s unions had to be completed in time for the board of supervisors to au- In a case that was closely watched by must be submitted to a three-member thorize inclusion of any compensation local government practitioners, the arbitration board which has the power change in the city’s budget before the First District Court of Appeal an- to issue binding decisions regarding new fiscal year. nounced that Sec. 3509 of the Meyers- such quarrels. PERB denied the city’s injunction Milias-Brown Act conveys to the Pub- The parties have used the arbitra- request, but it did issue a complaint lic Employment Relations Board exclu- tion procedure to resolve their labor asserting the union was obligated by sive jurisdiction to decide whether the disputes for several years, but in Janu- the terms of the city charter to arbitrate exclusive representative of city employ- ary 2006, when a dispute arose, the all outstanding labor disputes. An ALJ ees is required to participate in arbi- union declined to select an arbitrator, conducted an evidentiary hearing and tration under the city charter. the first step in the process. In response, issued a proposed decision ruling that the the city filed an action in superior court, alleging that the union was required by the terms of the city charter and the The union declined existing MOU to submit all unresolved The union was to select an arbitrator, labor disputes to arbitration. required by the terms Local 39 argued that the city had the first step in failed to exhaust its administrative rem- of the city charter to the process. edies before proceeding with the law- submit its outstanding suit. The union urged that under Gov. Code Sec. 3509 of the MMBA, PERB labor disputes to has exclusive jurisdiction to determine The case arose when the City of whether the union is required by the binding arbitration. San Francisco sought to compel arbi- city charter to submit its labor dispute tration with International Union of to binding arbitration. The trial court Operating Engineers, Local 39, after found the union was not required by union was required by the terms of the the union told the city that it would not the terms of the MOU to do so, and the city charter to submit its outstanding participate in arbitration during nego- court did not have jurisdiction to adju- labor disputes to binding arbitration. tiations for a new memorandum of un- dicate the city’s claims, holding instead In the meantime, the city appealed derstanding. The San Francisco char- that PERB had exclusive jurisdiction the trial court decision to the First Dis- ter obligates the city and the unions to over the dispute. trict Court of Appeal, reiterating its engage in good faith negotiations for a After the trial court’s decision, the view that PERB did not have exclusive new MOU. The charter also declares city filed a charge with PERB, alleging jurisdiction to determine whether Lo- that any disputes between the parties again that the union was required by cal 39 was required by the terms of the August 20 0 7 cper journal 25

city charter to arbitrate its outstanding conclusion in Coachella Valley Mosquito The court conceded that the city’s com- labor disputes. & Vector Control Dist. v. California Public plaint does not mention the MMBA, but The Court of Appeal explained Employment Relations Board (2005) 35 what matters, it said, is whether the un- that the legislature granted PERB ex- Cal.4th 1072, 173 CPER 18. In Coachella, derlying conduct on which the suit is clusive jurisdiction over alleged viola- the court stressed that Sec. 3509 grants based, however described, falls within tions of the MMBA starting in July PERB exclusive jurisdiction over alleged the board’s exclusive jurisdiction. The 2001, as codified in Sec. 3509. That violations of the MMBA. court held the city’s complaint alleges section states, “A complaint alleging Because Sec. 3509(c) gives PERB the conduct that comes within the scope of any violation of this chapter or any power to enforce rules concerning unit Sec. 3509(b), and the city could not, rules and regulations adopted by a pub- determinations, representation, recogni- through artful pleading, evade the lic agency pursuant to Sec. 3507...shall tion, and elections, the city next argued board’s exclusive jurisdiction. be processed as an unfair practice — relying on the rule that the expression The city’s citation to case law failed charge by [PERB].” With the city con- of some things in a statute necessarily to convince the court that the superior means the exclusion of other things not court, not PERB, had jurisdiction. In expressed — that the statute cannot be The legislature construed to grant the board the power to enforce a local rule that sets forth proce- The city could not, granted PERB dures for resolution of disputes. To that, the Court of Appeal noted that the board through artful exclusive jurisdiction is given exclusive jurisdiction under Sec. pleading, evade the over alleged violations 3509(b), and therefore, subdivision (c) is not determinative. board’s exclusive of the MMBA. The city further contended that the board has the power under Sec. 3509(b) jurisdiction. to adjudicate unfair practice claims, but only when those claims concern unit Rojo v. Kliger (1990) 52 Cal.3d 65, 86 ceding that the charter provision is a determinations, representation, recog- CPER 60, the California Supreme rule adopted by a public agency within nition, or elections as listed in Sec. Court ruled that the Fair Employment the meaning of Sec. 3507, the appellate 3509(c). The court rejected this argu- and Housing Act provides the exclu- court found that the city’s petition to ment, highlighting that Sec. 3509(a) sive remedy for injuries that arise from compel arbitration alleged the viola- grants the board powers described in sex discrimination in employment. tion of a rule adopted by a public agency both subdivisions (b) and (c); and no- Here, the Court of Appeal found Rojo under Sec. 3507. Thus, under Sec. where does Sec. 3509 state the powers not controlling because it involved a 3509(b), PERB has exclusive jurisdiction set forth in subdivision (b) are quali- different statutory scheme. over the claim. fied by the powers granted in subdivi- In Pacific Legal Foundation v. Brown The city argued that PERB has no sion (c). (1981) 29 Cal.3d 168, 49 CPER 45, the jurisdiction over complaints filed in Next, the city argued that PERB issue was whether the provisions of the superior court, but the court found no does not have jurisdiction because its Dills Act conflicted with the State Per- precedent to support that argument. In complaint only alleges a violation of the sonnel Board’s constitutional jurisdic- fact, it noted the California Supreme city charter, but contains no allegation tion to review disciplinary actions. In Court actually reached the opposite of unfair practice under the MMBA. 26 cper journal No. 185

The Meyers-Milias-Brown Act governs labor-management relationships in California local government: cities, counties, and most special dis- tricts. This update from the last edition covers three years of Public Em- ployment Relations Board and court rulings since jurisdiction over the MMBA was transferred to PERB; the Supreme Court ruling establishing a six-month limitations period for MMBA charges before PERB; changes in cper PERB doctrine including a return to the Board's pre-Lake Elisinore arbi- tration deferral standard and reinstatement of the doctrine of equitable Pocket Guide to tolling; new federal court developments in the constitutional rules govern- ing agency fees, and more. Meyers-Milias- This booklet provides an easy-to-use, up-to-date resource for those who Brown Act need the MMBA in a nutsehell. It’s a quick guide through the tangle of cases affecting local government employee relations and includes the full text of act, a glossary, table of cases, and index of terms.

By Bonnie Bogue, Carol Vendrillo, Marla Taylor and Eric Borgerson 13th edition (2006) • $15 • http://cper.berkeley.edu

Pacific Legal, the Supreme Court ruled nothing to do with the Education Code the futility exception simply by point- that the Dills Act provisions were not and did not invoke the board’s jurisdic- ing to the fact that the board denied its facially unconstitutional because no tion via a defense. request for an injunction. Rather, the actual jurisdictional conflict existed The city contended that even if city had to show how the board inevita- between PERB and the SPB. The ap- PERB has exclusive jurisdiction, it bly would rule on its claim that Local pellate court held that Pacific Legal did should be excused from initially pursu- 39 was required to submit to binding not assist the city’s jurisdictional argu- ing that administrative procedure be- arbitration under the charter’s impasse ment because it did not allege that there fore resorting to the courts. provisions. The court found that the were conflicting statutory schemes, nor First, the city argued that it should city did not even attempt to carry that did it facially challenge the statute. be excused from pursuing its remedies burden. A third case cited by the city like- with the board because such an action Next, the city contended that it wise failed to win the court over. United would be futile. The city noted that, as should be excused from pursuing its Teachers of Ukiah v. Board of Education predicted in the lower court proceed- administrative remedies with the board (1988) 201 Cal.App.3d 632, held that ings, PERB denied its request for an because doing so would cause irrepa- parties may not divest the court of ju- injunction. It is not sufficient to show rable injury. It cited Department of Per- risdiction over alleged violations of the what the board’s ruling would be on a sonnel Administration v. Superior Court Education Code by framing their de- particular issue or defense, the court (1992) 5 Cal.App.4th 155, 94 CPER 8, fenses in a fashion that arguably invokes explained. Rather, the party must dem- which arose at a time when the state PERB’s jurisdiction. The appellate onstrate what the board’s ruling would faced an unprecedented budgetary cri- court explained that, unlike in United be in the particular case before the sis. When DPA imposed certain fiscal Teachers, San Francisco’s claim had court. Here, the city could not invoke policies, unions representing state em- August 20 0 7 cper journal 27

ployees challenged the actions and a the terms of the new agreement were fa- trative proceedings had not run their superior court ruled that DPA lacked vorable to the city, the court held the ir- course, and it ruled PERB did have ex- the authority to impose those policies. reparable injury exception did not apply. clusive jurisdiction over the dispute Before the Court of Appeal, the ques- Finally, the city contended it was between Local 39 and the city. Under tion was whether the superior court had excused from pursuing its administra- these circumstances, the court held, jurisdiction over the matter, or whether tive remedies with PERB by what it de- Coachella does not provide grounds for the dispute should have been submit- scribed as the “administrative jurisdic- avoiding the otherwise applicable ad- ted to PERB. The Department of Per- tion exception” that was expressed in ministrative remedies. sonnel Administration court assumed Coachella. The Coachella court ruled that Lastly, the court rejected the city’s that PERB had jurisdiction, but ruled a court may, in certain circumstances, argument that the trial court should the employee unions were excused from entertain a claim that an agency lacks have granted its petition to compel ar- pursuing their administrative remedy jurisdiction before the agency proceed- bitration because its contract with Lo- ings have run their course. The Coachella cal 39 incorporated the terms of the court announced that when deciding to city charter, which requires the union PERB has the exercise that power, a court should evalu- to submit to arbitration. The court held ate three factors: the injury or burden that that under Sec. 3509(b), PERB has the exclusive jurisdiction exhaustion of administrative remedies exclusive jurisdiction to determine will impose, the strength of the legal ar- whether the union was in fact required to determine whether gument that the board lacks jurisdiction, by the terms of the city charter to arbi- the union was required and the extent to which the administra- trate, and thus the superior court could tive expertise may aid in resolving the not issue the sought ruling. (City and by the terms of the city jurisdictional issue. County of San Francisco v. International charter to arbitrate. The Court of Appeal observed that Union of Operating Engineers, Loc. 39 [5- the trial court addressed the jurisdic- 31-07] 151 Cal.App.4th 938.) tional issue even though the adminis- under the irreparable injury exception — because of the urgent need for a quick resolution to the issues and the great potential for irreparable harm in Sheriffs Association Wins Attorney’s Fees the nature of increased layoffs of state in Bill of Rights Case employees. The appellate court found that San In a case of first impression, the Fourth of the Bill of Rights Act, which autho- Francisco was not facing a crisis like District Court of Appeal awarded rizes a civil penalty of up to $25,000 the one presented in Department of Per- attorney’s fees to the Riverside Sheriff’s and attorney’s fees for malicious viola- sonnel Administration, and while the city Association in a lawsuit where the as- tions of the act, does not foreclose an wanted and needed to reach an agree- sociation was successful in enforcing award of attorney’s fees under Code of ment with Local 39 prior to the start of its members’ rights to representation Civil Procedure Sec. 1021.5 when a the new fiscal year, the record indicated under the Public Safety Officers Pro- party has secured an important right of the city achieved that goal. Because pro- cedural Bill of Rights Act. The appel- public interest. cedurally the court had to assume that late court announced that Sec. 3309.5(e) 28 cper journal No. 185

The underlying case arose when The superior court also awarded unpublished case in which the court several deputy sheriffs, working at a the association attorney’s fees under held that the public safety officer was county jail, were denied access to RSA Code of Civil Procedure Sec. 1021.5. not entitled to damages despite conduct employee representatives during a It found that the representation right which could be characterized as mali- criminal investigation into their alleged vindicated by the association was a cious by the public entity employer.” sexual improprieties with female in- matter of significant concern to present Here, the Fourth District Court of mates. In June 2004, when the and future employees of the Sheriff’s Appeal found no authority to support association’s lawyer sent a letter de- Department, relying on Baggett v. Gates the county’s contention that a public manding compliance with the Bill of (1982) 32 Cal.3d 128, 52 CPER 31. safety officer can obtain attorney’s fees Rights Act, the county claimed that it On appeal, the county argued that only for a malicious violation of need not adhere to PSOPBRA because Gov. Code Sec. 3309.5(e) authorizes the PSOPBRA, and not under Sec. 1021.5. it was conducting a criminal investiga- sole avenue for obtaining attorney’s fees The county reasoned, based on ordi- tion, not a personnel matter. in a successful PSOPBRA action. Sec- nary principles of statutory interpreta- The association reacted by filing a tion, that because Sec. 3309.5(e) was lawsuit alleging that the county violated more specific and more recent than Sec. the act by denying the deputy sheriffs 1021.5, the former replaced the latter. their right to representation under Gov. Lawmakers did not The court clarified that a more recent Code Sec. 3303. In its defense, the intend to limit and specific statute will be read to re- county reiterated its view that there was place an older statute on the same mat- no PSOPBRA violation because the act attorney’s fees to ter, but only when the two acts or stat- “does not apply to a strictly criminal malicious utes cannot be reconciled. In this case, investigation, but only to administra- the court found that Sec. 1021.5 and tive investigations.” The county also violations only. Sec. 3309.5(e) were reconcilable. claimed that the case relied on by the The court held that Sec. 3309.5(e) association, California Correctional Peace did not supplant Sec. 1021.5 because Officers Assn. v. State of California (2000) tion 3309.5(e) provides that if a public the two statutes were not mutually ex- 82 Cal.App.4th 294, 143 CPER 64, was safety department maliciously violates clusive. Section 3309.5(e) permits an distinguishable because it concerned any provision of the statute, the depart- award of attorney’s fees where there has an administrative investigation con- ment is liable for a civil penalty not in been a malicious violation of ducted under the guise of a criminal excess of $25,000, awarded to the pub- PSOPBRA, the court explained, while investigation. lic safety officer whose right was de- Sec. 1021.5 permits an award of attorney’s The superior court found that the nied, and an award of reasonable fees when a party has secured an impor- county’s denial of representation to the attorney’s fees as determined by the tant right affecting the public interest. sheriffs was a violation of Sec. 3303. court. This provision of the Bill of Despite the county’s assertion that the However, it determined that this con- Rights Act was amended in 2002, and, legislature considered Sec. 1021.5 when duct was not based on malice but re- as the First District Court of Appeal it amended Sec. 3309.5(e), it failed to pro- sulted from an erroneous interpretation found in Lozada v. City and County of duce any legislative history demonstrat- of Sheriff’s Department policy. The San Francisco (2006) 145 Cal.App.4th ing the intent to make Sec. 1021.5 the superior court granted an injunction 1139, the “legislative history indicates sole basis for attorney’s fees. prohibiting the county from violating the amendment was a response to an PSOPBRA. August 20 0 7 cper journal 29

Citing Lozada, the court found that the condition was not satisfied because when the plaintiff secures the enforce- lawmakers did not intend to limit the only benefit of the successful law- ment of basic procedural rights with- attorney’s fees in PSOPBRA cases to suit inured to the association and its out accruing a pecuniary benefit, or malicious violations only. Rather than members, including the deputy sher- when the burden of the lawsuit is dis- circumscribing the right to attorney’s iffs who were targeted in the investiga- proportional to the individual plaintiff’s fees, Sec. 3309.5(e) extended the rights tion. stake in the matter. The court noted that to attorney’s fees to a party who other- Again citing Lozado, the court un- the association undertook this litiga- wise might not qualify under Sec. derscored that the rights and protec- tion solely to guarantee the represen- 1021.5. Therefore, the court granted tions afforded by PSOPBRA benefit not tation rights of its members. Citing the association’s motion for fees under only public safety officers but the pub- numerous cases in which officers have Sec. 1021.5 and held that Sec. 3309.5(e) lic in general. By promoting stable won enforcement of PSOPBRA rights is not the exclusive basis for attorney’s employer-employee relations, the act and were awarded attorney’s fees, the fees awards. fosters a solid and secure public safety court rejected the county’s argument Next, the court faced the county’s workforce and encourages peace officer that the decision to award the associa- argument that the association was not cooperation in investigations of pos- tion attorney’s fees would open flood- entitled to attorney’s fees under Sec. sible wrongdoing. Alleged violations of gates of litigation on the issue. the act, therefore, implicate duties that The Court of Appeal rejected the benefit the public at large, transcend- county’s argument that the trial court The rights and ing the employer-employee relation- abused its discretion when it awarded ship. The court held that despite the the association the actual attorney’s fees protections afforded by fact that the association was enforcing it incurred, nearly $74,000, because the PSOPBRA also benefit an existing right under PSOPBRA and association succeeded in enforcing an Sec. 3033, the attorney’s fee award was important benefit to its members, the the public in general. justified because association members right of representation conveyed by had been denied representation and it Sec. 3303(i). (Riverside Sheriff’s Assn. v. had not sought financial recovery, leav- County of Riverside [6-21-07] E040921 ing attorney’s fees as the only available [4th Dist.] ___Cal. App.4th ___, 2007 1021.5 because the association did not monetary damage. DJDAR 9326.) achieve a unique or expanded interpre- Citing Baggett, the court explained tation of an existing right and because that attorney’s fees should be awarded the benefit of the litigation was more private than public. The court explained that attorney’s fees are permitted under Sec. 1021.5 and the “private attorney No Appealable Demotion for Reduction of Employee general doctrine” in any action that re- Work Responsibilities sults in the enforcement of an impor- tant right affecting the public interest. The Second District Court of Appeal therefore, the trial court did not err by One component of that standard man- found that the county’s reduction of an denying a petition compelling the dates that a significant benefit be con- employee’s work-related job responsi- county Civil Service Commission to ferred on the general public or a large bilities did not amount to a demotion review the case. class of persons. The county argued that under the county civil service rules, and 30 cper journal No. 185

The Peace Officers Bill of Rights Act specifies elements of procedural rights that must be accorded to public safety officers when they are subject to investigation or discipline.

NEWPocket EDITION! Guide to Public Safety Officers Procedural Bill of Rights Act By Cecil Marr and Diane Marchant Updated by Dieter Dammeier (12th edition, 2007)

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http://cper.berkeley.edu/ August 20 0 7 cper journal 31

Margaret Berumen was hired by Subsequently, Berumen filed a pe- The court next observed that “re- the County of Los Angeles Department tition for writ of mandate in superior duction” and “demotion” are synonyms of Health Services in 1979. In 1995, court, insisting that she had been con- under the civil service rules; each is she was appointed to the civil service structively demoted because she had defined as “a lowering in rank or grade,” position of hospital administrator at the been “stripped of the duties and respon- with grade meaning one’s salary range, University of Southern California sibilities she previously performed” and rank referring to the level of diffi- Medical Center. In 1998, the depart- and was assigned to perform “an in- culty or responsibility of a class. The ment hired Roberto Rodriguez as the creasing number of marginal tasks.” court noted that the rules also permit a new executive director of the medical She alleged that the commission had permanent employee who has been re- center. In 2000, Rodriguez restructured the inherent authority to decide a claim duced in grade or compensation to ap- the administration, and as a result, of constructive or de facto demotion. peal that decision to the commission. Berumen lost many of her assignments The trial court denied the petition, However, said the court, the civil ser- and responsibilities. However, explaining that Berumen’s claim had no vice rules authorize managerial discre- Berumen retained the same job title and merit because the civil service rules did tion in assigning employees to differ- salary, and continued to report to the not give her a right to challenge a ent positions within their class. same person. change in duties in the absence of de- motion, suspension, layoff, or reduction in compensation. Also, the trial court The civil service rules found that the civil service rules do not recognize a direct civil appeal for a de The civil service rules authorize managerial facto demotion. make a distinction On appeal, Berumen continued to discretion. assert that the commission had the au- between actual and thority to render a finding on her de constructive demotion. facto demotion claim. Berumen filed a claim with the Los The Second District Court of Ap- Angeles County Civil Service Com- peal first explained that the county char- mission, alleging that, with her loss ter authorizes the commission to re- Contrary to Berumen’s argument, of responsibilities, she had suffered a view decisions about “discharges and the court found that the civil service de facto demotion caused by the medi- reductions of permanent employees.” rules make a distinction between actual cal center’s reorganization. The Under the civil service rules adopted and constructive demotion. Because commission’s hearing officer found that by the county, an employee may seek a Berumen’s grade and rank were not re- Berumen had not suffered a reduction hearing before the commission when duced within the meaning of the rules in pay or rank, and thus, had not been he or she has been affected by a dis- when she lost her job responsibilities, the demoted. The commission affirmed criminatory action in violation of Rule court held that the commission had no the hearing officer’s decision, holding 25, when an employee has been ad- jurisdiction to hear her appeal. that in the absence of an employment versely affected by a decision of the The court rejected Berumen’s as- discrimination violation under the civil commission, or when the employee is sertion that the commission should services rules, it lacked jurisdiction to otherwise entitled to a hearing under hear her case because past cases held make a finding of a de facto demotion. the charter or the civil service rules. that a reassignment which significantly 32 cper journal No. 185

diminished job responsibilities can be of personnel. The court also found that Berumen’s argument, instead affirming an adverse employment action. The because Berumen never pursued that that commission jurisdiction must be cases cited by Berumen dealt only with allegation at the administrative hear- based on express authority in the char- violations of the California Fair Em- ing, the required factual predicates of ter, not on the absence of any other des- ployment and Housing Act. an alleged temporary-duty assignment ignated forum. Moreover, the court Berumen also argued that civil ser- to a lower rank were never raised, liti- found that under the civil service rules vice rules gave the commission the ex- gated, or established. Thus, the court Berumen had another remedy available, clusive right to assign work performed concluded that this claim was forfeited. since she could appeal her assignment by each department, including the right Lastly, Berumen argued that if the to the director of personnel. (Berumen to direct the department to assign du- commission lacked jurisdiction to ad- v. County of Los Angeles Department of ties and responsibilities that correspond judicate her claim, she would have no Health Services [6-21-07] B189886 [2d to her civil service classification. The remedy. Citing Hunter v. Los Angeles Dist.] ___Cal.App.4th___, 2007 DJDAR County Civil Service Commission (2002) 9348.) ✽ 102 Cal.App.4th 191, the court rejected An appeal should be made to the director of personnel. Supreme Court Depublishes Sacramento POA Decision

The Third District Court of Appeal’s determine when the impact of a mana- court held that the rules do not grant decision in Sacramento Police Officers gerial policy decision is sufficient to the commission the power asserted by Assn. v. City of Sacramento was ordered trigger a duty to bargain. In Sacramento, Berumen, and concluded that the depublished by the California Supreme the court held that the city’s interest in county, through its departments, is em- Court. The appellate court in the Sac- unfettered decisionmaking was not out- powered to make those decisions. ramento case ruled that the decision of weighed by the benefit to be gained in Civil Service Rule 2.17 permits an the city police department to hire re- subjecting the matter to the bargaining employee to be temporarily assigned tirees as temporary officers to address process. (See CPER No. 183, pp. 28- the duties of a lower rank if the tempo- a staffing shortage was a fundamental 31, for a complete summary of the rary assignment does not exceed one policy decision designed to maintain Court of Appeal decision.) year. Berumen reasoned that because the existing level of public safety in the The high court ordered the deci- her duties and responsibilities were community. As a result, the court con- sion depublished at the time it denied taken away more than a year prior to cluded, the city was not required to the POA’s petition for review. With very the suit, the department violated Rule meet and confer with the POA under limited exceptions, Rule 8.1115(a) of 2.17. But the court held that a com- the Meyers-Milias-Brown Act. the California Rules of Court in- plaint about the duration of a tempo- The Court of Appeal opinion had structs that a decision ordered rary assignment is not properly the sub- relied on the Supreme Court’s ruling depublished by the high court may ject of an appeal to the commission; in Claremont Police Officers Assn. v. City not be cited or relied on by a court or instead, under the civil service rules, the of Claremont (2006) 39 Cal.4th 623, 180 a party in any other action. ✽ appeal should be made to the director CPER 21, which articulated the test to August 20 0 7 cper journal 33

A pat-down search of Giovanni revealed he was carrying a screwdriver, Pitchess Motion Denied in Search and Seizure Case and he was arrested for possession of a concealed weapon. Officer Murgia Building on the Supreme Court’s re- shortly after midnight, and observed wrote in his report that he had asked cent Warrick decision, the Fourth Dis- Giovanni B. and two other youths riding Giovanni various questions about his trict Court of Appeal found that a bicycles away from the scene. The offic- gang affiliations and had received af- minor’s Pitchess motion seeking in cam- ers detained Giovanni because he ap- firmative responses to these inquiries. era review of arresting officers’ confi- peared to be underage and because one Giovanni’s Pitchess motion denied the dential personnel records was properly of his companions fled when the officers accuracy of Murgai’s description of denied by the trial court because the arrived. Trampus’ narrative report of the their conversation concerning his gang requested discovery was irrelevant to incident stated that Giovanni’s compan- affiliation. the minor’s defense that he had been ion had blood on his arm, his clothes Following the incident, the San improperly detained and searched. The were dirty, he was sweating, and there Diego County District Attorney’s Of- officers had an objectively reasonable appeared to have been a fight. Accord- fice charged Giovanni with possession basis to place the minor in custody, said ing to Trampus, Giovanni, who also of a concealed weapon in violation of the court, and the Pitchess motion fell was sweaty and dirty, told him there had Penal Code Sec. 12020(a)(4). Giovanni short of articulating how the officers’ been a fight at the party. In Giovanni’s denied the charge and filed a Pitchess veracity would undermine the validity Pitchess motion, he denied the details motion seeking to discover evidence of the search and seizure. of his conversation with Trampus, and that the arresting officers previously The case arose when Chula Vista challenged the accuracy of Trampus’ had made false statements in their re- police officers Trampus and Murgia observations as to his and his ports or had committed other acts of arrived at the scene of a disorderly party companion’s physical dishevelment. dishonesty. Under Pitchess v. Superior

The right to procedural due process is one of the most significant con- stitutional guarantees provided to citizens in general and to public em- ployees in particular. Its entitlement has been created by statute, char- ter, ordinance, and other local laws or enactments. This pocket guide cper provides an overview of due process in public sector employment to assist employees and their employers in understanding their respec- Pocket Guide to tive rights and obligations. The guide explains who is protected, what actions are covered, what Due Process process is due, remedies for violations, and more. A section focuses on the due process rights afforded to several specific types of employees: in Public state civil service, public officers, police officers, school district employ- ees, and community college district employees. The Pocket Guide also Employment includes a discussion of Skelly and other key cases on due process and the liberty interest. By Emi Uyehara • 1st edition (2005) • $12 http://cper.berkeley.edu 34 cper journal No. 185

Court (1974) 11 Cal.3d 531, a criminal On appeal, the Court of Appeal Amendment. Detention of an indi- defendant has a limited right to discov- explained that a Pitchess motion seek- vidual is reasonable when an officer can ery of a peace officer’s personnel ing disclosure of an officer’s personnel point to specific facts that provide some records in order to obtain information records must be accompanied by affi- objective manifestation that the person demonstrating an officer’s past miscon- davits that show good cause for the dis- detained may be involved in criminal duct that may be used to support a de- covery and set forth the materiality of activity. When an officer detains a sus- fense to the criminal charges. the records involved in the pending liti- pect, the officer may pat-down the In this case, Giovanni argued that gation. suspect’s outer clothing if he or she rea- the information about any acts of dis- A showing of good cause requires sonably believes the suspect may be honesty on the part of Trampus and the defendant to demonstrate a specific armed or dangerous. When an officer Murgai would be relevant to a motion factual scenario that establishes a plau- determines the suspect is in violation to suppress the weapon as the product of the law and places him or her in cus- of an unlawful search and seizure. He tody, a search is proper. asserted that the arresting officers did The Pitchess motion The court found that Trampus and not have reasonable suspicion to sup- did not reveal informa- Murgia had an objectively reasonable port his initial detention because his basis to detain Giovanni because he alleged physical appearance and admis- tion calling into question appeared underage and was out in pub- sion of gang affiliation were falsehoods. lic in violation of the city’s curfew. Under Pitchess, Giovanni charged that the officers’ observations. Therefore, said the court, Giovanni the trial court was required to conduct cannot contest the validity of the stop an in camera review of the officers’ per- or the search by asserting that the offic- sible foundation for the allegation of sonnel records and that any informa- ers’ other observations concerning sus- officer misconduct and that the miscon- tion concerning the officers’ veracity pected criminal activity were false. The duct would be material to the defense. would be material to support his mo- court noted that Giovanni’s Pitchess In Warrick v. Superior Court (2005) 35 tion to suppress. The prosecution ar- motion did not claim it might reveal Cal.4th 1011, 173 CPER 21, the Cali- gued that Giovanni was detained be- information calling into question the fornia Supreme Court recently clari- cause he was underage and in a public accuracy of the officers’ observation fied that the materiality element re- place after 11 p.m. in violation of Chula that Giovanni was a minor on the street quires the defendant to establish a logi- Vista’s curfew ordinance. Therefore, it in violation of the curfew, or any infor- cal connection between the charge and asserted, any alleged falsehoods as to mation suggesting the officers improp- the proposed defense. Warrick instructed collateral matters were irrelevant to a erly relied on their observations of his that the defense counsel’s supporting dec- possible motion to suppress evidence. youthful appearance to support the stop. laration must propose a defense and ar- The trial court agreed with the Furthermore, the Pitchess motion did ticulate how the requested discovery may prosecution and ruled that because not articulate how the officers’ veracity be admissible as direct or impeachment Giovanni appeared to be, and was, un- would be admissible as to whether, af- evidence in support of the proposed de- derage, the initial detention and subse- ter Giovanni was properly stopped and fense, or how the requested discovery may quent search were constitutionally per- placed in custody, the officers were per- lead to such evidence. missible, and the lack of veracity of any mitted to conduct the pat-down that In light of Giovanni’s motion to of the officers’ other claimed observations revealed the weapon. suppress, the court reviewed search and was immaterial to a motion to suppress. seizure standards under the Fourth August 20 0 7 cper journal 35

The court held that because the ment or statements of gang affiliation, tween the county and the alliance. The officers had probable cause to detain the materials sought by Giovanni’s commission concluded that it lacked and search Giovanni based on uncon- Pitchess motion were irrelevant to his authority to hear all general employ- proposed defense. Therefore, the court ment-related appeals, and it refused to The officers had concluded that the motion did not review the matter. Shortly thereafter, the demonstrate good cause for an in cam- county’s Department of Employment probable cause to era review of the officers’ confidential Services and Risk Management deter- records. (Giovanni v. Superior Court of mined that Tully’s assignment was not detain and search San Diego County; City of Chula Vista a temporary appointment under the the suspect. Police Dept., RPI [5-30-07, certified for county rules because there was no va- publication 6-21-07] D049778 [4th cancy. Instead, it viewed the appoint- Dist.] ___Cal.App.4th___, 2007 DJDAR ment as a temporary out-of-class as- tested facts, independent of the alleged 9322.) ✽ signment consistent with the contract. falsehoods as to his physical dishevel- In July 2005, SCI Lori Babbage temporarily assigned employee Robert Waugh, who, like Tully, was not on the SCI classification eligibility list, to Civil Service Commission Had Authority to Hear Appeal work as a SCI in her unit while she took a two-week vacation. The Sacramento County Civil Service Spitze and the employee organi- The alliance then filed a writ peti- Commission had authority to hear an zation that represented him, Sacra- tion in the superior court, seeking a administrative appeal contesting a tem- mento County Alliance of Law En- ruling that Spitze improperly had been porary civil service appointment, the forcement, appealed the assignment to denied temporary appointments to the Third District Court of Appeal ruled. the Sacramento County Civil Service SCI positions, and that those violations However, there was no merit to the Commission and alleged that Tully’s claim that a civil service employee had appointment violated Sec. 7.7(a) of the been improperly passed over for two county civil service rules. That rule sec- The county contended temporary work assignments. tion provides that “temporary appoint- the appointment was Randy Spitze was employed as a ments shall be made from appropriate criminal investigator in the welfare eligible lists whenever possible.” a temporary ‘out-of- fraud unit of the county’s Department The county argued that Tully’s as- of Human Assistance. In 2003, after signment was not a temporary appoint- class assignment.’ passing an examination for promotion ment within the meaning of the civil to the position of supervising criminal service rules because there was no “va- were appealable to the civil service investigator, Spitze was placed on the cant” position, a prerequisite for a “tem- commission. The trial court reasoned eligibility list for that classification. In porary appointment.” Instead, the that because the positions assigned to April and May 2005, county supervi- county contended the appointment was Waugh and Tully both had existing in- sor Mike Moody temporarily assigned a temporary “out-of-class assignment,” cumbents, they were not “vacant” posi- employee Brian Tully, who was not on expressly permitted by the terms of the tions and had not been filled by “tem- the eligibility list, to work as an SCI in collective bargaining agreement be- porary appointments” within the mean- Moody’s unit. 36 cper journal No. 185

ing of Sec 7.7. Also, the trial court thority to hear Spitze’s administrative county asserted, the commission had no agreed that the commission did not have appeal. The court noted that Sec. 71-B authority to hear the appeal. The court the authority to hear the case because of the commission’s charter states that rejected the county’s argument, con- no existing rule permitted it to enter- it “shall establish rules regarding the cluding that the commission has no tain appeals of short-term, out-of-class selection of employees for, and classi- power to promulgate a rule that divests assignments. fication of, civil service positions.” The it of a duty imposed by its charter. The The Third District Court of Ap- court found Sec. 7.7 to be such a rule. commission’s charter explicitly directs peal first noted that county rules define Because the charter instructs the com- that it “shall make final decisions on a vacant position as any “unfilled posi- mission to make final decisions involv- appeals” that fall within the scope of tion in the civil service.” The court re- ing alleged improper actions or denial the charter. The court determined that jected the interpretation that “vacancy” of rights provided by the rules, and be- Spitze’s appeal fell within the scope of is defined by the absence of an employee cause Spitze’s appeal alleged the denial charter Sec. 71-B(d) to make final de- fulfilling the day-to-day job activities of such rights under Sec. 7.7, the court cisions on appeals involving alleged associated with the position, even on a found the commission’s refusal to hear improper action, and thus, Sec 9.3 temporary basis. Instead, the court could not, and did not, relieve the com- found that an office or position is va- mission of the duty to hear his appeal. cant only when there is no legally quali- The commission has no Finally, the court emphasized that fied incumbent who has a lawful right its conclusion that the commission had to continue working in that position. power to promulgate a duty to hear Spitze’s appeal did not Based on this reasoning, the court a rule that divests mandate reversal of the trial court’s found that Moody’s position was not judgment because he had failed to make vacant while he was temporarily as- it of a duty. the commission a party to the writ pro- signed to serve as the acting assistant ceeding. The court drew a distinction chief investigator, and Babbage’s posi- between the county as a corporate en- the case was inappropriate. The court tion was not vacant while she was on tity and the autonomy of various ele- reasoned the commission has the power vacation. Despite their temporary ab- ments of a county’s government struc- to hear an appeal of an improper action sences, both positions continued to be ture, like the county civil service com- or denial of rights claim that is merely occupied by legally qualified incum- mission. Because the commission has alleged and not necessarily actual; a bents who had the lawful right to con- autonomous stature and was not named complaining party need not demon- tinue in their positions. Affirming the as a defendant, the court could not com- strate the validity of its complaint in trial court, the Court of Appeal held pel it to hear the appeal sought by order to have the commission hear its that because there were no vacancies, Spitze. (Sacramento County Alliance of appeal. Sec 7.7 did not apply, and Spitze was Law Enforcement v. County Sacramento The county argued that under Sec not entitled any preference to those [6-4-07] 151 Cal.App.4th 1012.) ✽ 9.3, the commission has no authority temporary assignments simply because to consider a matter unless the action he was on the eligibility list for the SCI is specifically made appealable to the classification. commission by a provision of the rules. But the Third District Court of Since the rules did not expressly autho- Appeal disagreed with the trial court rize an appeal from a decision to as- when it came to the commission’s au- sign one employee over another, the August 2 0 0 7 cper journal 37

Between the time that the Supreme Public Schools Court granted review and the issuance of its decision, Truitt had resigned his position, relinquished his teaching cer- tificate, and died. Even though the case Four-Year Evidence Bar Not Absolute in Proceeding had become moot, the court retained it to Dismiss Teacher Accused of Sexual Misconduct for decision, stating, “it is undisputed that this case involves a matter of state- Education Code Sec. 44944(a) pro- years prior to the date the notice was wide importance.” vides that credentialed teachers may be served on him, and to exclude all evi- Supreme Court Decision disciplined by a school district for cer- dence relating to those events. He re- tain behavior occurring less than four lied on Sec. 44944(a) which states: Though the court found in favor years prior to the filing of a notice of of the district, it did not base its deci- intent to discipline. The California No testimony shall be given or evi- sion on the district’s rationale. The dis- dence introduced relating to mat- ters which occurred more than four years prior to the date of the filing The four-year of the notice. Evidence of records Even though the case regularly kept by the governing limitation period is board concerning the employee had become moot, may be introduced, but no decision subject to equitable relating to the dismissal or suspen- the court retained sion of any employee shall be made principles. based on charges or evidence of any it for decision. nature relating to matters occurring more than four years prior to the Supreme Court, in Atwater Elementary filing of the notice. trict argued that the Court of Appeal School Dist. v. California Department of The administrative law judge incorrectly characterized Sec. 44944(a) General Services, has determined that granted Truitt’s motions, and the dis- as an evidentiary bar or condition on a the four-year limitation period is sub- trict sought a writ of mandate to vacate substantive right rather than on a statute ject to equitable principles and is, there- the ruling. The trial court granted the of limitations. The Supreme Court found fore, not absolute. writ and directed the administrative law the distinction immaterial, noting, “The Factual Background judge to enter new orders denying the courts have applied equitable principles motions. Truitt appealed. The Fifth to conditions on substantive rights as well On July 17, 2002, the district served District Court of Appeal reversed, find- as to statutes of limitation.” Albert Truitt, a credentialed teacher, ing that the time limit is “absolute and The court also rejected the with a notice of dismissal alleging that cannot be extended by the application district’s suggestion that it individually he had engaged in sexual misconduct of equitable doctrines such as delayed address several equitable doctrines, with five students between 1992 and discovery, fraudulent concealment, eq- those being equitable tolling, equitable 1998. Truitt denied the allegations and, uitable estoppel, and continuing course estoppel, fraudulent concealment, and during the administrative proceedings, of conduct.” The district appealed to delayed discovery, finding such an ap- moved to dismiss all charges based on the Supreme Court. proach unnecessary. “A conclusion that incidents occurring more than four 38 cper journal No. 185

any one applies resolves whether the circumstances to prevent a defendant to Sec. 44242.7, which expressly ex- four-year time limitation is absolute,” from asserting the statutory bar,” and empts allegations of sexual misconduct it reasoned, deciding to focus on only thus, “equitable estoppel may apply to from the requirement that, in cases of one: equitable estoppel. section 44944(a)’s four-year time limi- teacher discipline by the Commission It turned to its decision in Lantzy tation.” The court declined to express on Teacher Credentialing, allegations v. Centex Homes (2003) 31 Cal.4th 363 an opinion as to whether the district of wrongdoing be presented within four for guidance. Quoting from that case, could have successfully asserted the years. The Court of Appeal concluded the court explained: doctrine in this case or whether other that the legislature would have inserted equitable principles might apply. “We a similar provision in Sec. 44944(a) if Equitable estoppel…comes into play simply conclude that the four-year time it had meant for the same exception to only after the limitations period has run and addresses…the circum- limitation is not absolute,” it said. apply to that section. The Supreme stances in which a party will be es- Court found this reasoning faulty: topped from asserting the statute of limitations as a defense to an admit- Indeed, the application of equity tedly untimely action because his Equitable estoppel does not create an exception to the conduct has induced another into four-year time limit. Generally, as a forbearing suit within the applicable may apply for reasons matter of law, the limit still applies. limitations period. [Equitable estop- Equitable estoppel may apply in a pel] is wholly independent of the ‘wholly independent’ given case for particular reasons limitations period itself and takes its “wholly independent” of the gen- life…from the equitable principle of the general rule of eral rule of section 44944(a). Thus, that no man [may] profit from his the Legislature’s decision to include own wrongdoing in a court of jus- Sec. 44944(a). or omit such an express legal excep- tice…. tion does not signal an intent to bar the application of equitable estoppel. The court reasoned that “because The court disagreed with the Court It simply reflects a legislative disin- clination to write a sweeping excep- equitable estoppel is ‘wholly indepen- of Appeal’s reasoning in reaching a con- tion into the statutory scheme as a dent’ of section 44944(a)’s time limita- trary result. The appellate court pointed matter of law. tion, it could be relied upon in some

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The court also concluded that the of limited applicability. “Atwater blazes parted from precedent without explain- legislature could not have intended for no new ground in equitable estoppel ing why.” “Its intellectual gaff is atypi- a teacher accused of sexual misconduct jurisprudence, and by citing Lantzy and cal of the court, and a sad departure to be prosecuted criminally and have Benner, emphasized the very limited from its duty,” he said. his credential revoked by the CTC, but bases for avoidance of the language of Michael E. Smith, of Lozano not be subject to discipline by his Section 44944,” he said. He expressed Smith, argued for the district. In re- school district. concern about the court’s reliance on sponse to Driscoll’s criticism of the Justice Joyce Kennard dissented Lantzy, “even though Lantzy held mere decision, Smith said, “statutes of limi- from the majority’s opinion. She read denial did not establish equitable es- tations, like the four-year rule appli- the clear wording and plain meaning of toppel” and in this case, “the district’s cable to teacher termination proceed- the statutory scheme to provide that only allegation against Truitt was his ings, are born into a world of equity. In disciplinary action against a teacher for denial of asserted molest.” Driscoll this case, “the California Supreme sexual misconduct occurring more than also noted that in Lantzy, the Supreme Court adhered to centuries-old prece- Court held that equitable tolling should dent by recognizing that equitable prin- not apply if it is inconsistent with the ciples are inherently incorporated into Justice Kennard dis- text of the relevant statute. In this case, such statutes,” he said. “If the court had sented that disciplinary Driscoll argued that the theory is in- limited its analysis to strict principles consistent with the text of Sec. of statutory construction, the result action can be taken 44944(a)’s explicit time limitation. would be bad public policy; school dis- “Atwater simply does not square with tricts might be liable for employee mis- only by the CTC. statutory construction jurisprudence,” conduct beyond their control through he said, referring to Lantzy and other no fault of the district, and a big hole four years earlier can be taken only by the prior cases, “meaning the court de- would be cut into the safety net.” ✽ CTC, not by the local school district. “Whatever the applicability, scope, and efficacy of the doctrine of equitable es- toppel may be in cases not involving alle- Legislature Puts Self-Representation gations of teacher sexual misconduct Back Into EERA more than four years old, in my view it may not be invoked to mollify a decision The California Legislature recently Beach) and signed into law on June 28, by the Legislature to vest authority over amended Sec. 3543 of the Educational was supported by the California Teach- such cases more than four years old in the Employment Relations Act to reestab- ers Association, the American Federa- Commission and not in school districts,” lish the right of public school employ- tion of State, County and Municipal she said. (Atwater Elementary School Dist. ees to represent themselves individu- Employees, and the California School v. California Department of General Ser- ally in their employment relations with Employees Association. The amend- vices [6-4-07] 41 Cal.4th 227.) the public school employer, except in ment restores a portion of the statute Thomas J. Driscoll, Jr., of Driscoll situations where an exclusive represen- that was deleted in 2000 by S.B. 1960. & Associates, who argued on behalf of tative has been recognized or certified. That bill, authored by Senator John Truitt before the Court of Appeal, told A.B. 1194, introduced by Assembly Burton (D-San Francisco), required the CPER that he read the decision as one Member Betty Karnette (D-Long implementation of a mandatory “fair 40 cper journal No. 185

Learning without thought is labor lost. This edition — packed with five years of new legal developments — covers reinstatement of the doctrine of equitable tolling, PERB’s return cper to its pre-Lake Elsinore arbitration deferral policy, clarification of the rules regarding the establishment of a prima facie case, and an up- dated chapter on pertinent case law. Pocket Guide to the Here in one concise Pocket Guide are all the major decisions of the Educational Public Employment Relations Board and the courts that interpret and apply the law. Plus, the Guide includes the history and complete text of Employment the act, and a summary of PERB regulations. Arranged by topic, the EERA Pocket Guide covers arbitration of grievances, discrimination, Relations Act scope of bargaining, protected activity, strikes and job actions, unilateral action, and more.

By Bonnie Bogue, Carol Vendrillo, Dave Bowen, and Eric Borgerson 7th edition (2006) • $15 • http://cper.berkeley.edu

share” or “agency shop” fee for all pub- deleted from the statute by the 2000 of the bill, “reinstatement of the exact lic school and community college em- amendment. The Woodland decision language would be the clearest means ployees who are represented by an ex- was at odds with prior PERB case law, to accomplish the reestablishment” of clusive bargaining agent. such as Pleasant Valley School Dist. (1988) the right to self-representation recog- The legislature determined that No. 708, 79X CPER 12, where the nized in past PERB cases that inter- the change was needed because the board found that an individual’s com- preted that same language prior to Public Employment Relations Board plaint about an unsafe mower was 2000. has interpreted the section worded af- deemed protected activity. Similarly, EERA now provides: ter the 2000 amendment as meaning the board in Livingston Union School that teachers and other school employ- Dist. (1992) No. 965, 98 CPER 58, held Public school employees shall have the right to represent themselves ees were prohibited from discussing that an individual employee’s com- individually in their employment problems with their immediate super- plaint about class size was protected relations with the public school visors without the union being present. conduct under EERA. Following Wood- employer, except that once the For example, in Woodland Education land, these cases no longer supported employees in an appropriate unit have selected an exclusive repre- Assn. (2005) No. 1722, 173 CPER 73, the conclusion that self-representation sentative and it has been recog- PERB concluded that a teacher who was a protected right under the act. nized pursuant to Section 3544.1 represented herself at a meeting with The language restored by the 2007 or certified pursuant to Section her principal was not engaged in pro- amendment is identical to that which 3544.7, no employee in that unit may meet and negotiate with the tected activity under EERA because the was deleted in 2000. According to the public school employer. right to self-representation had been Senate Education Committee analysis August 2 0 0 7 cper journal 41

to the California Teachers Association, West Contra Costa Teachers the teachers’ pay schedules are near the Vote to Strike bottom of area school districts. The strike vote took place over two West Contra Costa Teachers, upset lic Employment Relations Board, ac- days, on June 11 and 12. About 82 per- about what they see as a turnabout by cusing the district of reneging on the cent of the union’s 2,000 members par- the district on a tentative agreement, salary deal. “What we know is, when ticipated in the vote, with more than 92 voted to strike by an overwhelming we left that night, there was a tentative percent supporting a strike. Under state margin. agreement,” said union president Gail law, the teachers cannot strike until the The teachers, represented by the Mendes. Superintendent Bruce Harter conclusion of the factfinding process, United Teachers of Richmond, are in explained the district’s point of view, authorized mid-June. Factfinding usu- the middle of a three-year contract that stating “there was a proposal that was ally takes about two months, meaning expires in June 2008. But, the agree- going to be brought to the board and that, if there is a strike, it would not ment allowed for salary negotiations to not a tentative agreement.” He said that take place until the fall. “there was never anything written up In another move to bring pressure and nothing to sign.” on the district, the union announced The district refuted the District officials maintain that that it would not support a renewal of greatly increased health care and other the parcel tax when it comes up for a 6 percent figure as an costs prevent them from approving a vote this month, until the teachers get ‘idea,’ nothing more. significant raise for the teachers and more money. If approved, the tax would that, after crunching the numbers, they raise about $14 million a year for eight determined that they could not afford years starting in 2009. The district re- the 6 percent boost. The last time West lies on this money to help pay for teach- reopen in June 2006, and again in July Contra Costa teachers received a raise ing materials, athletics, textbooks, li- 2007. The union and the district have was in January 2006, when their sala- brary services, maintaining smaller been in negotiations for the last year, ries increased by 3 percent. According class sizes, and other expenditures. ✽ and have been meeting with a state me- diator for months. The union has de- manded a 7.94 percent pay raise. The last offer made public by the district was Oakland Inches Back for 3 percent. Toward Local Control After an intense bargaining session at the end of May, the union emerged Oakland Unified School District’s teria. But opponents of the bill, includ- announcing that a tentative agreement four-year-long period under total state ing State Superintendent of Public In- for a 6 percent raise had been reached. control may be winding down, but the struction Jack O’Connell, maintain the The district refuted that characteriza- way in which the end-game will be state should decide when the district is tion, calling the 6 percent figure an played out is not at all clear. A bill pend- ready to take back the reins. “idea,” nothing more. On June 6, 2007, ing in the state legislature would re- The state assumed control over the the union filed an unfair practice quire the state to return local control to district in the summer of 2003, when it charge against the district with the Pub- OUSD if the district meets certain cri- issued an emergency loan for $100 mil- 42 cper journal No. 185

lion. From that time until just recently, thority for one or more operational ar- the district has been run by an admin- eas is restored. istrator appointed by O’Connell, and In a move perhaps designed to de- the elected school board has acted as rail the pending legislation, O’Connell an unpaid advisory board. (For a com- restored control over the operational plete discussion of the state’s takeover area of “community relations and gov- of the district, see CPER No. 158, pp. ernance” to the local school board in 37-40, and CPER No. 160, p. 35.) Cur- July. FCMAT gave the district a pass- rently, O’Connell has sole discretion ing grade in this area in 2005, but over who runs the school district. O’Connell was not willing to restore this area of authority to the district at that time. Having regained this control, A.B. 45 would board members now can decide issues related to communication with parents require the state to and other members of the community. They also will be able to create policy return local control. to deal with problems like declining enrollment. Board members also will begin to receive their $700-a-month A.B. 45, introduced by Assembly stipend. Member Sandre Swanson (D-Oak- O’Connell will maintain control land), already has been passed by the over pupil achievement, financial man- Assembly and was pending before the agement, facilities, and personnel until Senate Committee on Education at the he determines the district is ready to time CPER went to press. The bill would resume its authority over those areas as require the County Office of Fiscal Cri- well, or until the legislature wrests con- sis and Management Assistance Team trol by passage of A.B. 45. ✽ to prepare an annual report on the district’s assessment and recovery plan, starting March 1, 2008, and continu- ing until authority for all operational areas has been returned to the district’s governing board. By July 1, the State Superintendent would be required to return to the district authority over each operational area for which FCMAT’s annual progress report recommends re- sumption of control. The bill also pro- vides that the school board shall begin to receive full compensation once au- August 2 0 0 7 cper journal 43

notified the union that it would not Higher Education waive student fees for the employees. The union was surprised because the state budget provided CSU with millions of dollars more than was an- CSU Academic Student Employees ticipated in May 2005. In addition, the Battle for Fee Waivers union pointed out, the university had publicly declared it was going to ad- Student fees, not wages, may cause The contract did not guarantee fee dress the discrepancies between its sala- graduate student teachers, tutors, and waivers, however. Instead, CSU won a ries and those paid in the national mar- graders to strike at the California State clause that made the implementation ket. Academic student employees had University this fall. The employees, of fee waivers in 2006-07 “subject to received no across-the-board wage in- represented by United Auto Workers the administration’s determination that creases from 1991 to 2005. In that time, Local 4123, believe they were entitled it has received funding sufficient to undergraduate fees had increased more to waivers of student fees last year. The implement the cost of [the] benefit.” If than 300 percent. Since 2001, graduate university, however, invoked a contract the university decided it could not grant student fees had risen 95 percent. Pro- clause granting it the discretion to de- fee waivers, UAW had no right to viding a fee waiver, asserted the union, termine whether it had enough fund- grieve the decision. The remedy was to would help bring CSU’s academic stu- ing to give fee waivers to its 6,000 aca- “re-open bargaining on whether to pro- dent employees up to the level of their demic student employees. The union vide fee waivers in fiscal year 2006-07.” unionized peers nationwide. has filed an unfair practice charge In late-September 2006, the par- claiming the university did not disclose ties reached impasse. Mediation was available funding in a factfinding pro- Academic student unsuccessful, and the parties proceeded cess that began after fee negotiations to factfinding in April. stalled last fall. employees had received Factfinding Report Contract Contingency no across-the-board The factfinding panel recom- UAW entered its first contract with wage increases from mended against implementation of a CSU in May 2005, about nine months 1991 to 2005. fee waiver in 2006-07. The neutral after the university agreed on an appro- chair of the panel based the recommen- priate unit of student employees. (See dation on the price tag for the waiver story in CPER No. 172, at pp. 69-70.) To place pressure on the univer- — $14.6 million in lost fees to CSU. A The union’s first step toward obtaining sity when it made its decision, the union benefit worth that amount would rep- a waiver of student fees was to secure conducted a strike vote in May 2006, resent a 42 percent increase in com- an agreement in principle that waivers before it had any idea whether CSU pensation for the bargaining unit. No could be granted to student employees would grant the benefit. An overwhelm- other unit at CSU had bargained such who teach, tutor, or grade papers at least ing 97 percent of the union members a large increase, explained the chair, and 25 percent time, or 160 hours per se- voted in favor of a strike if the univer- the other unions surely would demand mester, or 110 hours per quarter. sity failed to relieve the fee obligation. similarly huge increases when bargain- Nevertheless, last July, the university ing the next contract. 44 cper journal No. 185

Nor does any other bargaining unit that the median salary for 97 percent of geted, but did not spend, on unit com- at CSU receive a comparable fee waiver, unit members is $10,000 below the cost pensation increases, amounts to almost the panel observed. In fact, employees of attending CSU. Because the union one-half of the cost of the fee waiver in other units are eligible for fee waiv- has no control over the skyrocketing benefit it demanded for 2006-07, the ers for two classes or six units, which- fees, there needs to be a full waiver of union representative observed. ever is greater, each term. fees so that economic gains from col- The university dismissed the The chair’s opinion acknowledged lective bargaining are not swallowed up union’s contentions as false. CSU does that academic student employees must by fee hikes, he argued. The fact that not budget bargaining unit salaries, it be students as a condition of their em- other units do not have full fee-waiver contended, although its budget office ployment. Even though most unit benefits should not be persuasive, he calculates estimated compensation and members barely make a living wage af- countered, because no other employ- compensation pool amounts “for the ees are required to be students as a con- purpose of internal guidance to its col- dition of their employment. Besides, he pointed out, academic student employ- Employees in other ees do not earn pensions like the other Cost estimates are not units are eligible employees do. The union-selected factfinder also promises, university for waivers of took issue with the panel’s dismissal of representative Gail some fees. U.C. as a comparator institution. While U.C.’s academic student employees Brooks pointed out. may be doctoral students in a research environment, the work that the univer- ter they pay fees, the chair found that sity compensates them for is the same lective bargaining representatives.” this equitable consideration did not — teaching, tutoring, and grading, not The cost estimates are not promises, outweigh CSU’s arguments that the research, he emphasized. university representative Gail Brooks benefit would amount to a much greater Unfair Practice Charged pointed out in her response to the increase in compensation than other union-selected factfinder. units receive. After the report was issued to the In addition, she asserted, the esti- UAW argued that other universities parties, they began negotiations again. mate of compensation for 2005-06 has with unionized student teachers provide The union found “discrepancies” be- “nothing to do with” the fee-waiver ben- fee waivers. But the chair of the panel did tween the amount of funding that it as- efit in 2006-07. The neutral factfinder’s not find the comparisons persuasive. serts was budgeted for the UAW unit in recommendation was not based on There was evidence from only five other 2005-06, and the actual compensation funding, but on the “unacceptably large unionized student employee units nation- increase for the unit. In his dissent to percentage increase” to the compensa- wide, he said, and the University of Cali- the factfinding report, the union panel- tion base for the unit, she pointed out. fornia is not comparable since its aca- ist charged that CSU had failed to dis- In early May, UAW filed a charge demic student employees are doctoral close relevant financial information with the Public Employment Relations students in a research environment. which would have changed the Board, asserting that the university In his dissent to the report, the factfinder’s view of the fee-waiver dis- participated in bad faith in impasse factfinder selected by the union asserted pute. The $4.3 million that CSU bud- procedures. August 2 0 0 7 cper journal 45

Although UAW local president tiations on the issue. If a settlement is funded ratio was 153 percent. Two years James Banks emphasized that the issue not reached, there could be a job action later, the regents moved management needs to be resolved before academic once school starts. Fees are rising 10 of its entire portfolio to external fund student employees pay fees for the fall percent in the fall, but wages for the unit managers. Since then, the Express term, the parties are no longer in nego- are increasing only 4 percent. ✽ charged, the UCRP has underperformed other pension portfolios and paid millions — $32 million last year — to private fund managers. Scrutiny of U.C. Retirement System Continues Immediately the next day, Michael Reese, associate vice president at the U.C. Office of the President, wrote a It may be “innuendo, old newspaper who also sits on the governor’s Public letter to the editor denying it had clippings and unproved allegations by Employee Post-Employment Benefits farmed out control of the pension fund disgruntled former employees” to the Commission. He is also a major to consultants. “Like a majority of large University of California Office of the fundraiser for the Republican Party. institutional funds, U.C. uses manage- President, but a recent article about Parsky was head of the Regents’ Invest- outsourcing investment management ments Committee in 1999, when the of the U.C. Retirement System has committee decided to contract with fanned the anger of university employ- Wilshire Associates to analyze the re- He complained about ees. U.C. is planning to resume retire- tirement fund’s performance. At the the newspaper’s ment contributions to the system while time, the fund had far outperformed one salaries are still below market rates, and of its benchmarks, the Capital Resource ‘character assassina- employees are outraged that a change Advisors Balanced Fund Median, but tion’ of Parsky. in the investment philosophy of the had underperformed the Standard and U.C. regents in 2000 may have con- Poor’s 500 index since 1994. The total tributed to the U.C. Retirement Plan’s funded ratio of the plan had climbed to dwindling health. Union calls for joint 144 percent. ment firms with greater expertise in governance of the UCRP and concerns The East Bay Express article re- specific investment areas than could be about unreliable evaluations of the sys- peated allegations of suspicious timing employed in-house,” he asserted, but tem have caught the attention of state between Wilshire Associates’ contribu- the university maintains control of the legislators. tions to the Republican Party and con- investment decisions. He complained tracts it had received in 1999 and 2000 about the newspaper’s “character assas- Questions Raised to analyze the U.C. pension fund and sination” of Parsky. And he claimed that Lingering questions concerning then handle part of its portfolio. At the the regents’ decision to change its in- the regents’ decisions in 1999 through same time, the article noted, the regents vestment policies had led to $2.7 bil- 2002 to involve outside consultants in were taking actions that eventually lion more in UCRP assets than if the the management of the UCRP portfo- forced out the U.C. treasurer, who had assets had been invested in “a traditional lio resurfaced in a weekly San Fran- 29 years’ tenure. At the time she left, 60/40 S&P 500/Lehman Aggregate cisco Bay Area newspaper, the East Bay the UCRP fund had an annual return of mix.” It is not clear from his letter, or Express, this spring. At the center of the 12.8 percent while the S&P 500 return from the university’s fact sheet of cor- May 9 article is Regent Gerald Parsky, had dwindled to 7.3 percent. The rections to the Express article, that the 46 cper journal No. 185

The Guide provides an up-to-date and easy-to-use description of the rights and obligations conferred by the act that governs collective bargaining at cper the University of California and the California State University systems. Included is the full text of the act, plus an easy-to-read explanation of how Pocket Guide to the the law works, its history, and how it fits in with other labor relations laws. The Guide explains the enforcement procedures of the Public Employ- Higher Education ment Relations Board (PERB), analyzes all important PERB decisions and court cases (arranged by topic) that interpret and apply the law, and Employer- contains a useful index, glossary of terms, and table of cases. Employee Portable, readable, and affordable, the guide is valuable as both a current source of information and a training tool — for administrators, human Relations Act resource and labor relations personnel, faculty, and union representa- tives and their members.

By Carol Vendrillo, Ritu Ahuja and Carolyn Leary 1st edition (2003) • $15 • http://cper.berkeley.edu

traditional mix is what the UCRP fund tutes less than 1 percent of the total $71 U.C. notified employees that contribu- had in the 1990s. The Lehman Aggre- billion portfolio under external man- tions would be necessary again soon. gate index is a fixed income benchmark. agement. (See story in CPER No. 181, pp. 42- The U.C. fund’s holdings of fixed in- 45.) On June 30, 2006, the total funded Legislators Concerned come investments actually was less than ratio was only 104 percent. Now that 35 percent, and as low as 22 percent in For several years, communications the university is demanding employee the late 1990s. from the unions that represent many of contributions that may reach 5 to 8 per- The university’s Office of Strate- U.C.’s employees have grumbled about cent of pay, employees are suspicious gic Communications issued a fact sheet the regents’ change in investment that the downturn in the fund’s health is denying political considerations when policy. That sentiment is based in part due to mismanagement rather than de- the decisions to hire outside consult- on the analyses of a retired U.C. Berke- mographics of employees and perfor- ants were made. It claimed the deci- ley physics professor, Charles Schwartz, mance of the stock market. sions conformed to “the national indus- who claims that the pension fund has In December, the U.C. Union try norm of institutional external eq- not performed as well as other institu- Coalition, which is negotiating over the uity management.” Wilshire Associates tional funds and has not met its bench- resumption of employee pension con- never was hired to implement its own marks since the decisions in the early tributions, demanded joint governance recommendations, U.C. countered, 2000s. Since 1990, neither the univer- of the UCRP. It argued that the pres- and $32 million in fees, once “offset by sity nor its employees have contributed ence of employees on the board of the income from securities lending and to the retirement fund because of a large California Public Employees Retire- commission recapture,” really consti- surplus of assets over liabilities, but ment System had led to higher rates of August 2 0 0 7 cper journal 47

return in the CalPERS fund than in the U.C. to include faculty and staff repre- annual return as of May 31 — using U.C. system. CalPERS’ annual rates of sentatives as “trustees,” similar to unaudited numbers — is 19.7 percent, return between 2001-02 and 2005-06 CalPERS. and its ratio of assets to obligations is add up to 39.7 percent, whereas UCRP The Senate analysis of the measure 104 percent, compared to CalPERS returns over the same period sum to notes, however, that the CalPERS board ratio of 87 percent, it announced. The 28.1 percent. In addition, the unions is separate from the state employer, regents have ethical guidelines that pre- charged that they had uncovered po- whereas the U.C. regents fill roles as vent advisory board members from par- tential conflicts of interest concerning both the employer and the retirement ticipating in discussions when a deci- the regents’ UCRP Advisory Board. system board. Although the regents sion might affect their personal inter- Two members have connections to the have a nine-member UCRP Advisory ests, U.C. assured the public. The plan’s plan’s outside investment managers. Board that includes two faculty mem- obligations have grown because the bers and two staff members, the regents number of retirees has increased nearly themselves make final decisions. Be- tenfold while the number of employees cause the California Constitution does has only doubled, it explains. The uni- SCR 52 puts pressure not provide for staff representatives on versity asserted it is assessing the gov- on U.C. to include the Board of Regents, Senate staff are ernance structures of other public pen- recommending greater employee rep- sion funds nationwide, and is looking faculty and staff resentation and power for the UCRP at the levels of employee representa- Advisory Board, or at least a require- tion and how employees participate in representatives as ment that U.C. come up with its own fund governance. And, since it received fund ‘trustees.’ plan for better employee representation. no funding from the state for retirement contributions and has not reached Investments Defended agreement with any unions to restart In mid-July, the university pub- employee contributions, no contribu- The unions’ concerns moved Sena- lished a pamphlet proclaiming the tions were begun July 1, as planned. ✽ tor Leland Yee (D-San Francisco) to health and integrity of the UCRP. Its propose Senate Concurrent Resolution 52, which would urge U.C. to imple- ment shared governance of the UCRP. Clauses of the resolution recite how U.C. Increases Wages for Custodians and jointly governed funds generally have Other Low-Paid Employees been better managed than unilaterally managed pension funds and how U.C. Agreements reached by the Univer- tions on those two issues. The unions is determined to restart contributions sity of California with two more unions were concerned that new contributions even while employee salaries lag be- will bring pay increases for low-wage along with general increases in the cost hind market rates. SCR 52 also claims workers. Originally, the increases were of living would be equivalent to a pay that U.C. has been making decisions partially tied to the university’s demand cut if raises were not given to counter- without appropriate actuarial studies that three unions agree to reinstate act these burdens. Also, the unions ar- and has refused to provide data so that employee contributions to the U.C. gued that U.C.’s wages were lower than independent actuaries could evaluate Retirement System. But, in early Feb- salaries available for comparable jobs the plan. The measure puts pressure on ruary, the university separated negotia- in the labor market. 48 cper journal No. 185

Last year, the Coalition of Univer- percent, but that it has refused to pass pose. The union argued that the addi- sity Employees became the first of the along the extra money to fund employee tional money was meant for only two three unions to settle with the univer- raises. The union argued that $2.9 mil- purposes: hiring contract grounds- sity. The bargaining resulted in sliding lion should be used to finance a 4 per- keepers at U.C. Irvine, and raises for scale-salary increases, ranging from cent salary increase for UPTE-repre- custodians at U.C. Santa Cruz, Santa .75 to 1.5 percent, for 11,800 clerical sented unit members, as opposed to Barbara, and Berkeley, whose wages all employees who earned less than $1.2 million to fund a 3 percent boost. were allegedly 25 percent below those $40,000 a year. (See story in CPER No. U.C. spokesperson Nicole Savickas told of nearby community college custodians. CPER that she was unable to find any information that the money for the new The university did not raises came from state funds, and that Custodians at U.C. increases for non-represented employ- budge from its stance, ees and CUE will come from a redirect Berkeley, Santa and the union accepted of existing sources. The university did not budge from Barbara, and Santa its offer in late June. its stance, and the union accepted its Cruz will get an offer in late June. The total cost to U.C. will be roughly $1.2 million. The initial wage hike of agreement assures raises for approxi- $1.25 an hour. 184, pp. 70-73). Soon after reaching the mately 5,000 university research sup- agreement with CUE, U.C. declared port and technical employees who work that it would provide 4,000 unrepre- in classifications that pay on average sented employees at the university and less than $40,000 a year. Retroactive to Last year, the custodian wage issue its medical centers with a similar wage April 1, 2007, employees represented caused a disruption at graduation cer- increase program. by UPTE who work in job titles that emonies at the U.C. Berkeley campus. The other two unions engaged in are paid less than $40,000 a year on (See story in CPER No. 178, pp. 54- the bargaining, University Professional average will receive salary increases of 55.) Hoping to avoid similar distur- and Technical Employees and Ameri- .5 percent for those earning between bances this year, the university proposed can Federation of State, County and $35,001 and $40,000, and a .95 percent that former State Senator John Burton Municipal Employees, refused to settle. increase for those earning between mediate the dispute. Burton was unable They accused the university of making $34,501 and $35,500. Employees earn- to broker a deal, but he issued a unacceptably low offers and alleged ing less than $34,500 will get a 1.95 mediator’s proposal that suggested that the state had provided more fund- percent hike. terms nearly identical to those eventu- ing for employee raises than the uni- ally accepted by the parties. Right be- versity was offering. Agreement with AFSCME fore settlement, the wage dispute AFSCME, which has been trying gained media attention because actor Agreement with UPTE to boost custodial salaries for two years, Danny Glover, in support of the union’s UPTE asserted that the university expressed concern that an extra $8.9 demand for equal pay, canceled his key- had received a 4 percent increase in its million provided by the legislature was note address at U.C. Berkeley’s com- base budget, instead of the expected 3 not passed along for its intended pur- mencement. August 2 0 0 7 cper journal 49

In May, AFSMCE and the univer- sity agreed on a settlement based on the recommendations made by Burton. Custodians at U.C. Berkeley, Santa Bar- bara, and Santa Cruz will get an initial wage hike of $1.25 an hour. This raise is retroactive to April and will be addi- tionally increased by $.50 an hour in October. The agreement further stipu- lates that at U.C. Irvine, outsourced groundskeepers will be brought on as full U.C. employees effective July 1, 2007, and custodians at other U.C. campuses will receive a $.50 an hour raise. Finally, every low-wage worker represented by AFSCME Local 3299 will receive a wage increase of 2 per- cent for those making under $30,000 a year, a 1 percent increase for those mak- ing between $30,000 and $35,000 a year, and a .5 percent increase for those making between $35,000 and $40,000 a year. The agreement affects approxi- mately 14,300 U.C. service and patient- care employees, and will cost the uni- versity roughly $8.9 million. ✽ 50 cper journal No. 185

be denied. Any employee on union leave State Employment would be required to return to state employment by June 6, 2005. CCPOA demanded arbitration.

Arbitrator Cannot Reform Contract That Has Been Mutual Mistake Found Approved by Legislature CCPOA asserted that the language of subpart B remained in the MOU due Although an arbitrator had evidence and B. Section 10.13(A) limited the to scrivener’s error. The union’s chief that the memorandum of understand- timing of donations, capped donations negotiator testified that DPA had ing between the Department of Person- and use of released time to 10,000 hours agreed with CCPOA in a sideletter in nel Administration and the California “during the contract year,” and pre- 1997, when no contract was in effect, Correctional Peace Officers Associa- scribed the proportion of time to be that it would “not enforce the caps of tion did not reflect the intent of the par- used for Department of Corrections 10,000, 5,800 (CDC) and 4,200, ties, she exceeded her powers under the unit members and for California Youth (CYA).” The sideletter reflected DPA’s Dills Act when she rewrote the contract Authority members. In negotiations in practice at that time, which was to per- to match the parties’ intent, the Court 2001, CCPOA proposed changes to of Appeal has held in a case of first im- subpart A that removed reference to the pression. The court explained that 10,000-hour cap, but did not propose a since the act requires legislative ap- change to subpart B. Still in the MOU The enrolled bill report proval of any terms requiring expendi- was subpart B, which read, “In no case did not mention ture of funds, and the arbitrator’s refor- shall CCPOA accumulate or use more mation of the contract had significant than ten thousand (10,000) CTO and/ elimination of the fiscal consequences, her award violated or vacation hours from the bank dur- 10,000-hour cap. “the important public policy of legis- ing the term of this MOU.” The dura- lative oversight of employee contracts.” tion of the contract was July 2001, But the arbitrator did not exceed her through July 2, 2006. mit accumulation of more than 10,000 powers under the collective bargaining The MOU was submitted to the hours in the leave bank. The chief ne- agreement, the court found in an un- legislature for approval as required by gotiator showed the sideletter to DPA published section of the opinion. the Dills Act. The enrolled bill report negotiators and made a written proposal stated that the contract would provide Union Leave Disputed to delete the limits on donations and a “mutually agreed upon amount of the use of leave in subpart A. He testi- The CCPOA contract permits employee released time annually,” and fied the parties intended to incorporate employees to donate hours of paid leave did not mention elimination of the the terms of the sideletter into the to a released time bank that other em- 10,000 cap. MOU, and that after an off-the-record ployees may use to conduct union busi- In May 2005, DPA notified the discussion, they signed a tentative ness. Prior contracts had capped the union that it had used 122,387 hours agreement. He did not realize that the released time bank at 10,000 hours. A from the released time bank. DPA an- cap appeared twice in the contract, and 10,000-hour cap was mentioned in Sec- nounced that any further request for failed to propose the deletion from sub- tion 10.13 of the contract in subparts A donations or paid released time would part B. August 2 0 0 7 cper journal 51

DPA argued at the arbitration that The award deleted the language tor from altering the agreement. By the sideletter had been superseded and about the 10,000-hour cap from the considering parol evidence — evi- that it had agreed only to eliminate the contract. The arbitrator ordered the dence of oral agreements or evidence limits on how the hours could be di- parties to return to the conditions ex- other than the contract itself — the ar- vided between CYA and CDC. How- isting before DPA issued the May 2005 bitrator had exceeded her powers un- ever, DPA’s chief negotiator testified letter curtailing use of further released der the MOU, it said. The court also that the parties discussed removing the time. She also required DPA to reimburse declined to return the parties to the sta- cap and that she agreed to the demand. the union for out-of-pocket costs associ- tus agreed to in the 1997 sideletter be- The discussion was not reflected in the ated with the limits on released time. cause the legislature had approved the bargaining notes, but she asserted that DPA petitioned the trial court to va- later MOU. The court vacated the removal of the cap reflected the par- cate the award. It argued that the arbitra- award, and CCPOA appealed. ties’ agreement. tor had exceeded her authority by chang- Dills Act Violated The arbitrator concluded that the ing the MOU based on an off-the-record parties agreed, off the record but at the discussion. The department also argued The appellate court emphasized its bargaining table, to remove the cap. She that the decision violated public policy understanding that courts can overturn pointed out that the chief negotiators because it enforced an agreement that was an arbitration award only in narrow cir- from both sides had testified to their never submitted to the legislature as re- cumstances. Even though a court can- intent to remove the cap and that re- quired by the Dills Act. not review an award for errors of fact or moval of the cap was consistent with The union’s contention that the ar- law, courts “must vacate an arbitrator’s their sideletter agreement and prior bitrator had properly exercised her au- award when it violates a party’s statu- practice. She found that the agreement thority failed. The trial court found that tory rights or otherwise violates a well- was inaccurately written due to mutual the MOU stated it expressed the entire defined public policy.” mistake or inadvertence. agreement and prohibited the arbitra-

Last published in 1996, the new edition includes recent developments relating to legislative approval of collective bargaining agreements; a discussion of new Supreme Court cases that recognize civil service law limits; and a new section on PERB procedures, including recent rever- cper sals in pre-arbitration deferral law. The Pocket Guide provides a thorough description of the Dills Act — how Pocket Guide to the it works, its history, and how it fits in with other labor relations laws. Also included are Public Employment Relations Board enforcement proce- dures, the text of the act, and a summary of all key cases that interpret the Ralph C. Dills act, with complete citations and references to CPER analyses. In addi- tion, there is a summary of PERB rules and regulations, a case index, and Act a glossary of terms designed for Dills Act users.

By Fred D’Orazio, Kristin Rosi, and Howard Schwartz 2nd edition (2006) • $12 • http://cper.berkeley.edu 52 cper journal No. 185

The appellate court agreed with contract not only protects the parties, The court also rejected CCPOA’s the trial court’s ruling, although not its observed the court, but also assures the argument that the presence or absence reasoning, and affirmed the judgment legislature that the MOU is the parties’ of a cap had little fiscal importance. vacating the arbitration award. The contract, that there are no unknown Whether there is a cap on leave usage court noted that CCPOA addressed the agreements, and that the MOU will not has significant fiscal consequences, the trial court’s basis for decision (lack of be changed afterward. court countered. Costs for paid leave contractual authority), but provided no What the legislature approved was are predictable when there is a cap. “reasoned response” to the alternate the determining factor for the court, and The court held that the arbitrator’s theory that the award contravened the predictably, CCPOA and DPA argued reformation of the written MOU vio- Dills Act. Therefore, the court said, that the legislature was aware of differ- lated the Dills Act and the public policy CCPOA forfeited any claim that the ent things when it approved the MOU. of ensuring that the legislature oversees Dills Act was not violated. DPA contended that the legislature ap- employee contracts. Although that was proved the entire MOU containing the 10,000-hour cap. The union asserted The court presumed that the legislature reviewed only the alterations to the prior MOU, and that The arbitrator’s that lawmakers were those alterations showed the cap was alteration of the eliminated. aware of the terms of The court commented that it is MOU did not exceed the prior MOU. “bad practice” for the parties to submit contractual limits on only part of an agreement for legisla- tive approval, especially since courts her authority. presume that the legislature has per- Despite the union’s forfeiture of the formed its duties correctly and reviewed claim, the court explained why DPA’s all the provisions it is responsible for a sufficient basis to vacate the award, Dills Act argument was correct. The approving. Even though the court said the court also addressed CCPOA’s ar- act requires legislative approval of that it appeared the legislature did not gument that the trial court’s reason for MOU provisions that entail expendi- review the entire MOU, it rejected ruling in favor of DPA was erroneous. ture of funds before the provisions be- CCPOA’s argument that the legislature come effective. Prior case law already approved elimination of the cap on Parol Evidence Appropriate has established that the legislature in- union leave. In an unpublished section of the tended to retain “ultimate authority over The court presumed that lawmak- opinion, the court found that the state employees’ wages, hours, and work- ers were aware of the terms of the prior arbitrator’s alteration of the MOU did ing conditions,” the court said, quoting MOU, and if so, could have understood not exceed contractual limits on her Department of Personnel Administration v. that the cap was eliminated from sub- authority. The court recognized that the Superior Court (1992) 5 Cal.App.4th 155. part A because it duplicated the cap in parties have the right to agree to restrict As many contracts do, the MOU subpart B. It could have had this under- an arbitrator’s authority, and that the stated that the arbitrator had “no author- standing of the contract even if it did MOU prohibited arbitrators from de- ity to add to, delete, or alter any provi- not review the new MOU in its entirety, leting any of its provisions. Because the sions of this MOU.” That section of the the court reasoned. arbitrator found a mutual mistake in the August 2 0 0 7 cper journal 53

contract, however, the arbitrator did not court found that numerous court opin- limitations on her powers did not save violate the contract’s limit on her power, ions which DPA relied on were not simi- the award from violating the Dills Act. the court concluded. lar. Instead, it agreed with arbitral pre- Therefore, the Court of Appeal af- DPA argued that deletion of the cap cedent that reformation of a contract firmed the trial court’s judgment vacat- in subpart B resulted when the arbitra- to reflect the parties’ true intent is not ing the award. Department of Personnel tor ignored a rule which prohibits con- an alteration of the contract since the Administration v. California Correctional sideration of parol evidence when the result is to give effect to the parties’ Peace Officers Assn. [6-29-07] C051636 terms of a written contract are clear and original agreement. [3d Dist.] ___ Cal.App.4th ___, 2007 unambiguous. The rule applies when The court’s decision that the arbi- DJDAR 9959. ✽ the contract states that it contains all of trator did not exceed the contractual the parties’ agreements on the subjects of the contract and that all prior agree- ments are superseded. State Forced to Raise Pay in Mental Hospitals

Court orders to hike pay in the pris- oversee remedial efforts, the court ap- The parol evidence ons again have led to raises for employ- pointed a special master, who identi- rule does not apply ees in the Department of Mental fied understaffing as one of the major Health. After District Court Judge deficiencies in the system. when the writing Lawrence Karlton ordered a Decem- Last December, the special master ber raise for mental health workers in reported that the number of vacant psy- contains a mistake. the prisons, the state’s mental hospitals chiatrist positions in the prisons had suffered an exodus of staff to the pris- been climbing since 2005, despite tem- ons. Since some mentally ill prisoners porary recruitment and retention bo- The court explained that the parol are housed in mental hospitals, the nuses which had been ordered in some evidence rule does not apply when a judge ordered the state to present a plan prisons to attract employees. To com- party claims that the writing contains a to raise wages of DMH employees who bat high vacancy rates in psychiatrist mistake. Relying on Hess v. Ford Motor treat inmates. DMH responded with a and other mental health positions, the Co. (2002) 27 Cal.4th 516, the court proposal to raise the salaries of all its court ordered huge boosts in their pay instructed that when the written con- employees in seven mental health oc- ranges. (See story in CPER No. 182, pp. tract does not express the intent of the cupations. 58-59.) The pay hikes went to psychia- parties due to a mutual mistake, the er- trists, psychologists, social workers, Staffing Crisis roneous parts of the writing are to be and other mental health employees in disregarded and the wording of the writ- Judge Karlton presides over the California Department of Correc- ten contract reformed to express the Coleman v. Schwarzenegger, a case from tions and Rehabilitation and to some parties’ intent at the time they entered the mid-1990s that challenged the ad- DMH staff working in programs run into the agreement. equacy of care for mentally ill inmates by DMH in two prisons — the Califor- DPA argued that reformation of the in California prisons. In 1995, the court nia Medical Facility and the Salinas contract was prohibited by the language ruled that the state prison system’s treat- Valley State Prison. preventing alteration of the MOU. The ment of the mentally ill was so inad- The pressure to raise salaries for equate that it was unconstitutional. To the same mental health classifications 54 cper journal No. 185

in the state hospitals began immedi- that is not operating at full capacity pay raises for existing staff but did not ately. The California Association of because of the dearth of clinical em- address pay for new hires. Judge Psychiatric Technicians was not happy ployees. Karlton was not satisfied. He extended to have its members in the prisons paid Before the plan was due, the gov- the deadline for the state to present a more than ones working in the hospi- ernor announced that the state tempo- better plan. In May, he ordered pay par- tals and developmental centers. Its first rarily would increase pay on April 1 for ity for psychiatrists, psychologists, so- priority in reopener bargaining, which DMH psychiatrists and other psychia- began in February, was to achieve the trists in non-corrections positions. But same raises for psych techs in DMH the Union of American Physicians and ‘Isolating clinicians and the Department of Developmental Dentists opposed the governor’s plan Services. And the union’s prediction because the new pay scales would have that treat only that, without raises, mental health work- been 5 percent less than CDCR psy- ers would transfer in droves to the pris- chiatrists’ pay ranges. CDCR inmates at ons was borne out. Other unions representing mental DMH facilities is health workers outside the prisons also were battling the administration in ne- not possible.’ At Atascadero State gotiations to garner the same salaries for all state employees in the classifi- Hospital, only 15 out of cations, whether or not they worked at cial workers, and psychiatric techni- prisons. Senior psychologists’ salaries 46 psychiatrist cians who work at the four mental hos- also would have been boosted to an pitals with prison inmates, but he gave positions were filled. amount 5 percent less than pay of psy- the state another 30 days to draft a de- chologists at the prisons, but the De- tailed implementation plan and report partment of Personnel Administration how it could lift the cap on patient ad- told the American Federation of State, By early February, the Prison Law missions to the Atascadero hospital. Office had informed the court that in- County and Municipal Employees it mates who were being treated at the would raise pay for other psychologists, DMH Plan social workers, and recreational thera- state’s mental hospitals were now suf- Rather than agree to full parity for pists only to an amount 18 percent less fering from staffing shortages caused the psychiatrists, psychologists, social than the pay of their counterparts in the in part by the exodus of mental health workers, and psychiatric technicians at prisons. CAPT heard the same pro- employees to higher-paying correc- the four mental hospitals that house posal for psychiatric technicians. tional positions. Atascadero State Hos- prisoners, DMH proposed salaries that CAPT organized pickets at some men- pital capped its population and refused were 5 percent below prison pay for all tal hospitals. Signs read, “DMH v. to admit more patients because only 15 DMH employees in seven occupations, CDCR: Same Patients, Same Danger, out of 46 psychiatrist positions were whether or not they work with Coleman Same Duties, Same Psychiatric Tech- filled. Karlton gave the state 60 days to class members or at hospitals that had nicians. Why Not the Same Pay?” present a plan to increase staffing at the no prisoners. The medical directors, At the April hearing on staffing at four hospitals that treated inmates for rehabilitation therapists, and unit su- the mental hospitals that house prison- mental illness — Napa, Atascadero, pervisors would receive the same sal- ers, one of the state’s proposals involved Patton, and Coalinga, a new hospital ary treatment as psychiatrists, social August 2 0 0 7 cper journal 55

workers, psychologists, and psych and employee organization negotia- told the court it would use contract techs. “Isolating clinicians that treat tors distorts the negotiation process. mental health workers to meet staff only CDCR inmates at DMH facili- shortages in the short term and employ The state also told the court that it ties is not possible,” the state asserted. interns as a recruitment tool. would contract with a recruitment firm Not only are patients in 50-bed dormi- The court accepted the state’s pro- to help fill the department’s 1,860 va- tories, the department explained, hos- posal to raise the pay in the seven occu- cant positions. DMH would ask the pitals need to be able to move clini- pations to an amount 5 percent less than State Personnel Board to compress the cians from one unit to another, without the pay in CDCR facilities. In a footnote, six existing hiring ranks to three ranks regard to whether they are treating pris- however, Judge Karlton explained his to speed up the hiring process. The state oners under the court’s watch. There- mandate extended only to those employ- currently may consider only those in ees treating Coleman class members. Fo- the top three ranks when hiring. The cusing his attention on the needs of the department would apply to participate mentally ill inmates, he ordered the state The state will contract in the federal loan repayment program to submit a plan to increase dramatically so it could offer applicants school loan with a recruitment the number of beds available at the repayments while they work at the three Atascadero facility. ✽ firm to fill DMH’s most understaffed hospitals. DMH also 1,860 vacant positions.

First Steps Taken to Modernize fore, it wanted to raise the pay of all the State Civil Service Hiring clinicians, but pay a little less than at the prisons. The 5 percent differential The aging state workforce is facing a tive employees holding career-execu- would prevent a “bidding war,” DMH crisis, but the Schwarzenegger admin- tive assignments could retire now, and spokesperson Kirsten Deichert told istration has a plan. A task force thinks another 30 percent will be retirement CPER, and it would not be enough to modernization can reduce the hiring age within the next five years. The state cause employees to leave one institu- and selection process to about 60 days, will need to hire and promote tens of tion for another. and make the state an attractive em- thousands of employees over the next The state told the court that DPA ployer. The California Association of few years to replace retiring managers. would need 30 to 60 days to implement Professional Scientists and other The California Performance Review the plan, since meet-and-confer ses- unions are cautiously supportive of the warned in July 2004 that the state sions with the unions would be required. modernization project. needed a workforce plan. It suggested The state expressed its dissatisfaction the establishment of a statewide recruit- Budget Request with the court order because it would ing program that would spend signifi- impede the effectiveness of labor ne- Over one-fifth of the state’s man- cant efforts on attracting college stu- gotiations. It protested: agers and supervisors are old enough dents. It also recommended improve- to retire immediately, and another 20 ments in hiring methods, and automa- The imposition of an order that in- to 25 percent will be eligible to retire tion of applications and examinations. cludes higher salary levels that ig- within the next five years. Even more In his January budget summary, the nores and supersedes a salary pack- age already agreed to by the state dramatic, 35 percent of senior-execu- governor described the current civil 56 cper journal No. 185

In concise and understandable language, this compact edition explains the many rights afforded public employees in California — state, local govern- ment, and school employees — and in the federal workforce. It provides an cper overview of the rights that have been granted to individual employees by the United States and California Constitutions and by a variety of statutes, includ- Pocket Guide to ing the Americans With Disabilities Act and the Family and Medical Leave Act of 1993, and anti-discrimination laws, such as Title VII of the federal civil rights act Workplace and the state Fair Employment and Housing Act. Part I covers personal rights that public employees enjoy, such as free Rights of speech, equal protection, due process, privacy, and protections against wrongful termination. Part II explains the rights of individual employees Public who work where there is a union, such as the right to participate (or not to particpate) in a union and the union’s duty to fairly represent all employees, Employees regardless of union membership or political activity.

By Bonnie Bogue, Carol Vendrillo and Liz Joffe • 2nd edition (2005) • $12 http://cper.berkeley.edu

service system as “cumbersome and A task force of 10 representatives tion of 70 current employees from other difficult to administer.” Vowing to re- from the Department of Personnel Ad- departments to work on the Human form the hiring process and employee ministration, the State Personnel Resources Modernization Project. compensation, he promised a plan and Board, the Department of Water Re- DPA is requesting another $2.58 mil- budget proposal by this spring. State sources, and the Department of Social lion for 2008-09 to continue the devel- employee unions generally were wel- Services examined the weaknesses of the opment and design of the new system. coming of the idea that the 4,200 clas- current process. The representatives Hiring Obstacles sifications might be consolidated and came up with a recommendation to employees could enjoy greater career change the focus from a duties-based The task force found that, for a job growth. But they also were wary of the system to a competency-based system, applicant, the current system requires potential for outsourcing and cronyism and a strategy to reduce hiring timelines a wait of six weeks to three years for a if civil service protections were re- and improve hiring and performance position. A prospective employee has duced. And they were concerned about outcomes. So far, the task force is look- difficulty identifying all the classifica- the governor’s assertion that “the sal- ing at changing how jobs are viewed and tions for which he or she is qualified. ary and benefits that attracted the baby incorporating technology into the human There are over 200 scientist classifica- boomers may not be as attractive to a resources process, not outsourcing or al- tions and 30 attorney classifications, for [different] generation,” which they read tering retirement benefits. example, based on the types of duties as code for another attack on defined In May, the legislature approved the employee in the position performs. benefit pensions. DPA’s request for five new permanent A scientist looking for biologist posi- positions, over $2 million, and redirec- tions could miss Agricultural Biologist August 2 0 0 7 cper journal 57

opportunities, for example. Most state the database to find candidates with the whether the initial group should be sci- jobs require the applicant to take an required skills and knowledge. If the entists, attorneys, excluded employees, exam, which may not be offered for six department needed to test for specific or information technology workers. By months. Waiting for test results takes competencies, such as writing ability next summer, project participants will at least two weeks, and then the appli- or vocabulary, the examination could be formulating selection criteria and cant must apply for a specific job, which be taken online. Other competencies testing for the pilot occupational group, usually requires an interview. The in- would be measured at an interview, and will begin developing a compen- terviewing process may take another where an applicant might be asked to sation scheme that determines how an month. Many prospective employees complete an “in-basket” assignment. employee can gain a higher salary on a will have found another job outside of The most time-consuming aspect of the compensation grid. state service long before they receive a process would be scheduling interviews In early 2009, the state will begin job offer. State employees seeking pro- and conducting background checks. training its human relations staff and motions are sometimes ineligible to This system also would improve supervisors and managers on how to apply for vacancies because they have the promotional process. A perfor- implement the competencies-based to wait for the appropriate examination mance evaluation system based on lev- system. Meanwhile, application, test- to be given. els of skills and other competencies, ing, selection, evaluation, and market such as behaviors that indicate specific personal traits, could be used to make promotion decisions without repeating The database would the examination process. Compensation DPA envisions hiring accept applications on a would be based on employee contribu- the first employees tions to the agency’s goals, self-develop- continuous basis. ment, and the marketplace, as well as under the new system length of job tenure. The system would encourage employee training. by July 2009. The task force envisions a largely Implementation Timeline automated process based on competen- The first goal of the project is cies, which would reduce the time an compensation elements of the system workforce planning. A newly hired ex- applicant waits to between 3 and 60 will be automated. Debbie Endsley, ecutive project director and staff mem- days. In a competency-based system, chief deputy director of DPA, told ber will work with employees loaned classifications would be based on skills, CPER that the department envisions from several other departments to ana- knowledge, and abilities needed for the hiring the first employees under the lyze the workforce and determine where job rather than the duties to be per- new system by July 2009. formed. Job searches would be simpler. state government has the most labor Prospective hires would file online ap- needs. All departments will draft Union Involvement workforce plans. plications that outline competencies CAPS Staff Director Chris Voight Designing a new classification such as education, certifications, and told CPER that the union supported scheme will begin this fall and continue experience. The database would accept DPA’s budget request for the modern- into next fall for a pilot occupational applications on a continuous basis. A ization project. “The current system group. The task force will decide soon department with a vacancy could enter does not result in competitive hiring. 58 cper journal No. 185

It does not allow for movement between of living raises will not attract the next well as managers and supervisors who departments or salary advancement.” generation of scientists,” he empha- are excluded from bargaining units, did The task force already has met with sized. State scientists now either take not receive the 5 percent increase until CAPS several times. The association supervisory jobs to increase their pay July 2004. Pay was not boosted again agreed that the large number of classi- or they go elsewhere. “Scientists need for most non-law enforcement employ- fications needs to be reduced, and it ad- a longer rank-and-file career path with ees until 2006-07, when they received vocated for deep classifications so that high-enough salaries to keep them do- a 3.5 percent raise and a $1,000 bonus. employees could be promoted without ing science,” says Voight. Under contracts that SEIU Local 1000 taking examinations. The modernization task force is and other unions negotiated, most non- CAPS also voiced concerns about planning to meet with all the employee public safety employees received a 3.4 compensation of state employees. The organizations this summer. Endsley percent increase this July. state is unattractive as an employer, es- told CPER the department will need the Like the raise for rank-and-file em- pecially in fields like information tech- assistance of the unions to implement ployees, the pay increase for appointed nology, medicine, and science. “Cost this program. ✽ officials was 4 percent in 2000-01. But the 5 percent raise was delayed until De- cember 2006, for those whose salaries were set by statute. While managers and Elected and Appointed Officials’ Salaries Jump supervisors were compensated with ex-

After years of salary increases teth- have been linked to the general salary ered to raises of rank-and-file state em- increases that rank-and-file employees The 5 percent raise ployees, officials in many high-level received. DPA generally granted to the was delayed until state positions are enjoying hefty pay other appointed employees increases boosts that dwarf the raises received by that matched managers’ raises, which December 2006 for the state’s lower-level managers and su- usually mirrored the increases bar- those whose salaries pervisors. And the California Citizens gained by unions representing civil Compensation Committee decided in service employees. were set by statute. June that elected officials should receive With the exception of law enforce- a small pay increase this winter, which ment and public safety employees, most will follow an 18 percent hike in De- state employees received a 4 percent tra personal-leave days, personal leave is cember 2006. Excluded employees are raise in 2000-01, and no further in- meaningless to appointed officials who hoping that the higher executive pay creases until a 5 percent raise that was do not accrue paid leave. will make room for their salaries to rise. scheduled for July 1, 2003. Because of Meanwhile, salaries of their peers the budget crisis at the time, the Davis Market Lags in local and federal public entities were administration negotiated a 12-month rising much faster. In June 2005, the Salaries for some appointed offi- delay in that raise with some bargain- state’s Little Hoover Commission re- cials are set by statute, while others are ing units, in return for extra personal ported that the $131,412 annual salary determined by the Department of Per- leave days and other benefits. The em- of the director of the state’s Department sonnel Administration. Since the early ployees in those bargaining units, as of Finance, which oversaw a budget of 1980s, raises for salaries set by statute August 2 0 0 7 cper journal 59

$117.5 billion, lagged the salaries of ther. In A.B. 2936 (Assembly Member initiative in 1990, meets annually to de- some of his peers at the county level by Ridley-Thomas, D-Los Angeles), DPA termine the compensation of the state’s as much as 40 percent. The comparable gained the authority to raise salaries of elected officials. position at the County of Sacramento, those appointees whose salaries previ- In 2000-01, the salaries of all which oversaw a budget of $4.2 billion, ously had been set by statute. The new elected officials rose 6 percent. But the paid $163,728, and the County of law lists several factors that DPA is re- commission did not vote to raise their Alameda, with an even smaller budget, quired to consider, such as the size and salaries again until 2005-06, when it paid $218,982 annually. Senior man- scope of the agency or department and increased legislators’ pay 12 percent. agers in career executive assignments the compensation paid to comparable Last December, legislators received a could earn no more than $117,960, positions in other public jurisdictions. 2 percent raise while elected officials’ while senior executives in the federal And the legislation raised the salary pay was boosted 18 percent. In June, service could be paid up to $162,100. the commission announced that all Over the course of two years, the elected officials’ pay will go up another Little Hoover Commission, the Cali- The new law raised the 2.75 percent in December 2007, except fornia Performance Review, and the for the salaries of the Attorney General Excluded and Exempt Salary Setting salary ceiling to 125 and the Superintendent of Public In- Task Force recommended that DPA percent of the struction, which will increase 5 percent incorporate compensation surveys of to $184,301. The governor’s salary will other public entities into the process governor’s salary. be boosted to $212,179. for determining excluded and exempt In March, the department an- employees’ salaries. (See story in CPER nounced that the salaries of 49 appoin- No. 175, pp. 47-50.) They all suggested ceiling to 125 percent of the governor’s tees would be raised based on compari- pay-for-performance plans, and the salary, which then was $175,000. sons to the $175,544 average maximum California Performance Review recom- DPA immediately used the new salary of comparable executive man- mended lifting a statutory restriction powers to raise the salary of the new agement positions in other California that limited executive salaries to pay no corrections secretary, James Tilton, to government agencies. The state’s 10 higher than the governor’s salary. $225,000 last fall. The salary is com- agency secretaries other than Tilton are parable to that of the police chief of the now paid $175,000 annually, up from Legislation Lifts Ceiling City of Oakland, but lower than the pay $142,582, which was 81 percent of the Last year, when the governor was of the chief law enforcement officers in average maximum salary of compa- looking for a new secretary for the De- the city and the county of Los Angeles, rable positions. Directors of larger de- partment of Corrections and Rehabili- who are paid over $250,000. And it is partments were placed on the bottom tation, he found that the $131,000 an- higher than the governor’s salary, which of a salary range that extends from nual salary for the position was an ob- Governor Schwarzenegger has de- $142,965 to $150,112. Other directors stacle. The Department of Personnel clined. In December, the salary for his had their salaries raised from $118,000 Administration asked the legislature to position rose to $206,500, as a result of to $136,156, but could earn as high as pass a bill allowing the state to pay a the deliberations of the California Citi- $142,964. In those positions where higher salary for the corrections secre- zens Compensation Commission. That there are salary ranges, an incumbent’s tary, department spokesperson Lynelle commission, which was established by salary can go up only 10 percent a year. Jolley told CPER. Lawmakers went fur- Those in public health and safety agen- 60 cper journal No. 185

cies enjoyed boosts to at least $165,000. The boost would widen the spread be- No new funds are authorized for the tween the salaries of supervisors and the raises, which will come from depart- highest pay of those they supervise. Be- ments’ existing budgets. fore state employees began collective bargaining in 1982, state compensation ACSS Optimistic schedules had maintained at least a 10 “They finally raised our glass ceil- percent differential between rank-and- ings,” responded Tim Behrens, presi- file employees and their supervisors. dent of the Association of California The Task Force found that 85 percent State Supervisors. Behrens was on the of the public entities it surveyed at- tempted to maintain at least a 10 percent gap, and DPA officials publicly have Supervisors in many stated that they believe the minimum dif- ferential is desirable. Behrens is hoping departments are that the boosts in salaries of appointed executives will enable the administration earning only 5 percent to establish a real difference between the more than those wages of the rank-and-file and the pay of their supervisors. ✽ they supervise.

Task Force and the Little Hoover Com- mission when the compensation re- ports of the two study groups were is- sued. He told CPER that DPA has not signaled yet that major boosts in com- pensation are coming to the state’s managers and supervisors, although the new DPA head, David Gilb, is willing to recognize the problems with ex- cluded employees’ compensation. Su- pervisors in many departments are earning only 5 percent more than those they supervise, and may earn less when the subordinates get overtime or other collectively bargained benefits. ACSS is asking for a 5 percent raise in addition to any across-the board in- creases that the rank and file receive. August 20 0 7 cper journal 61

for Ledbetter, and awarded her backpay Discrimination and other damages. The Eleventh District Court of Ap- peals reversed, holding that a Title VII pay discrimination claim cannot be based Supreme Court Interprets Time Limit Narrowly on any pay decision that occurred more in Pay Discrimination Case than 180 days, or 300 days, before the EEOC charge was filed. The Court of Factual Background In Ledbetter v. Goodyear Tire & Rubber, Appeals concluded that there was insuf- the Supreme Court held, by a vote of Lily Ledbetter was a supervisor at ficient evidence to prove that Goodyear five to four, that administrative com- Goodyear from 1979 until her retire- acted with discriminatory intent in plaints alleging pay discrimination ment in 1998. She worked as an area making the only two pay decisions that must be filed within the charging pe- manager, a position held primarily by occurred within that time span. riod — 180 days after the last pay deci- men. At first, her pay was in line with sion that demonstrated discriminatory that of men performing similar work. intent, or within 300 days in states with Over time, however, it declined in com- Ginsburg argued that agencies authorized to accept Title VII parison to male area managers with charges — not within 180 or 300 days equal or less seniority. By the end of 1997, the majority decision of the issuance of the last paycheck that Ledbetter was paid $3,727 a month, while ignores its own reflects the discriminatory activity. In the lowest-paid male area manager doing so, the majority rejected the received $4,286 and the highest-paid precedent. theory, adopted by the Equal Employ- received $5,236. ment Opportunity Commission, that Ledbetter filed a charge of dis- each paycheck reflected the adverse ef- crimination with the EEOC in March Ledbetter filed a petition with the fects of past discrimination and thus con- 1998. She claimed that Goodyear had Supreme Court, asking review of the stituted a new violation. It explicitly re- violated Title VII of the Civil Rights following question: “Whether and un- fused to extend to claims of pay discrimi- Act, which makes it unlawful for an der what circumstances a plaintiff may nation the rationale applied to hostile employer to discriminate against any bring an action under Title VII of the work environment claims in National individual “with respect to her Civil Rights Act of 1964 alleging ille- Railroad Passenger Corp. v. Morgan (2002) compensation…because of such gal pay discrimination when the dis- 536 U.S. 101, 155 CPER 70. individual’s…sex.” At trial, Ledbetter parate pay is received during the statu- Justice Ruth Bader Ginsburg, in a introduced evidence that, during her tory limitations period, but is the result powerful dissent, argued that the ma- employment, several supervisors had of intentionally discriminatory pay de- jority decision ignores its own prece- given her poor evaluations because of cisions that occurred outside the limi- dent and stands in opposition to deci- her sex and that her compensation was tations period.” The Supreme Court sions of the lower courts that have over- not increased as much as it would have agreed to review the case because of whelmingly held otherwise. Justice been had she been evaluated fairly. what it determined to be disagreement Ginsburg openly called on Congress These past pay decisions continued to among the Courts of Appeals as to the to enact legislation that would reverse affect the amount of her pay through- proper application of the limitations the court’s ruling, and it has responded. out her employment. The jury found period in Title VII disparate pay cases. 62 cper journal No. 185

Supreme Court Decision discrimination did not make out a The EEOC charging period is trig- present violation,” according to Alito. gered when a discrete unlawful prac- Justice Samuel Alito, writing for tice takes place. A new violation does the majority, rejected Ledbetter’s argu- Alito also relied on Delaware State not occur, and a new charging period ment that each paycheck issued to her College v. Ricks (1980) 449 U.S. 250. In does not commence, upon the occur- during the charging period was a sepa- that case, the court found against a col- rence of subsequent nondiscrimina- lege librarian denied tenure prior to the tory acts that entail adverse effects rate act of discrimination or, alterna- resulting from the past discrimina- tively, that the 1998 decision denying charging period, but terminated within tion. But of course, if an employer her a raise was unlawful because it car- the period because of the tenure denial, engages in a series of acts each of ried forward intentionally discrimina- holding that the charging period ran which is intentionally discriminatory, from “the time the tenure decision was then a fresh violation takes place when tory disparities from prior years. “In each act is committed. essence,” wrote Alito, “she suggests made and communicated” to her. that it is sufficient that discriminatory The majority also found support Alito reasoned that Ledbetter’s ar- acts that occurred prior to the charging for its view in Lorence v. AT&T Tech- guments “cannot be reconciled” with period had continuing effects during that nologies, Inc. (1989) 490 U.S. 900, in the foregoing cases because she did not period.” “This argument is squarely fore- which a change in the method of calcu- claim that intentionally discriminatory closed by our precedents,” he said. lating seniority resulted in layoffs of conduct occurred during the charging women testers because of their low se- niority. In Lorence, the court concluded The majority rejected that the charging period ran from the date the seniority rule was changed, not Alito: ‘Current effects that each paycheck from the date of the layoffs. alone cannot breathe was a separate act of Alito cited Morgan as the most re- cent decision confirming the court’s life into prior, discrimination. interpretation. “In Morgan, we ex- plained that the statutory term ‘employ- uncharged ment practice’ generally refers to ‘a dis- discrimination.’ crete act or single occurrence’ that Alito pointed to United Airlines v. takes place at a particular point in Evans (1977) 431 U.S. 553, as one such time,” he said. “We pointed to ‘termi- period but rather that Goodyear’s con- case. There, a flight attendant, forced nation, failure to promote, denial of duct during the charging period gave to resign because she was married, did transfer, and refusal to hire’ as examples present effect to prior discriminatory not file a charge of discrimination. of such ‘discrete’ acts, and we held that conduct. “But current effects alone can- When rehired, she was not credited with a Title VII plaintiff ‘can only file a not breathe life into prior, uncharged seniority for her prior service. She then charge to cover discrete acts that ‘oc- discrimination; as we held in Evans, sued, claiming that the airline’s refusal curred’ within the appropriate time pe- such effects in themselves have ‘no to give her credit gave “present effect riod,” he continued. present legal consequences,’” he said. to its past illegal act and thereby per- These cases provide a clear instruc- Ledbetter’s argument, if adopted, petuated the consequences of forbidden tion, concluded Alito: would distort the public policy under- discrimination.” The Supreme Court lying Title VII’s enforcement proce- in Evans concluded “that the continu- dure, the majority concluded. “Statutes ing effects of the precharging period August 20 0 7 cper journal 63

of limitations serve a policy of repose,” gro” branches, with the latter receiving employer that adopts and intentionally wrote Alito. “The EEOC filing dead- less pay. The two branches were merged retains such a pay structure can surely line protects employers from the bur- in 1965 and, after Title VII was extended be regarded as intending to discrimi- den of defending claims arising from to public employees in 1972, black em- nate on the basis of race as long as the employment decisions that are long ployees sued claiming that pay dispari- structure is used.” Thus, said Alito, the past,” he continued. By adopting the ties attributable to the old, dual pay scale Bazemore court found the defendants short, 180-day filing deadline, “Con- persisted. The Supreme Court found in had engaged in “fresh discrimination.” gress clearly intended to encourage the favor of the plaintiffs, stating “each week’s Therefore, Bazemore does not stand “for prompt processing of all charges of paycheck that delivers less to a black than the proposition that an action not com- employment discrimination” and its to a similarly situated white is a wrong prising an employment practice and “strong preference for the prompt reso- actionable under Title VII.” alleged discriminatory intent is sepa- lution of employment discrimination Alito found that Bazemore did not rately chargeable, just because it is re- allegations through voluntary concili- support Ledbetter’s argument but rather lated to some past act of discrimina- ation and cooperation,” he reasoned. was consistent with the earlier Evans tion,” he concluded. “Because The majority was not persuaded by decision. He interpreted Bazemore as Ledbetter has not adduced evidence that Ledbetter’s argument that the holding holding that “when an employer adopts Goodyear initially adopted its perfor- in Bazemore v. Friday (1986) 478 U.S. a facially discriminatory pay structure mance-based pay system in order to dis- 385, requires a different treatment of that puts some employees on a lower criminate on the basis of sex or that it pay claims. Bazemore involved dispar- scale because of race, the employer en- later applied this system to her within ate pay claims based on race where a gages in intentional discrimination the charging period with any discrimi- group of state employees were origi- whenever it issues a check to one of natory animus, Bazemore is of no help nally segregated into “white” and “Ne- these disfavored employees.” And, “an to her.”

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By Peter Brown • 2nd edition (2002) • $10 http://cper.berkeley.edu 64 cper journal No. 185

The majority also rejected Ledbet- was “not in a position to evaluate Ledbetter’s situation is likely to com- ter’s reliance on analogies to other statu- Ledbetter’s policy arguments” and that prehend her plight and, therefore, to complain. Her initial readiness to tory constructs. Ledbetter argued that the “it is not our prerogative to change the give her employer the benefit of the court should look to the Equal Pay Act, way in which Title VII balances the in- doubt should not preclude her from enacted at the same time as Title VII, for terests of aggrieved employees against later challenging the then current and interpretation of the limitations period. the interest in encouraging the prompt continuing payment of a wage de- pressed on account of her sex. Under the EPA, the lower courts have processing” of discrimination charges considered cases involving pay dispari- and “the interest in repose.” Ginsburg formulated the question ties that first arose outside the limita- presented by Ledbetter’s petition as, The Dissent tions period. She also cited the Fair “What activity qualifies as an unlawful Labor Standards Act under which the Justice Ginsburg, with whom Jus- employment practice in cases of dis- statute of limitations runs anew with tices John Paul Stevens, David Souter, crimination with respect to compensa- each paycheck. The majority distin- and Stephen Breyer joined dissenting, tion?” One answer, she noted, identi- fully embraced Ledbetter’s policy ar- fies the pay-setting decision alone as gument regarding the unique charac- Ginsburg commented ter of pay discrimination, stating: Ginsburg : ‘Paychecks The Court’s insistence on immedi- that pay disparities ate contest overlooks common char- perpetuating past acteristics of pay discrimination. Pay often occur in small disparities often occur, as they did in discrimination... Ledbetter’s case, in small increments; increments. cause to suspect that discrimination discriminate anew is at work develops only over time. Comparative pay information, more- each time they issue....’ over, is often hidden from the guished both acts from Title VII be- employee’s view. Employers may keep cause neither requires proof of inten- under wraps the pay differentials tional discrimination. Ledbetter’s reli- maintained among supervisors, no the unlawful practice; another counts less the reasons for those differen- ance on the National Labor Relations both the pay-setting decision and the tials. Small initial discrepancies may Act was on firmer ground, said the court, not be seen as meat for a federal case, actual payment of a discriminatory sal- because it was used as a model for Title particularly when the employee, try- ary as unlawful practices. Ginsburg ar- VII. However, Ledbetter’s argument ing to succeed in a nontraditional gued that although the majority adopted environment, is averse to making that the NLRA’s statute of limitations the first view, “the second is more faith- waves. starts anew with each paycheck was not ful to precedent, more in tune with the Pay disparities are thus significantly supported by the court’s precedents, realities of the workplace, and more re- different from adverse actions “such wrote Alito. as termination, failure to promote, spectful of Title VII’s remedial purpose.” Ledbetter’s policy arguments met or refusal to hire,” all involving fully Ginsburg’s interpretation of the a similar fate. She claimed that a longer communicated discrete acts, “easy to holding in Bazemore differed from that identify” as discriminatory. It is only limitations period was reasonable here of the majority. According to Ginsburg, when the disparity becomes appar- because pay discrimination is harder to ent and sizeable, e.g., through future the court rejected the Court of Appeals’ detect than other forms of discrimina- raises calculated as a percentage of conclusion that the pay discrepancies tion. The majority responded that it current salaries, that an employee in “were simply a continuing effect of a August 20 0 7 cper journal 65

decision lawfully made prior to the ef- discrepancies, of the kind Ledbetter ex- little reason even to suspect discrimi- nation until a pattern develops incre- fective date of Title VII,” instead find- perienced, have a closer kinship to hos- mentally and she ultimately becomes ing that each paycheck “that delivers tile work environment claims than to aware of the disparity. Even if an em- less to a black than to a similarly situ- charges of a single episode of discrimi- ployee suspects that the reason for a ated white” is separately actionable. nation,” wrote Ginsburg. “Ledbetter’s comparatively low raise is not perfor- mance but sex (or another protected “Paychecks perpetuating past discrimi- claim, resembling Morgan’s, rested not ground), the amount involved may nation, we thus recognized, are action- on one particular paycheck, but on the seem too small, or the employer’s in- able not simply because they are ‘related’ ‘cumulative effect of individual acts.’” tent too ambiguous, to make the is- to a decision made outside the charge- The minority’s reasoning underly- sue immediately actionable — or win- nable. filing period, but because they discrimi- ing this conclusion demonstrates an nate anew each time they issue….” understanding of the obstacles faced by Pay claims also differ from discrete In Morgan, said Ginsburg, the victims of pay discrimination: employment actions because “an em- court made clear that “claims…based ployer gains from sex-based pay dispari- The realities of the workplace re- on the cumulative effect of individual ties in a way it does not from a discrimi- veal why the discrimination with re- spect to compensation that natory denial of promotion, hiring, or Ledbetter suffered does not fit within transfer,” Ginsburg continued. “When Compensation the category of singular discrete acts a male employee is selected over a fe- “easy to identify.” A worker knows male for a higher level position, some- disparities are often immediately if she is denied a pro- motion or transfer, if she is fired or one still gets the promotion and is paid hidden from sight, refused employment. And promo- a higher salary; the employer is not en- tions, transfers, hirings, and firings riched,” she explained. “But when a said Ginsburg. are generally public events, known woman is paid less than a similarly situ- to co-workers. When an employer makes a decision of such open and ated man, the employer reduces its costs definitive character, an employee can each time the pay differential is imple- acts” are different in kind from discrete immediately seek out an explanation mented.” Another distinction is that acts. It placed hostile work environ- and evaluate it for pretext. Compen- promotion decisions often affect other sation disparities, in contrast, are of- ment claims in this category because ten hidden from sight. It is not un- employees’ rights, whereas disparate pay “their very nature involves repeated usual, decisions in point illustrate, for can be remedied solely at the expense of conduct,” and thus “it does not matter, management to decline to publish the employer. for purposes of the statute, that some of employee pay levels, or for employ- Because of these differences, the ees to keep private their own sala- the component acts of the hostile work ries…. cases relied on by the majority, i.e., Evans, environment fall outside the statutory Ricks, and Lorance, “hold no sway,” con- period,” the court wrote in that case. “Pro- The problem of concealed pay cluded Ginsburg. She also noted that vided that an act contributing to the claim discrimination is particularly acute Lorance is no longer effective because it where the disparity arises not because occurs within the filing period, the entire the female employee is flatly denied was superseded by the 1991 Civil Rights time period of the hostile environment a raise but because male counterparts Act. The Supreme Court has not once may be considered by a court for the pur- are given larger raises. Having re- relied on Lorance in the 15 years since poses of determining liability.” ceived a pay increase, the female em- Title VII was amended, and it was mis- ployee is unlikely to discern at once The dissenters would treat pay dis- that she has experienced an adverse taken to do so now, said Ginsburg. In crimination claims in the same way. “Pay employment decision. She may have amending the act in 1991, Congress’ 66 cper journal No. 185

intent was to generalize the ruling in At the conclusion of her dissent- grieved is injured as a result of a com- Bazemore, she explained, citing refer- ing opinion, Ginsburg explicitly urged pensation calculation attributable in ences from the congressional record. Congress to protect future victims by whole or in part to the application or She found further proof of congres- enacting legislation to nullify the continuation of a compensation deci- sional intent in Title VII’s provision majority’s decision. sion that was made” at any time before which expressly provides that backpay “This is not the first time the Court a charge relating to such calculation is may be awarded for up to two years has ordered a cramped interpretation filed and for an intentionally discrimi- prior to the filing of an EEOC charge. of Title VII, incompatible with the natory purpose. Ginsburg also noted that “the statute’s broad remedial purpose,” she On June 22, Representative Courts of Appeals have overwhelm- noted, referring to a number of deci- George Miller (D-California) intro- ingly judged as a present violation the sions in the late 1980s. The demands duced H.R. 2831 which would amend payment of wages infected by discrimi- for legislative change in reaction to Title VII, the Age Discrimination in nation,” and that the EEOC “has inter- those decisions resulted in the 1991 Employment Act of 1967, the Ameri- preted the act to permit employees to Civil Rights Act. “Once again, the ball cans With Disabilities Act of 1990, and challenge disparate pay each time it is is in Congress’ court,” she wrote. “As the Rehabilitation Act of 1973 “to received.” in 1991, the Legislature may act to cor- clarify that a discriminatory compen- rect this Court’s parsimonious reading sation decision or other practice that of Title VII.” (Ledbetter v. Goodyear Tire is unlawful under such Acts occurs each Congressional & Rubber Co. [5-29-07] Supreme Ct. time compensation is paid pursuant to No. 05-1074, ____U.S.____, 2007 the discriminatory compensation de- Democrats responded DJDAR 7573.) cision or other practice, or for other purposes.” quickly to Ginsburg’s Legislative Action Also in reaction to the decision, plea to introduce Congressional Democrats re- California Assembly Member Dave legislation. sponded quickly to Ginsburg’s plea, Jones (D-Sacramento) introduced A.B. announcing the day after the decision 437 in the California legislature. The was issued that they would introduce bill is designed to ensure that Califor- legislation “to ensure that workers are nia courts do not place the same re- The minority also was not per- able to enforce their legal right to equal strictions on discrimination claims suaded by the majority’s concern that pay.” On June 11, Representative C.A. made under the state’s Fair Employ- employers should be protected from “Dutch” Ruppersberger (D-Maryland) ment and Housing Act. All of the bills having to defend employment deci- introduced H.R. 2660, known as the were pending at the time CPER went sions that are long past. First of all, in- “2007 Civil Rights Pay Fairness Act,” to press. ✽ structed Ginsburg, “the discrimination which would amend Title VII to ex- of which Ledbetter complained is not tend the period for filing charges with long past,” but rather continued to oc- the EEOC from 180 and 300 days to cur with each pay period. Secondly, as 360 and 480 days, respectively, and the court explained in Morgan, employ- would provide that “an unlawful em- ers disadvantaged by delay may raise ployment practice occurs with respect various defenses such as waiver, estop- to compensation when a person ag- pel, and equitable tolling. August 20 0 7 cper journal 67

any of the designated individuals. In- Employee Should Have Been Notified stead, she called Faust’s home again and of Right to CFRA Leave left a message saying that she needed to talk to Faust directly. A week later, Andersen informed An employee who provided sufficient ence shortness of breath, confusion, panic Faust that the chiropractor’s slip was information to advise his employer of attacks, and feelings of despair. unacceptable because it was not from a his need for leave under the California Later that day, Faust’s coworkers medical doctor. Family Rights Act should have been gave him “the cold shoulder.” Fearing On April 15, 2003, Andersen sent given notice of his right to take such for his safety, Faust requested time off. another letter to Faust, notifying him leave prior to being terminated, ruled Schrader denied his request. Faust be- that he had been terminated because the the Second District Court of Appeal in lieved he might be in danger if his co- paperwork he submitted “was insuffi- Faust v. California Portland Cement Co. workers would not respond to requests cient to sustain an approved absence Michael Faust worked as a lube- for help, and he experienced extreme from work.” Andersen never informed specialist for Portland in a garage su- anxiety. He called Ron Bergloff, a su- Faust of the availability of medical pervised by Hank Schrader. In Febru- pervisor, who agreed that Faust would leave under the CFRA or the federal ary 2003, Faust sent an email to plant leave the premises. Family and Medical leave Act of 1993. manager Bruce Shafer stating that vari- Five days later, Faust began a 30- day psychiatric program at Kaiser Permanente. He filed for workers’ com- Fearing for his safety, pensation, and his attorney notified The trial court erred Portland of the claim. Faust provided Faust requested Portland with documentation of a medi- when it applied the time off. cal impairment showing he suffered McDonnell Douglas from anxiety and stress. Faust began to experience back burden-shifting pain, and on April 1, 2003, he provided ous unnamed employees had engaged the company with a medical certifica- analysis. in theft and other misconduct. Shafer tion from his chiropractor stating that discussed the matter with Schrader and he was unable to perform his regular Schrader’s supervisor on February 26, job duties. Ms. Andersen, Portland’s Faust sued Portland, claiming that 2003. human resources manager, called it had violated the CFRA and had dis- The following day, Faust’s co- Faust’s home and left a message that criminated against him on the basis of worker, Bill Buchanan, did not pick up she had problems with the certification disability in violation of California’s Faust to take him to the worksite as he form and wanted to speak to him right Fair Employment and Housing Act. was supposed to do. When Faust asked away. Faust’s wife left two messages for The trial court dismissed the com- him why, Buchanan said that Schrader Andersen stating that she could talk to plaint, and Faust appealed. had told the employees at the garage her, the chiropractor, or Faust’s work- The Court of Appeal reversed the about Faust’s email and that “everyone ers’ compensation attorney, but that trial court’s ruling as to the CFRA should watch their back.” Faust was dis- Faust was “too stressed out” to talk to claims and the claim of disability dis- turbed by this news and began to experi- Andersen. Andersen never contacted crimination. 68 cper journal No. 185

The court noted that the CFRA, fact, Portland had admitted in discov- to do so. And, instructed the court, which is part of the FEHA, makes it an ery that he had done so. The court re- “Contrary to the view expressed by unlawful employment practice for an jected Portland’s argument that Faust Andersen, a physician is not the only employer of 50 or more persons to had unreasonably refused to respond to health care provider who can certify a refuse to grant an employee’s request Portland’s questions seeking necessary serious health condition under the to take medical leave for up to 12 work- information which would have assisted CFRA.” weeks in any 12-month period. The it in determining if Faust was seeking a The court also reversed the lower court agreed with Faust that the trial CFRA-qualifying leave. Faust pre- court’s dismissal of Faust’s claim of re- court erred when it applied the sented evidence that he was unable to taliation for exercise of his CFRA McDonnell Douglas burden-shifting personally respond to Andersen because rights. It found that Faust had estab- analysis to his interference claim un- he felt “too stressed out” and that he lished a prima facie case of retaliation der the CFRA. A violation of the CFRA had designated three other people to by showing that Portland was covered simply requires that the employer deny whom Andersen could direct her ques- by the CFRA, that he was an employee the employee the CFRA leave to which tions, noted the court. eligible to take CFRA leave, that he he or she is entitled, the court in- properly exercised that right, and that structed. he suffered an adverse employment ac- Regarding the notice requirements tion because of his exercise of that right. for an employee seeking leave, the A physician is not the The burden then shifted to Portland to court looked to Sec. 7297.4(a) of the only health care offer a legitimate, non-retaliatory rea- California Code of Regulations enacted son for the adverse employment action. to implement the CFRA. That provi- provider who can Portland’s claim that it terminated sion requires an employee to provide certify a serious Faust because of insubordination was verbal notice sufficient to make the not credible, found the court. employer aware that the employee health condition. “Portland’s refusal to communicate needs CFRA-qualifying leave, and the with any of Faust’s representatives, par- anticipated timing and duration of the ticularly his workers’ compensation at- leave. But, the regulations state, “The torney, undermines Portland’s conten- employee need not expressly assert The court also was not persuaded tion that, as a matter of law, it legiti- rights under the CFRA or FMLA, or by Portland’s argument that Faust’s chi- mately fired Faust for ignoring even mention CFRA or FMLA, to meet ropractor was not a qualified health Andersen’s inquiries,” it explained. the notice requirement.” The employee care provider within the meaning of the Similarly, the court found that the must state the reason the leave is needed. CFRA. dismissal of Faust’s cause of action for The regulation instructs the employer First, Portland never informed wrongful termination in violation of to ask for additional information about Faust of the CFRA notice and certifi- public policy must be reversed. “The whether CFRA leave is being sought cation requirements it had adopted, public policy embodied in the CFRA by the employee and to obtain the nec- said the court. In addition, when it re- satisfies all the requirements identified essary details of the leave to be taken. ceived the note from the chiropractor, in Gantt v. Sentry Insurance (1992) 1 The court found that Faust pro- Portland did nothing to inquire further Cal.4th 1083 [93 CPER 42] and vided Portland with sufficient notice of to determine whether Faust qualified Stevenson v. Superior Court (1997) 16 a CFRA-qualifying leave and that, in for CFRA leave, though it was required Cal.4th 880 [126 CPER 7].” August 20 0 7 cper journal 69

The court also resurrected Faust’s said the court, noting that the an unlawful employment practice.” An claim of disability discrimination in chiropractor’s work-status report stated employer cannot go forward with a claim violation of the FEHA. Portland ar- that Faust was “unable to perform regu- of failure to accommodate unless it can gued that Faust did not have a disabil- lar job duties.” (Faust v. California Port- show that reasonable accommodation ity or that it did not know of his dis- land Cement Co. [5-10-07] 150 was offered and refused, there was no va- ability as of the date of his termination. Cal.App.4th 864.) ✽ cant position within the company for The evidence pointed to the contrary, which the employee is qualified and which he can perform with or without accommodation, and the employer did everything in its power to find a reason- Disabled Employee Must Make able accommodation, instructed the Specific Request for Accommodations court, citing Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 1376.

In King v. United Parcel Service, Inc., the claimed that the employer failed to Third District Court of Appeal upheld provide him with reasonable accom- the trial court’s dismissal of a dis- modation. The employer charged employee’s complaint of dis- The trial court granted the presented evidence that ability discrimination and failure to employer’s motion for summary judg- provide reasonable accommodation in ment and dismissed King’s complaint, it honestly believed violation of California’s Fair Employ- finding no triable issue of material fact. ment and Housing Act. The court con- King appealed. King had violated its cluded that the employee had failed to The Court of Appeal affirmed the integrity policy. provide sufficient evidence that he was lower court’s ruling. It concluded that terminated because of his disability and King had not presented specific and that the employer had shown that it had substantial evidence that he was fired a legitimate, nondiscriminatory reason because he was disabled. The employer Prior to leaving on disability, King for terminating him. The more diffi- did present sufficient evidence to con- had been performing double duty, serv- cult question in this case, according to clude that it honestly believed that King ing as both a “feeder” supervisor and a the court, was whether the employer had had violated its integrity policy by falsi- supervisor of the “local sort.” King’s failed to meet its duty to provide rea- fying a subordinate’s time card and that it doctor released him back to work to sonable accommodation. fired him for that legitimate reason. perform “his regular duties and regu- Richard King was a long-time However, the court found the issue lar hours,” and did not list any restric- supervisory employee who was fired for of whether the employer failed to pro- tions. To the employer, this meant that falsifying time cards two months after vide King with reasonable accommo- King could do the assignments that he returning from a four-month disability dation “a much closer one to resolve.” had been performing prior to being re- leave. King filed a lawsuit, claiming that Under the FEHA, noted the court, “an leased. King argued that his doctor’s the employer’s given reason for firing employer’s failure to provide reason- note meant that he could return to his him was pretextual and that the real rea- able accommodation to enable an em- normal feeder supervisory position, not son underlying the termination was his ployee with a disability to perform the to the additional duties of the local sort. disability, a blood disorder. He also essential functions of his job constitutes His supervisor, Nunes, understood that 70 cper journal No. 185

and did not require him to take on the accommodation,” said the court. “An been filed within one year from the date local sort duties when he returned to employee cannot demand clairvoyance the alleged unlawful practices oc- work. However, after Nunes was fired, of his employer,” it said. The court curred, as required by Government King’s new supervisor, Zakoor, did re- concluded: Code Sec. 12960(d). The plaintiffs ap- quire him to take on the local sort work. pealed. King complained to another supervisor We recognize that the interactive The Court of Appeal reversed the process compelled by FEHA requires and was told to talk to Zakoor about it. flexibility by both the employer and trial court’s decision as to McDonald The trial court found that King did employee, and that no magic words and Brown, and upheld it as to Stryker. not make a specific request for neces- are required to necessitate accommo- It found that McDonald had alleged an sary accommodations or a “concise” list dation. But plaintiff has presented far act of retaliation occurring on Decem- less than what FEHA demands. We of restrictions. Nor did he ever inform agree with the trial court that plain- ber 17, 2002, which was within one year his supervisor or human resources of tiff has not sustained his burden of of the filing of the administrative com- his need to work fewer hours. demonstrating a genuine issue of plaint on December 20, 2002 and, The Court of Appeal found that material fact given his failure to get therefore, his complaint should not have additional clarification from his doc- King’s evidence did not create a triable tor to specifically restrict his hours been dismissed. issue of fact. “While he describes in and to communicate his limitations painful detail how poorly he felt, he sim- to his supervisors. ply does not establish that he commu- The time for filing a (King v. United Parcel Service, Inc. [6-22- nicated his distress to his supervisors 07] No. C051657 [3d Dist.] claim can, in the or made the kind of specific request for ____Cal.App.4th____, 2007 DJDAR a modified work schedule required to proper circumstance, 9360.) ✽ trigger an employer’s duty to provide stop running.

In the case of Brown, the court Equitable Tolling Applicable to found there were no allegations and no Time Limit for FEHA Claims evidence to establish any actionable conduct by the district within one year The Second District Court of Appeal while the complainant pursues inter- of the October 11, 2002, filing date of has ruled that the doctrine of equitable nal remedies with her employer. her DFEH administrative complaint. tolling applies to the one-year statutory Three community college district However, Brown did file an internal time limit for the filing of administra- employees, John McDonald, Sylvia complaint with the district on October tive complaints of discrimination un- Brown, and Sallie Stryker, filed com- 8, 2001, which was within one year of der California’s Fair Employment and plaints with the DFEH, alleging dis- the last alleged act of discrimination. Housing Act. In McDonald v. Antelope crimination and retaliation in violation Community college districts are re- Valley Community College District, the of the FEHA. After receiving right to quired to adopt written policies pro- court determined that the time for fil- sue letters from the agency, the three viding for investigation of discrimina- ing a claim with the Department of Fair brought a lawsuit against the district. tion complaints under California Code Employment and Housing can, in the The trial court dismissed the case, find- of Regulations, Title 5, Sec. 59322. proper circumstance, stop running ing that the DFEH complaints had not Brown argued that the one-year limit August 20 0 7 cper journal 71

Get a comprehensive look at the unfair practices created by state laws covering public school, state, higher education, and local government employees. The 4th edition details important developments in California’s public sector labor law, including the Board’s new arbitration deferral cper standards, restoration of the doctrine of equitable tolling, and the addition of three new statutes to PERB’s jurisdiction: Trial Court Employment Pro- Pocket Guide to tection and Governance Act, Trial Court Interpreter Employment and La- bor Relations Act, and the Los Angeles Country Metropolitan Transporta- Unfair Practices: tion Authority Transit Employer-Employee Relations Act. California Along with extensive new statutory and regulatory text, the guide includes the unfair practice sections of EERA, the Dills Act, HEERA, the MMBA, Public Sector TCEPGA, TCIELRA, and TEERA. A guide to cases further elaborates what conduct is unlawful, and a glossary defines labor relations terms.

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for filing her DFEH complaint was ond claim. The court also remarked ered in Lantzy involved a 10-year stat- equitably tolled during the time that that equitable tolling principles apply ute of limitations that also sets forth she was pursuing her internal com- to the filing of an administrative com- several exceptions to its application. plaint remedies with the district. plaint with the federal Equal Employ- The court in Lantzy determined that The Court of Appeal agreed that ment Opportunity Commission and, equitable tolling did not apply to that the principle of equitable tolling could “under California law, a claimant’s re- statute. apply to Brown’s case. It noted that the sort to one administrative remedy can The court rejected the district’s ar- California Supreme Court “has applied equitably toll the time to pursue another,” gument, finding that “Lantzy is materi- equitable tolling in carefully considered citing Barth v. Board of Pension Commis- ally distinguishable and not control- situations to prevent the unjust techni- sioners (1983) 145 Cal.App.3d 826. ling” for six different reasons. First, cal forfeiture of causes of action, where The district argued that the case of Sec. 12960(d) contains no express lan- the defendant would suffer no preju- Lantzy v. Centrex Homes (2003) 31 guage stating that no tolling is to occur dice.” Citing several Court of Appeal Cal.4th 363, controlled the situation except under the four specified circum- cases, the court instructed that three before the court and mandated that eq- stances. Second, nothing in the legisla- factors determine whether the statute uitable tolling could not apply to the tive history of the section indicates that of limitations is equitably tolled in a Sec. 12960(d) one-year statute of limi- the legislature intended to prevent eq- particular case: timely notice to defen- tations. Section 12960(d) expressly uitable tolling from applying. Third, dants in filing the first claim; lack of states that “no complaint may be filed “it bears emphasis that Lantzy involved prejudice to defendants in gathering after the expiration of one year” from a lengthy 10-year statute of limita- evidence to defend against the second the unlawful practice, but that the limi- tions,” while Sec. 12960(d) is a one-year claim; and, good faith and reasonable tations period may be extended in four statute. Fourth, “equitable tolling is a conduct by plaintiffs in filing the sec- specified instances. The statute consid- firmly established judicially developed 72 cper journal No. 185

principle and was so when section before it was different than that pre- apply to her case because she never 12960, subdivision (d) was enacted.” sented in Schifando, and said that case filed a DFEH claim identifying any For its fifth reason, the court de- “is not controlling authority for the of the discriminatory acts alleged in clined to apply the principle of statu- proposition before us.” her court complaint and, therefore, tory construction, urging that “where The court ruled that Stryker’s did not exhaust her administrative exceptions to the general rule are speci- DFEH complaint was filed more than remedies. (McDonald v. Antelope Val- fied by statute, other exceptions are not one year after the last alleged discrimi- ley Community College Dist. [6-25-07] to be implied or presumed.” Applica- natory act. It did not address whether 151 Cal.App.4th 961.) ✽ tion of the doctrine, said the court, the principle of equitable tolling could would contravene well-established principles of law, such as equitable toll- ing rules. In explaining its sixth basis for its position, the court recognized State Senate Passes Bill to Ban that “even with the foregoing five con- ‘Family Status’ Discrimination siderations, this is a close question.” “What clinches the issue for us,” it said, The California State Senate has passed sibilities. Alaska and several cities, in- “is the requirement that the Fair Em- a bill that would add “familial status” cluding Atlanta, Chicago, and Wash- ployment and Housing Act statutes of to the categories of discrimination ington, D.C., already have similar laws limitation be liberally construed to pro- banned by the state’s Fair Employment in place. New York and Pennsylvania mote the resolution of potentially meri- and Housing Act. S.B. 836, authored are in the process of considering simi- torious claims on their merits.” by Senator Sheila Kuehl (D-Santa lar measures. ✽ “For these combined reasons, all of Monica), passed by a vote of 25 to 14, them, we conclude this case is materi- with Democrats voting in favor of the ally different from Lantzy and equitable bill. The legislation is now pending in tolling is potentially available to a dis- the Assembly, where it is opposed by crimination plaintiff who files an ad- the California Chamber of Commerce, ministrative complaint more than one which contends that there are enough year after an act of unlawful discrimi- protections in federal and state laws for nation,” held the court. workers who need to take extended The court was similarly not per- leaves to deal with family issues. “S.B. suaded by the district’s argument that 836 appears to open the door to new its holding was inconsistent with lan- mandates on employers to provide guage appearing in Schifando v. City of modified schedules or leave to accom- Los Angeles (2003) 31 Cal.4th 1074, 164 modate baby-sitting or driving children CPER 44, in which the California Su- to soccer practice,” said a spokesper- preme Court held that a city employee son for the chamber. is not required to exhaust an internal If the statute is passed, California remedy required by a city charter prior would join a handful of other jurisdic- to filing a DFEH complaint. The tions that protect workers from dis- Court of Appeal noted that the issue crimination because of family respon- August 2 0 0 7 cper journal 73

Tort of Wrongful Discharge in General Violation of Public Policy The Court of Appeal first ex- plained that the vast majority of states, including California, recognize that an Employee’s Reports of Physical Threats State Public at-will employee may bring a tort cause Policy for Wrongful Discharge Claim of action for wrongful discharge when he or she is discharged for performing In a unanimous decision, the Second Franklin alleged that he was dis- an act that public policy would encour- District Court of Appeal reversed a trial charged in retaliation for complaining age. “The difficulty,” said the court court decision that had dismissed an about Ventura to the company and the quoting Garntt v. Sentry Insurance employee’s wrongful discharge action. police. His amended complaint stated (1992) 1 Cal.4th 1083, 93 CPER 42, The appellate court found public policy that, notwithstanding the company’s “lies in determining where and how to precluded the employer from terminat- knowledge of Franklin’s concern for draw the line between claims that genu- ing the employee in retaliation for re- the safety of individuals at the facility, inely involve matters of public policy, porting physical threats against him- the company refused to keep Franklin and those that concern merely ordinary self and other employees in the work- disputes between employer and em- place. The court emphasized that pub- ployee. This determination depends in lic policy demands the workplace be a Public policy demands large part on whether the public policy crime-free and safe environment and alleged is sufficiently clear to provide that employees should be able to report the workplace be a the basis for such a potent remedy.” threats of violence voiced by coworkers crime-free and safe In Stevenson v. Superior Court without fear of losing their jobs. (1997) 16 Cal.4th 880, 126 CPER 7, The plaintiff, Calvin Franklin, was environment. the California Supreme Court identi- hired as a metallurgical heat-treater at fied four requirements to support a the Monadnock Company. In his first public policy wrongful discharge claim. amended complaint, Franklin alleged or his fellow coworkers safe from First, the policy must be supported by that his coworker, Richard Ventura, Ventura; failed to counsel, warn, or seg- either constitutional or statutory pro- threatened to physically harm or kill regate Ventura; and failed to prevent visions. Second, the policy must be him and three other employees. Ventura from assaulting Franklin or his public in the sense that it inures to the Franklin complained about the threats coworkers. Instead, the company alleg- benefit of the public and does not merely to the company’s Human Resources edly “maintained an unsafe place of serve the interests of the individual. Department. A week later, Ventura al- employment by allowing the threats of Third, the policy must have been ar- legedly attempted to stab Franklin with violence and attempted violence to con- ticulated at the time of the discharge, a metal screwdriver. In response, tinue unheeded in the workplace.” and it must be fundamental and sub- Franklin notified the police depart- The trial court dismissed Franklin’s stantial. ment. The company subsequently ter- complaint because of inconsistent factual Public Policy Requirement minated him. allegations between the original and amended complaints. The company argued that Franklin could not state a cause of action for 74 cper journal No. 185

wrongful termination because his com- a safe and secure workplace, including to protect an employee who complains plaint about Ventura’s threats and his a requirement that an employer take in good faith about working conditions report of the assault to the police did reasonable steps to address credible or practices which he reasonably be- not involve a fundamental public policy threats of violence in the workplace.” lieves to be unsafe. contained in any constitutional or Admittedly, Sec. 6400 focuses on The company, citing Muller v. Au- statutory provision. occupational injury and illness and tomobile Club of South California (1998) The Court of Appeal looked first contains no specific mention of work- 61 Cal.App.4th 431, argued that there to City of Palo Alto v. Service Employees place violence or threats of violence. is no fundamental public policy requir- International Union (1999) 77 Cal.App. But the court found the provision ing employers to take reasonable steps 4th 327, where the Sixth District Court makes it an employer’s legal responsi- to address mere threats of violence in of Appeal considered the city’s conten- bility to provide a safe place of employ- the workplace, even if the prevention tion that an arbitrator’s award reinstat- ment. Section 527.8, added by the of foreseeable actual violence in the ing a terminated employee violated a Workplace Violence Safety Act, specifi- workplace is demanded by statutory fundamental public policy requiring cally addresses potential workplace provisions. In Muller, a claims adjustor employers to provide a safe workplace violence, providing employers with an threatened by the son of an insured cli- by terminating employees who threaten injunctive remedy to address “unlaw- ent, allegedly was terminated after she the lives of coworkers. Like the court ful violence or credible threat of vio- expressed concerns about her safety to in Palo Alto, the court here found that lence” by an employee against a co- her employer. The Muller court ruled Labor Code Sec. 6400 and Code of worker. against the employee, explaining that Civil Procedure Sec. 527.8, taken to- Citing Hentzel v. Singer Co. (1982) there is a certain risk of crime in any gether, “establish an explicit public 138 Cal.App.3d 290, the Court of Ap- workplace to which the general public policy requiring employers to provide peal affirmed that it is California policy has access, and that voicing a fear about

Written by two experts in the field, this Pocket Guide focuses on the Act's impact in the public sector workplace and explains complicated provi- sions of the law that have vexed public sector practitioners, like the "salary basis" test and deductions from pay and leave for partial-day absences.

cper Each chapter tackles a broad topic by providing a detailed discussion of the law's many applications in special workplace environments. For ex- Pocket Guide to the ample, the chapter that covers overtime calculation begins by defining regular rate of pay and then considers the payment of bonuses, fluctuat- Fair Labor ing workweeks, and alternative work periods for law enforcement and fire protection employees. Other chapters focus on record keeping require- Standards Act ments, hours of work, and "white collar" exemptions. In each case, detailed footnotes offer an in-depth discussion of the varied applications of the FLSA.

By Cathleen Williams and Edmund K. Brehl • 1st edition (2000) • $15 http://cper.berkeley.edu August 2 0 0 7 cper journal 75

one’s safety does not necessarily con- of public policy. The Cabesuela court ing criminal conduct by other employ- stitute a complaint about unsafe work- found that employees must be protected ees has a cause of action for wrongful ing conditions under the Labor Code. against discharge for voicing a good discharge because the public interest The Court of Appeal asserted that, faith complaint about unsafe working is furthered by deterring crime. Simi- even if Muller was correctly decided, it conditions. Unlike the Muller court, the larly in Hentzel, where an employee pro- is distinguishable from the facts of court in Cabesuela referenced the Su- tested what he considered to be haz- Franklin’s case. First, the court noted, preme Court’s decision in Hentzel to ardous working conditions caused by because of the different procedural pos- support the notion that honest subjec- other employees smoking in the work- tures of the two cases, different stan- tive foreseeability of danger is enough place, the court held that the employee dards of review are required. In this to protect against discharge. had a viable cause of action for wrong- case, the court had to assume that As in Cabesuela, the court con- ful termination because discharge in re- Ventura threatened Franklin and his cluded that Franklin’s allegations were taliation for his report implicated the sufficient to state a violation of public public policy interest in a safe and healthy policy which protects an employee working environment for employees. against discharge for making a good faith In Rojo v. Kliger (1990) 52 Cal.3d Franklin’s complaint complaint about working conditions he 65, 86 CPER 60, the court said that the protected the interests reasonably believes to be unsafe. public policy against sex discrimina- tion and sexual harassment in employ- Public Benefit of a significant number ment is one that inures to the benefit of of innocent coworkers. The company argued that the pub- the public at large rather than to a par- lic policy on which Franklin relied ticular employer or employee. Based on would not benefit the public at large, Rojo, the Court of Appeal rejected as required by Stevenson, and Franklin’s Monadnock’s contention that public coworkers, and assaulted Franklin with complaint to the company and his re- policy based wrongful discharge claims a weapon. Considering these properly port to the police only benefited him- should be limited to situations where, pleaded allegations as true, the court self and the three other threatened co- as a condition of employment, the em- found that the record demonstrated the workers. The court was not persuaded. ployer coerces an employee to commit workplace actually was unsafe. Also, It found that Franklin’s complaint about an act that violates public policy, or re- the court explained, Muller did not in- Ventura’s threats and the report to the strains an employee from exercising a volve a threat by one employee against police served the public interest by pro- fundamental right. another, so the workplace in Muller was moting workplace safety, deterring The court emphasized that the not continuously and foreseeably dan- workplace crime, and protecting the public has a vital interest in ensuring gerous, as it was with Ventura’s loom- interests of a significant number of in- workplaces are free from credible ing threat. nocent coworkers who could have been threats of violence. The court noted that The court also relied on Cabesuela injured. this is at least as compelling as the v. Browning-Ferris Industries of Califor- To support its holding, the court public’s interest in a healthy, smoke-free nia, Inc. (1998) 68 Cal.App.4th 101, also cited Collier v. Superior Court (1991) workplace at issue in Hentzel, or the where the Fourth District Court of 228 Cal.App.3d 1117, where the Court public’s interest in the prevention of fi- Appeal cited the plaintiff’s reasonable of Appeal found that an employee who nancial crimes at issue in Collier. The belief that extended driving hours were is terminated in retaliation for report- court explained that, as in those cases, a health and safety hazard in violation 76 cper journal No. 185

it is important that an employee be able complaint satisfied the public benefit of his early withdrawal of retirement to report illegal conduct to the em- requirement that is the basis for his benefits. The trial court ruled in favor ployer or to the police without fear of wrongful discharge claim. (Franklin v. of the commission, and Davis appealed. retaliation and termination. Thus, the The Monadnock Co. [5-24-07] 151 The Court of Appeal affirmed the Court of Appeal held that Franklin’s Cal.App.4th 252.) ✽ trial court’s decision. It gave short shrift to Davis’ argument that the commis- sion had to reinstate him immediately even though he was not able to work. Wrongfully Terminated Disabled “Davis never sought to go back to work, Employee Not Entitled to Backpay nor did he provide a date when he might do so,” said the court. “This argument is without merit because reinstatement The Second District Court of Appeal, port the charges and that Davis was not is synonymous with returning to work,” in Davis v. Los Angeles Unified School afforded progressive discipline. The it explained. “The Commission had the Dist., has determined that a wrongfully commission rescinded the demotion, authority to condition Davis’ reinstate- demoted school district employee who restored David to his prior position ef- ment on a release from his physician,” was on disability leave for reasons un- fective as of the date of the demotion, it held, citing Education Code Sec. related to his employment is not en- and awarded him full backpay from the titled to full backpay or immediate re- date of the demotion. This meant that instatement. he remained eligible for reinstatement Ennis Davis had been employed by to his prior position if he demonstrated This argument is the district since 1976. At the time of at any time before May 9, 2006, that he without merit because his demotion in December 2001, he had was fit for duty. been the director of the information Davis did not provide the district reinstatement is systems branch for at least two years. with a doctor’s statement releasing him synonymous with In July 2001, Davis was accused of to work, and he was not reinstated. “generalized wrongdoing” in an anony- Davis filed two petitions for pre- returning to work. mous interoffice memo directed to his emptory writ of mandate alleging that supervisor. The charges were that he the district had not reinstated him or had falsified time cards, allowed a sub- paid him the full salary he would have 45307, which states that when the com- ordinate to work two jobs, and failed to received if he had continued to work in mission sustains an employee’s appeal, pay for personal calls made on his his prior position. The commission re- “it shall order his reinstatement upon LAUSD cell phone. sponded that Davis had not presented such terms and conditions as it may deem Davis was placed on disability medical clearance from his treating appropriate.” leave for non-work-related injuries in physician allowing him to return to “The intended effect of reinstate- November 2001. He was demoted to work. It denied that Davis should be ment is to reduce or eliminate an software engineer effective December reimbursed his attorneys’ fees and costs, employer’s liability for money damages 12, 2001. Davis filed an appeal of his damages for emotional distress, repay- by returning the employee to the work- demotion with the LAUSD Personnel ment of medical costs, restoration of place and compensating him or her for Commission. The hearing officer con- benefit time, and reimbursement for actual work,” the court instructed. “Re- cluded that the evidence did not sup- taxes and penalties incurred as a result instatement should only be ordered August 2 0 0 7 cper journal 77

where the plaintiff, returning to work, purpose, not punitive,” the court noted, because the employee had been ill part successfully performs all the required quoting Brady v. Thurston Motors Lines, of the time. The Court of Appeal sus- duties of her position [with or without Inc. (4th Cir. 1985) 753 F.2d 1269. tained the trial court’s ruling because accommodation,] notwithstanding any The court undertook a lengthy re- the discharge had caused the employee’s disability she might have,” said the view of other cases and statutes to un- illness and she had remained ready, will- court, quoting Criado v. IBM Corp. derscore its analysis. It noted that “vir- ing, and able to work while ill. In (DPR 1997) 962 F.Supp 262, affd. (1st tually all non-California courts have Carroll, the Fifth District Court of Ap- Cir. 1998) 145 F.3d 437. “Reinstate- acknowledged” that, while an employee peal, relying on Ahlstedt, affirmed an ment is not merely to take advantage is entitled to be made whole for dam- award of full backpay for a wrongfully opportunistically of company benefits,” ages suffered as a result of a wrongful discharged county employee, even it continued. termination, “as a general rule, he will though the employee had been in jail The court found Davis’ reliance not be allowed back pay during any for public drunkenness for 147 days of on Government Code Sec. 31725 mis- periods of disability.” However, where the covered period. The Second Dis- placed. Section 31725 provides that the disability is a result of the trict Court of Appeal in this case clari- where a county discharges an employee employer’s conduct, the employee may fied that the Fifth District had misin- because it has determined that he is recover full backpay, explained the terpreted its holding in Ahlstedt, explain- permanently disabled, but the county court, citing a number of cases decided ing that because the employee’s incar- retirement board concludes that he is by the National Labor Relations Board. ceration was not related to his discharge, not disabled for retirement purposes, he should not have received a windfall the county must reinstate the employee based on the court’s failure to note the to “paid status” if he cannot return to Backpay is circumstances that exist between dis- active duty. Davis was not discharged compensatory and charge and reinstatement. “To the ex- and elected to take medical leave, noted tent Carroll is inconsistent with Ahlstedt, the court. “Accordingly, the Government remedial in purpose, we decline to follow it,” said the court. Code is of no help to Davis,” it said. Mayer concerned a wrongfully dis- Nor was Davis entitled to full not punitive. charged employee who was treated for backpay, determined the court. “Back cancer during the period between dis- pay serves to make an employee whole charge and reinstatement. The em- The court also examined three for the employer’s wrongdoing,” it in- ployer argued that he should not receive California cases relied on by Davis: structed. The remedy should return the backpay for the period of time that he Ahlstedt v. Board of Education (1947) 79 employee to the financial position he received disability benefits. The trial Cal.App.2d 845, Carroll v. Civil Service would have been in but for the unlaw- court found for the employer on that Com. (1973) 31 Cal.App.3d 561, and ful conduct. The employer is respon- issue. The Court of Appeal reversed, Mayer v. Multistate Legal Studies, Inc. sible only for losses suffered by the finding that, “to accept the trial court’s (1997) 52 Cal.App.4th 1428. In employee as a result of its wrongdoing, ruling would force future employees” Ahlstedt, also decided by the Second explained the court. “To hold otherwise in similar situations “to make an unac- District Court of Appeal, a high school renders the back pay obligation puni- ceptable election, i.e., accept benefits district employee was fired. The trial tive, and abuses the intent of the rem- needed for survival in the present or court ordered her reinstated with full edy,” it said. “It is manifest that back pursue a more lucrative claim against backpay. The district appealed, argu- pay is compensatory and remedial in the employer that may or may not come ing that full backpay was not warranted 78 cper journal No. 185

to fruition for several years.” Further, ability is not open for debate,” said the the employee may have been able to court. “His illness — not his demotion work during the time that he was re- or employment — was the sole cause of ceiving treatment, but his wrongful ter- his inability to work.” mination deprived him of the opportu- The court determined that the dis- nity to even attempt to do so, said the trict had met its burden of showing that court. “We have previously stated that Davis would not have received a salary the mere receipt of disability benefits, because of an illness unrelated to his as well as the representations made by demotion and employment and, there- an employee in obtaining them, do not fore, was not entitled to backpay. It also necessarily mean the employee is un- ruled that because Davis did not cite able to perform his or her job,” said that any pertinent authority to support his court, citing Jackson v. County of Los claim of the other remedies he sought, Angeles (1997) 60 Cal.App.4th 171. “the point is therefore waived.” (Davis v. Los Angeles Unified School District Person- nel Commission [6-28-07] No. B188435 [2d Dist.] ____Cal.App.4th___, 2007 The district met its DJDAR 9866.) ✽ burden of showing that Davis’ illness was unrelated to his demotion and employment.

In this case, the court did not rely on Davis’ receipt of any benefits or statements he made to obtain them in concluding that he was unable to work. Rather, it relied on other evidence, such as his failure to provide a medical re- lease. Also, reasoned the court, this situ- ation is “more straightforward” than that in Ahlstedt and Mayer because Davis was demoted, not terminated. Therefore, he had the option to con- tinue working but did not do so. “Given these facts, the cause of Davis’ unavail- August 2 0 0 7 cper journal 79

relations with a 14-year old girl, whom Public Sector Arbitration he described as his girlfriend. For that conviction, the grievant had been sen- tenced to 100 days in jail and had been Grievant Reinstated After Termination required to register under Megan’s Law. for Sexual Harassment Considering the grievant’s miscon- duct and role as a quasi-police officer, the department believed termination The Ventura County Department of discourse after being made aware of the was warranted. The county argued that Airports determined that an airport of- grievant’s misconduct by one of the fe- the conversations with the two female ficer had engaged in sexual harassment, male parties. As a result of the report, employees constituted sexual harass- neglect of duty, and bad behavior, and management met with both female thus it discharged the officer. But arbi- employees and asked them to write trator Philip Tamoush disagreed. He down their experiences with the griev- found that the termination was inap- ant. One of the women reported that in The gievant had propriate and ordered that the grievant at least two conversations held within a previously attended be reinstated. two week period, the grievant detailed The grievant had worked as an his sexual exploits and brazenly in- sexual harassment and operations officer and provided secu- quired about her sexual history. The rity at the airport for two years. The other female employee reported at least discrimination grievant’s job entailed stopping at ten- one similar conversation and an inci- prevention classes. ant company offices to assure security dent in which she believed the grievant, of the building’s employees and park- while performing his security rounds in ing areas. One business employed sev- a small truck, had blocked her egress from eral female customer service represen- her parking place until she gestured for ment. The county emphasized that be- tatives who worked in the company’s him to move. Both employees found cause the grievant had previously at- reception and lounge area. The griev- their contacts with the grievant to be tended sexual harassment and discrimi- ant developed a routine of visiting the very uncomfortable and offensive. nation prevention classes, he should area for one-half to two hours, reading, The county hired an outside investi- have been aware that his conduct was drinking coffee, and eating cookies gator, who in the arbitrator’s mind, con- inappropriate. Furthermore, the county placed in the lounge for customers. ducted a fairly complete and intensive stressed that the grievant admitted the During his visits, he engaged two investigation, resulting in a written re- sexual nature of the exchanges, and of the female employees in conversa- port supporting the female employees’ other employees corroborated the park- tions that had a sexual overtone caus- allegations. The grievant generally ad- ing lot incident. ing the women to become uncomfort- mitted to all of the conversations but de- The grievant argued that the con- able. They testified that they usually nied ever having blocked an employee versations were not inappropriate and tried to ignore the grievant, as the con- from leaving the parking lot. essentially constituted banter in line versations often were offensive. Also, during the investigation, with his role of attempting to determine The conversations were reported management discovered that the felony the security context of the tenant to county management by a male em- admitted by the grievant on his job ap- company’s operations. He admitted that ployee who overhead some of the lewd plication pertained to his having sexual the sexual dialogues may have gone too 80 cper journal No. 185

far, but they were not sufficient to jus- in the parking lot incident. The arbitra- structure the grievant’s assignments tify termination. The grievant also ar- tor noted that the two women involved in better, allowing for more scrutiny of his gued that had he known the women the incident had, since the filing of the security operations. Finding the termi- were feeling uncomfortable, he would grievance, moved on in their employ- nation unreasonable, the arbitrator or- have ceased the sexual discussions, add- ment and that the only remaining con- dered the grievant’s reinstatement. ing that the women themselves seemed versation participant was a female su- However, he denied the grievant to willingly participate in the conver- pervisor. The supervisor testified that backpay, asserting that the grievant’s sations. The grievant contended that he only 2 out of about 100 conversations time off work would be treated as a dis- should have been given the benefit of with the grievant were sexual in nature. ciplinary suspension. (County of Ventura the doubt, and he promised not to en- The arbitrator found that the Department of Airports and Ventura gage in such conversations in the future. grievant’s strong background in aero- County Professional Peace Officers Assn. nautics and administration deemed him [5-22-07; 9 pp.]. Representatives: Brian worthy of a last chance at rehabilita- P. Keirghorn [Law Offices of Alan E. tion, and the problem could be “nipped Wisotsky] for the county; Peter J. Horton The grievant argued in the bud by discussion, counseling, [Adams, Ferron & Ferron] for the asso- that the women and preventative punishment.” The ar- ciation; Arbitrator: Philip Tamoush bitrator suggested that the department [CSMCS Case No. ARB-06-0326]. ✽ seemed to willingly participate in the conversations. Law Firm’s Mandatory Arbitration Clause Found Unconscionable

The arbitrator noted that the case was especially difficult because of a In a unanimous decision, the Ninth most employment-related claims by possible bias against the grievant due Circuit Court of Appeals found an ar- and against its employees be subject to to the discovery of his felony convic- bitration agreement between a para- final and binding arbitration. At the tion. The county maintained that it was legal and her former employer, time the new program was announced, not influenced by the criminal record O’Melveny & Myers, both procedur- the plaintiff, Jacquelin Davis, was work- and that it had known about the con- ally and substantively unconscio- ing as a paralegal for the law firm. viction when hiring the grievant. The nable. Reversing the district court de- Davis filed suit against the firm in arbitrator asserted that the prior con- cision that had sent the action to arbi- 2004, under the federal Fair Labor viction should not bear on the facts of tration, the federal appeals court relied Standards Act and various other state the ongoing arbitration. on California case law, Armendariz v. and federal labor statutes. The lawsuit The arbitrator found it clear that Foundation Health Psychcare Services, Inc. alleged that the firm failed to pay over- the grievant “did engage in conversa- (2000) 24 Cal.4th 93, and Ninth Cir- time wages for work performed during tion/banter which [went] beyond the cuit precedent to find the contract void. lunchtime and rest periods, and for bounds of normal informal conversa- In 2002, the law firm adopted and hours worked beyond her 40-hour tion,” but he found insufficient evidence distributed to its employees a new dis- workweek. Also, Davis alleged that the to establish the grievant’s involvement pute resolution program that required firm had denied her rest and meal peri- August 2 0 0 7 cper journal 81

ods, and violated the Unfair Business stantively and procedurally unconscio- nounced, whether an employee liked it Practices Act. Finding for the firm, the nable. Strong evidence of one form of or not. The court explained that the district court upheld the policy and de- unconscionability diminishes the need absence of the opportunity to opt out ferred the case to arbitration. for decisive establishment of the other. of the arbitration policy, and the fact On appeal, the court first observed Still, both forms must be present. that the defendant was an international that Davis’ FLSA and related claims law firm with overwhelming bargain- Procedural Unconscionability regarding overtime pay clearly were ing power, demonstrated procedural covered by the scope of the dispute reso- Citing Soltani v. W. & S. Life Ins. unconscionability. lution policy. Therefore, the only issue Co. (9th Cir. 2001) 258 F.3d 1038, the Relying on Dean Witter Reynolds, Inc. before the court was whether the policy court explained that procedural uncon- v. Superior Court (1989) 211 Cal.App.3d was enforceable. scionability exists when the contract is 758, O’Melveny argued that by giving one of adhesion, when the employees three months notice to employees about to the contract have no chance to nego- the impending adoption of the policy, it The policy was tiate its terms, or when there is evidence defeated any oppression or unconscio- distributed to of oppression or surprise. The court nability. In Dean Witter, which addressed noted that the terms of the dispute reso- mandatory arbitration in a financial employees on a lution program were not hidden; they services contract, the court reasoned appeared in bold, uppercase text, and that if a consumer did not like the man- ‘take it or leave it’ the firm’s human resources personnel datory arbitration provision in an in- basis. were made available to answer ques- vestment account contract, he or she tions regarding the policy. could obtain an account with another However, the court found that the company. O’Melveny hoped to extend In assessing whether an arbitration policy was distributed to the employ- the Dean Witter reasoning to the em- agreement is enforceable, the court ees on a “take it or leave it” basis, which ployment context, arguing that if Davis must apply contract formation prin- establishes procedural unconscionabil- did not want to work at the law firm be- ciples from state law. In California, ity under Armendariz. The policy took cause of the arbitration policy, she could under Armendariz, an arbitration con- effect three months after it was an- seek employment elsewhere. tract is unenforceable if it is both sub-

A clear explanation of every step in the arbitration process — from filing cper a grievance to judicial review of arbitration awards. Specifically tailored to the public sector, the guide covers the hearing procedure, rules of Pocket Guide to evidence, closing arguments, and remedies. The Guide covers griev- ance arbitration, as well as factfinding and interest arbitration. Included Public Sector are a table of cases, bibliography, and index. Arbitration: By Bonnie Bogue and Frank Silver • 3rd edition (2004) • $12 California http://cper.berkeley.edu 82 cper journal No. 185

Citing Ingle v. Circuit City Stores, sided as to “shock the conscience.” guished Soltani, explaining that there, Inc. (9th Cir. 2003) 328 F.3d 1165, the Davis argued that four provisions of the the contract required a claim to be filed Ninth Circuit affirmed that a “take it program were substantively unconscio- within six months after the employee or leave it” arbitration provision was nable. left the employer; the time to file was not procedurally saved by providing Notice provision. Davis argued not dependant on when the claim employees time to consider a policy that the notice provision of the policy should have been discovered. There- change or find alternative employment. was substantively unconscionable be- fore, in Soltani, the provision did not And, although the employees in Ingle cause it shortened the statute of limita- nullify the continuing violations theory were given only three days notice be- tions provisions of the statutes and re- because the employee still could attach fore the policy took effect, the court de- quired that a claim be filed within one his claim to the start of the violation. termined that the length of time an year of the discovery of a violation. The employee has to consider the contract Ninth Circuit previously held that forc- ing employees to comply with a strict one-year limitations period for employ- The court has barred Few employees would ment-related statutory claims was op- provisions that prevent pressive and substantively unconscio- forfeit a job solely nable in a mandatory arbitration con- claims relying on a text; for example, the court struck down to avoid forced a virtually identical provision in Ingle. ‘continuing violation’ arbitration terms. The court rejected the argument that theory. the provision was saved because the firm was bound to make its claims change is irrelevant when no choice to within a year of discovery, just like an opt out exists. The court explained that employee. Confidentiality provision. The few employees would forfeit a job and The court also stressed that his- O’Melveny confidentiality policy pre- accrued benefits solely to avoid forced torically it has barred provisions that cludes mention to anyone not directly arbitration terms. Thus, the court held prevent claims which rely on a “con- involved in the arbitration of its plead- the policy oppressive and procedur- tinuing violation” theory. That theory ings, papers, orders, hearings, trials, ally unconscionable. allows employees to file suit after the awards, or even of the existence of the statutory deadline when the employer controversy. In Ting v. AT&T (9th Cir. Substantive Unconscionability engages in a “systematic policy of dis- 2003) 319 F.3d 1126, the Ninth Cir- Although the court found the policy crimination” consisting of related acts. cuit found a similar confidentiality to be procedurally unconscionable un- Relying on Soltani, where the court clause in an arbitration agreement sub- der Armendariz, it still had to address found that a shortened, six-month limi- stantively unconscionable, reasoning whether there also was substantive un- tations period in an arbitration policy that employers continually arbitrate the conscionability. That analysis, the court was not substantively unconscionable, same claims, obtaining the legal re- explained, focuses on the effect of the O’Melveny contended that its search and knowledge inherent in be- contract or provision, the degree of program’s comparatively longer one- ing a repeat player. Imposing a “gag mutuality, and whether the terms are year notice provision also was not un- order” on plaintiff-employees dimin- unduly harsh, oppressive, or so one- conscionable. But, the court distin- ishes their ability to similar benefit. August 2 0 0 7 cper journal 83

Here, the court found that, while employee from releasing privileged claims covered by its scope conflicts Davis’ suit did not involve the kind of information, thus justifying a narrow with public policy. The challenged repeatable claim that could be made by exception to the arbitration policy due clause states that neither party can “pur- millions of potential plaintiffs as in to a legitimate business reality. The sue any lawsuit or administrative ac- Ting, allegations like Davis’ could be court also acknowledged that the attor- tion in any way related to, or arising brought by thousands of firm employ- ney-client privilege and work product from, any claim covered by the pro- ees. The court emphasized that even doctrine primarily are for the benefit gram,” except when filings are made facially mutual confidentiality provi- of clients and cannot be made subject with the Equal Employment Opportu- sions can effectively lack mutuality and to arbitration under California law. nity Commission, the California De- be unconscionable regardless of the However, the court concluded, partment of Fair Employment and number of potential claimants. Housing, the New York Human Rights The court found the policy’s con- Commission, or any similar fair em- fidentiality clause substantively uncon- ployment practices agency. scionable because it was overly broad The policy’s Citing Gilmer v. Interstate Johnson under Ting, prevented employees from confidentiality clause Lane Corp. (1991) 500 U.S. 20, the court contacting other employees to assist in explained that although arbitration is litigation, stifled the employees’ discov- put O’Melveny in a favored as a matter of policy over both ery process. And, it put O’Melveny in a far ‘superior legal a judicial or administrative forum, an far “superior legal posture” by prevent- arbitration agreement may not require ing plaintiffs from accessing precedent posture.’ employees to waive potential recovery while allowing the firm to learn how to for substantive statutory rights estab- negotiate and litigate its contracts. lished for a public purpose. Under Exemption for attorney-client Armendariz, while such rights are arbi- protection against breaches of confi- privilege defeats provision. The trable, pursuit of legal rights and rem- dentiality alone does not justify an ex- O’Melveny policy allowed the firm to edies provided by statute must be al- emption from arbitration. To constitute bypass the arbitration forum and bring lowed. a reasonable business justification, a lawsuit for violations of the attorney- Davis’ employment rights derived something more than the employer’s client privilege or work product doc- from the FLSA and the California La- desire to maximize its advantage is nec- trine, or where an employee shares con- bor Code are protected public statu- essary. The court held the O’Melveny’s fidential information. The firm cited tory rights, like those covered by the provision was one-sided, overly broad, its contractual and ethical obligation protected Age Discrimination in Em- and substantively unconscionable be- to protect its clients’ information as jus- ployment Act and the California Fair cause it allowed the firm to obtain judi- tification for the exemption. Employment and Housing Act noted cial relief for the disclosure of any con- Citing Armendariz, the court ex- in Gilmer, and the EEOC rights pre- fidential information, not just attorney- plained that California law allows an served by the firm’s policy. Thus, the client privileged or work product docu- employer to preserve a judicial remedy policy illegally prohibited employees ments. if it is based on a legitimate commer- from seeking judicial actions and in- Availability of statutory rights. cial need or business reality. The court junctive relief based on public interest. Davis also argued that the program’s agreed that the firm might need to pro- The court further emphasized that provision prohibiting most administra- cure a quick court order to prohibit an tive actions for employment-related 84 cper journal No. 185

complaints related to the FLSA and the O’Melveny & Myers [9th Cir. 3-7-06] 485 Department of Labor may not be F.3d 1066.) ✽ waived by an arbitration clause because the statutory scheme is premised on an employee’s willingness to come forward in support of the public good. Conse- quentially, the court found that even if the policy did not preclude the Depart- ment of Labor or California Labor Commissioner from instituting inde- pendent actions against the employer, it is illegal for the policy to preclude an

The four unconscionable provisions could not be stricken without ‘gutting the agreement.’

individual such as Davis from notify- ing the agencies of any potential viola- tions. Therefore, the court held the policy’s clause prohibiting administra- tive claims was void under Gilmer and Armendariz. Severability. Finally, the court determined that the four unconscio- nable provisions could not be stricken without “gutting the agreement,” and thus, the entire policy was substantively and procedurally unconscionable and void under Armendariz. (Davis v. August 2 0 0 7 cper journal 85

rienced officer, the grievant had notice Arbitration Log of his obligation to use reasonable force and write truthful reports. The exces- sive force and truthful reporting poli- cies are reasonable rules. The depart- • Discipline — Just Cause excessive force, as the suspect had been ment conducted a fair and objective in- Hayward Police Officers Assn. stunned with a Taser gun, was lying on vestigation of the grievant’s conduct and City of Hayward (1-22-05; 51 the floor, and posed no threat. before rendering a decision. The testi- pp.). Representatives: Daniel S. Connolly (4) The grievant admitted to one mony of various witnesses during the (city attorney’s office) for the employer; of the other arresting officers that he internal affairs investigation was suffi- Terry Bowman (Rains, Lucia & used more force than necessary and, cient to justify termination. There is no Wilkinson) for the union. Arbitrator: under cross-examination, agreed that evidence that the grievant’s fellow ar- William E. Riker. his three kicks were unreasonable and resting officers received favorable Issue: Did the City of Hayward po- inappropriate uses of force. treatment for not reporting the lice department have just cause to ter- (5) The grievant obscured the grievant’s use of force since the police minate the grievant? truth from his supervisor by not fully chief did not initiate a criminal investi- Employer’s position: (1) The griev- and honestly conveying the circum- gation, and thus there was no require- ant used excessive force to subdue a stances surrounding the arrest and ment to submit a report. The penalty of suspect at a crime scene and thereafter omitting details from his written report, termination is not disproportionate to untruthfully reported the incident. By including references to his kicks. Ad- the grievant’s conduct because he ad- this conduct, the grievant relinquished ditionally, he used words intended to mitted to using excessive force, lied in the trust and confidence of the police mask the severity of his actions. his report, and numerous witnesses tes- department and the community he is (6) The grievant’s supervisor ac- tified to the misconduct. charged to serve, and potentially cepted the deceptive and incomplete (8) The department did not violate brought discredit on the department. report as a complete and factual de- the grievant’s rights under the Public (2) When the grievant arrived as scription of the incident. Had other of- Safety Officers Procedural Bill of the fifth officer at the crime scene, he ficers not voiced their concerns, the re- Rights Act. It was the grievant’s respon- confronted the suspect after he was port would not have been questioned. sibility to request representation under prone, handcuffed, and compliant. The (7) Traditional elements of “just the act. And at the time he reported the grievant admitted he “lost his cool” and cause” justify the department’s decision incident to his supervisor, there was no attacked the suspect with punches, knee to terminate the grievant. As an expe- ongoing investigation. strikes, and kicks. Also, the grievant used excessive force when he pushed the suspect against a door and then threw him down after the suspect was A ttention Attorneys and Union Reps passive and compliant. Celebrate your victories or let us commiserate in your losses! Share with CPER readers (3) The grievant used more force your interesting arbitration cases. Our goal is to publish awards covering a broad range than was necessary to affect an arrest, of issues from the state’s diverse pool of arbitrators. Send your decisions to CPER Edi- quell a disturbance, or preserve the tor Carol Vendrillo, Institute for Research on Labor and Employment, 2521 Channing public peace. The other arresting of- Way, University of California, Berkeley, CA 94720-5555. Or email ficers confirmed that the grievant used [email protected]. Visit our website at http://cper.berkeley.edu. 86 cper journal No. 185

Union’s position: (1) The grievant, 1506, 127 CPER 24, a police officer affairs interview. The grievant was ques- while working an overtime shift, en- was interrogated by his superior with- tioned only once, while the other offic- gaged in a foot pursuit of a parolee who out being provided his Miranda warn- ers were questioned multiple times. was on methamphetamines, hid from ings or being informed of his rights Also, the investigating officer did not the police, refused to comply with or- under the PSOPBRA after an alleged inform the grievant of his PSOPBRA ders, was hit with a Taser gun, and then offense occurred. The reviewing court rights. resisted being handcuffed. After being found that the improper procedures (8) Use of force cases should not handcuffed, the suspect continued to violated the officer’s PSOPBRA rights be judged with 20/20 vision on hind- move his feet and body dangerously in and the incriminating statement pro- sight. Reasonable allowance must be a confined space. Thus, the grievant vided to the supervisor was excluded given to the fact that police officers of- used necessary force to place the sus- from the case. ten are forced to make split-second pect under control. The suspect was not (5) The city failed to establish the judgments in circumstances that are injured. elements of just cause by clear and con- uncertain and rapidly evolving. Termi- (2) The grievant was not afforded vincing evidence. When considering nation is a disproportionate penalty his rights under the PSOPBRA. The the totality of circumstances, there is given the grievant’s need to subdue the grievant’s supervisor, while aware of a insufficient evidence to support a find- non-compliant suspect. pending internal affairs investigation ing that the grievant intentionally was (9) Mitigating factors demonstrate and the severity of the accusations, di- dishonest in his police report. The that termination was not a just punish- rected the grievant to write a report grievant had a reputation as a ment. The day of the arrest, the griev- without informing him that he should hardworking officer and was told by his ant was distracted by the anniversary of exercise his rights under the act. After- supervisor that he included the appro- the death of his grandfather and learned wards, the supervisor approved the re- priate amount of detail in the report. that his girlfriend was seriously ill. port without checking its accuracy or The report was approved by two supe- Also, the grievant’s excellent service completeness. Thus, any discrepancies riors who had knowledge of the inci- record, free from any proven excessive with later-written reports or oral testi- dent. Also, the grievant knew that there force incidents, does not support ter- mony were interpreted as dishonest. would be an internal affairs investiga- mination. (3) The grievant’s statement to his tion and that he would be required to Arbitrator’s holding: Grievance de- supervisor and the supplemental police provide a detailed account of the inci- nied. report were obtained in violation of the dent. Thus, he was not purposefully Arbitrator’s reasoning: (1) Consid- Bill of Rights Act. The department misleading in his report. eration must be given to the impact that knew that punitive action would be (6) The investigation into the inci- this assessment will have on officers’ taken after the grievant’s superior asked dent failed to reconcile inconsistent confidence and ability to make the right the other arresting officers about the versions of what occurred, resulting in choice in a high-stress situation. incident within an hour of the arrest. a condemning interpretation of the (2) Whether force used in an arrest Because the department failed to in- events. Not every individual in the chain is excessive is best decided by the form the grievant of his rights, neither of command objectively reviewed the grievant’s fellow arresting officers, who his statements nor his police report can circumstances before rendering a de- also are required to use reasonable force be considered to support the termina- cision. and report abuses. The other arresting tion. (7) The investigating officer un- officers testified that the grievant (4) In City of Los Angeles v. Superior fairly denied the grievant the opportu- kicked and struck the suspect’s back and Court (Labio) (1997) 57 Cal.App.4th nity to explain his report in the internal head after the suspect was on the ground August 2 0 0 7 cper journal 87

and handcuffed. One of the grievant’s and struck the suspect twice with his • Discipline — Just Cause fellow officers told the grievant to stop knee. To his credit, during the internal Alameda County Medical Cen- hitting the suspect during the series of affairs investigation, the grievant did ter and Healthcare Workers Union, punches. Another witness testified that admit to the previously unacknowl- Loc. 250, SEIU (12-8-05; 15 pp.). the suspect begged the grievant to stop edged strikes. Representatives: Rosemarie Kwiatkowski hitting him. (8) In his initial report, the griev- (interim assistant general counsel) for the (3) The testimony and the investi- ant was evasive and deliberately omit- employer; Bruce Harland (Weinberg gation reveal that the other officers did ted details. He should have known a Roger & Rosenfeld) for the employee not feel threatened by the suspect and more-detailed report was warranted. organization. Arbitrator: Katherine J. felt they had other means of control. Thus, the charge of untruthfulness is Thomson. (4) While there was no major in- sustained. Issue: Did the medical center dis- jury to the suspect, the grievant’s con- (9) The grievant admitted, and the charge the grievant for good cause? duct did inflict redness and abrasions. arbitrator agrees, that the personal Employer’s position: (1) The griev- (5) The grievant understood that problems distracting the grievant on the ant failed to provide authorized medi- he contravened the limits of proper use day of the misconduct are not an ex- cal documentation for his work absence of force, based on his training and a cuse for his excessive use of force. from January to early April. The griev- prior excessive force charge, for which These factors do not warrant a decrease ant repeatedly acknowledged that he he was exonerated. While some use of in the penalty. was required to provide medical verifi- force may have been necessary to fur- (10) Although the duty to file a cation for his absence. ther gain control of the suspect, the truthful supplemental report was prin- (2) The grievant flagrantly disre- grievant’s blows were excessive. cipally the grievant’s, termination garded the employer’s sick leave poli- (6) The grievant’s error in judg- might have been prevented if his su- cies. On one occasion, when his super- ment and the goal of deterring such fu- pervisors had been more proactive in visor requested that he provide the re- ture behavior justified the unanimous ensuring that he fully documented the quired medical documentation, he multi-tier decision to terminate em- incident. In the future, supervisors promised to retrieve the documents ployment. should receive additional training to from his car but failed to return to the (7) The grievant’s description of ensure that they verify the thorough- office. events in his initial police report ness of officers’ reports involving high- (3) During the Step 3 grievance roughly corresponds to the other arrest- profile incidents. meeting, the grievant falsely stated that ing officers’ reports. However, the (Binding Grievance Arbitration) he had submitted the requested docu- grievant failed to report that he punched mentation to his supervisor in January. (4) The medical documents pro- vided at the grievance meeting were unauthenticated, and there is no reli- Reprint Service able testimony that the grievant ever Copies of the opinions and awards reported in the Arbitration Log are available from gave them to his supervisor. CPER at $.30 a page. When ordering, identify the award by case title and date, and by (5) Even if the grievant belatedly CPER issue and page number. provided the required documentation, Send your prepaid order to CPER, Institute for Research on Labor and Employment, the employer is not obligated to rescind 2521 Channing Way, University of California, Berkeley, CA 94720-5555. Make checks the termination because there was just payable to Regents, U.C. (The number of pages in each award is indicated at the begin- ning of the abstract.) All orders will be filled promptly and mailed first class. cause to terminate the grievant at the time he was discharged. 88 cper journal No. 185

(6) A public employer has broad day she allegedly learned the informa- (9) The labor relations manager discretion to take appropriate disciplin- tion. who drafted the intent letter and notice ary action for just cause, and the pen- (4) The grievant’s failure to notify of termination did not talk to the alty should not be disturbed unless there his employer of his change in address grievant’s supervisor until after the has been an abuse of discretion. does not diminish his employer’s obli- grievance meeting. Moreover, the la- (7) The grievant’s absence caused gation to provide proper notice of ter- bor relations manager’s testimony stat- harm to the public service because man- mination. Alternate means of contact- ing that she did not receive medical agers could not plan staffing since they ing the grievant were available since his documentation is not credible in light did not know if, or when, the grievant supervisor had access to the grievant’s of notes to the contrary. might return to work. Additionally, phone number and knew that the (10) The labor relations manager condoning the grievant’s actions will grievant’s relative worked at the center. admitted that if she had received the encourage undesirable conduct as (5) The grievant’s supervisor did documentation, there would be no just other employees will perceive that poli- not tell the grievant about the intent cause for termination. Consequently, it cies are not enforced. letter when she saw him the day after is the employer who is at fault for fail- Union’s position: (1) The grievant did the letter was drafted, never checked to ing to keep accurate records of the not receive the January 2004 letter di- make sure the grievant signed for the medical documents the grievant pro- recting him to submit further medical certified letters, failed to follow up on vided. documentation proving his inability to the intent notice and letter, and failed Arbitrator’s holding: Grievance sus- return to work or face being placed on to document any phone calls made to tained in part. unauthorized leave without pay with the the grievant regarding his potential ter- Arbitrator’s reasoning: (1) The possibility of disciplinary action and ter- mination. threshold issue is whether the intent mination. This letter asked the grievant (6) The supervisor’s testimony al- letter and the notice of proposed ter- to provide documentation for Novem- leging that the grievant refused to give mination sufficiently notified the griev- ber 2003, which he already had supplied. her medical documentation is not cred- ant he was being charged with failure (2) The March 2004 notice of pro- ible because it was not mentioned in to provide documentation for his leave posed termination incorrectly identi- the notice of proposed termination. in and after January. fied the date of the grievant’s last medi- (7) The employer failed to conduct (2) The grievant might have been cal documentation and failed to charge a full and fair investigation before ter- confused about the nature of the charges that the grievant did not provide re- mination, as evidenced by its failure to because the notice misstated the date quired documentation in January or detect and fix the incorrect factual asser- of his last medical documentation and later. The employer must be held to the tions in the letter and notice regarding the date of the January request for cur- contentions outlined in the notice be- the date of the last medical documents. rent medical documentation. However, cause the grievant was not properly in- (8) Because the employer failed to the employer attached pertinent docu- formed of his obligations to provide verify the contents of the documents ments that should have put the grievant further documentation. presented at the grievance meeting, it on notice. (3) Testimony that the grievant told did not discover that the grievant had (3) The proposed termination no- a medical center employee he was a rap visited the doctor, who determined that tice accurately stated that, at least by music producer is not relevant. More- the grievant could not return to work. late February, the workers’ compensa- over, the employee’s testimony is not Also, the employer failed to discover tion administrator had not received credible because she did not give her that it had received these documents. timely medical documentation. While notes to the grievant’s supervisor on the not ideal, the notice adequately advised August 2 0 0 7 cper journal 89

the grievant that he was charged with fail- (9) Further attempts to notify the benefits received after February. ure to provide medical documentation. grievant might have been successful and (Binding Grievance Arbitration) (4) The grievant was aware that he likely would have prodded the grievant was required to submit medical docu- to provide the required documentation. • Contract Interpretation mentation for his leave. He admitted In fact, once the grievant was aware of California State University and this in a discussion with his supervisor his termination, he provided the medi- California Faculty Assn. (7-24-06; 17 in early January. cal documentation at the grievance pp.). Representatives: Paul G. Verellen (5) The grievant’s allegation that meeting. Even if unsuccessful, further (labor relations manager) for the uni- his supervisor refused to look at the attempts to notify the grievant would versity; Kathryn Sheffield (association medical documentation he provided in have ensured that the employer had representative) for the employee asso- January is not credible. The grievant made good faith efforts to afford pro- ciation. Arbitrator: Bonnie G. Bogue. did not complain about this to anyone cedural rights prior to termination. Issue: Are the three consolidated and there is no evidence that he at- (10) The medical documents the grievances arbitrable under Sec. 10.2 tempted to deliver or mail the required employer now claims are unauthenti- of the collective bargaining agreement documentation. cated were accepted without question if the grievance is based on issuance of (6) Based on the record, it is likely at the grievance meeting. The em- administrative policy statements or di- that the grievant did not return for his ployer had ample opportunity to verify rectives? checks after January because he knew the documents’ authenticity. Thus, the Pertinent contract language: Section he would be asked for the required evidence shows that the grievant pro- 10.2(b) defines a “grievant” to be “… medical documentation, which he did duced the required medical documents an employee or group of employees not possess. for the relevant time period at the griev- alleg[ing] that they have been directly (7) The grievant did not submit the ance meeting. wronged by a violation, misapplication, required documentation to his super- (11) The employer had just cause or misinterpretation of a term or pro- visor or to the workers’ compensation to discipline the grievant because he vision in this Agreement that confers administrator prior to receipt of the failed to timely provide medical docu- rights upon them individually or as a notice of proposed termination. There- mentation. However, the penalty of ter- group. The term ‘grievant’ shall also fore, at the time the notice was sent, mination is inappropriate because the mean the CFA when alleging a griev- there was just cause to discipline the grievant did provide the medical docu- ance on behalf of itself, or on behalf of grievant. mentation after he received proper no- a unit member or a group of unit mem- (8) The employer did not ad- tice. bers.” equately investigate the facts before ter- (12) Because the record does not Association’s position: (1) The asso- minating the grievant. The labor rela- indicate whether or when the grievant ciation has the contractual right to file tions manager did not examine the can again return to work or be placed a grievance protesting an employer’s documents attached to the notice of on unpaid disability leave, and because announcement of policy in order to pre- proposed termination with sufficient the grievant failed to provide his cor- vent wrongs that would result if such care to realize that the notice contained rect address and discontinued commu- policies that violate the collective bar- factual mistakes. Nor did the manager nication with the employer, the griev- gaining agreement were implemented note the absence of a receipt for the in- ant is not awarded backpay; he will be and applied to unit employees. tent letter. Because of this, the grievant entitled to benefits as though he were (2) The advice conveyed by the might not have known about his im- on a work-related disability leave of university through the Office of the pending termination or his right to a absence. Also, the employer will not Assistant Vice Chancellor in charge of Skelly hearing. recover any workers’ compensation 90 cper journal No. 185

labor relations informed the campuses University’s position: (1) The three (6) The San Luis Obispo griev- that they could ignore indirect instruc- grievances are premature and not arbi- ance is not arbitrable because it is pre- tional credits in the assignment of work trable under the contract because no mature and a violation of the contract to employees in the Faculty Early Re- bargaining unit member has been “di- is only speculative. At the time the tirement Program. If followed, this rectly wronged” or “harmed.” The grievance was filed, the dean only had administrative directive would contra- employer’s directives regarding retire- proposed implementation of the new vene various provisions of the bargain- ment program workload had not been policy and no employee had yet been ing agreement. implemented at the time the grievances assigned an increased workload. (3) Requiring that an employee were filed. Arbitrator’s holding: Grievance sus- first must actually be harmed before a (2) The contract uses the past tense tained in part. grievance becomes arbitrable would when stating that employees must “have Arbitrator’s reasoning: (1) The con- allow the university to publish and im- been directly wronged.” This means a tractual grievance procedure provides pose policies that conflict with the bar- grievance cannot be filed until an actual the means for association-represented gaining agreement. This interpretation employee has been wronged by imple- employees to ensure that the terms of would allow the university to impose a mentation of the directive. Therefore, the collective bargaining agreement are policy in violation of the contract and this grievance is not arbitrable. not misinterpreted, misapplied, or vio- later claim that it is a binding past prac- (3) The “or” in the last sentence of lated. tice. Sec. 10.2(b) means that the association (2) If the employer issues a policy (4) The question whether employ- cannot file a grievance both on its own statement, contract interpretation, or ees suffered any damage must await an behalf and on behalf of unit members. directive that allegedly misinterprets or evidentiary hearing. The lack of an al- Since this grievance was filed on the misapplies the agreement, or authorizes legation of any specific harm does not association’s behalf, there can be no li- an action that would violate the con- render the grievance non-arbitrable. ability accruing to individual members tract if implemented, that action in and (5) The Dominguez Hills griev- of the bargaining unit. of itself can be grieved under the con- ance asserts that FERP-covered employ- (4) Section 10.2(b) requires that the tract. To interpret the contract other- ees were not notified they would be as- grievant be an employee or a group of wise would defeat the purpose of the signed an excess workload when the employees who have been directly grievance procedure and prevent early employer announced an increase in the wronged; therefore, when the named resolution of differences in contract upcoming year’s teaching assignment. grievant is the association, the griev- interpretation as mandated by Sec. 10.4. A hearing on the merits is needed to ance must allege how the association (3) Contrary to the university’s establish the harm done as a result. has been directly wronged by the al- contention, the plain meaning of the (6) The San Luis Obispo griev- leged contract violation. Because the contract allows the association to file a ance challenged an email sent by the association’s grievance fails to allege grievance on its own behalf as well as dean of the College of Science and how the association itself has been di- on behalf of bargaining unit members Mathematics advising employees who rectly wronged by the vice chancellor’s for violations of employee rights. were considering the early retirement advice, it is not arbitrable. (4) In a grievance in which the as- program to meet with the employer in (5) The Dominquez Hills griev- sociation is named as the grievant, Sec. anticipation of possible workload in- ance is moot because the actual teach- 10.2(b) of the contract allows the asso- creases. The grievance is arbitrable for ing assignments of the three grievants ciation to file a grievance in which it is the same reasons as the systemwide did not include a fifth class; no other the named grievant on behalf of em- grievance, and is not premature due to evidence of an increase in teaching as- ployees, and the contract does not re- a lack of actual harm. signment was presented. August 2 0 0 7 cper journal 91

quire the association to allege how it transferring the grievant to teach at an- to validate transfer. Consequentially, has been directly wronged. other school? the district is attempting to gain a (5) Although the grievance did not Pertinent contract language: “[Sec- program-improvement-based right to include a specific proposed remedy as tion] 11.7.11: District-initiated trans- transfer through arbitration instead of required under the grievance proce- fers caused by curricular modifications through bargaining. dure, it need not be dismissed because and/or other educationally-related (4) Program improvement is a the clear remedy for a statement of needs of the district and/or affected product of the No Child Left Behind policy that violates the bargaining schools may be recommended at any legislation. In a training guide issued agreement is rescission of the policy. time. Such transfers shall not be arbi- by the California Department of Edu- Additionally, the failure to specify the trary or capricious, and in making such cation, local educational agencies were remedy did not prejudice the university’s transfers, the district shall refer to the advised that, in complying with NCLB, ability to understand the nature or scope criteria in [section] 11.7.3.” replacing school staff first requires con- of the particular grievance, or impede Association’s position: (1) The invol- sultation with the local bargaining or- its ability to respond to it. untary transfer of the grievant was ar- ganization. (6) The Dominquez Hills griev- bitrary and capricious despite the fact District’s position: (1) The district ance is moot and not arbitrable because that the agreement allows for “district- has the right, under the language of the the school reversed its position on the initiated transfers caused by curricular collective bargaining agreement, to announced policy and did not increase modifications and/or other education- make transfers based on curricular the grievants’ workloads, and nothing ally related needs.” Section 11.7.3 was modifications and/or other education- in the record suggests that future viola- specifically amended to read that only ally related needs. Program improve- tions of the contract would occur. “[p]osted educationally-related needs” ment is a form of those needs and thus, (7) The San Luis Obispo griev- could be the basis for involuntary trans- a valid basis for transferring the griev- ance is arbitrable because the dean’s fer, and the district did not present any ant. statement is alleged to be a misinter- evidence of an educationally related (2) Section 11.7.11 states only that pretation of the contract, creating a need for the grievant’s transfer. the district “shall refer to” Section “wrong” that is subject to arbitration (2) Section 11.8.2 of the agreement, 11.7.3, but it does not mandate that under the contract. which states that “[a]ll transfers and re- each criterion in Section 11.7.3 be ap- (Binding Grievance Arbitration) assignments shall occur in accordance plied when initiating an involuntary with the provisions of this Article,” was transfer. Furthermore, the district con- • Contract Interpretation added at the district’s suggestion, to as- sidered “legal requirements” and the • Bargaining History suage the association’s concern that an grievant’s performance evaluations, as Santa Ana Unified School Dist. involuntary transfer not be arbitrary and listed in Section 11.7.3, when it made and Santa Ana Educators Assn. (12- capricious. The intent of this section is its decision to transfer the grievant. 28-06; 24 pp.). Representatives: Keith V. to insure that all Section 11.7.3 criteria (3) The parties intended that the Breon (Breon & Shaeffer) for the dis- be met to validate a transfer. agreement permit educationally related trict; Bill Ribblett (regional staff con- (3) The district had never previ- needs, without specifically listing which sultant for CTA/NEA) for the associa- ously bargained for or stated the propo- ones, to be the basis for district-initiated tion. Arbitrator: Walter N. Kaufman sition that program improvement, the transfers. (CSMCS No. ARB-05-0430). stated basis for the grievant’s transfer, (4) At the time the charge was filed, Issue: Did the district violate the can by itself be an educationally related the parties were engaged in bargaining collective bargaining agreement by need within the meaning of Sec. 11.7.3 regarding program improvement, how- 92 cper journal No. 185

ever, program improvement as a basis (5) The principal’s evaluations of software is less beneficial to employees for transfer was not an issue raised dur- the grievant’s performance were above than the traditional methods of record- ing negotiations. Until a position is average, and thus, inconsistent with the ing work hours used by the union’s pro- reached on program-improvement- principal’s adverse and largely anec- fessional unit. Thus, the district vio- based transfers, such transfers cannot dotal testimony used by the district in lated Sec. 1.5 of the contract by unilat- be relied on to support a grievance, as making its decision to transfer the erally adopting the PeopleSoft system. the district has a right to transfer based grievant. (2) The new method substitutes a on the clear language of the bargaining (6) The transfer decision was arbi- “real time” reporting system for the agreement. trary and capricious because the grievant’s prior “elapsed time” system. Under the Arbitrator’s holding: Grievance sus- students did not under-perform on stan- old system, employees entered a regu- tained. dardized tests. lar shift schedule of 8 or 10 hours and Arbitrator’s reasoning: (1) The bar- (7) The record does not demonstrate only noted exceptions to that time; gaining history reveals that there were that the grievant was non-cooperative or workers were not required to “punch recent bargaining changes which clearly refused to implement the contemplated in” or “punch out” when, for example, restricted the district’s ability to trans- remedial instructional plan. Rather, the taking lunch. The PeopleSoft system fer teachers. transfer was in retaliation for the requires employees to take actions they (2) Educationally related needs must grievant’s outspoken protest of the se- were not previously required to do. be “posted,” meaning expressed in speci- lected instructional approach. They must enter their work time into ficity for the particular case as to create (Binding Grievance Arbitration) the “web clock” on their computer and expectations standards, before they can swipe an employee identification card be a basis for involuntary transfer. • Contract Interpretation when they arrive at or leave work. (2) In the wake of this proceeding, • Past Practice (3) The PeopleSoft system has a it is likely that the impact of program • Timekeeping material impact on working conditions Service Employees Interna- improvement on involuntary transfers because it “docks” paid work hours tional Union, Loc. 790, and San will be part of future negotiations, and based on an employee’s failure to ob- Francisco Bay Area Rapid Transit it is not the arbitrator’s role to reach a serve a programmed start time; dock- Dist. (4-07; 18 pp.). Representatives: decision on this issue. ing can be reversed only by the manual Vincent Harrington (Weinberg, Roger (3) Without deciding if program intervention of a supervisor. & Rosenfeld) for the union; Matthew improvement constitutes curricular (4) Before the adoption of the Burrows (district counsel’s office) for modification or other educationally PeopleSoft system, it was presumed that the district. Arbitrator: Christopher D. related needs as required to be a valid employees worked the “core hours” of Burdick. basis for transfer, the involuntary trans- their shifts unless an employee specifi- Issue: Did the district violate the fer of the grievant was arbitrary and cally asked for special hours for a par- parties’ contract by changing the capricious, and therefore, in violation ticular day. With the PeopleSoft sys- method of recording work hours? of the bargaining agreement. tem, manual intervention in the pro- Pertinent contract language: Section (4) Although a district witness tes- gram with express approval of the su- 1.5 states, “Rules or regulations or prac- tified that the decision to transfer the pervisor is required to establish a tices affecting employees beneficially grievant was based on information from scheduling variation. The more ardu- will not be changed without mutual the school principal, the principal tes- ous, new system will make supervisors agreement.” tified that her opinion regarding the more reluctant to be flexible in grant- Union’s position: (1) The newly grievant was not sought for consider- ing work-time variation requests. implemented PeopleSoft timekeeping ation in the transfer decision. August 2 0 0 7 cper journal 93

(5) A clear and detrimental change oversight. The employer understandably in existing practice and working con- desires more uniformity, certainty for ditions has occurred, and the old time- verification of reported hours, and keeping system should be restored. transparency to appease the public. District’s position: (1) The union (3) Absent a contractual waiver, the objects to having its members use mod- employer retains the right to manage ern technology that would more accu- its workforce and workplace, and can rately record its members’ time at work. unilaterally change the method of op- (2) District employees always have erations if doing so does not violate been required to record their time to protected contractual rights. The dis- ensure that they are paid for all hours trict changed only the method by which worked. The new technology is simply employees record their time and did a change in the “method of operation” not violate the contract. or tools by which time is kept, and thus, (4) This conclusion is consistent can be adopted unilaterally by the dis- with Rust Craft Broadcasting (1976) 225 trict. NLRB 327, where the National Labor (3) There is no protectable benefi- Relations Board held that the cial past practice, since employees have employer’s unilateral installation of recorded their time on timesheets or time clocks did not violate the NLRA. by using a mechanical time clock. The There, the method of timekeeping also new system improves the accuracy of changed from elapsed time to real time. recorded hours and ensures the district’s The board found the new method a financial accountability to the public. more dependable means of calculating Arbitrator’s holding: Grievance de- and enforcing employees’ time at work. nied. (5) If the new system causes em- Arbitrator’s reasoning: (1) The pre- ployees to be improperly docked pay liminary task is to identify and describe due to computer-generated absences or the claimed beneficial past practice. a supervisor’s refusal to correct the er- Based on the record, there have been at ror, workers have a remedy under the least three different timekeeping prac- grievance procedure. Similarly, an em- tices before implementation of the new ployee can contest the denial of a re- system; one recorded elapsed time, quest to vary work hours if such a vari- while the other focused on the ance is guaranteed by the contract. employee’s actual start and stop time. (Binding Grievance Arbitration) The varied old timekeeping systems are not a form of past practice entitled to protection under the contract. (2) The past practice allowed em- ployees to self-report their time, en- abling them to misstate and falsify their work times with little or no supervisory 94 cper journal No. 185

Public Employment Relations Board Orders & Decisions

Summarized below are all decisions issued by PERB in cases however, that employee first must resign his or her member- appealed from proposed decisions of administrative law judges ship in the union. The R.A. concluded that the union’s argument is con- and other board agents. ALJ decisions that become final because sistent with the definition of a religious objector set out in no exceptions are filed are not included, as they have no Sec. 3515.7(c) of the act. Accordingly, the union did not vio- precedent value. Cases are arranged by statute – the Dills Act, late the act by insisting that the charging party relinquish her EERA, HEERA, MMBA, TEERA, the Trial Court Act, and union membership before acquiring religious objector sta- the Court Interpreter Act – and subdivided by type of case. In- tus or by refusing to give her the needed paperwork to be- come a religious objector. depth reports on significant board rulings and ALJ decisions The board adopted the R.A.’s dismissal of the charge appear in news sections above. as a decision of the board itself.

EERA Cases Dills Act Cases Unfair Practice Rulings Unfair Practice Rulings Absent protected activity, insufficient facts to sup- Requirement that employee relinquish union mem- port discrimination charge: Oakland USD. bership to obtain religious objector status is permis- (Benton v. Oakland Unified School Dist., No. 1902, 5-7- sible: SEIU. 07; 2 pp. + 7 pp. R.A. dec. By Member Shek, with Members (Dinkins v. SEIU Loc. 1000, CSEA, No. 1901-S, 5-7- McKeag and Neuwald.) 07; 2 pp. + 6 pp. R.A. dec. By Member Shek, with Members Holding: Because the charging party alleged only that Neuwald and McKeag.) his hours were reduced and that he was reprimanded for his Holding: The union’s insistence that an employee re- involvement in heated verbal confrontations with other em- sign as a union member in order to attain religious objector status does not violate the Dills Act. Case summary: The charging party alleged that the Reprint Service union violated the Dills Act by refusing to provide her with Copies of PERB decisions and orders are available from the documents necessary to become a religious objector and CPER at $.30 a page. When ordering, identify the decision by the case title and decision number given at the beginning of each have her agency fees directed to a charitable organization. abstract. Send your prepaid order to CPER, Institute for Research The charging party maintained that her religious tenets pro- on Labor and Employment, 2521 Channing Way, University of hibited her from supporting employee organizations. How- California, Berkeley, CA 94720-5555. Make checks payable to ever, she was informed by the State Controller’s Office that Regents, U.C. (The number of pages in each decision is indi- cated at the beginning of the synopsis.) All orders will be filled union membership dues would continue to be deducted from promptly and mailed first class. her paycheck until the controller received the requisite forms (Note: PERB headquarters in Sacramento will provide cop- from the union affirming her religious objector status. ies of decisions, currently at $5 a case, plus $3 shipping and The R.A.’s investigation revealed that the charging party handling. Also, PERB decisions are collected in the government documents section of all state depository libraries, including the was a member of SEIU Local 1000. Union policy permits libraries of major universities. Most county law libraries and an employee with religious objector status to have a sum major law school libraries also receive copies. The decisions also equal to the fair share fee paid to a charitable organization, are available on PERB’s website at http://www.perb.ca.gov.) August 2 0 0 7 cper journal 95 96 cper journal No. 185

ployees, the charge was dismissed for failure to state a prima Case summary: The association filed an unfair prac- facie case. tice charge alleging that the district violated EERA by uni- Case summary: The charging party, an outreach con- laterally changing its contribution level toward health ben- sultant in the Oakland Unified School District, alleged that efit premiums for current and retired employees. Section the district violated EERA by reprimanding him and reduc- 7.1.2 of the collective bargaining agreement between the ing his position from full-time employment to an 80 percent parties reads, “The district agrees to pay ninety percent of position. According to the factual allegations, the charging the total insurance premiums for the [health and welfare party was involved in a series of heated incidents with several package, and] employees’ contributions shall be based upon different employees regarding available grant money and the health plan selected.” Additionally, Sec. 7.4.3 provides, “The his reduction in hours. As a result of these incidents, the district’s contribution toward retirees’ medical insurance will school principal issued a letter of concern which empha- be in the same amount as that for the current classified employ- sized that the charging party had taken an “overly aggressive ees’ coverage.” Finally, Sec. 7.4.4.1 states, “The retirees shall be and verbally abusive” tone. In a subsequent letter of repri- responsible for the same amount of cost for maintaining medi- mand, the principal expressed alarm over the charging party’s cal insurance coverage as other classified District employees.” continued unprofessional conduct and poor attendance. In 2005, while the parties where engaged in contract Based on these facts, the R.A. concluded that the charg- negotiations, the employer’s health care provider announced ing party failed to state a prima facie case because the charg- that it would charge school districts higher premiums for ing party did not allege any facts indicating that he had en- current and retired employees, with a disproportionately gaged in protected activity as required to support an unlaw- higher increase in retired employees’ rates. In response, the ful discrimination charge under EERA. The R.A. also dis- district proposed to change its contribution levels. The as- missed the charging party’s claim that the district had unilat- sociation opposed the proposal, and the district withdrew it. erally reduced his hours, explaining that as an individual Subsequently, the parties agreed to modify health benefits by employee, the charging party lacked standing to allege unilat- expanding the number of health plan choices from three to eral change violations. The R.A. further noted that an indi- six. Other modifications also were agreed on, but none re- vidual employee cannot allege violations of sections that pro- lated to contributions. tect the collective bargaining rights of employee organizations. According to the allegations, after negotiations, the The board adopted the R.A.’s dismissal as a decision of district unilaterally issued lower employer health plan con- the board itself. tributions for retirees than for current employees; despite this change, the overall costs of retiree plan premiums were Change in contributions to health care benefits not higher than those for current employees. The charge alleged unfair practice: Madera USD. unilateral changes to the contribution level of premiums for (California School Employers Assn. and its Chap. 169 v. both current and retired employees. Madera Unified School Dist., No. 1907, 5-24-07; 7 pp. + 8 pp. The R.A. found that the charge did not demonstrate a R.A. dec. By Member Shek, with Chairman Duncan and change in policy involving current employees. Thus, there Member Neuwald.) was no unlawful unilateral change in policy for that group. Holding: The district’s change in contribution levels The R.A. also held that although the district contribu- toward current and retired employees’ health care benefits tion level for retirees may have been unilaterally changed, was not an unfair practice because the new levels were con- retirees are not covered by EERA. Thus, PERB does not sistent with the terms of the collective bargaining agreement have authority to resolve the complaints of former school and past practice. employees under the act. August 2 0 0 7 cper journal 97

Citing Temple City Unified School Dist. (1989) No. 782, interpretation, the board found that the language of Sec. 7.4.3 83X CPER 15, the R.A. explained that while retirement ben- makes it clear that the district’s contribution provision and efits for current employees are a mandatory subject of bar- formula under 7.1.2 applies to both employees and retirees. gaining, benefits for retirees are only a permissive subject of Thus, the amount of the district’s contribution to the retir- bargaining. Accordingly, the R.A. held that because retiree ees’ health insurance benefits is computed based on 90 per- benefits are not a subject within the scope of representation, cent of the total insurance premiums for the health plan pack- the district did not violate its duty to bargain in good faith age for current employees. Also, the board emphasized that when it unilaterally modified retiree benefits. Also, the R.A. Sec. 7.4.4.1 must be read in conjunction with, and in refer- found that there was no evidence to support the allegation ence to, Sec. 7.1.2 since the second sentence in the latter sets that the district interfered, or attempted to interfere, with the forth the employees’ contribution. internal activities of the union. Therefore, the R.A. dismissed Finally, the board stressed that the interpretation of the charge. contractual health and welfare benefits for the purpose of The board upheld the R.A.’s dismissal of the unfair determining the issue of unilateral change depends on the practice charge but on alternative grounds. Citing Temple terms of the memorandum of understanding and the parties’ City, the board affirmed that retirees are not protected under past practice. The board concluded that the charging party EERA. However, unlike the R.A., the board held that future did not meet its burden of establishing a change in policy, retirement benefits for current employees are within the and thus affirmed the dismissal. scope of bargaining because they are part of an employee’s compensation package. PERB, like the National Labor Re- Unilateral change in policy allegations deferred to lations Board, relied on the U.S. Supreme Court case Allied arbitration: Delano Union Elementary School Dist. Chem. & Alkali Workers, Local Union No. 1 v. Pittsburgh Plate (Delano Elementary Teachers Assn. v. Delano Union El- Glass Co. (1971) 404 U.S. 157, which held that retirement, ementary School Dist., No. 1908, 6-6-07; 17 pp. + 18 pp. R.A. health, and life insurance benefits for current employees are dec. By Member Neuwald, with Members McKeag and within the scope of bargaining. Thus, like the NLRB, PERB Shek.) held that future retirement benefits of current employees are Holding: Because the association failed to establish a mandatory bargaining subject. an unstable collective bargaining relationship, four allega- The board clarified that according to the association’s tions asserting unilateral policy changes were deferred to allegation, the district was required to pay more for retirees arbitration. after the healthcare provider began charging higher premi- Case summary: In April, when two dead bats were dis- ums for retirees than for active employees. On the other covered in an abandoned air duct attached to a classroom, the hand, the district alleged that its past practice under Sec. association president filed a formal report of a potentially haz- 7.4.3 of the agreement was to pay retirees a fixed amount of ardous classroom conditions. The district declined to review money equal to 90 percent of the premiums for active em- the report because it was not submitted by the affected teacher ployees, so that its contribution to retirees would be the same in whose classroom the bats were found. The association presi- monetary amount as that paid to active employees. dent filed a grievance regarding the matter, and the affected The board asserted that the ultimate issue in the case teacher filed a notice of unsafe conditions. was whether the term “same amount” as stated in Sec. 7.4.3 At the end of that month, the California Teachers As- refers to a fixed monetary sum, as the district alleged, or to sociation informed the district that the association president 90 percent of the retiree rate independent of the current and another teacher should be granted released time to at- employee rate, as the association alleged. Adopting the former tend a one-week training event on May 2. The district de- 98 cper journal No. 185

nied the request, stating that because students were taking The R.A. found that only the first two allegations es- special exams that week, the teachers’ presence was vital. tablished a failure to bargain in good faith. He explained Also, the district complained that the association failed to that it was unclear from the charge, what the association provide the required 48-hour notice. The district claimed it viewed as the difference between a two-day and a 48-hour had the discretion to deny released time requests and inter- notice requirement. Also, the R.A. was unpersuaded by the preted the two-day notice requirement as a 48-hour notice association’s assertion that the five contractually outlined requirement. criteria for transfer requests constitute a threshold, that, if In May, the association president filed a transfer re- met, guarantees a teacher’s requested transfer. The R.A. con- quest seeking reassignment to a different middle school. The cluded that the contract allows the district to transfer em- district denied the transfer and hired another qualified ployees based on educational needs. teacher, but one who had less seniority. The association al- The R.A. held that all four unilateral change allega- leged that the president satisfied all necessary requirements, tions were subject to deferral to arbitration under the collec- and thus his request should have been granted . tive bargaining agreement, and thus dismissed the charge In September, the association president met with a dis- under PERB Reg. 3260(b)(5). Citing Collyer Insulated Wire trict representative to discuss working conditions impacting (1971) 192 NLRB 827, the R.A. held deferral to arbitration seventh- and eighth-grade language teachers. Shortly there- was appropriate because (1) the dispute arose within a stable after, the president received a poor performance evaluation collective bargaining relationship where there was no en- covering the last three years of his employment. He filed a mity; (2) the employer was ready and willing to proceed to notice disputing the evaluation, urging that his grievance arbitration and waived contractual procedural defenses; and against the principal of the middle school where he taught (3) the contract and its meaning were at the center of the prevented the district from giving an unbiased evaluation. dispute. The notice also stated that after the association president The R.A. also dismissed the association’s allegation filed his grievance against the principal, the district began to that the district violated EERA by discriminating against assign students of mixed ability to his classes, thereby creat- the association president based on his protected activity, such ing a more difficult teaching environment. as participating in the meeting to discuss the employment In October, the association president received a writ- conditions of language teachers and filing the notice of dis- ten reprimand for his conduct during a meeting where he pute regarding his evaluation. The R.A. found that each of allegedly made a district representative feel “embarrassed, the alleged unilateral policy changes occurred several months intimidated, and degraded.” before the alleged protected activity, and thus, were not re- The association’s unfair practice charge alleged, first, taliatory. Furthermore, the R.A. highlighted that the asso- that the district had unilaterally changed the policy concern- ciation president’s transfer request was one of six that were ing reporting of unsafe classroom conditions by adding a denied, and the district rightfully contended that it had dis- requirement that only the teacher whose classroom was af- cretion to reject the request. Also, the R.A. found that there fected could file a report. Second, the charge alleged that the was no evidence that the president was treated disparately district changed the released time request policy by assert- when he was denied released time, noting the district simul- ing it has discretion to deny released time requests and by taneously denied another teacher’s identical request. changing the required leave request time from two days to Other than the temporal proximity between the letter 48 hours. And, finally, the unfair practice charge claimed that of reprimand and the president’s protected activity, the R.A. the district unilaterally changed the voluntary transfer request found insufficient facts to establish a nexus between the pro- policy by claiming discretion in making transfer decisions. tected acts and the adverse action. The R.A. further found August 2 0 0 7 cper journal 99

that the district did not discriminate against the association The NLRB will not defer to arbitration where there is president by denying his request to defer his performance an unstable collective bargaining relationship, or where the evaluation, because the district legitimately determined that respondent’s conduct indicates a rejection of collective bar- the president was a high-profile employee whose evaluation gaining and the organizational rights of employees. The was important to the school. NLRB considers the length of an amicable bargaining rela- The R.A. determined that the district did not have in- tionship between the parties and whether the respondent’s tent to subvert negotiations and did not bargain in bad faith; conduct interferes with contract rights. Deferral is less likely PERB’s denial of the district’s petition for an impasse deter- if there is an absence of a lengthy, successful bargaining mination did not indicate bad faith. Also, the R.A. main- relationship or if the allegations in the unfair practice tained that the district did not violate employees’ represen- charges strike at the foundation of the grievance arbitra- tation rights, as there were insufficient facts to determine tion mechanism. whether the association’s visits fell under reasonable access The board found that the association failed to demon- rights or whether the district was justified in prohibiting the strate that there was an unstable collective bargaining envi- visits. ronment. It found a history of amicable negotiations and The association argued that the R.A. erred in defer- noted that the district allowed the association president rep- ring the four unilateral change allegations to arbitration be- resentation even though he was not being disciplined. Also, cause the dispute did not arise out of a stable collective bar- the board noted that the association president had not been gaining relationship as demonstrated by the extraordinary terminated and that effective dispute resolution machinery number of grievances filed. The association also asserted was available. The board concluded that the district’s con- that enmity between the parties is established by Delano Union duct did not interfere with collective bargaining rights as the Elementary School Dist. (Delano) (2006) No. HO-U-889, a re- district continued to engage in negotiations and numerous cent decision where the ALJ found that the district retaliated grievances had been settled. Thus, the board found deferral against the association president based on his exercise of of the four unilateral change allegations was appropriate, protected rights. and it dismissed them. The association also argued that the factual allega- The board held that the association failed to establish tions support its discrimination charge, contending that the unlawful retaliation against the president, but that it did es- district representative allegedly admitted he took action tablish a case of interference with regard to the principal’s against the association president because of the president’s verbal and written admonishments of the association presi- position, his high-profile union activities, and his alleged dent. The board emphasized that unlike a retaliation allega- attempt to usurp and/or undermine the authority of the dis- tion, where unlawful motive must be demonstrated, estab- trict principals. The association added that unlawful motive lishing interference requires only slight harm to employee is evidenced by the board’s own findings of discrimination rights. The board found that telling the president not to con- and retaliation in Delano. duct an investigation into a grievance during his off-duty The district asserted that the deferral of the charge was time interfered with the association’s rights. appropriate, and the grievance procedure would not be The board reversed and remanded the R.A.’s dismissal futile. of the interference allegation but affirmed dismissal of all Because the board has never considered the deferral other claims. requirement demanding a stable collective bargaining envi- ronment, it looked for guidance to decisions of the National Labor Relations Board. 100 cper journal No. 185

Duty of Fair Representation Rulings filing of the charge. Also, the R.A. expressed that the charg- ing party’s protest against higher dues was not specific Charge filed beyond six-month limitation period dis- enough to form the basis of a prima facie case. missed as untimely: SEIU. Additionally, the charging party alleged that the union (Gutierrez v. SEIU Loc. 99, No. 1899, 4-16-07; 2 pp. + failed to meet and confer in good faith. Citing Oxnard Edu- 8 pp. R.A. dec. By Chairman Duncan, with Members Shek cators Assn. (Gorcey) (1988) No. 664, 75 CPER 86, the R.A. and Neuwald.) noted that the charging party, as an individual employee, Holding: PERB is prohibited from issuing an unfair lacked standing to allege that an employee organization has practice complaint with respect to any charge based on an failed to bargain in good faith. alleged unfair practice occurring more than six months prior The board found the R.A.’s dismissal free of prejudi- to the filing of the charge. cial error and adopted it as the decision of the board itself. Case summary: The charging party, a school bus driver employed by the Los Angeles Unified School District Untimely filing of grievance did not breach DFR: and represented by SEIU Local 99, alleged that the union CSEA. violated EERA by breaching its duty of fair representation (Wyman v. California School Employees Assn. and its Chap. and failing to meet and negotiate in good faith. 374, No. 1903, 5-7-07; 2 pp. + 9 pp. R.A. dec. By Chairman Three years before the charge was filed, the district Duncan, with Members McKeag and Neuwald.) unilaterally reduced total bus driver hours per pay period Holding: The association’s failure to obtain the charg- and allegedly developed a practice of hiring contractors to ing party’s signature and approval of a grievance, the un- do the work that remained after the bargaining unit’s drivers’ timely filing of a grievance, and the failure to schedule an hours were capped. The charging party claims that the union informal conference did not breach the duty of fair represen- was not given notice or an opportunity to bargain, and the tation. reduction in hours was not made in accordance with senior- Case summary: The charging party is a classified ity rules. The union allegedly failed to adequately respond employee of the Silver Lake Unified School District. She to unit members’ complaints about this conduct. Also, the applied for a position as a food services account technician, charging party alleged that the union violated the duty of fair however, the district elected to hire an outside candidate. representation because it did not address grievances, ne- The collective bargaining agreement between the union and glected to respond to certified mailing, and failed to retain the district requires the district to provide a justification when strong union advocates. Additionally, the charging party pro- an outside candidate is selected over an internal candidate. tested a new higher dues structure. The charging party requested justification from the district, The R.A.’s warning letter stated that apart from the however, she received a memorandum displaying her inter- charging party’s allegation that the union failed to respond view and test scores but lacking any justification. The union to certified mailing, the charges were legal conclusions, lack- filed a grievance on the charging party’s behalf. ing the specific facts required to demonstrate a breach of the The district denied the grievance on the grounds that duty of fair representation. the union had failed to attempt informal resolution of the The R.A. dismissed the charge because the events de- matter with the charging party’s immediate supervisor before scribed in the allegation occurred more than six months prior filing the grievance, as required by the negotiated agreement. to the filing of the charge. PERB is prohibited from issuing The union filed a second-level grievance. Despite the a complaint with respect to any charge based on an alleged fact that this was filed late, the district conducted a second unfair practice occurring more than six months prior to the meeting at which it discussed with the CSEA representative August 2 0 0 7 cper journal 101

its failure to hire the charging party. Following this meeting, date. The R.A. held that this requested relief was not arbi- the union informed the charging party that it would not pur- trary, discriminatory, or in bad faith, nor did it interfere with sue the grievance to arbitration. the charging party’s right to pursue her claim. The charging party filed an unfair practice charge al- Lastly, the charging party asserted that she had been leging that the union breached its duty of fair representation poorly represented by her assigned union steward. However, by failing to arrange an informal conference with the charg- citing Castro Valley Unified School Dist. (McElwain) (1980) No. ing party’s supervisor before filing the grievance, by the un- 149, 48 CPER 65, the R.A. explained that the duty of fair timely pursuit of levels one and two of the grievance, and by representation does not contemplate the complete satisfac- failing to obtain the charging party’s signature or approval tion for all represented; a wide range of reasonableness must of the language of the grievance and the remedy sought by be afforded the representative, subject to good faith and hon- CSEA. esty of purpose. The R.A. found that the charging party’s The R.A. explained that in order to establish a breach representative had acted in good faith. of the duty of fair representation under EERA, the charging The board found the R.A.’s dismissal free of prejudi- party must show that the union’s conduct was arbitrary, dis- cial error and adopted it as the decision of the board itself. criminatory, or in bad faith, or that the union’s failure to perform a ministerial act completely extinguished the MMBA Cases employee’s right to pursue the claim. Because the grievance proceeded to the second level, Unfair Practice Rulings the R.A. held that the charging party’s right to pursue her claim was not adversely affected by the union’s failure to Effects of background check policy linked to public partake of informal settlement discussions. Also, the R.A. safety are outside scope of bargaining: Sutter County found that the union’s failure to engage in the informal con- In-Home Supportive Services Public Authority. ference was not arbitrary, discriminatory, or in bad faith, but (Health Care Workers Union Loc. 250 v. Sutter County was due to scheduling difficulties. In-Home Supportive Services Public Authority, No. 1900-M, 4- The R.A. noted that the level-one grievance had been 25-07; 18 pp. By Member Shek, with Chairman Duncan and timely. Citing San Francisco Classroom Teachers Assn. (Bramell) Member Neuwald.) (1984) No. 430, 64 CPER 56, the R.A. added that the board Holding: The decision to implement a criminal back- has held that the duty of fair representation is not breached ground check is a fundamental managerial policy outside even if a union negligently fails to file a timely grievance. the scope of bargaining, as are the effects of that decision, The R.A. further found that the union did not breach which are integral to the policy and primarily related to pub- its duty by failing to obtain the charging party’s signature lic safety. Effects that relate to traditional terms and condi- and approval for the grievance, citing Hart District Teachers tions of employment are subject to the duty to bargain. Assn. (Merchado/Bloch) (2001) No. 1456, 150 CPER 97, where Case summary: State law authorizes each county to the board held that this factor alone does not amount to establish an authority to provide in-home supportive ser- arbitrary conduct. vices to aged, blind, and disabled persons. IHSS is such an The charging party also argued that the union violated authority. Local 250 is the exclusive representative of some the collective bargaining agreement by seeking as a remedy in-home supportive service providers in Sutter County. for the grievance, that the contract be amended to require In 2003, IHSS unilaterally adopted a policy requiring the district to provide “clear and unambiguous” justification all in-home health care providers who elect to be included in when an outside job candidate is hired over an internal candi- the provider registry to undergo a mandatory criminal back- 102 cper journal No. 185

ground check. According to the policy, a prior conviction Accordingly, the board determined that the following for certain listed offenses excludes a provider from the regis- issues would not be subject to bargaining: (1) the categories try. State law authorizes IHSS to investigate the backgrounds of reportable offenses; (2) the categories of offenses that will of providers and entitles in-home health care recipients to result in exclusion from the registry; (3) to whom the back- receive a copy of their provider’s criminal record. ground checks will apply; and (4) disclosure of the provid- The union alleged that IHSS violated the MMBA by ers’ disqualification for and/or exclusion from the registry adopting the policy without affording it an opportunity to meet to care recipients. and confer over the decision and certain enumerated effects of Nevertheless, the board held that the effects of the policy the policy. IHSS argued that the provider registry and the back- that were primarily related to wages, hours, and terms and ground check policy were established simultaneously, and thus, conditions of employment were within the scope of bargaining. there was no unilateral change to a past practice. IHSS further As under Claremont, the benefits to the employer-employee argued that the decision to implement the policy is exempt relationship of bargaining over these matters outweighed from bargaining as a management prerogative. the employer’s need for unencumbered decisionmaking. Ac- PERB found that because providers would use the reg- cordingly, the board found the following issues to be within istry to obtain future clients, IHSS’s creation of the registry the scope of bargaining: (1) how a person’s criminal record and its unilateral implementation of the background check will be handled, aside from the non-bargainable issue of policy constituted a change in past practice, regardless of disclosure to care recipients; (2) whether applicants will be whether or not a preexisting registry existed. required to pay a fee; and (3) the procedures for providers to To determine whether the policy was within the scope appeal any decisions excluding them from the registry. While of bargaining under the MMBA, the board applied the bal- holding that appeal procedures can be a subject of bargain- ancing test announced by the Supreme Court in Claremont ing, the board stressed that the ultimate decision as to whom Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th to include in the registry is a managerial prerogative. Thus, 623, 180 CPER 21. The board found that because the regis- the board concluded that IHSS violated the MMBA by not try would be used as a means of obtaining future clients, the giving the union an opportunity to bargain prior to imple- policy would have a significant and adverse impact on the mentation of the three specified effects of the policy. terms and conditions of employment within the meaning of The board emphasized that its decision is to be con- the first prong of the Claremont test. strued narrowly, noting that the negotiability of criminal However, the board found that under the second prong background check policies is dependent on the facts and of the test, significant and adverse effects arose from the circumstances of each situation. The board added that the implementation of a fundamental managerial or policy de- vulnerability of in-home supportive services recipients made cision. The board explained that fundamental managerial this an extraordinary case in which it “would apply the mana- decisions are those that directly affect the quality and nature gerial prerogative to exclude certain details of the policy of public services. Hence, the board declared that the effects from the scope of bargaining.” of the policy that primarily relate to public safety and to the quality and nature of public services are outside the scope of Statute of limitations runs from date of actual ter- bargaining, based on managerial prerogative. Also, the board mination: State Bar of California. found that under the third prong of the Claremont test, the (Vorgias v. State Bar of California, No. 1904-M, 5-8-07; employer’s need for unencumbered decisionmaking in man- 4 pp. By Member Shek, with Chairman Duncan and Mem- aging its operations outweighed the benefit of bargaining to ber McKeag.) the employer-employee relations. August 2 0 0 7 cper journal 103

Holding: The unfair practice charge alleging wrong- 3514.5(a)(2) and stressed that the federal action was filed ful termination was filed more than six months after the date after the statute of limitations had elapsed. of the charging party’s termination and was not tolled while Third, the charging party argued that the statute of her action was pending in federal court. limitations was further tolled for a period of 30 days after the Case summary: The charging party’s employment as federal claim was dismissed under federal procedural rules. deputy trial counsel with the State Bar was terminated be- The board found that even if the rule applied to PERB cases, cause she failed to timely file a document in a pending attor- it would be insufficient to render the charge timely because ney disciplinary action and allegedly misrepresented to the the federal district court action was filed after the statute of State Bar Court the reasons for the untimely filing. The charg- limitations had run. Fourth, the charging party alleged that ing party challenged her termination through the contrac- the State Bar came to the PERB proceeding with “unclean tual grievance procedure. After the State Bar denied the hands” as the bar allegedly caused the delay in the process- charging party’s grievance and sustained the termination, ing of the grievance. However, the board found no precedent the union informed the charging party that it would not pur- to suggest that this would impact application of the statute of sue arbitration. limitations. The charging party filed an unfair practice charge un- Based on the above reasoning, the board affirmed the der the MMBA, alleging that the State Bar delayed the griev- R.A.’s dismissal. ance proceedings and held off providing relevant documents to her and her union. No unlawful interference where union representa- The unfair practice charge further alleged that the tive failed to get permission to access workplace: City charging party filed a complaint in a federal district court of Porterville. alleging unfair practices and seeking relief under the Labor (Operating Engineers Loc. 3 v. City of Porterville, No. Management Relations Act of 1947. According to the charge, 1905-M, 5-10-07; 13 pp. By Member Shek, with Members the federal district court dismissed the complaint without McKeag and Neuwald.) leave to amend on grounds of governmental immunity. Holding: The city did not unlawfully interfere with The board held that the charge was barred by the six- the union’s right to access employees because the union rep- month statute of limitations applicable to the MMBA. Cit- resentative never obtained the consent of the department ing Regents of the University of California (Sarka) (2004) No. head to enter the employees’ work location, as is required by 1585-H, 165 CPER 77, and Los Angeles Unified School Dist. the city access policy. (Dorfman) (2005) No. 1754, 173 CPER 82, the board af- Case summary: The charging party alleged that the firmed that the statute of limitations for an unfair practice city violated the MMBA by refusing to grant the union rep- charge begins to run on the date of actual termination. resentative access to city property, refusing to provide the Based on this precedent, the board rejected the charg- union with a copy of an employee’s “criminal offender record ing party’s assertion that the statute of limitations did not information,” and adopting a rule prohibiting city employ- begin to run until arbitration of her grievance was denied. ees’ access to their union representative without the consent Second, the charging party alleged that the statute of limita- of the appropriate department head. tions was tolled while her action was pending in the federal According to the union, the city violated an agreed-on district court under Gov. Code Sec. 3514.5(a)(2), a provision access policy by denying a Local 3 union representative ac- of the Dills Act that tolls the statute during exhaustion of a cess to meet with, and introduce himself to, bargaining unit negotiated grievance machinery. The board asserted that a members on his first visit to the city’s corporation yard. The federal lawsuit does not fall within the provisions of Sec. representative arrived 10 minutes before 1 p.m. After briefly 104 cper journal No. 185

talking to an employee who was on his lunch break, the rep- Furthermore, the city contended that PERB lacked ju- resentative followed the employee into an office and/or shop risdiction to consider the second incident because it had area. There, the employee introduced the representative to been the subject of a separate unfair practice charge that was his supervisor. The supervisor was not designated as a de- dismissed. The basis for dismissal was that the union had not partment head for purposes of obtaining consent for site attempted to obtain the consent of the department head as access under the city policy. The supervisor asked the repre- required by the access policy. sentative to leave the property, warning him that his pres- The board explained that interference with the rights ence prevented the employee from working. The represen- of employees and employee organizations under the MMBA tative left a few minutes after 1 p.m., at the end of the does not require that an unlawful motive be established; only employee’s lunch break. slight harm to protected rights must result from the During the administrative hearing, the union intro- employer’s conduct. Citing Public Employees Assn. v. Board of duced evidence of another incident not included in the com- Supervisors (1985) 167 Cal.App.3d 797, 65 CPER 32, the plaint. This incident occurred when the same union repre- board further stated that “all a charging party must prove to sentative used an employee break room, without obtaining establish an interference violation of section 3506 is: (1) That the department head’s consent, to meet with an affiliated employees were engaged in protected activity; (2) that the employee association’s president and an employee who was employer engaged in conduct which tends to interfere with, subject to termination. Several minutes into the meeting, a restrain or coerce employees in the exercise of those activi- deputy city manager arrived, told the representative that he ties; and (3) that the employer’s conduct was not justified by could not be on city property, and asked him to leave. legitimate business reasons.” At the administrative hearing, the representative testi- The board found that the representative did engage in fied that he disfavored the rule requiring him to obtain per- a protected activity when he attempted to visit city property mission prior to meeting with employees because it some- and meet with unit members; and that by denying the repre- times is important to meet with an employee immediately sentative access, the city “engaged in conduct which tends to after the occurrence of an incident, it occasionally is difficult interfere with, restrain or coerce employees in the exercise to reach a supervisor in a timely matter, and an employee of those activities,” within the meaning of Public Employees might be adversely affected by a supervisor’s knowledge that Assn. Thus, the board reasoned that the case turned on the an employee is meeting with a union representative. The third prong of the test, whether the city’s conduct was justi- representative testified that Local 3 has never encountered fied by legitimate business reasons. access problems in exercising its role as the exclusive repre- The ALJ relied on EERA decisions where the board sentative of the city police officers. has held that a policy requiring an employer’s permission for The ALJ held that the city’s enforcement of its access access to non-work areas is an impermissible restriction. rule interfered with employee rights under the MMBA and The city argued that unlike EERA, the MMBA does not denied the union its rights under Secs. 3503 and 3506 of the contain a provision expressly guaranteeing a union’s access act, as well as PERB Reg. 32603. The city’s exceptions chal- to employers’ facilities, and that the MMBA specifically gives lenged the ALJ’s conclusion that it violated the act by deny- local agencies the discretion to devise their own union ac- ing the representative access to city property to meet with cess rules. The board agreed with the city and found that the employees. Also, the city excepted to the legal standard the MMBA authorized the city to adopt its own reasonable ac- ALJ applied, asserting that the charging party failed to meet cess rules, as embodied by the city’s access policy. its burden because the representative never sought consent Because the representative never sought to obtain con- under the terms of the access policy. sent of the department head, as required by the city’s access August 2 0 0 7 cper journal 105

policy, the board found no unlawful interference under the Case summary: The State Bar of California appealed MMBA. Additionally, the board distinguished the facts of a board agent’s denial of its opposition to the charging party’s San Ramon Valley Unified School Dist. (1982) No. 230, 55 appeal of the dismissal of her unfair practice charge because CPER 66, the EERA case on which the ALJ relied. The the opposition was untimely filed. In State Bar of California EERA decision held that it is unlawful for an employer to (Vorgias) (2007) No. 1904-M, 185 CPER 102, the board af- require prior consent for a union representative to access firmed the board agent’s dismissal of the charge. There, the non-working areas. Here, in contrast, the charging party’s board found that the unfair practice charge alleging wrong- representative met with the supervisor in a work area, in the ful termination was filed more than six months after the date “shop or the office of the shop,” an area “with tools and of the charging party’s termination, and thus, was barred by equipment.” Also, the representative was expelled after the statute of limitations. lunch break ended. Therefore, the board found that the city’s The board held that the State Bar’s administrative ap- conduct was justified by legitimate business reasons under peal was now moot because the board already had issued a the Public Employees Assn. test. final decision regarding the charging party’s appeal. Also, the board found that doctrines of res judicata and collateral estoppel barred reliance on the second denial of Denial of request for on-call policy information is access incident, which was the same incident that formed the unfair practice: Town of Paradise. basis for the previously dismissed unfair practice charge. (Operating Engineers Loc. 3 v. Town of Paradise, No. That dismissal, based on the soundness of the city’s access 1906-M, 5-24-07; 3 pp. + 9 pp. ALJ proposed dec. By Mem- policy requiring department head consent, became final ber Shek, with Members McKeag and Neuwald.) when the union failed to file an appeal. Thus, the board Holding: The town violated its memorandum of un- found it lacked jurisdiction over an access claim based on derstanding and duty to bargain in good faith with the union that incident. by refusing to provide information regarding its on-call em- Finally, since no exceptions were filed to two other ployee policy. findings of the ALJ, the board affirmed the conclusion that Case summary: On behalf of an employee of the pub- the city’s adoption of the access policy was not a unilateral lic works department, Local 3 filed a grievance alleging the change; nor had the union proved that the city denied it ac- town violated its memorandum of understanding with the cess to criminal offender information. However, the board union by directing a worker from outside the bargaining emphasized that it did not affirm the rationale supporting unit to repair a broken stop sign. Allegedly, the grievant was the ALJ’s decision’s on those issues, thus rendering those the designated on-call employee who should have been as- determinations non-binding on future cases. signed the repair job. In its response, the town argued that there was no vio- Administrative appeal moot since PERB already dis- lation of the agreement since a police officer at the site tem- missed underlying charge: State Bar of California. porarily repaired the sign and determined it unnecessary to (Vorgias v. State Bar of California, No. Ad-362-M, 5-10- notify the on-call employee. The union representative re- 07; 1 pp. By Member Shek, with Chairman Duncan and quested information regarding the on-call policy and the Member McKeag.) manner in which the dispatcher is to handle emergency re- Holding: The State Bar’s administrative appeal chal- pair situations. The union representative was concerned as lenging the determination that its opposition to the charg- to why the on-call grievant was not assigned to immediately ing party’s appeal was untimely is moot because the board repair the sign and why the police were asked to make tem- already had affirmed the dismissal of the charge. porary repairs. 106 cper journal No. 185

The town refused to provide the requested informa- ply the information was a violation of the town’s duty to tion, asserting that the union had failed to timely appeal the bargain. denial of the grievance. The union representative urged that The ALJ stressed that even if the parties had not been the denial of the requested information was improper and engaged in bargaining, the town’s refusal to provide the in- that the town had not yet denied the grievance because the formation would be an unfair practice because, during the representative was still in negotiations regarding the griev- term of a collective bargaining agreement, a union has the ance at the time she requested the information. right to apprise employees regarding benefits and terms of Citing Stockton Unified School Dist. (Stockton Teachers the agreement, and to effectively administer it. Finally, the Assn.) (1980) No. 143, 48 CPER 61, the ALJ affirmed that an ALJ emphasized that requested information, relevant and exclusive representative is entitled to all information that is necessary to the administration of the agreement, must be “necessary and relevant” to the discharge of its duty of repre- provided even in the absence of a specific grievance dispute sentation unless the employer can supply adequate reasons so that the union can evaluate the merits and worthiness of why it cannot provide the information. Additionally, the ALJ future claims. noted that failure to provide such information is a per se The ALJ’s proposed decision required the town to pro- violation of the duty to bargain in good faith. vide the requested information to the union. The board The ALJ explained that the collective bargaining agree- adopted the ALJ’s decision as its own. ment provided for wages and minimum paid hours for man- datory on-call employees. Citing Stockton USD, the ALJ Untimely appeal excused due to mailing error: City emphasized that information immediately pertaining to a of Beverly Hills. mandatory subject of bargaining is presumptively relevant. (Tesfasion v. City of Beverly Hills Transportation Dept., The ALJ found the information requested by the union was No. Ad-363-M, 5-24-07; 6 pp. dec. By Member Shek, with relevant to its ability to administer the contract and resolve Members McKeag and Neuwald.) disputes because the information detailed the circumstances Holding: The charging party’s untimely filing of his in which an on-call employee is called on to perform work appeal of the dismissal of his unfair practice charge was ex- duties and paid pursuant to the agreement. Additionally, the cused because there was good cause for the late filing. ALJ held the town did not establish that the information was Case summary: The charging party appealed the ap- too burdensome to produce or that it could not be disclosed. peals assistant’s rejection of his appeal of the dismissal of his Also, the ALJ asserted that even assuming an appeal of the unfair practice charge as untimely filed. The appeal of the grievance was untimely, the town still had an obligation to dismissal was due on December 11, but was not received and provide the requested information. filed until December 14. The charging party alleged that he Citing Trustees of the California State University (Cali- mailed his appeal on November 3, presenting evidence he fornia Faculty Assn.) (1986) No. 613-H, 72 CPER 61, the ALJ served proof of service on the city representative on that affirmed that the union representative is entitled to informa- date. The board explained that the mail was delayed at the tion needed to “understand and intelligently discuss the is- post office for insufficient postage and was not returned to sues raised in bargaining.” The ALJ found that the parties the charging party until December 9, at which point the were engaged in collective bargaining for a new memoran- charging party promptly re-mailed the appeal. dum of understating at the time the grievance was filed. One The board noted that it may excuse a late filing for of the topics being negotiated was the on-call policy. Thus, good cause only. The board listed numerous cases where it the ALJ determined, the union requested the information has excused inadvertent mailing errors that resulted in a brief for bargaining purposes, and the employer’s refusal to sup- delay. Also, the board emphasized that it must decide if the August 2 0 0 7 cper journal 107

reason for the untimely filing is “reasonable and credible,” Holding: The union’s petition seeking severance of and whether the opposing party suffers any prejudice as a craft employees was dismissed because the union failed to result of the excused late filing. prove that the city’s unit determination decision was unrea- The board held that the charging party demonstrated a sonable. good faith effort in filing his appeal in a timely fashion be- Case summary: In 2004, pursuant to the city’s em- cause he mailed the insufficiently posted appeal letter well ployee relations ordinance, IBEW filed a petition to sever a before the deadline, remailed the letter promptly after it was unit of employees in electrical services and power plant clas- returned, and the appeal was filed only three days past the sifications in the Department of Water and Power from a due date without causing prejudice to the opposing party. larger unit represented by the Glendale City Employees The board accepted the charging party’s appeal, finding that Association. After performing a unit appropriateness deter- the reason for the untimely filing was “reasonable and cred- mination, the city manager dismissed the union’s petition. ible,” and good cause existed to excuse the late filing. The city addressed all six factors set forth in the local ordi- nance and concluded that the existing unit, which included Administrative appeal moot since PERB already dis- the requested job classifications, was appropriate. The union missed underlying charge: Town of Paradise. filed a petition for board review, and a board agent dismissed (Operating Engineers Loc. 3 v. Town of Paradise, No. Ad- the petition. 364-M, 6-05-07; 1 pp. By Member Shek, with Members On appeal, the union argued that the board agent did McKeag and Neuwald.) not specifically analyze each of the union’s arguments in Holding: The union’s administrative appeal challeng- support of the proposed unit and that the city misapplied its ing the determination that its opposition to the charging unit determination criteria. The union provided the board party’s exceptions was untimely is moot because the board with the same arguments previously offered to the city has already affirmed the ALJ’s proposed decision regarding manager on each of the six unit appropriateness factors. the underlying charge. The city argued that the union did not offer any legal Case summary: The charging party appealed an ad- argument that demonstrated the board agent erred in her ministrative decision denying, as untimely filed, its opposi- decision to dismiss. tion to the exceptions filed by the town to an ALJ’s proposed The board explained that the MMBA authorizes pub- decision. In Town of Paradise (Operating Engineers Loc. 3) lic agencies to adopt rules for the administration of em- (2007) No. 1906-M, 185 CPER 105, the board affirmed the ployer-employee relations, including the determination of ALJ’s decision ordering the town to disclose requested on- an appropriate unit. Also, under PERB regulations, a peti- call employee policy information to the union. Therefore, tion for review of a public agency unit determination can be the board held that the union’s administrative appeal was dismissed if the determination was rendered in accordance now moot. with the MMBA, the local rules of the public agency, and applicable precedent. The board, relying on precedent, fur- Representation Rulings ther explained that the public agency’s determination must be reasonable; however, the board emphasized that the local Severance petition for separate craft unit denied: government employer need not determine the most appro- IBEW. priate unit. The board added that the party challenging a (City of Glendale v. International Brotherhood of Electrical unit determination carries the burden of demonstrating that Workers, Loc. 18, No. Ad-361-M, 4-13-07; 7 pp. By Member the decision was not reasonable. Neuwald, with Chairman Duncan and Member Shek.) 108 cper journal No. 185

The union argued that the city erred in its unit deter- reasonable, or that it violated the MMBA, local rules, or mination decision by failing to recognize a unit consisting applicable precedent. solely of skilled crafts workers. However, the board held that the city was not required to recognize a separate unit of skilled crafts workers because, unlike the Dills Act and HEERA, which both provide a right to a separate unit of skilled crafts employees, the MMBA does not mandate recognition of such a unit. The board also noted that the unit sought by the union includes unskilled and semi-skilled craft workers. The board found that the criteria set forth in the city’s ordinance to determine appropriate representation units were consistant with applicable legal precedent. Applying those factors, the city found no evidence of any bargaining disparity; a community of interest shared with classifica- tions in the existing unit in terms of uniform benefits and operational goals; and a positive 70-year history of employer- employee relations, evidencing a stable and productive rela- tionship between the city and the classifications within the existing units. The city also found that creation of a new unit would require additional time to meet bargaining require- ments and that friction could result if similar classifications were placed in different units, thereby negatively impacting operations. The city concluded that the proposed unit could result in a fragmented workforce and adversely affect the classification structure and the city’s efficiency of operations. Finally, the fact that some skilled crafts employees sought to be represented by the union was insufficient to support cre- ation of a new unit. Furthermore, the board held that the union did not provide evidence showing a lack of a community of interest with other classifications in the unit. Rather, the union sim- ply asserted that similar craft units in other cities have been effectively represented by the union. Also, the board noted that a wage comparison study requested by power plant personnel did not demonstrate that the exclusive repre- sentative was unable to adequately represent the interests of those employees. Accordingly, the board dismissed the union’s sever- ance petition, concluding that the union had not met its bur- den of demonstrating that the city’s determination was un- August 2007 cper journal 109

Activity Reports

ALJ Proposed Decisions (1986) 475 U.S. 29, and PERB regulations. The failure to send a notice prior to collection interfered with employee Los Angeles Regional Office — Final Decision rights. The union’s claim of later compliance with the notice California Federation of Interpreters-The Newspaper Guild/ requirements did not make this case moot. Communication Workers of America v. Region 1 Trial Court, Deglow v. Los Rios College Federation of Teachers, Loc. 2279, Case LA-CE-15-I. ALJ Thomas J. Allen. (Issued 3-21-07; Cases SA-CO-424-E; SA-CO-426-E. ALJ Bernard final 4-17-07; HO-U-916-I.) No violation was found. The McMonigle. (Issued 6-19-07; exceptions filed 6-4-07.) The Trial Court Interpreter Employment and Labor Relations complaints and charges were dismissed for lack of prosecu- Act Sec. 71802(c)(3) states that a trial court may employ tion where the charging party contended that a July 1999 independent contractors only if it “does not provide inde- settlement conference continued indefinitely and was told pendent contractors appointed pursuant to this subdivision by a board agent that there were no timelines for proceeding with lesser duties or more favorable working conditions than to a formal hearing. The charging party sought to proceed those to which a court interpreter pro tempore by that trial to a formal hearing in December 2005. A delay of six years is court would be subject for the purpose of discouraging in- not due diligence, and good cause for the time lag was not terpreters from applying for pro tempore employment with established. the trial court.” Here, the courts pay contractors premium Fresno County Office Schools Educators Assn. v. Fresno pay for working two locations in one day. The MOU be- County Office of Education, Case SA-CE-2004-E. ALJ Ber- tween the parties does not contain the premium. However, nard McMonigle. (Issued 6-19-07; time running for appeal.) the union did not show working conditions as a whole were The remedial provision of a prior board decision finding more favorable for a contractor or that premium pay was not that the involuntary transfer of an employee was discrimina- for a legitimate purpose. tion for protected activity included reimbursement for mon- etary losses. The Office of Education applied an MOU pro- Sacramento Regional Office — Decisions Not Final vision that limited reimbursement for mileage and time to AFSCME Loc. 146 v. Carmichael Recreation and Park Dist., negotiated amounts when an employee is “necessarily as- Cases SA-CE-370-M; SA-CE-379-M. ALJ Christine A. signed” to distant locations. The board held that the MOU Bologna. (Issued 5-10-07; exceptions filed 6-4-07.) No vio- provision was inapplicable to reimburse the discriminatee. lation was found. The district did not interfere with em- An earlier board decision rejected the education office’s ar- ployee rights as a cartoon shown by the supervisor to em- gument of business justification, therefore, the discriminatee ployees was not reasonably considered threatening or retal- was not “necessarily assigned.” The remedy requires mile- iatory. No retaliation was shown against an employee who age reimbursement at the IRS rate and compensation for was required to submit to a fitness-for-duty exam and sus- actual time traveled. pended for five days for making a threat. The district did not SEIU Loc. 1000, CSEA v. State of California (Department improperly refuse to provide information requested solely of Corrections and Rehabilitation), Case SA-CE-1578-S. ALJ for a Skelly hearing, an extra-contractual forum; the infor- Bernard McMonigle. (Issued 6-21-07; time running for ap- mation was not necessary and relevant to representational peal.) The complaint was dismissed as an unfair practice duties. charge filed outside the statutory limitations period. Dills McKnight v. Fresno City Employees Assn., Case SA-CO- Act Sec. 3514.5(a)(1) requires the charging party to file an 42-M. ALJ Christine A. Bologna. (Issued 6-12-07; time run- unfair practice charge on the date it knows or should have ning for appeal.) A violation occurred when the union col- known of the conduct underlying the alleged violation. The lected agency fees prior to sending a Hudson notice as re- charging party contended that it learned of a change when quired under Chicago Teachers Union, Loc. No. 1 v. Hudson the written policy was discovered in a personnel file. The 110 cper journal No. 185

board found that the charging party should have known they do not accrue credit within CalPERS for the first 24 months earlier when that party (a union steward) and a union months and contribute to an alternate retirement account. labor relations representative were aware of two manage- In California Assn. of Professional Scientists v. Schwarzenegger ment documents stating the policy. (2006) 137 Cal. App.4th 371, the court reviewed a nearly identical MOU provision in an action challenging S.B. 1105 San Francisco Regional Office — Decisions Not Final as an unconstitutional impairment of the obligations of con- City and County of San Francisco v. Stationary Engineers tracts. The court determined that under the MOU provi- Loc. 39, Case SF-CO-129-M. ALJ Donn Ginoza. (Issued 4- sion, the state had retained the power to make pension 11-07; exceptions filed 4-26-07.) The city charter provides changes for prospective employees; there was no change in for collective bargaining followed by mediation/arbitration. the contractual status quo. That interpretation and determi- The charter requires that each side select a representative to nation is binding precedent. Because there was no change in a three-person panel by January 20 of the year in which bar- the status quo, the union did not establish a unilateral change. gaining is to occur. After an unfavorable 2004 decision, the Owens v. American Federation of State, County and Mu- union vowed not to participate in interest arbitration again. nicipal Employees, Case SF-CO-162-H. ALJ Donn Ginoza. In February 2006, the parties commenced negotiations. The (Issued 6-28-07; time running for appeal.) No violation was union did not name a panel member and took the position found. The unfair practice charge was not timely filed eight that interest arbitration was not mandatory. In April, the City months after the union informed an employee that her griev- and County of San Francisco declared impasse. The union ance would not be pursued past step one because it lacked continued to refuse to proceed to interest arbitration. Even- merit. Even if had been timely, there was no breach of the tually, the parties reached agreement. A violation was found duty of fair representation as representation ceased after a for failure to participate in the impasse resolution proce- good faith assessment that the grievance lacked merit. dures. The employer declared impasse in good faith; the charter requirement for interest arbitration is not an unrea- Los Angeles Regional Office — Decisions Not Final sonable rule under the MMBA, and participation is manda- Kettenring v. Los Angeles Unified School Dist., Case LA- tory. The union’s 2004 vow not to participate in future inter- CE-4878-E. ALJ Thomas J. Allen. (Issued 3-19-07; excep- est arbitrations did not make the unfair practice charge fil- tions filed 4-13-07.) No violation was found. A teacher ac- ing untimely as failure to participate is a continuing viola- tive in the union was accused by another employee of harass- tion. The issue was addressed despite technical mootness as ment. The principal issued a conference memo directing an issue likely to recur in the future. him to cease harassment. The teacher then filed an unfair AFSCME Loc. 2620 v. State of California (Department of practice charge, circulated a memo that identified his ac- Personnel Administration), Case SF-CE-230-S. ALJ Bernard cuser, refused to cease his behavior, and accused the princi- McMonigle. (Issued 4-11-07; exceptions filed 5-15-07.) An pal of unprofessional conduct. The principal issued a memo unfair practice charge was timely filed because notice of pro- ordering the teacher to stop circulating the charge. The posed legislation does not start the statutory limitations pe- teacher also told students that, although he was required to riod. No violation was found with respect to the alleged uni- hold class the last week of school, they need not attend as he lateral change in pension. The MOU contains a provision would be busy preparing grades and they could read the news- for the eligibility of new employees to be enrolled in paper at home. The principal issued a conference memo, CalPERS’ First Tier pension plan and to change to Second notices of unsatisfactory acts, and a three-day suspension. It Tier within 180 days. Senate Bill 1105, enacted on August was found that the district would have taken the same action 11, 2004, mandates that all employees hired after that date even in the absence of protected activity. be enrolled in the Alternate Retirement Program under which August 2007 cper journal 111

Alhambra Firefighters Assn. Loc. 1578 v. City of Alhambra, Municipal Employees of Beverly Hills v. City of Beverly Hills, Case LA-CE-263-M. ALJ Thomas J. Allen. (Issued 5-8-07; IR No. 517, Case LA-CE-367-M. On April 3, the union exceptions filed 5-25-07.) Violations were found when the filed a request for injunctive relief against the city, alleging it city unilaterally changed a fire captain class specification to unlawfully contracted out for services previously performed allow more employees to compete. The change was found to by bargaining unit members. On April 13, the union with- be within the scope of representation. drew the request. Baker Valley Teachers Assn. v. Baker Valley Unified School Society of Professional Scientists & Engineers v. Regents of Dist., Case LA-CE-4941-E. ALJ Ann L. Weinman. (Issued the University of California (Lawrence Livermore National Lab), 6-26-07; time running for appeal.) Violations were found IR No. 518, Case SF-CE-837-H. On April 6, the union filed when the district discharged one probationary teacher/union a request for injunctive relief against U.C., alleging it inter- activist and constructively discharged another tenured fered with the union’s organizing rights. On April 18, the teacher/union activist. After years of inactivity in a “neces- request was granted by the board, however, the relief was not sary small school” district (15-16 teachers), union officers sought in court by PERB due to resolution of the matter by began an aggressive membership campaign and bargaining. the parties. Two union leaders with excellent evaluations were termi- Hayward Unified School Dist. v. Hayward Education Assn., nated with cursory explanations. The district did not show IR No. 519, Case SF-CO-700-E. On April 20, the district legitimate reasons for its decisions and had deviated from filed a request for injunctive relief against the union to stop the requirements of a written statement of reasons and the teachers from allegedly striking unlawfully. On April 21, right of appeal. the request was withdrawn by the district. Saenz v. County of San Diego (Health & Human Services), Hayward Unified School Dist. v. Hayward Education Assn., Case LA-CE-314-M. ALJ Thomas J. Allen. (Issued 6-29- IR No. 520, Case SF-CO-700-E. On April 24, the district 07; time running for appeal.) The unfair practice charge and again filed a request for injunctive relief against the union to complaint were dismissed as untimely where the alleged acts stop teachers from allegedly striking unlawfully. On April of retaliation occurred more than six months before the 26, the request was withdrawn by the district. charge was filed. Eisenberg v. State of California (Employment Development Dept.), IR. No. 521, Case SA-CE-1602-S. On May 3, Report of the Office of the General Counsel Eisenberg filed a request for injunctive relief against EDD, alleging the department ordered him not to use the state’s Injunctive Relief Cases email system to distribute decertification petitions and fair share fee rescission material. On May 10, the request was There were nine requests for injunctive relief filed be- denied by the board. tween March 1 and June 30, 2007. Of these, one was granted Fairfield-Suisun Unified Teachers Assn. v. Hayward Uni- by the board (but not sought due to resolution of the matter fied School Dist., IR No. 522, Case SF-CE-2594-E. On May by the parties), four were denied, and four were withdrawn. 11, the union filed a request for injunctive relief against the Alliance of Orange County Workers v. County of Orange, IR district, alleging it unlawfully reconstituted the schools. On No. 516, Case LA-CE-366-M. On April 3, the union filed a May 17, the request was withdrawn by the union. request for injunctive relief against the county, alleging it Amalgamated Transit Union Loc. 1704 v. Omnitrans, IR unlawfully recognized SEIU Local 721 as the exclusive rep- No. 523, Case LA-CE-358-M. On May 22, the union filed a resentative of the county’s operations services and mainte- request for injunctive relief against Omnitrans, alleging re- nance workers. On April 11, the request was denied by the taliation against the union president for protected activity. board. On May 29, the request was denied by the board. 112 cper journal No. 185

County of Riverside v. SEIU Loc. 721, IR No. 524, Case Personnel Changes LA-CO-57-M. On June 13, the county filed a request for On July 2, Governor Schwarzenegger appointed Robin injunctive relief against the union, alleging it unlawfully ac- Wesley to the Public Employment Relations Board. Wesley cessed certain areas within a county medical facility. On June is well-acquainted with the workings of the board. During 15, the request was withdrawn by the county. the last 16 years, she has served in a variety of posts within the agency. At the time of her appointment, she was an ad- Litigation Activity ministrative law judge. Before that, Wesley was called into One new case opened between March 1 and June 30, service as the acting general counsel with the retirement of 2007. Bob Thompson. She also worked as a senior regional attorney Board of Trustees of the Los Angeles Unified School Dist. v. and a legal advisor to PERB. Before coming to the board, Public Employment Relations Board, California Court of Ap- Wesley served from 1983 to 1991 as deputy director for the peal, Second Appellate District, Case No. B197043. (No. Governor’s Office of Planning and Research. With Wesley’s 1884.) On March 1, LAUSD filed a petition for writ of re- appointment, the board is now fully staffed with five members. view of (1) the board’s January 2007 decision that LAUSD Wendi Ross joined PERB, filling the Staff Counsel IV refused to bargain in good faith (No. 1884) and (2) the board’s position in the General Counsel’s Office in April 2007, as underlying unit-determination finding in July 2004 (No. PERB’s deputy general counsel. Since 1997, Ross worked 1665). In May, PERB filed the administrative record. In June, for the Department of Personnel Administration, represent- the parties stipulated to, and the court granted, an extension ing state agencies and departments in administrative hear- of time for the filing of LAUSD’s opening brief, now due ings, arbitration proceedings, and civil litigation relative to August 13. any array of labor law and personnel issues. From 1991 to 1997, Ross worked for Pinnell & Kingsley, representing Regulation Adoption and Modification school districts and fire departments. Prior to that, she worked On December 1, 2006, the board published a Notice of for Thierman, Cook, Brown & Prager, representing private Proposed Rulemaking concerning agency fee regulations sector employers in labor and employment law matters. (PERB Regs. 32990 through 32997). A public hearing on While in law school, Ross worked for PERB researching the proposed changes was held on February 8. Based on writ- issues for board counsel; she also performed legal work for ten and oral comments received, the board issued a Notice the Agricultural Labor Relations Board. of Proposed Modifications to interested parties on February 26, and a Second Notice of Proposed Modifications issued on April 23. On May 24, at a special public meeting of the board, the board adopted the proposed changes as modified. The rulemaking package was submitted to the Office of Administrative Law for final approval on June 18. On February 16, the board issued a Notice of Proposed Rulemaking concerning proof of support, revocation of proof of support, and various technical changes to other regula- tions. A public hearing on these proposed changes was held on April 12. Based on written and oral comments received, the board issued a Notice of Proposed Modifications to in- terested parties on June 12, and will consider the revised rulemaking package at the August 16 public meeting.