co n t e n t s

Features

7 H1N1 in the Workplace: ‘Go Home!’ Steven M. Berliner and Camille Y. Townsend

13 Mission Impossible: Requesting Injunctive Relief From PERB Sarah Sanford-Smith

Recent Developments Public Schools

18 California a Contender in ‘Race to the Top’ 20 The Gloves Are Off: L.A. Teachers vs. Charter Schools vs. the Mayor 21 High Court to Decide if Grant of Charter School Petition Can Be Arbitrated 23 Change Is Coming to ‘No Child Left Behind’; Some Say Long Overdue 24 Bargaining Updates

Local Government

26 Mayor Takes Action as L.A. Budget Deficit Grows 28 Once Employee Retires, Civil Service Commission Lacks Jurisdiction 30 Court Closures, Furloughs Focus Critical Attention on AOC 32 County’s Effort to Win Unions’ ‘Non-Support’ for Arbitration Measure Not Misuse of Public Funds co n t e n t s

Recent Developments continued

State Employment

35 Unions Win Some, Lose Some Furlough Lawsuits 38 State Employee Pain to Continue 39 Law Changing Overtime Calculation Not a Unilateral Change by Legislature, Governor 40 Pension Reform Revisited 43 Receiver Is Not Automatically Immune From Suit 44 A.G.’s Opinion Paved Way for December Pay Reductions for Elected Officials

Higher Education

46 To ‘Satisfactorily Address’ a Whistleblower Complain, CSU Must Discuss Discipline and Punishment 49 After the Last, Best, and Final

Discrimination

51 California Supreme Court Restricts Attorney’s Fees in Certain FEHA Cases 53 No Punitive or Compensatory Damages Available for ADA Retaliation Claims 54 GINA Employer Provisions Now in Effect 56 Employee With TMD Not Disabled Under ADA 57 Personnel Management Decisions Can Be Basis for Harassment Claim 59 Adverse SPB Decisions Do Not Foreclose Retaliation Claim 61 Evidence of Non-Discriminatory Intent Entitles Employer to Mixed-Motive Instruction 63 Teacher Who Advocated for Disabled Students Can Sue for Retaliation

contents

Recent Developments continued

General

64 Meetings of Labor-Management Committee Not Covered by Open Meetings Act 65 Termination Settlement Agreement Exceeded Maximum Amount Allowed 67 Librarian’s Email Castigating Managers Went Beyond Free Speech Protections

Arbitration

68 Arbitrator’s Resolution of Remedy Dispute Did Not Exceed Her Jurisdiction 70 Circumstantial Evidence Insufficient to Link Grievant With Bathroom Graffiti

Departments 4 Letter From the Editor 71 Public Sector Arbitration Log 76 Public Employment Relations Board Decisions 92 PERB Activity Reports 96 FEHC Reports l e t t e r f r o m t h e e d i t o r

Dear CPER Readers;

These are challenging times. CPER is facing financial difficulties as a result of drastic cuts to our U. C. funding and the inability of some of our subscribers to renew, as budget reductions are felt by local governments, public schools, and state employees. We have worked diligently to overcome these hardships by drastically cutting our expenses, and by taking a 40 percent reduction in hours (and compensa- tion). We are meeting with our advisory board to come up with fundraising ideas, but we must do more.

One of our new efforts focuses on our Pocket Guide Series. These little books have been hugely popular with people in all public employment sectors. They pack a wallop of information in an easy-to-use format and are extremely affordable. In 2009, new editions of the FLSA and Family Leave pocket guides rolled off the press. The “Basics” guide also was updated. And, we recently added three new titles to the series — one covers the recent Firefighters’ Bill of Rights Act; two are devoted to layoffs that impact certificated and classified employees in the schools.

We will soon introduce another new title, a pocket guide targeting the funda- mental concept of just cause. And, there is a new MMBA pocket guide in the works as well as revised Due Process and Workplace Rights Pocket Guides.

If you haven’t seen the list of our available pocket guides recently, check it out now — it’s on the back cover. You can order them at the CPER website, http:// cper.berkeley.edu.

As this issue of CPER reveals, we’re not alone in adjusting to severe financial difficulties. The state, local governments, and all levels of public education are facing hard choices and resorting to draconian measures to survive. We hope our efforts will allow us keep bringing you valuable public employment news from throughout the state. We urge you to help us by renewing your subscriptions and purchasing our pocket guides. Tax deductible gifts to “Friends of CPER” are also welcome. Those “friends” who have already contributed are honored on the following page.

Thank you for your support over the years. We would like to be around for many more to come.

Carol Vendrillo, CPER Editor February 2 0 10 cper journal 5

FrThank i e n d s o f cperyou

CPER would like to acknowledge the generous donations of the following contributors, the first of many we hope will support our program:

Carroll, Burdick & McDonough McCarthy, Johnson & Miller

Leonard Carder Miller Brown and Dannis

Liebert Cassidy Whitmore Weinberg, Roger & Rosenfeld

In the face of severe budget cuts that threaten the viability of the California Public Employee Relations Program, we have inaugurated “Friends of CPER” as a way to welcome your financial support. Your donation will ensure our ability to focus on public sector labor relations and the critical issues confronting California agencies and workers.

We invite both labor and management — law firms, associations, and individuals — to donate $1,000, $5,000, or more. Your contribution will be publically acknowledged in this new “Friends of CPER” section in the Journal and on our website. Plus, we will announce your programs and conferences in a new “Calendar of Upcoming Events” section. Of course, your gift will help continue the delivery of valuable information and analysis that the public sector labor relations community has come to rely on.

Your tax-deductible donations are accepted online at http://cper.berkeley.edu, or checks made payable to “Friends of CPER” can be mailed to U.C., CPER-IRLE, 2521 Channing Way, Berkeley, CA 94720-5555. 6 cper journal No. 198

It takes time and experience to understand the nuances of labor relations. Here’s a start... Pocket Guide to the Basics of Labor Relations

By Rhonda Albey (2nd edition, 2009)

The 2009 edition of Pocket Guide to the Basics of Labor Relations has even more practical advice on the day-to-day work of labor relations; more guidance on prepar- ing for negotiations; more discussion of the dynamics of the bargaining process; more effective bargaining techniques; more alternatives to traditional bargaining; and more online resources!

It takes time and experience to understand the nuances of labor relations, but here’s a start.

If you are a manager who has just been given an assignment that includes labor relations responsibility, or if you are a newly appointed union representative, you may be feeling a bit overwhelmed. It’s easy to make mistakes, and there’s pressure from both sides! This Pocket Guide will help you get your bearings and survive the initial stages of what can be a difficult, but rewarding, line of work. This book will tell you:  Why we have public employee unions  State laws that regulate labor relations  The language of labor relations  What is in the typical contract  How to negotiate and administer labor agreements  How to handle grievances  What to do in arbitration and unfair practice hearings  How to handle agency shop arrangements  How to cope with extraordinary situations (including downsizing and/or restructur- ing, work actions, and organizing drives).

To order, visit http://cper.berkeley.edu February 2010 c p e r j o u r n a l 7

H1N1 in the Workplace: ‘Go Home’

Steven M. Berliner and Camille Y. Townsend

In March 2009, the H1N1 influenza, or “swine flu,” gained worldwide attention as it spread in Mexico. By April, the first cases were noted in the United States. And by June, widespread outbreaks were observed across the world and H1N1 was classified as an international pandemic.1 According to recent estimates by the Centers for Disease Control and Prevention, nearly 1 in 6 Americans (roughly 15 percent) have been infected by the virus.2 Since last spring, the CDC estimates the virus has caused approximately 10,000 deaths in the United States.3 This number, however, remains inaccurate; many who may be infected do not seek medical Steven M. Berliner is a attention4 and those who do may not be tested specifically for H1N1.5 partner, and Camille Y. Townsend Although H1N1 does not garner the media attention it once did — and an associate, of Liebert Cassidy though the typical “flu season” is behind us — employers and employees still have Whitmore’s Los Angeles office. The questions about how to handle the virus. While reports indicate that the outbreak firm, which maintains offices in Los may have peaked, they also warn of the possibility of a reemergence, both in the United States and abroad.6 There are concerns that H1N1 may resurface in a Angeles, Fresno, and San Francisco, mutated form.7 represents public sector management In other words, we’re not “out of the woods” just yet. The paramount issue in all aspects of labor and employment that employers faced in 2009 will still need to be addressed should the virus law, including labor relations, civil return, namely how to juggle two potentially competing legal requirements: (1) litigation, and education law. providing a safe workplace when an employee is exhibiting flu-like symptoms; and (2) doing so without violating employee rights. Employers tend to have a uniform initial response when dealing with an employee infected with, or exhibiting signs of, H1N1 in the workplace: “Go home.” A crucial legal issue is whether employers may “direct” or “advise” an employee to leave work in those circumstances. Another issue is whether an employer may require an employee to submit to a fitness-for-duty examination when flu-like symptoms are evident. In light of the ever-changing legal and medical 8 c p e r j o u r n a l No. 198

landscape, employees and employers alike are wondering and, by some reports, certain H1N1 strains have proven whether employees stricken with H1N1 qualify for leave resistant.16 Moreover, deaths are alleged to have been caused under the Family and Medical Leave Act or the California by the drug itself.17 Family Rights Act, or whether other leave options are These issues have raised serious concerns among available. employers, employees,18 and even health experts because there is no definitively effective remedy available.19 In Is H1N1 Different Than the Seasonal Flu? response, Congress has begun to explore what legislation it could enact to maintain the nation’s health. Like the seasonal flu, the H1N1 influenza is a virus. It is transmitted person-to-person in the same manner — Proposed Legislation e.g., coughing, sneezing, and contact with contaminated surfaces. Symptoms of H1N1 may include fever, cough, sore In addition to the employers’ exhortion to “go home,” throat, body aches, headache, chills, fatigue, diarrhea, and legislators are working to encourage infected employees vomiting. What is it then that makes to stay home. On November 3, H1N1 different? 2009, United States Representative According to some, the H1N1 Legislators are George Miller (D-CA), chairperson influenza is no more dangerous than of the House Education and Labor the seasonal flu.8 Presumably then working to encourage Committee, and Representative Lynn there is no need to change employee Woolsey (D-CA), chairperson of the leave policies and practices that have infected employees to Workforce Protections Subcommittee, been in place. However, according to proposed emergency temporary CDC Director Thomas Freidan, the stay home. legislation to guarantee up to five H1N1 virus affects different people days of paid sick leave for workers sent differently and is not an equal threat home or directed to stay home by their like the regular seasonal flu.9 For employer for a contagious illness such example, children younger than five, adults ages 18-65, and as the H1N1 influenza virus. pregnant women are highly susceptible.10 Of the 10,000 The legislation, named the Emergency Influenza estimated deaths in the United States, 7,500 were adults Containment Act, went before the full Committee on between the ages of 18-64, many of whom were under age Education and Labor on November 17, 2009.20 Employers 50.11 that already provide at least five days of paid sick leave would be exempt from the act. An employer would be able to end What About Treatment Options? paid sick leave at any time by informing the employee that it believes the employee is well enough to return to work. The In response to the H1N1 outbreak, the CDC and some proposed act covers both full-time and part-time workers health care officials have suggested that a vaccination is the (on a pro-rated basis) in businesses with 15 or more workers. best means of preventing serious illness, hospitalization, and If necessary, and if qualified, an employee may continue death.12 Antiviral drugs, such as Tamiflu, are also available. paid leave under other existing sick policies, or unpaid leave Tamiflu, alleged to be one of the most effective treatments under the FMLA. The act also proposes a non-retaliation for combating H1N1, is supposed to shorten the duration policy — employees who follow their employer’s direction of the flu and avoid possible complications associated with to stay home because of a contagious illness cannot be fired, the H1N1 influenza.13 On the other hand, these antivirals disciplined, or made subject to retaliation for following those are not free from criticism. Tamiflu, for example, a fairly directions. Finally, the law would take effect 15 days after new drug,14 has not been tested for long periods of time,15 being signed into law and sunset after two years. February 2010 c p e r j o u r n a l 9

In its current form, the proposed legislation leaves a reasonable belief, based on objective evidence, that (1) an several questions unanswered. For example, it does not employee’s ability to perform essential job functions will be specifically address the appropriate pay status of employees impaired by a medical condition; or (2) an employee will who have the H1N1 virus and who accrue five or more days pose a “direct threat” due to a medical condition. A “direct of paid sick leave a year, but who have already exhausted threat” is defined as a significant risk of substantial harm to their accrued sick leave for other illnesses. If the employer the health or safety of the employee or others that cannot provides five days of sick leave a year, it would be exempt be eliminated or reduced by reasonable accommodation.22 from the act. Presumably, therefore, the employee would Whether an employee poses a direct threat must be not be entitled to receive an additional five days of paid sick assessed and based on objective, factual information, “not leave. The act also does not provide guidance as to whether on subjective perceptions or irrational fears.” 23 employers may subject an employee to a fitness-for-duty According to recent guidance published by the EEOC, examination or whether infected employees can qualify whether pandemic influenza rises to the level of a direct for FMLA or CFRA leave. Nor does it address how or threat depends on its severity.24 In other words, the fact that whether the act’s leave provisions run H1N1 has been described as pandemic simultaneously with other state and (i.e. widespread) is not sufficient in federal leave provisions. To date, the and of itself. act has not advanced very far in the The ADA applies Under California’s Labor Code,25 legislative process. employers have a duty to provide a at all times, “safe workplace” for their employees. The Americans with Disability Act Given the contagious nature and and California Fair Employment including during potentially serious health effects of and Housing Act H1N1 influenza, the CDC, EEOC, and a pandemic. Department of Homeland Security all The Americans with Disability Act recommend sending employees home is significant to the H1N1 dialogue in at when they are sick and/or exhibiting least three ways: (1) the ADA regulates flu-like symptoms.26 According to disability-related inquiries and medical examinations for all the EEOC, advising an employee to go home under these applicants and employees; (2) the ADA prohibits employers circumstances is not a disability-related action.27 Rather, in from excluding employees from work for health and/or light of these recommendations, an employer should consult safety reasons unless certain criteria are met; and (3) the with a healthcare professional to determine whether the ADA requires reasonable accommodation for individuals employee’s illness poses a direct threat. with disabilities (absent undue hardship to the employer).21 What About the FMLA and CFRA? The ADA applies at all times including during a pandemic. Under the Family and Medical Leave Act and California Under the ADA and the California Fair Employment Family Rights Act, covered employers must provide and Housing Act, which mimics the ADA regarding employees up to 12 weeks of job-protected, unpaid leave disability-related matters in many respects, an employer during a 12-month period for specified family and medical may require an employee to undergo a medical examination reasons. Employees are eligible to take leave under the (and/or inquiry) if it is job-related and consistent with FMLA and CFRA if they have worked for their employer business necessity. Under Equal Employment Opportunity for at least 12 months for at least 1,250 hours and if the Commission regulations, a medical examination of a employee works at a location where the employer employs current employee meets this standard if the employer has at least 50 employees within 75 miles of that site.28 The 10 c p e r j o u r n a l No. 198

purpose of these acts is to allow eligible employees to take a 1 Jones, Nancy Lee, The Americans with Disability Act (ADA): job-protected leave when they are unable to work because of Employment Issues and the 2009 Influenza Pandemic, Congressional a serious health condition, to care for an immediate family Research Service (October 15, 2009). 2 See, , dated December 14, 2009. http”// member (spouse, child, or parent) with a serious health H1N1 by the Numbers www.flu.gov/news/blogs/bythenumbers.html (last visited on condition, or to handle the birth or adoption of a child or December 15, 2009). foster care placement of a child. 3 Id. It is possible that H1N1 infection may qualify as a 4 Centers for Disease Control and Prevention, CDC Estimates of “serious health condition” triggering either leave. The 2009 H1N1 Influenza Cases, Hospitalizations and Deaths in the United analysis will be based on factors such as the seriousness of States, April – November 14, 2009, (December 10, 2009) http://www. the flu, whether complications arise, and other individual cdc.gov/h1n1flu/estimates_2009_h1n1.htm (last visited January health concerns. At this time, the flu, absent complications, 12, 2010). does not qualify as a “serious health condition.”29 Employers 5 Id. 6 See CBC News, r should review and follow their family medical leave policies H1N1 ‘not done yet’: Canada’s top docto (December 15, 2009); Craig, Jolene, More H1N1 clinics on tap — after ensuring that their policies have been updated to (January 5, 2010) http://www.newsandsentinel.com/page/content. reflect the revised FMLA regulations published in 2008. detail/id/525291.html?nav=5061 (last visited January 9, 2010). 7 See Trafton, Anne, MIT, CDC find H1N1 flu virus ill-suited Conclusion for rapid transmission. But researchers say new strain bears watching, could mutate (July 2, 2009) http://web.mit.edu/newsoffice/2009/ The threat of H1N1 appears to have abated for now. h1n1-0702.html (last visited January 9, 2010). Certainly the widespread media coverage of the illness has 8 Kaplan, Karen and Zarembo, Alan, Scientists See this Flu Strain diminished. Nonetheless, a great number of questions still As Relatively Mild, Los Angeles Times (April 30, 2009) http:// www.latimes.com/news/nation-and-world/la-sci-swine-reality30- are unanswered, and they will remain pertinent in flu seasons 2009apr30,0,731404.story (last visited January 9, 2010). to come. Employers should use this lull in H1N1 cases to 9 See H1N1 by the Numbers, dated December 14, 2009. http”// prepare for a possible increase in the future. ❋ www.flu.gov/news/blogs/bythenumbers.html (last visited on December 15, 2009). 10 Centers for Disease Control and Prevention, What To Do If You Get Sick: 2009 H1N1 and Seasonal Flu (November 10, 2009) http://www.cdc.gov/h1n1/sick.hym (last visited November 11, 2009). 11 See H1N1 by the Numbers, dated December 14, 2009. http”// www.flu.gov/news/blogs/bythenumbers.html (last visited on December 15, 2009). 12 Centers for Disease Control and Prevention, 2009 H1N1 Vaccine (not dated) http://www.cdc.gov/h1n1flu/vaccination/ (last visited on January 9, 2010). 13 Centers for Disease Control and Prevention, Questions & Answers: Antiviral Drugs, 2009-2010 Flu Season (November 17, 2009) http://www.cdc.gov/H1N1flu/antiviral.htm (last visited January 9, 2010). 14 CBS News, Experts Question Effectiveness of Tamiflu (December 8, 2009) http://www.cbsnews.com/stories/2009/12/08/health/ main5939496.shtml (last visited January 9, 2010). 15 Id. February 2010 c p e r j o u r n a l 11

16 Randall, Tom, Tamiflu-Resistant Strain Found in Three World 22 29 CFR Sec. 1630.2(r). Regions (Update 3) (July 9, 2009) http://www.bloomberg.com/apps/ 23 Id. news?pid=20601124&sid=axkEygwqBVsI (last visited January 9, 24 U.S. Equal Employment Opportunity Commission, Pandemic 2010). Preparedness in the Workplace and the Americans with Disabilities Act 17 Times online, Japan issues Tamiflu warning after child deaths, (not dated) http://eeoc.gov/fact/pandemic_flu.html (last visited Times Online (March 21, 2009) http://www.timesonline.co.uk/ November 5, 2009). tol/news/world/asia/article1549260.ece (last visited January 3, 25 Sections 6403, 6404. 2010). 26 U.S. Equal Employment Opportunity Commission, Pandemic 18 See Hennessy-Fiske, Molly, Nannies who get flu shots may Preparedness in the Workplace and the Americans with Disabilities have an edge in the job market, Los Angeles Times (January 3, Act (not dated) http://eeoc.gov/fact/pandemic_flu.html (last 2010) http://www.latimes.com/news/local/la-me-nanny-flu3- visited November 5, 2009); Centers for Disease Control and 2010jan03,0,3027295.story (last visited January 3, 2010). Prevention, What to Do If You Get Sick: 2009 H1N1 and Seasonal 19 CBS News, Experts Question Effectiveness of Tamiflu (December Flu (November 10, 2009) http://www.cdc.gov/h1n1/sick.hym (last 8, 2009) http://www.cbsnews.com/stories/2009/12/08/health/ visited November 11, 2009); Department of Homeland Security, main5939496.shtml (last visited January 9, 2010). Federal Guidelines Encourage Employers to Plan Now for Upcoming 20 On November 17, 2009 a hearing was held regarding the Influenza Season (August 19, 2009) http://www.dhs.gov/ynews/ ramification of the Emergency Sick Leave Bill, if passed. Full releases/pr_1250698238233.shtm (last visited January 9, 2010). Committee Hearing (November 17, 2009) Protecting Employees, 27 U.S. Equal Employment Opportunity Commission, Pandemic Employers and the Public: H1N1 and Sick Leave Policies, available Preparedness in the Workplace and the Americans with Disabilities Act at http://edlabor.house.gov/hearings/2009/11/protecting-employees- (not dated) http://eeoc.gov/fact/pandemic_flu.html (last visited employers.shtml (last visited January 3, 2010). November 5, 2009). 21 U.S. Equal Employment Opportunity Commission, Pandemic 28 29 CFR Sec. 825.110(a). Preparedness in the Workplace and the Americans with Disabilities Act 29 29 CFR Sec. 825.113(d). (not dated) http://eeoc.gov/fact/pandemic_flu.html (last visited November 5, 2009). 12 cper journal No. 198 February 2010 c p e r j o u r n a l 13

Mission Impossible: Requesting Injunctive Relief From PERB

Sarah Sandford-Smith

What does it take to get the Public Employment Relations Board to seek injunctive relief on behalf of a charging party? That is the million-dollar ques- tion. The issue first came to my attention three years ago, when, on behalf of a union, I filed a request seeking injunctive relief to prevent a school district from opening and closing school sites without first bargaining the issue. My request was denied. However, as it turns out, I am in good company. In the past two years, for example, with the implementation of furloughs and layoffs, public employee unions have requested that PERB step in to enjoin Sarah Sandford-Smith is an employers from cutting back on the workforce. And conversely, employers have associate in the Oakland office of appealed to PERB, asking it to prevent unions from engaging in strikes or work- Beeson, Tayer & Bodine, a law firm stoppages. However, during the 2008-09 fiscal year, PERB sought injunctive 1 specializing in the areas of labor and relief on behalf of a charging party just once — out of a total of 19 requests. While not explicitly stated by PERB, what constitutes sufficient harm for the employment, collectively bargained board to seek injunctive relief on behalf of a charging party can be gleaned from employee benefit plans and trusts, fa- the requests it has granted. cilitation and mediation, and educa- tion law. Sandford-Smith represents Filing an Injunctive Relief Request public and private sector unions and PERB will seek injunctive relief in superior court on behalf of a charging individual employees. party if it determines (1) there is “reasonable cause” to believe that an unfair practice has, or may be, committed; and (2) injunctive relief is “just and proper.”2 There are any number of potential unfair practices that may be alleged, and PERB generally does not deny a request for injunctive relief on that basis only. More often, PERB focuses its attention on whether injunctive relief would be “just and proper” given the factual allegations in each case. 14 c p e r j o u r n a l No. 198

Demonstrating Irreparable Harm Sufficient for of interference that caused PERB to seek relief on behalf of PERB to Seek Injunctive Relief the charging parties included the employer’s suspension of the lead union supporter during an election, the restriction When deciding whether injunctive relief is “just and of his access to the worksite, and an order that the union proper,” PERB looks at whether the purposes of the perti- supporter not speak with colleagues.12 In two other cases in nent labor relations statute would be frustrated or whether which unions sought injunctions, charges were filed based either a final order issued by PERB or PERB’s administrative on two community college districts’ persistent recognition procedures would be rendered meaningless absent injunctive of two separate unions (California Teachers’ Association relief.3 Integral to PERB’s analysis of the “just and proper” and College of the Canyons Faculty Association) during prong is whether the requesting party would suffer irrepa- an organizing drive, thereby nullifying a separate union’s rable harm of the type intended to be protected without (American Federation of Teachers) efforts to organize the injunctive relief by the relevant labor part-time faculty.13 In a fourth case, relations statute.4 PERB enjoined an employer to “stop At the end of each fiscal year, PERB is less likely alleged interference with an organizing PERB issues annual reports summariz- campaign.”14 ing, among other things, the requests to grant a request by In addition to the allegations of in- for injunctive relief that were sought terference with organizing campaigns, and the action taken on each.5 Between an individual, as PERB granted a request for injunctive 2000 and the end of the 2008-09 fiscal relief in a matter that would otherwise year, parties filed approximately 147 opposed to a union have threatened its jurisdiction under 6 injunctive relief requests. Of these, or employer, and the Educational Employment Rela- PERB granted nine and indicated it tions Act. In East Oakland Community would grant one other.7 The remain- slightly more likely Charter Teachers Assn. v. Education for ing requests were either withdrawn Change,15 PERB sought injunctive relief (46) or denied (91). Following is a to grant a request by on behalf of the union where the charter summary of the nine decisions issued school intended to hold a secret ballot since 2000 in which PERB granted an employer as com- election based on an erroneous theory injunctive relief requests. that it was a private employer.16 Charges filed by employer. In pared to a union. Charge filed by employees of the Regents of the University of California union. The ninth request granted was v. AFSCME Loc. 3299,8 PERB granted to enjoin a union from suspending its the university’s request for injunctive employees from their elected offices.17 relief to require the union to give the exact dates for its In addition to the injunctive relief requests set forth service unit strike, and to define and enjoin the “essential above, PERB reserved the authority to make a decision employees” of the patient care technical unit from honoring granting a union’s request for relief where the allegation was the service unit strike. that the County of Sacramento violated the Meyers-Milias- In addition to this case, on two other occasions since Brown Act by interfering with and dominating the union’s 2000, PERB has granted employers’ requests for injunctive ability to conduct business.18 In reserving its authority, the relief to enjoin health care workers from striking.9 In both board directed its staff to expedite the processing of the cases, the health care workers had direct patient contact.10 underlying unfair labor practice charge.19 Charges filed by union.Of the nine requests for injunc- Of the 147 requests for injunctive relief, union requests tive relief granted by PERB, four were to stop employers constitute approximately 71 percent, while requests by from interfering with union organizing campaigns.11 Types employers make up approximately 14 percent. Requests by February 2010 c p e r j o u r n a l 15

how to file a request for injunctive relief with perb

While filing an unfair labor before, or in conjunction with, its request and the respondent, to the general counsel practice charge can now be done for injunctive relief. at PERB’s headquarters in Sacramento. with a few clicks of the mouse, filing • Include in the request for injunc- A board agent will investigate the a request for injunctive relief is more tive relief: (1) the reason(s) why the charg- charges set forth in the request for injunc- involved. PERB maintains a guide ing party believes an unfair labor practice tive relief and accompanying documents, for parties on its website, http://www. has been committed and why injunctive and make a recommendation to the general perb.ca.gov. Below is a brief summary relief is “just and proper”; and (2) declara- counsel. The general counsel will submit of the steps a charging party must tions supporting (1). a recommendation to the PERB board follow to seek an injunction: • Provide an original and six cop- within 120 hours after the request is filed • Provide at least 24 hours ies of: (1) the unfair labor practice charge; (except in the situation of a lockout or notice that injunctive relief is being (2) the request for injunctive relief; (3) the work stoppage, in which case the general sought to PERB’s general counsel supporting declarations; (4) proof of service counsel would submit a recommendation and the party against whom injunctive of the injunctive relief request on the re- within 24 hours). The board makes the relief is sought. spondent; and (5) an affidavit setting forth final determination regarding the request • File an unfair labor practice the time and manner in which the 24-hour for injunctive relief. charge with the regional office either notice was provided to the general counsel

individuals account for the remaining 15 percent. However, PERB’s definition of irreparable harm is not always of the nine times PERB granted the request for injunctive transparent. On many occasions, PERB has denied requests relief, five (approximately 55 percent) were requested by the to seek injunctive relief where, on the face of the allegations, union, three (approximately 33 percent) by the employer, irreparable harm seems evident. For example, PERB has and one (approximately 11 percent) by an individual. Based denied requests in the following instances: to prevent public on these numbers, PERB is less likely to grant a request for employers from implementing layoffs without bargaining ei- injunctive relief filed by an individual, as opposed to a union ther the decision or the effects;24 from unilaterally reducing or employer, and slightly more likely to grant a request filed employees’ wages;25 and from unilaterally increasing health by an employer as compared to a union. care premiums.26 In some of these situations, the employees’ PERB provides limited information on its website lost wages had a permanent effect on their retirement allot- regarding the type and number of requests for injunc- ment or impeded their ability to maintain health coverage. tive relief that were made prior to 2000. However, earlier However, PERB has not deemed such harm sufficient to PERB decisions on such requests demonstrate that the meet its “just and proper” prong. agency sought injunctive relief for the following: to stop a From these examples, it should be readily apparent teachers strike that was causing a “complete breakdown” that PERB rarely seeks injunctive relief on behalf of a of the education system;20 to halt a union’s work stoppage requesting party. Further, PERB has provided very little before the parties had completed the statutory impasse guidance as to what constitutes sufficient irreparable harm procedures;21 to require the teachers union to give notice to inspire it to seek injunctive relief. However, based on prior to striking;22 and, to enjoin teachers from engaging decisions in which PERB has granted such relief, it can be in a work stoppage while enjoining the school district from gleaned that a union will satisfy the irreparable harm aspect disciplining those teachers who had previously engaged in of PERB’s “just and proper” prong by alleging that conduct a work stoppage.23 on the employer’s part which impedes the union’s ability to 16 c p e r j o u r n a l No. 198

organize destabilizes the negotiation process.27 Conversely, PERB Dec. No. IR-437; Union of American Physicians & Dentists an employer likely will satisfy PERB’s “just and proper” v. County of San Joaquin (2001) PERB Dec. No. IR-55-M. prong by alleging that the union has engaged in, or plans 12 Union of American Physicians & Dentists v. County of San Joaquin (2001) PERB Dec. No. IR-55-M. to engage in, a work stoppage with a potentially disastrous 13 These were the bases for two injunctive relief requests. Part- effect on the larger community it serves, especially patients Time Faculty United, AFT v. Santa Clarita Community College Dist. ❋ or students. (2002) PERB Dec. No. IR-430; Part-Time Faculty United, AFT v. Victor Valley Community College Dist. (2002) PERB Dec. No. IR- 437. 14 Society of Professional Engineers v. U.C. Regents (2007) PERB Dec. No. IR-518. 15 (2006) Dec. No. IR-506. 1 In its annual report, PERB provides information pertaining 16 East Oakland Community Charter Teachers Assn. v. Education to the requests for injunctive relief that are filed each fiscal year. for Change (2006) PERB Dec. No. IR-506. The reports, dating back from the 2000-01 fiscal year, can be found 17 Hard, Hackett, Perkins and Carranza v. California State Em- on PERB’s website: http://www.perb.ca.gov/about/annual_reports. ployees Assn. (2002) PERB Dec. No. IR-440. asp. 18 Sacramento County Deputy Sheriffs Assn. v. County of Sacramento 2 County of San Joaquin (Health Care Services) (2001) PERB Dec. (2007) PERB Dec. No. IR-526. No. IR-55-M. 19 Id. 3 Public Employment Relations Bd. v. Modesto City Schools Dist. 20 Compton Unified School Dist. (1987) PERB Dec. No. IR-50. (1982) 136 Cal.App.3d 881; County of San Joaquin (Health Care 21 San Mateo City School Dist. (1985) PERB Dec. No. IR-48. Services) (2001) PERB Dec. No. IR-55-M. 22 San Ramon Valley Unified School Dist. (1984) PERB Dec. No. 4 Modesto City Schools, supra, 136 Cal.App.3d at 902-904. IR-46. 5 See PERB’s website at: http://www.perb.ca.gov/about/an- 23 Val Verde School Dist. (1979) PERB Dec. No. IR-9. nual_reports.asp. 24 California School Employees Assn. (2000) PERB Dec. No. IR- 6 The requests for injunctive relief that were consolidated have 415; Health Services Agency Physician Assn. (2003) PERB Dec. No. not been separated for the purpose of this analysis. IR-457; International Union of Operating Engineers (2004) PERB 7 See PERB’s website at: http://www.perb.ca.gov/about/an- Dec. No. IR-466. nual_reports.asp. 25 United Food Commercial Workers 588 (2002) PERB Dec. No. 8 (2008) Dec. No. IR-553. IR-448. 9 Regents of the University of California v. California Nurses Assn. 26 Marysville Unified Teachers Assn. (1978) PERB Dec. No. IR-6; (2005) PERB Dec. No. IR-487; Regents of the University of California Coalition of University Employees (2006) PERB Dec. No. IR-495. v. AFSCME Loc. 3299 (2008) PERB Dec. No. IR-548. PERB Dec. Nos. IR-496 and IR-497 are based on the same set of 10 Id. facts, but separate charges were filed by two different Unions. 11 Society of Professional Engineers v. U.C. Regents (2007) PERB 27 Eureka Teachers Assn. (1980) PERB Dec. No. IR-14; San Ysidro Dec. No. IR-518; Part-Time Faculty United, AFT v. Santa Clarita School Dist. (1978) PERB Dec. No. IR-4. Community College Dist. (2002) PERB Dec. No. IR-430; Part-Time Faculty United, AFT v. Victor Valley Community College Dist. (2002) February 2010 c p e r j o u r n a l 17

MARK YOUR CALENDAR

March 24-26 Pre-conference sessions March 23

Disney’s Paradise Pier Hotel, Anaheim, CA

The 21st Annual Center for Collaborative Solutions Labor-Management Conference

“Boundless Opportunities in Changing Times”

Challenging times call for smart labor relation! You will come away from this conference with your batteries charged and with many new ideas for improving your effectiveness as a labor relations professional. In fact, consider bringing your whole team — what better way to build stronger relationships that can help you survive the current economic crisis.

This premiere West Coast Event is cosponsored by cper along with: • California State Mediation and Conciliation Service (CSMCS) • Federal Mediation and Conciliation Service (FMCS) • Public Employment Relations Board (PERB) • Agricultural Labor Relations Board (ALRB) • American Arbitration Asociation (AAA)

For more details, visit http://www.labormanagementsolutions.org 18 cper journal No. 198

Recent Developments

Public Schools ing, mathematics, or career technical education. The bill also requires the governor, the superintendent and the state board, in collaboration with participating local districts, to develop California a Contender in ‘Race to the Top’ plans to submit as part of the state’s application for the funds. It mandates the superintendent and the state board Over the objection of teachers implement alternative governance ar- to establish a list of low-achieving and unions and other critics, California rangements for up to 75 failing schools persistently low-achieving schools. has submitted an application to the where at least one-half of the parents They must implement one of four federal government in a bid to get a or legal guardians have signed a peti- share of the $4.3 billion in “Race to tion requesting such action. the Top” funds. Governor Arnold SBX5 1, authored by Senate Pro To increase the state’s Schwarzenegger has said that the state Tem Darrell Steinberg (D-Sacramen- chances of winning could be eligible for up to $1 billion to), authorizes the state superintendent for its schools. and the state board of education, the legislature passed Under the program, states com- along with local districts, to develop pete for federal funding aimed at standards and take other actions to several bills. encouraging public schools to institute bring California into conformance a number of reforms designed to im- with the Race to the Top requirements intervention options for turning the prove teacher effectiveness, enhance and regulations, and to ensure that it persistently low-achieving schools academic standards and student test- is positioned to be successful in the around: close the school, convert it to ing, and more effectively use data to competition. Among other things, a charter school, replace the principal drive change and accountability. The the bill authorizes changes to the and up to 50 percent of staff, or replace participating states submit education state’s data collection system to allow the principal and implement a number action plans to the federal Depart- pupil achievement scores to be used to of other changes, including enhanced ment of Education. Only seven to ten evaluate teachers and administrators staff training and financial incentives states are expected to be selected for and to make employment decisions, for top teachers. the funds, which will be paid out over but only if the practice complies with State educator unions fought four years. local collective bargaining agree- a losing battle to defeat the legisla- In order to increase the state’s ments. SBX5 1 also permits the state tion. Both the California Teachers chances of being one of the contest superintendent and the president of Association and the California Fed- winners, the legislature passed several the state board of education to enter eration of Teachers have long opposed bills signed into law by the governor. into memorandums of understand- performance-based pay and strongly SBX5 4, introduced by Sen. Gloria ing with local school districts for the supported previous legislation, now Romero (D-Los Angeles), authorizes purpose of implementing the Race to extinct, that created a firewall between parents of students enrolled in one of the Top regulations. It establishes an student performance data and teachers’ the state’s 1,000 low-achieving schools alternative credentialing program for assessments. CTA argues that linking to apply for a transfer to another dis- working experts and others seeking to teacher pay to student test scores pun- trict. It also requires local districts to teach science, technology, engineer- ishes those educators who work with February 2 0 10 cper journal 19

students who have learning disabilities Romero’s bill, because it would have no unanticipated state mandates and or are English-learners. According tightened oversight measures for char- no lingering expenses after four years to CFT President Marty Hittelman, ter schools. EdVoice has announced its when the payments are scheduled to research has shown that attempting to support for Romero in her bid to be stop. They said that districts would improve student performance by link- state superintendent of education. not be obligated to participate if the ing it to teacher evaluation procedures The California School Boards amount of money they would receive has proven to be ineffective. Association and Association of Cali- was overshadowed by the difficulty in The unions also were critical of fornia Administrators also opposed using it, noting that they could with- the legislation because they believe the legislation. Critics called the bills draw without penalty within 90 days it encourages the growth of charter too sweeping, too risky, too divisive, after the state is notified of its award. schools as a means of “fixing” low- and too hastily written. They point And, they could pull out even after that out that even if California is awarded Awarded funds will $1 billion in Race to the Top funds, it will represent less than 2 percent of State officials promised represent less than 2 the state’s budget for education, and there would be percent of the state’s argue that implementing fundamental changes in policy for so little gain does no unanticipated budget for education. not make sense. After enactment of the legislation, state mandates. the next step in the application process performing schools. Charter schools was to get local districts and unions to generally do not employ union teach- time so long as they made a good-faith sign MOUs indicating that they would ers. The unions’ mistrust in this effort to comply, by, for instance, at- be participating in Race to the Top. regard is understandable. Substantial tempting to renegotiate teacher con- While local unions are not required to support for the measures came from tracts to permit the use of test scores sign the MOUs in order for the state a well-funded organization called to evaluate performance. to apply for the funds, their agreement EdVoice, co-founded by Eli Broad, CTA strongly encouraged local is encouraged. The application specifi- a billionaire Los Angeles developer, unions to resist signing the MOUs. cally asks how many teachers unions and Don Fisher, the late founder of President David Sanchez sent an support the changes. the Gap. EdVoice is a school reform email to all the locals one day before State officials urged local districts lobbying group with strong ties to the the deadline for commitments, urging and unions to sign, fearing that lack of charter school movement. EdVoice them not to sign because the full details participation would doom the state’s boardPocket members Guidehave contributed to over of the state’s plan were unknown. “It’s chances of receiving funds. Deputy $1 million to Governor Schwarzeneg- crazy for them to think that we were K-12 CertificatedState Superintendent Rick Miller and ger’s various campaign committees. going to go out on a limb and sign Undersecretary of Education Kathryn The governor has long championed something without knowing what the Employee Radtkey-Gaither, in a conference call charter schools, and the number has final product is going to look like,” with superintendents throughout the moreClassification than doubled since he took of- he said. state, argued that districts had little fice. Schwarzenegger threatened to In the end, 813 of the state’s 1,800 to lose and much to gain by signing vetoand the Assembly’s Dismissal Race to the Top districts, offices of education, and on. They promised there would be plan, passed as an alternative to Gloria charter schools signed on, comprising 20 cper journal No. 198

over 56 percent of the state’s 10,500 decisions announced in September. fect in those schools controlled by the schools. Those participating repre- And, if California is not among the mayor, but most charter schools are sent 61 percent of students in poverty. chosen, there is still hope. President non-union. Nine of the ten largest districts elected Obama has asked Congress to autho- After passage of the resolution, to participate, with only San Diego rize another $1.3 billion just for school UTLA filed a lawsuit against the declining. However, only 122 local districts. The purpose is to allow indi- district, alleging, in part, that the unions signed on. vidual districts to make a plea for fund- plan violates Education Code Sec. California will learn whether it ing in states that decided not to apply 47605(a)(2). That section states that is one of the first round of winners for the funds or whose applications a public school charter conversion in April. It can then resubmit for a failed to make the grade. ] can be accomplished only if a peti- second round of money in June, with Unions see the plan as a threat to The Gloves Are Off: L.A. Teachers vs. Charter Schools vs. the Mayor organized labor.

The Los Angeles Unified School reform plan, seeing it as a threat to tion is signed by 50 percent of the District has really done it this time. A organized labor. A representative for permanent-status teachers at the highly controversial measure passed by Teamsters Local 572, which negotiates school targeted for conversion. “We the school board in the name of school for about 3,500 district employees, support positive school change, driven reform last summer set the stage for including plant and cafeteria managers, by teachers, parents, and other stake- pitched battles that have broken out spoke against the measure at a board holders at the school sites, but we will between unions, charter school com- hearing, accusing the board of making stand up against violations of the law panies, Los Angeles Mayor Antonio “a ‘yes’ vote on choice into a ‘no’ vote and our members’ rights,” said Duffy. Villaraigosa, and community groups on labor.” “Effective school reform can’t begin this winter. In a letter to the board, seven by breaking the law.” The lawsuit is Last August, the school board, by unions, including the Associated Ad- still pending. a vote of six to one, passed a resolution ministrators of Los Angeles, called The board began to implement introduced by Member Yolie Flores the proposal “an insult to these chil- its resolution last fall, when it put 12 Aguilar that allows charter schools, dren and their families to outsource struggling schools and 18 campuses that nonprofit groups, and collaborative education to charters and other private are scheduled to open next fall on the teams of teachers to compete to take entities.” United Teachers Los Ange- auction block. On the day that “letters over 250 schools, including 50 new les President A.J. Duffy accused the of intent” for reform plans by outside multimillion-dollar campuses. Superin- mayor of being behind the proposal, groups were due, there were two duel- tendent Ramon C. Cortines will present as a way of getting more schools under ing news conferences, one called by recommendations to the board, which his control. Mayor Villaraigosa’s non- UTLA and the other by the mayor. will make the final decision. profit, Partnership for Los Angeles Bids on the 30 schools were made Unions representing school em- Schools, already controls 11 schools by 85 applicants. Charter schools ployees strongly opposed the measure, under an agreement with the district. mostly went after the new campuses, known as the Public School Choice Union contracts have remained in ef- while groups of teachers applied to run February 2 0 10 cper journal 21

their own schools. The teachers, with irregularities occurring at every voting ployees are eligible to vote twice under backing from the union, and, in some station it would appear that the vote the posted procedures. “We are fol- cases, school administrators, argue that process has been tainted, calling into lowing all the rules and guidelines,” they are in the best position to know question the veracity of the votes in he said. what reforms are needed. Partnership general,” Jed Wallace, president of the The results of the vote will be for Los Angeles Schools put in bids on California Charter Association, wrote included in Cortines’ report when he one high school, one middle school, in a letter to Superintendent Cortines. makes his recommendation to the school and two elementary schools. UTLA President Duffy defended board at the end of this month. ] As part of its reform plan, the the teachers, noting that school em- board called for an advisory vote earlier this month, to allow parents, teachers, and community members High Court to Decide if Grant of Charter to help pick operators for the selected School Petition Can Be Arbitrated schools. The bidders made their case to parents and the community at public The California Supreme Court has meetings prior to the vote. Teachers UTLA sought to compel arbitra- agreed to decide whether a school canvassed neighborhoods around their tion under the terms of its collective district can be required to arbitrate school for weeks. bargaining agreement with the district. disputes over the district’s approval The district paid the League of The union alleged that the district of a charter school petition under the Women Voters $50,000 to run the violated the contract by not presenting terms of a collective bargaining agree- elections. Voting guidelines were ex- the complete charter to employees; ment. In United Teachers Los Angeles v. tremely broad. Teachers were allowed denying the union, affected employees, Los Angeles Unified School Dist., the dis- to vote twice, once as an employee, and and the community enough time to trict argued that Education Code Sec. once as a community member. There review the proposed charter; and fail- 47611.5(e) precludes it from referring were no age restrictions. Parents and ing to clearly disclose the conditions such a dispute to arbitration. members of the community were al- of employment within the charter The Second District Court of Ap- lowed to vote. school. peal disagreed, holding that the parties Anecdotal reports of the voting The district refused to arbitrate had a valid agreement to arbitrate, and indicated that many teachers did vote the controversy, and the union filed that the district’s statutory defense twice and that many students, includ- a petition to compel arbitration. The must be resolved by the arbitrator, not ing elementary students, voted. Teach- district opposed the petition, argu- the court. The district filed a petition ers were accused by charter groups and ing that the union had no standing for review, which the Supreme Court the mayor’s organization of entering to challenge the alleged violations of granted last month. polling places and guiding parents’ the agreement. And, it charged, the contract provisions alleged to have votes, and of using “scare tactics.” Background One group alleged that teachers took been violated were either preempted Green Dot Public Schools filed a advantage of Latino parents unused to or invalidated by Sec. 47611.5(e). That charter petition with the district, seek- the voting process. section provides that the approval of ing to convert a public high school to Charter school operators urged a charter school petition shall not be a charter school. The education board LAUSD to give up on the idea of having controlled by a collective bargaining granted the petition. an advisory vote altogether. “Given the agreement nor be subject to review or 22 cper journal No. 198

regulation by the Public Employment agreement to arbitrate is seeking to contrary the court said, the merits Relations Board. The district also enforce the arbitration clause against of a dispute, including the effect of argued that the collective bargaining another signatory.” The court also Sec. 47611.5(e), “must be resolved in agreement is invalid because it imposes referenced Gov. Code Sec. 3543.8, a the first instance by the arbitrator.” procedural steps on the district beyond part of the Educational Employment “At this stage, our determination…is those required by Sec. 47605. Relations Act, which gives an employee limited to whether there was a valid The trial court denied the union’s organization standing to sue on behalf agreement to arbitrate.” Arbitrators petition, and the union appealed. of its members. Citing a long line of are authorized to resolve statutory cases, the court concluded that UTLA claims, including statutory defenses, Court of Appeal Decision has standing to compel arbitration. instructed the court, including the The court rejected the district’s As for the merits, the court con- district’s Sec. 47611.5(e) defense. argument that the union lacked stand- cluded that the trial court should The Court of Appeal pointed to ing to pursue the grievance because have granted the petition to compel California Correctional Peace Officers neither the school operator nor the arbitration. Assn. v. State of California (2006) 142 charter school employees were parties The district argued that the pro- Cal.App.4th 198, 180 CPER 28, in to the collective bargaining agreement. visions of the contract alleged to support of its position. There, man- But, the court said, the union and the have been violated are preempted agement refused to participate in district are parties to the agreement or invalidated by Sec. 47611.5(e), negotiations involving supervisors and they are in a dispute about its and, therefore, the dispute cannot with rank-and-file members present. It provisions. Here, “one party to an be reviewed by an arbitrator. To the resisted the union’s petition to compel

Education is the ability to listen to almost anything without cper losing your temper or your self-confidence. -- Robert Frost.poet

This edition — packed with five years of new legal developments — covers reinstatement of the doctrine of equi- table tolling, PERB’s return to its pre-Lake Elsinore arbitration deferral policy, clarification of the rules regarding the establishment of a prima facie case, and an updated chapter on pertinent case law.

In one concise Pocket Guide are all the major decisions of the Public Employment Relations Board and the courts that interpret and apply the law. Plus, the Guide includes the history and complete text of the act, and a summary of PERB regulations. Arranged by topic, the EERA Pocket Guide covers arbitration of grievances, discrimination, scope of bargaining, protected activity, strikes and job actions, unilateral action, and more. Pocket Guide to the

Educational Employment Relations Act By Bonnie Bogue, Carol Vendrillo, Dave Bowen and Eric Borgerson • 7th edition (2006) • $15 http://cper.berkeley.edu February 2 0 10 cper journal 23

arbitration based on Gov. Code Sec. did not hold that the statutory defense court, the arbitrator may decide that 3529(e), a provision of the Dills Act, was not subject to arbitration in the the district did not violate the contract, which expressly precludes supervisors first instance. in which case there would be no reason from participating in meet-and-confer If the arbitrator finds that the to bring the preemption issue to the sessions with rank-and-file employees district violated the contract, the court court. (United Teachers Los Angeles v. and vice-versa. The appellate court explained, it can challenge the award in Los Angeles Unified School Dist. [2009] in California Correctional Peace Officers the trial court based on its defense that 177 Cal.App.4th 863, modified 10-16- Assn. granted the union’s petition to Sec. 47611.5(e) preempts the union’s 09 [S177403/B214119, review granted arbitrate and commented, “Reduced grievance rights. By contrast, said the 12-24-09.]) ] to its essence, the Department’s claim is that it should be permitted to avoid arbitration because the Union’s posi- tion is barred by section 3529 — in Change Is Coming to ‘No Child Left Behind’; other words, that the Union’s claim, Some Say Long Overdue as a matter of law, has no merit.” Cali- The Obama administration is planning fornia Correctional Peace Officers Assn. the term. Benchmarks will delineate confirmed that “courts [are forbid- to ask Congress to make major changes what students need to learn in earlier den] from denying arbitration on the to the unpopular No Child Left Be- grades to meet that goal. ground that the petitioner’s claim is hind Act, President Bush’s education Likely to be eliminated is the meritless.” law enacted in 2001. Administration current school rating system based on The court rejected the district’s as- officials said that the proposed changes students’ “adequate yearly progress” would address those provisions that sertion that Board of Education v. Round teachers unions, associations of prin- Valley Teachers Assn. (1996) 13 Cal.4th 269, 118 CPER 48, is controlling. cipals, school boards, and other groups Students will have There, the Supreme Court found an have found most objectionable. to leave high school arbitrator had exceeded his powers by Although the details have yet to ordering that a probationary teacher be made clear, it has been reported ‘college or career ready.’ be given a hearing on the district’s that the administration will propose refusal to rehire him. The high court changes to federal financing formulas, determined by test scores. Under the found that the procedural protections making a portion of the funds awarded current system, every school either and just cause standard contained based on academic progress, rather passes or fails each year, depending on in the parties’ collective bargaining than number of students. Amend- whether students’ scores have risen or agreement were preempted by statute ments likely will seek to drop the cur- fallen as compared to the prior year. because the reelection of a probation- rent requirement that all students be This system has been criticized by ary teacher may not be the subject of “proficient” in reading and math by Pocket Guide to the educators throughout the country be- collective bargaining under EERA. the year 2014. It will be replaced by a new goal — that all students leave cause it does not differentiate between Educational Employment Relations Act This case is different from Round high school “college or career ready.” schools that help low-scoring students Valley, the appellate court explained. improve and high–performing sub- There, the court held that, based on Currently, representatives from more urban schools that appear to neglect preemption grounds, the arbitrator than 40 states are working together to arrive at common standards defining some low-scorers. Failing schools at had exceeded his powers. Round Valley 24 cper journal No. 198

first must permit students to transfer classroom, and increased influence by subjects, increase expectations for to other schools in the district and pro- textbook companies on the content of student learning, and see all students vide tutoring. If the school continues instruction. One in four teachers said as capable of learning. But only one in to fail, harsher sanctions are imposed, the act lowered their commitment and four reported that the act helped them including staff dismissals and closing. loyalty to the profession, and two in improve as instructors. A clue about the forthcoming five said it had a negative influence on The UCR researchers recom- proposals can be garnered from the their enthusiasm for teaching. mend that those seeking to improve administration’s “Race to the Top” Almost 60 percent of those inter- NCLB pay close attention to the competition that lets states compete viewed said NCLB significantly affects ideas of those on the ground. “The for one-time federal funds provided the teaching profession: teachers focus teachers we surveyed are among the they comply with certain require- on test performance to the detriment most qualified teachers in the public ments. (See story on pp. 18-21.) of other important aspects of educa- system, and they are experienced hands tion, and teach “scripts” designed in the classroom. Their views of the by publishers. Between one-third legislation should be taken seriously,” The vast majority and two-fifths said the act provided said Brint. of teachers welcome incentives to organize subject matter The full report can be found at effectively, plan better, focus on core www.policymatters.ucr.edu. ] changes to NCLB.

The vast majority of teachers Bargaining Updates likely will welcome changes to NCLB, as evidenced by a study published by West Contra Costa County members circulated a petition calling U.C. Riverside earlier this year. The for the recall of UTR President Pixie In the last issue, CPER reported report, “Does the No Child Left Hayward Schickele. that the West Contra Costa County Behind Act Help or Hinder K-12 In early December, district and Unified School District and United Education?” was researched and union bargaining team members met Teachers of Richmond had reached a written by Patrick Guggino, a Ph.D. again with a state mediator and ham- tentative agreement after more than teaching high school English, and mered out a second tentative agree- a year of contentious negotiations, Steven Brint, a leading researcher of ment, similar to the first. It was ap- including imposition of a contract by U.S. education policy and practice. proved by the union by a slim margin the district and a strike authorization Brint and Guggiano interviewed 740 of 423 to 415. Critics of the tentative vote by the union. (See full story at board-certified California teachers and agreement complained that the vote CPER No. 197, pp. 30-31.) But, it discovered that 84 percent had unfa- had been called on extremely short turns out, the drama did not stop there. vorable attitudes about NCLB. They notice, less than three days after the In November, the teachers rejected the found that 61 percent of the teachers tentative agreement was reached, and contract by a vote of 701-671, but only said the act created an overly narrow was held in remote locations. Fewer after union leadership had announced conception of education, 46 percent than 25 percent of the total union that the contract had been approved said it diminished creativity, and 59 membership voted to accept the pact. and union members had forced a percent said it had unintended conse- The school board unanimously rati- recount. Subsequently, some union quences, such as less creativity in the February 2 0 10 cper journal 25

fied the contract the day following the Oakland, Capistrano, Pajaro Valley class size increases, and permanent union vote. compensation cuts in salary and health In the face of unprecedented bud- The three-year contract, retroac- benefits. get cuts and massive layoffs, several tive to July 1, 2009, includes a wage The union’s last proposal, present- teachers unions up and down the state freeze through July 2011 and requires ed during factfinding, was for a two- have engaged in tough bargaining. five furlough days a year, amounting to year agreement including two furlough In January, members of the Oak- a 2.5 percent pay cut. It eliminates fully days the first year and five the second, land Education Association, by a vote paid health benefits for workers and re- and a 1 percent reduction in health of 726 to 45, authorized the union tirees. Health care benefits are capped benefits continuing for both years. It leadership to call a one-day strike, at $532 a month for single employees, was prepared to accept the district’s assuming the currently scheduled $625 for an employee and one depen- proposal to increase class size by one factfinding procedure does not result dent, and $895 for an employee with student in grades 1 through 12. The in an agreement. At the same meeting, multiple dependents. Between July 1, union sought language to “trigger off” members unanimously voted to reject 2010, and June 30, 2012, the district’s compensation cuts if funds increased, the Oakland Unified School District’s maximum contribution to employees’ and restoration of the current salary final offer, which included no enhance- health care will not exceed $13 million. schedule and work year at the end of ments to the pay scale. The union and Teachers who retire before July 2010 the agreement. The factfinding report the district have been negotiating since will still get full health care benefits, is expected at the end of this month. their last contract expired in July 2008. but, between now and June, they will And, contentious year-long ne- The district declared impasse last sum- have to make the same contributions gotiations between the Pajaro Valley mer. Despite the union’s strike vote, as other workers. School District and the Pajaro Valley the district is predicting that the two The contract provides for a per- Federation of Teachers came to an sides will reach a settlement, as they teacher maximum class size average of abrupt halt in November when, the did in 2006. 38 students for math, social science, day after negotiations broke down, The Capistrano Unified School science, English, and English-language the district announced it had found District and the Capistrano Unified development classes in grades 6 through additional money. Education Association spent 19 hours 12. This means that a teacher could At the time negotiations faltered, unsuccessfully attempting to come have 32 students in one class and 44 in the union had agreed to 12 furlough to an agreement during factfinding another. For other subjects, there must days over two years, but in return on January 25 and 26, 2010. The be a 1:32 average teacher-to-student wanted binding arbitration of disputes district declared impasse last June ratio. Class sizes are capped at 31 for and a plan to make up for financial and mediation took place from July kindergarten through third grade, and losses when the budget recovers. The through October. Although the parties at 33 in all higher grades. district refused to agree to these union are bargaining only for the 2009-10 If the district’s “base revenue limit” demands in return for the furlough school year, ramifications of budget is fully funded by the state, the issue days. The district and the union did cuts in 2010-11, totaling $34 million of compensation can be reopened if agree on an early retirement plan to according to the district, factor in. both sides agree. The issue of class size “help provide budgetary relief.” ] The district is seeking a salary cut of can be reopened during the 2011-12 more than 10 percent over two years, school year. retroactive to July 1, 2009, as well as February 2 0 10 cper journal 35

CASE then filed another petition State Employment asking the court in San Francisco to rule that employees of the State Compensation Insurance Fund could not be furloughed because state law exempts them from hiring freezes Unions Win Some, Lose Some Furlough Lawsuits and “staff cutbacks,” and because they are paid with SCIF funds rather than After losing the first legal challenges to reduce hours to meet the needs of state general funds. CASE won. Judge to the governor’s furlough order, state agencies during the fiscal crisis, he Peter Busch reasoned that furloughs unions have found some successful decided. He also found that an emer- amount to staff cutbacks in violation arguments. Even in similar cases, gency exception in the Dills Act and of the Insurance Code since they affect though, decisions of the trial judges provisions in union contracts permitted the availability of staff. In September, conflict. While several judges have the governor to act unilaterally because SEIU Local 1000 won a similar case ruled against furloughs, most state of the crisis and the legislature’s failure for SCIF employees it represents in employees still are suffering the pay to pass a budget. Claims under the Fair front of another San Francisco judge, cut whether or not they can take time Labor Standards Act were also unsuc- Charlotte Woolard. off. Because the decisions have been CCPOA Loses, Then Wins appealed, the litigation may last longer than the furloughs, which end in June. It would be impossible The California Correctional Peace Unions have had no success in arbi- Officers Association also lost before tration or at the Public Employment for officers to take all Judge Marlette. Because employees Relations Board. furlough days represented by CCPOA were subject to “self-directed” furloughs, however, SCIF Employees Exempt before they expire. the judge’s decision offered a glimmer A year ago, the initial lawsuits of hope. There was no proof yet that against the furlough order were un- correctional officers would be unable successful. In consolidated cases filed to use their furlough days before they cessful. (See story in CPER No. 195, by the California Association of At- expire, but the judge hinted that it pp. 54-58.) torneys, Administrative Law Judges would be possible to argue that an in- The judge later ruled that civil and Hearing Officers in State Employ- ability to take furlough days amounted service employees of constitutional ment, SEIU Local 1000, and unions to a change in salary ranges in violation officers, such as the superintendent representing engineers and scientists, of Sec. 19826(b). (See story in CPER of public instruction, also are subject Judge Patrick Marlette in Sacramento No. 195, pp. 54-58.) to the governor’s order. And Judge County ruled that the furlough had not In March, CCPOA filed another Marlette was not convinced that the violated Gov. Code Sec. 19826(b) by lawsuit in Alameda County. This time emergency had subsided when the leg- reducing salary ranges for represented the union alleged that hundreds of islature enacted a budget. Furloughs employees. The furloughs were a re- employees had been denied the right for state employees were factored into duction in work hours, and Sections to take furlough days because there that budget, he observed. (See story in 19851 and 19849 allow the governor is insufficient staff to cover furloughs CPER No. 195, pp. 58-59.) 36 cper journal No. 198

without paying overtime, which is July 2012, the court concluded it could of employees paid with special funds forbidden by the governor’s executive not be done. For the pay periods in are illegal. CASE, SEIU Local 1000, order. The union argued it would be which an employee was compensated and the Union of American Physicians impossible for all the employees to take for fewer hours than she worked, the and Dentists represent employees paid all furlough days before they expire in judge concluded that the furlough or- with federal funds or special funds ear- July 2012. der constituted a reduction in salary in marked for particular programs. Judge Frank Roesch found that all violation of Gov. Code Sec. 19826(b) The unions argued that the gover- officers have had their salaries reduced and a change in wage scale in violation nor justified the furloughs by citing a each month, but few have experienced of Labor Code Sec. 223. They also general fund deficit, low cash reserves a reduction in hours. He rejected the were not paid minimum wage for the in the state treasury, and the failure governor’s arguments that there was no uncompensated days, he ruled. of the legislature to pass a balanced change in the rate of hourly compensa- The judge’s order directed the budget. Furloughing employees to tion and that employees were able to governor to pay employees for hours save money in special funds, they take furlough time instead of using va- worked for which they had not been contended, had no rational basis and cation leave. The evidence from both paid or taken furlough and to rescind interfered with the purposes for which experts showed that not all employees portions of the executive orders. the special funds were created by im- could use their furlough days each peding their operations. Special Fund Wins and Losses month and the backlog of furlough The governor argued that spe- credit was growing. Absent evidence Two weeks later, Judge Roesch cial funds which were saved through that all employees will be able to take ruled in favor of three unions that furloughs could be borrowed to meet 46 furlough days and vacation before asked the court to find that furloughs fiscal obligations. The unions replied

The cure for boredom is curiosity. There is no cure for curiosity. cper -- Dorothy Parker, writer

This second edition includes recent developments relating to legislative approval of collective bargaining agree- ments; a discussion of recent Supreme Court cases that recognize civil service law limits; and a section on PERB procedures, including recent reversals in pre-arbitration deferral law.

This Guide provides a thorough description of the Dills Act — how it works, its history, and how it fits in with other labor relationsPocket laws. Also Guide included to are the Public Employment Relations Board enforcement procedures, the text of the act, and a summary of all key cases that interpret the act, with complete citations and references to CPER analyses. In addition, thereRalph is a summary C.of PERB Dills rules and regulations, a case index, and a glossary of terms designed for Dills Act users. Act Pocket Guide to the Ralph C. Dills Act By Fred D’Orazio, Kristin Rosi and Howard Schwartz • 2nd edition (2006) • $12 http://cper.berkeley.edu February 2 0 10 cper journal 37

that federal funds and some special judge found furloughs have delayed the Professional Scientists had high hopes funds cannot be borrowed by the state’s work of employees who review Social it would win its special fund case. Like general fund to meet its cash needs, but Security disability applications, delay- UAPD, Local 1000, and CASE, CAPS the governor contended that he has ing payments to disabled Californians. argued that furloughing employees the discretion to decide that furloughs They have increased wait times and paid with special funds was an abuse were the best method to deal with the backlogs at the Department of Mo- of discretion and that state law permits financial crisis. He explained that he tor Vehicles. And, they have caused borrowing from a special fund only furloughed employees, regardless of backlogs for administrative law judges when it does not “interfere with the funding source, based on principles and caused agencies to hire expensive object for which a special fund was of labor parity and sharing the burden outside attorneys because of unman- created.” The union also reiterated among all employees. the argument that the furloughs were Judge Roesch interpreted Gov. essentially reductions in salary that Code Sec. 19851 differently than Judge The governor abused the governor could not implement Marlette. While the law gives the without bargaining or legislative ap- governor the power to establish differ- his discretion by proval. But San Francisco Judge A. ent workweeks based on the needs of ordering furloughs James Robertson ruled against CAPS varying agencies, the governor abused without explaining his reasons. One his discretion when he ordered a work- of employees paid difference in the CAPS petition is that week reduction for all state workers it did not identify special funds that without regard to the individual needs with special funds. were not borrowable. of various state agencies, the court de- CalPERS Rebuffed cided. In addition, the governor abused his discretion by ordering furloughs of ageable caseloads of furloughed state The California Public Employees’

employees paid with special funds that attorneys. Retirement System also lost litigation cannot be borrowed by the general Unlike Judge Marlette, Judge that made similar arguments as the fund. Not only could these special Roesch was not persuaded that the successful special funds cases. Cal- funds not assist the state with its fis- emergency which the governor cited PERS pointed out that its employees cal crisis, in some cases the furloughs to justify furloughs continued to au- who manage the retirement fund and actually increase state costs. thorize them. The Emergency Services invest its assets are paid out of CalPERS The judge also decided that the Act does not contemplate the governor trust funds which cannot be borrowed. governor violated the law even when declaring an emergency and suspend- CalPERS also contended that the furloughing employees paid with bor- ing legislative authority for more than furloughs impair the vested rights of rowable special funds. The Govern- a temporary period, he declared. In state employees by impeding work of ment Code permits borrowing only addition, the legislature’s failure to pass CalPERS employees when they most when it does not “interfere with the a budget no longer could justify the need to respond to extraordinary in- object for which a special fund was furlough order. The judge commanded vestment losses, including the ability Pocket Guide to the the governor to rescind portions of the created.”Pocket The evidenceGuide in to each the case to trade daily in the securities markets. Ralph C. Dills Act showed the governor had abused his executive order. In addition, the agency argued that the discretionRalph when furloughs C. Dills interfered After the Alameda court’s special Emergency Services Act did not give with the purpose of special funds. The fund ruling, California Association of the governor the power to declare a Act 38 cper journal No. 198

year-long emergency, and that Propo- Still Furloughed peal. But the court lifted the stay after sition 58, which is the appropriate CASE argued that continued furloughs Despite some victories, most state way to act on a fiscal emergency, was would cause irreparable harm to the employees remain furloughed while violated when the governor imposed employees. cases are on appeal. The Department three days of furlough without legisla- As CPER went to press, CCPOA of Personnel Administration has ex- tive approval. was embroiled in a fight to end fur- empted only highway patrol officers, Judge Woolard, who struck down loughs for correctional officers. The highway patrol dispatchers, and fire- furloughs of SCIF employees, upheld governor appealed the case, but fighters during the fire season. furloughs of CalPERS employees. CCPOA and Controller John Chiang Employees of constitutional of- Like Judge Marlette, she decided that argued that the appeal was premature ficers initially were exempted from the governor has broad authority to and was not effective to stay Judge the furlough order and were not being control the workweek. She rejected Roesch’s ruling. The Court of Ap- furloughed at the time the control- the contention that the governor did peal asked for briefing on the point ler and other constitutional officers not have power to furlough employees. in late January, after temporarily or- appealed the ruling. The 15,000 em- Unlike Judge Roesch, she did not find dering a stay of the ruling. The stay ployees have never been furloughed. the governor abused his discretion. She prevents the controller from issuing SCIF employees also are not being wrote, “The Governor acted reason- full paychecks until February at the furloughed. Ordinarily, a trial court ably in furloughing all employees to earliest. ] ruling is automatically stayed on ap- preserve funds and maintain parity.”

state employee pain to continue

Most state employees are suffering from furloughs that Even more problematic is the governor’s proposal to force cut pay over 14 percent. The governor’s budget proposal would state employees to pay 5 percent more into the retirement not renew furloughs after they expire in June, but employee system. Pensions are considered a vested right from the first pay likely would not rise under his plan. day of employment, and courts generally overturn changes The governor is asking the legislature to enact a 5 percent to pensions unless employees obtain benefits that offset det- pay cut for state employees. That would increase to 10 percent rimental alterations of pension rights. In the current budget if the state is unable to garner enough money from the federal crisis, the state has little to offer employees in exchange for government. Under the Dills Act, the Department of Person- their higher pension contribution. nel Administration ordinarily would attempt to bargain such a Few state employees have been laid off, but a third prong concession. But, as Legislative Analyst Mac Taylor noted in a of the governor’s plan may result in more job losses. Each recent report, state labor relations are now largely “dysfunc- agency has been asked to cut payroll by 5 percent through tional,” and it is unlikely the unions will agree to pay cuts in attrition, eliminating vacant positions, and/or layoffs. While time to pass a budget this summer. As confirmed by a recent the governor has sent out of notices of potential layoff to decision by the Public Employment Relations Board, the leg- thousands of employees, most have been avoided through two islature retains the power to set salaries and other terms and avenues: employees have found unthreatened vacant state jobs conditions of employment. (See story on the following page.) or departments abolished vacancies. Both of these tactics likely But, politically, it may be unwilling to enact a pay cut. will be harder this next time around. February 2 0 10 cper journal 39

exercising its authority to determine Law Altering Overtime Calculation Not a Unilateral terms and conditions of employment, Change by Legislature, Governor the board held, citing Department of Personnel Administration v. Superior The legislature had authority to same proposal at the bargaining table, Court (1992) 5 Cal.App.4th 155, 94 enact a law that changed overtime but no agreement was reached. CPER 8. compensation, even while a union’s ex- In February 2009, the legislature Local 39 contended that the act pired contract was still in effect under passed a budget and legislation that required the state to give effect to the the Dills Act, the Public Employment excluded paid and unpaid leave from terms of its expired agreement because Relations Board ruled in December. “time worked” for overtime purposes. no impasse had been reached, but the The legislature’s delegation to the DPA later negotiated with the state board was not persuaded that the stage governor to bargain with unions about firefighters union an exemption from terms and conditions of employment the new overtime provisions. does not restrict its power to enact laws Local 39 contended that the state Nothing indicates the that affect overtime compensation, unilaterally changed employee com- legislature intended said the board, and the governor had pensation without providing the union no obligation to give the union notice an opportunity to bargain. The board to tie its hands and an opportunity to bargain before agent dismissed the charge, and the while DPA bargained proposing the legislation. The board union appealed to the board. reiterated its position that it has no after expiration Legislative Authority jurisdiction to rule on constitutional claims of impairment of contract. The board rejected Local 39’s ar- of an MOU. gument, relying on State of California Leave Not Counted (DPA) (2008) PERB Dec. No. 1978-S, of the parties’ bargaining made any dif- Stationary Engineers Local 39 193 CPER 73. In that case, there was ference in this case. The board found and the state were parties to an MOU a collective bargaining agreement in nothing to indicate the legislature that provided, “For the purposes of effect between the state and AFSCME intended to tie its hands while DPA is computing overtime, all compensable Local 2620 when the state enacted bargaining with a union after expira- time (i.e., sick leave, vacation, an- the alternative retirement program tion of an MOU. nual leave, holiday credit, CTO and for new state employees. AFSCME The board also found the gover- personal leave) shall be considered as argued that the ARP was a unilateral nor had not violated the Dills Act by time worked.” change in violation of the Dills Act. proposing the overtime change to the The MOU expired on June 30, The board turned aside AFSCME’s legislature. The board previously has 2008. In November 2008, the governor contention that the state was required held that when the governor acts as a called a special legislative session to ad- to bargain the decision to imple- participant in the legislative process, he dress the financial crisis and proposed ment the new program. Although the is not obliged to give notice and an op- that leave no longer be counted as time Dills Act delegated authority to the portunity to bargain before proposing worked when calculating overtime. In governor to bargain collectively with a budget or before signing legislation December 2008, the Department of employee representatives, the act does that affects terms and conditions of Personnel Administration made the not preclude the legislature itself from 40 cper journal No. 198

employment. The fact that the gov- the effective date of the legislation to annual compensation multiplied by ernor proposed the overtime change supersede the prohibition on recogniz- years of service. The 3 percent factor makes no difference, the board held. ing leave as time worked. was also enacted for peace officers and The governor “acted pursuant to his The board agent’s failure to ad- firefighters who retire at or after age constitutional obligation to keep the dress the union’s contention that the 55, but firefighter and correctional State ‘solvent and operating,’” the state had impaired its contract did officer unions soon negotiated a “3 board noted. not require reversal of the decision percent at 50” formula. State safety Local 39 could not persuade the to dismiss the charge. PERB has no members became eligible for a 2.5 board that DPA’s refusal to extend to jurisdiction to adjudicate constitu- Local 39 the same exemption from the tional claims, it reminded the union. new overtime provisions that it negoti- The decision leaves it to the courts to The governor wants ated with the firefighters’ representa- resolve whether an expired contract tive was bad faith bargaining. The act can preserve past overtime conditions. to change the benefit does not require the state to offer every (Stationary Engineers Loc. 39, IUOE, formula for fire- union the same benefits in bargaining, and State of California [Dept. of Personnel the board held. PERB noted that the Administration] [12-22-09] PERB Dec. fighters and highway legislation allows MOUs reached after No. 2085-S.) ] patrol officers to 3 percent at 55.

Pension Reform Revisited percent factor at age 55, and in 2002, The governor is both complaining Back to 1999 legislation expanded the definition of about rising pension costs and volun- safety employee to include more classi- The governor proposes returning teering to pay more. On one hand, as fications. Miscellaneous and industrial to pension formulas that existed before state payments to the pension fund employees are eligible for a 2 percent the legislature and former Governor continue a long climb, the governor formula at age 55, but can earn a 2.5 Davis enacted S.B. 400, which boosted is demanding reform. On the other, in percent formula if they wait to retire benefits for any employee who retired December, he offered to pay a larger until age 63. on or after January 1, 2000. He esti- amount into the fund than the Califor- The governor wants to return to mates that the changes, which would nia Public Employees Retirement Sys- the prior definition of safety classifica- apply only to state employees hired tem required. Since CalPERS refused tions, change the benefit formula for after July 1, 2009, would save $74 bil- to set a higher minimum contribution, firefighters and highway patrol officers lion over the next three decades. he will have to convince the legislature to 3 percent at 55, and return other The proposal includes rolling that it is better to pay down unfunded peace officer, safety employee, miscel- back several retirement enhancements liabilities during a crisis than postpone laneous, and industrial categories to enacted or bargained since 1999. S.B. the debt payment to better times. the formulas that existed prior to S.B. 400 changed the benefit formula for Meanwhile three new pension reform 400. Peace officers would be eligible highway patrol officers who retire at or initiative petitions are circulating. for a 2.5 percent benefit factor at age after age 50 to 3 percent of the highest 55, and safety employees would earn February 2 0 10 cper journal 41

a 2 percent factor at age 55. Miscella- the effects of “spiking,” where an percent state contribution to retire- neous tier I employees and industrial employee takes a higher-paying job ment health benefits after 10 years and employees could retire at age 60 with or promotion for only a year prior to a full contribution after 20 years. a 2 percent formula or work longer retirement and gains a benefit much Paying More to achieve a 2.418 percent factor at higher than predicted. age 63. Only state miscellaneous tier The governor’s proposal would The impetus for the governor’s 2 members who elect not to make save another $2 billion by making plan is the rising cost of contributions monthly contributions and earn a employees contribute to retirement to the state’s pension fund. In his lower benefit would not be affected. based on their entire earnings. Cur- State of the State address in January, They would continue to be eligible rently, miscellaneous and industrial the governor complained that the for a 1.25 percent benefit factor at employees contribute 5 percent of the state’s pension contributions were up age 65. amount of their monthly salary over 2,000 percent in the past 10 years. In addition, the compensation $513. Other categories of employees He acknowledged that an increase in used to calculate benefits would be pay 6 or 8 percent of the amount of pension costs would affect government based on the average of the three their salaries above specified floors. services, universities, and parks. highest years of salary, not the single The governor also proposes When staring at a $20 billion highest year that S.B. 400 enacted. lengthening the vesting period for budget deficit, most people would be Basing the benefit on an average of full retiree health benefits to 25 years reluctant to voluntarily increase the three years is designed to diminish of service. Employees now earn a 50 deficit by $1 billion. But the governor

Facts do not cease to exist because they are ignored. cper -- Aldous Huxley, writer

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 arbitration deferral standards, restoration of the doctrine of equitable tolling, and the addition of three statutes to PERB’s jurisdiction: Trial Court Employment Protection and Governance Act, Trial Court Interpreter Employment and Labor Relations Act, and the Los Angeles Country Metropolitan Transportation Authority Transit Employer-Employee Relations Act.

Along with extensive statutory and regulatory text, the guide includes the unfair practice sections of EERA, the Dills Act, HEERA, the MMBA, TCEPGA, TCIELRA, and TEERA. A guide to cases further elaborates what conduct is unlawful, and a glossary defines labor relations terms. Pocket Guide to the

Unfair Practices: California Public Sector By Carol Vendrillo and Eric Borgerson • 4th edition (2006) • $15 http://cper.berkeley.edu 42 cper journal No. 198

tried to persuade CalPERS to require when the economy and tax revenue are That appears unlikely when the state a bigger state contribution than its predicted to improve. Rather than $4.2 will have to find $20 billion in cuts to actuarial methods called for. billion, the board estimates that the services or increases in revenue. The state’s CalPERS contribution state’s contributions will total only $3.5 New Initiatives has increased dramatically since 2000- billion in 2010, a $200,000 increase. 01, when the state paid almost nothing The governor, however, recog- Rising pension costs first set off into the fund for miscellaneous and nized that actuaries will likely find alarms as early as 2002, when losses industrial members because there was the state pension fund fell from ap- in the market in 2001 began to affect a surplus. For 2009-10, the state will proximately 85 percent funded in employer pension contributions. Sev- 2008 to about 61 percent funded in eral pension reform initiatives began 2009. Making contributions earlier The governor tried allows them to be invested longer for One new measure a higher return over the long run. The to persuade CalPERS governor’s senior advisor for jobs and would cap initial economic growth, David Crane, wrote to require a bigger in a letter to the Sacramento Bee, “Every retirement benefits state contribution. dollar not contributed today is a bor- at $100,000. rowing at a 7.75 percent interest rate,” which is CalPERS’ assumed annual rate of return. Therefore, the governor to circulate in 2004. As old initiative pay $3.3 billion for all categories of tried to persuade CalPERS to set the proposals have failed to obtain enough employees and is contributing over 16 state contribution for 2010-11 at $4.5 signatures to qualify for the ballot, new percent of payroll for miscellaneous billion, higher than the amount that ones have appeared. One new measure employees. would have been required without the would cap initial retirement benefits at Under pre-2009 actuarial prac- three-year phase-in of the 2008-09 $100,000. Two others would reduce tices, the state’s pension costs likely loss. The governor’s proposed method retirement benefit formulas and raise would have risen to $4.2 billion for would have returned the state pension the minimum ages for a maximum 2010-11. The CalPERS actuaries de- fund to 85 percent funded within 30 retirement benefit. cided, however, that the spike in costs years, assuming a 3.25 percent annual The “Public Employee Pension was due to the highly unusual financial payroll increase and a 7.75 percent Limitation Law” would apply to state crisis and market crash of 2008, rather annual return on investments. or local employees hired on or after the than a normal fluctuation in market The board declined to adopt the initiative’s effective date. It will limit a value. They suggested spreading the governor’s payback method as policy. It state or local retiree’s first year of pen- 24 percent loss over three years, and adopted for the state a method for pay- sion benefits to $100,000. A retirement paying it off separately over 30 years, ing for the 2008-09 loss that is similar board could boost the pension amount without using stock market gains to to its phase-in plan for local and school by the increase in the Consumer Price pay for the loss. This method would funds. The state would be allowed to Index for California. The maximum both moderate the increase in required contribute more, but the governor pension could never exceed $162,500 benefit costs during the next two years would have to convince the legislature annually. The measure could not be of the economic crisis and call for to make the necessary appropriation. amended except by a three-quarters higher rates beginning in 2013-14, February 2 0 10 cper journal 43

vote of the legislature or a majority 1.25 percent formula. If not, the maxi- retirement, and for 10 years altogether. vote of the electorate. The measure mum factor would be 1.65 percent. The measure would also require pre- must obtain nearly 434,000 signatures Like the governor’s proposal, the funding for retiree health benefits and by June 14, 2010. Fritz initiatives would calculate ben- would not permit pension funds to be The other two initiative proposals efits based on the highest three years of used for health benefits. are nearly identical measures filed by pay. No initial pension could be higher The two Fritz measures differ Marcia Fritz, president of California than 75 percent of pay, and cost-of- only in how higher benefits could be Foundation for Fiscal Responsibility, living increases would be capped at 3 enacted. One would require a major- a pension reform organization founded percent. Other provisions would pro- ity vote of the electorate in a local by former State Senator Keith Rich- hibit retroactive pension increases for jurisdiction and a two-thirds vote of man. These measures would make current employees, require employees the legislature for state and Univer- larger reductions to benefit formulas to contribute at least 4 percent of pay, sity of California pensions. The other than the cuts proposed by the governor and limit early retirement options. would require two-thirds of the voters and would apply to public employees The two measures also would limit in a local jurisdiction to approve an eligibility for retiree health benefits. increase in benefits or three-quarters Employees generally would not be of the legislature for state and U.C. The two measures eligible for these benefits until they retirement benefits. The measures reached full retirement benefit age, must collect 695,000 signatures by also would limit and then only if they had worked full- June 14, 2010. ] eligibility for retiree time for a public agency for five con- secutive years immediately preceding health benefits. hired after July 1, 2011. Peace officer Receiver Is Not Automatically Immune From Suit and firefighter members would not be- come eligible to retire until age 53 and The receiver in charge of the prison tions and Rehabilitation for services it would not be eligible for full benefits medical system is subject to suit in already had rendered. The receiver was until age 58. The maximum multiplier federal court for actions taken while sued in his official capacity, not person- would be 2.3 percent, rather than the operating the system, the Ninth Cir- ally. As a practical matter, any damages 2.5 percent proposed by the governor. cuit Court of Appeals has held. The paid to MDI would come from CDCR Other public safety employees could receiver used the services of Medical funds controlled by the receiver. not collect retirement pay until age Development International, but termi- MDI filed suit in state court, but 55 and would become eligible for the nated and refused to pay for the ser- the receiver removed the case to the maximum 1.8 percent formula at age vices because it suspected the company eastern district federal court. That 60. The remaining public employees did not have a valid license to contract court held that the receiver was im- would not become eligible for the full with physicians and hospitals or track mune from suit unless the northern retirement formula until the age at patient care. MDI went to court to district federal court that appointed which they could collect full Social obtain payment from the receiver and him would allow suit. Because CDCR Security benefits. Those who paid into the California Department of Correc- was acting on the receiver’s orders, the Social Security would be entitled to a 44 cper journal No. 198

court dismissed MDI’s claim against The court also overturned the 929(a), indicated that receivers could both CDCR and the receiver. MDI northern district court’s ruling that be sued, and court decisions have also sought permission from the northern the receiver is absolutely immune acknowledged that receivers may be district court to sue the receiver, but from suit. The receiver argued that sued. The northern district court could the court refused on the grounds the he had the same immunity as the fed- not give the receiver power to refuse receiver was immune for actions con- eral court, and CDCR argued that it to permit CDCR to pay its legal obli- nected with his receivership duties. should also be immune because it was gations, the appellate court reasoned, MDI appealed the immunity rulings. only following the receiver’s orders. so judicial immunity cannot extend to The appellate court disagreed But the court found these arguments everything a receiver may do. that the receiver had absolute immu- untenable. “A receivership does not The court distinguished the cases nity from suit over his transactions as create a liability-free zone,” the court the northern district court had cited in receiver. There is a long-standing rule scoffed. The receiver’s attempt to support of its decision that the receiver blame CDCR for entering into a rela- had immunity. In those cases, the ap- tionship with MDI, and CDCR’s claim pellate court observed, the plaintiffs ‘A receivership does that it only severed the relationship on were challenging the appointment of not create a orders of the receiver is a “Catch-22 a receiver or the receiver’s ability to gambit [that] cannot succeed,” the act. Here, MDI was only trying to get liability-free zone.’ court said. “Assuming that MDI has paid. The receiver is not immune from a valid claim, some courthouse door such a claim, the court held. (Medical should be open to it.” Development Intl. v. California Dept. of that a party cannot sue a receiver un- The court observed that the stat- Corrections and Rehabilitation [9th Cir. less the appointing court agrees. The ute discussed previously, 28 USC Sec. 2009] 585 F.3d 1211.) ] rule primarily is applied to proceed- ings where the receiver or trustee is reorganizing a company or liquidating property. There is a statute, however, A.G.’s Opinion Paved Way for December that makes the rule inapplicable to Pay Reductions for Elected Officials receivers who are carrying on business transactions. The court observed that In an informal opinion that conflicted Board of Equalization members, the MDI was not challenging the receiver’s with prior advice his office issued only governor, and other elected officials authority or his appointment. Since months before, Attorney General Jerry by 18 percent effective December 7. the prison medical receiver was car- Brown told the California Citizens But a deputy attorney general advised rying on the operations of the inmate Compensation Commission that the the commission in a June 16, 2009, medical system and was sued for its salaries of elected officials could be letter that the lower salaries could not transactions in connection with those reduced during their current terms be implemented for any sitting official prison operations, the appellate court in office. Salaries of legislators and due to Article IV, Sec. 4(a), of the Cali- held that the rule requiring permis- elected constitutional officers fell at fornia Constitution, which prohibits sion to sue a receiver did not apply least $21,000 on December 7. reduction of elected state officers’ pay to MDI’s suit. The eastern district At the end of May 2009, the during their term of office. It looked court therefore had jurisdiction over commission cut salaries of legislators, like the salary savings of $2.9 million MDI’s case. February 2 0 10 cper journal 45

would not be realized until after the ber. Proposition 112 did not expressly November 2010 elections. (See story repeal Article IV, Sec. 4(a), and the bal- in CPER No. 196, pp. 48-49.) lot materials made no reference to the On November 19, 2009, however, conflict. But the pamphlet represented the A.G. issued another informal opin- to voters that the proposition “repeals ion paving the way for his own salary current provisions setting salaries” cut. Like his deputy, Brown recognized and “establishes…[a] commission… the conflict between the language that to annually establish salaries.” It told states, “Salaries of elected state offi- the electorate that the commission’s cers may not be reduced during their original salary resolution would be term in office,” and language added in effective for one year and be adjusted 1990 to Article III of the Constitution annually. Most important, the rebut- tal to the opponents’ ballot argument stated, “The opponents didn’t tell you On December 7, that the Commission has the power to lower salaries.” legislators’ Based on this ballot pamphlet text, salaries were reduced which his deputy considered but did not discuss, Brown advised that the from $116,208 to two sections of the constitution could $95,291. not be harmonized, and that the newer language of Proposition 112 impliedly repealed Sec. 4(a). that sets up a commission to “adjust On December 7, Brown’s salary the annual salaries of state officers… went from $184,301 to $151,127, as [which] shall be effective on or after did the salary of the superintendent the first Monday of the next Decem- of public instruction. Other officials ber.” Whereas his deputy thought the also suffered 18 percent pay cuts. For two provisions could be harmonized example, the controller’s, treasurer’s, by delaying a downward adjustment and insurance commissioner’s pay fell in salaries until a legislator’s next from $169,743 to $139,189. Top leg- term, Brown found an irreconcilable islative leaders’ salaries were cut from conflict. $133,639 to $109,584, and rank and Brown’s examination of the ballot file legislators’ salaries were reduced arguments for and against Proposition from $116,208 to $95,291. While 112, which set up the commission, led there have been grumblings from the to his conclusion that the voters in- legislature, no official has sued to re- tended to allow downward adjustments capture the prior earnings. ] to become effective the next Decem- 46 cper journal No. 198

a campaign to have him removed. Higher Education When the university did not consent to Ohton’s removal, Craft requested and hired a new strength and condi- tioning coach. After the hire, Ohton To ‘Satisfactorily Address’ a Whistleblower Complaint, was told to work only from 6 a.m. to CSU Must Discuss Discipline and Punishment 2 p.m. so that he would not be around the football players. The litigation saga of a California so the whistleblower could amend his CSU retained an outside inves- State University coach continues after complaint to add a petition challeng- tigator to look into Ohton’s claims. an appellate court found the university ing the university’s determination. In Although the investigator found that misapplied the “good faith” standard this decision, the court explains what Ohton’s allegations of NCAA rule when determining whether the coach CSU must do to satisfactorily address made a protected disclosure. The court the complaint. also held that the university’s deter- Cooperation With Auditor mination letter did not satisfactorily Ohton’s report was not address the coach’s complaint because David Ohton was a strength and protected because it did not state whether the retaliators conditioning coach at San Diego State had been disciplined or referred for University. He worked at times with it had been filed for criminal prosecution, as authorized by the head football coach, Tom Craft. In personal reasons. the whistleblower statute. response to a request from a university This is the second time that this auditor, and in reliance on assurances case has been at the Court of Ap- of confidentiality, Ohton reported that peal. The whistleblower act permits a athletic department personnel were violations were a factor in his removal complainant to sue for damages only mishandling and misappropriating from football conditioning, he found if CSU does not timely respond to the department property. When the audi- that Ohton’s allegations about the internal complaint or does not “satis- tor requested additional information, equipment room, the subject of the factorily address” the complaint within Ohton wrote a confidential 103-page audit, did not motivate the removal. 18 months. In Ohton v. Board of Trustees statement that contained allegations The investigator concluded that of California State University (2007) ranging from violation of the National Ohton’s lengthy report was not a 148 Cal.App.4th 749, 184 CPER 66, College Athletic Association rules to protected disclosure because it had the coach argued that he could file a a second-hand account of Craft be- been filed for personal reasons, not complaint for damages without peti- ing drunk in public the night before to remedy the improper equipment tioning the court to overturn CSU’s a game. handling issues that the auditor was determination because the university The auditor issued a report. A pursuing. The investigator explained had not “satisfactorily addressed” his month later, Ohton discovered that that Ohton’s statement about Craft internal complaint. The court held Craft had obtained a copy of his con- was not protected because it was not that he first had to petition for a writ. fidential statement. made in good faith, as required by the It did not decide whether CSU’s deter- Ohton filed an internal admin- whistleblower statute. It was a personal mination had satisfactorily addressed istrative complaint. He alleged that, attack based on innuendo that did the complaint. It remanded the case after seeing his statement, Craft began not involve improper governmental February 2 0 10 cper journal 47

activities. In particular, he criticized concluded that most of Ohton’s dis- Craft and Craft’s desire to change the Ohton for accusing Craft of public closures were protected. However, she emphasis of strength and conditioning drunkenness based on hearsay that had determined that the drunkenness claim for football. been refuted. was not protected because she viewed McClain acknowledged that the It was this attack that led Craft to the accusation as knowingly false and decision to change Ohton’s hours remove him from his football duties vindictive. A university vice president was retaliation because there was no and change his hours, the investigator had investigated the allegation and legitimate reason for the change since found. He concluded that the change concluded it was false, according to the football players were not present in in hours was a legitimate reassign- McClain, because the eyewitness to the the afternoon. Because she found the ment due to Ohton’s hostility toward coach’s condition denied seeing it and retaliation stemmed from protected the football program and his refusal no one else corroborated the claim. statements to the auditor, CSU rein- to voluntarily give up football duties. Having found the allegation false, stated Ohton’s hours of access to the However, he criticized the shift in she concluded that Ohton’s removal weight room. After Ohton received hours as punitive, since it negatively from the football program was not il- McClain’s decision, the eyewitness re- affected Ohton’s ability to work with legitimate because it was based in part vealed that he had told the SDSU vice 16 other athletic teams. on the unprotected false drunkenness president about seeing Craft drunk, In her final decision on the com- claim. She found that the removal also but asked her to keep it confidential plaint, the university’s vice chancellor was based on two factors that preceded unless no one else would corroborate for human resources, Jackie McClain, the audit — Ohton’s antipathy toward his information.

It is better to know some of the questions than all of the an- cper swers. -- James Thurber, writer

The HEERA Pocket Guide provides an up-to-date and easy-to-use description of the rights and obligations con- ferred by the act that governs collective bargaining at 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 the law works, its history, and how it fits in with other labor relations laws. The Guide explains the enforcement procedures of the Public Employment Relations Board, analyzes all important PERB decisions and court cases (arranged by topic) that interpret and apply the law, and contains a useful index, glossary of terms, and table of cases.

Portable, readable, and affordable, the guide is valuable as both a current source of information and a training tool — for administrators, human resource and labor relations personnel, faculty, and union representatives and their

Pocket Guide to the

Higher Education Employer-Employee Relations Act By Carol Vendrillo, Ritu Ahuja and Carolyn Leary • 1st edition (2003) • $15 http://cper.berkeley.edu 48 cper journal No. 198

‘Good Faith’ Defined faith. One reason given was that Ohton Without the erroneous applica- had relayed hearsay. “We disagree that tion of the good faith standard, the The trial court denied the petition a whistleblower’s reliance on hearsay university likely would have analyzed to overturn McClain’s decision. On ap- precludes a finding the complaint was the retaliation complaint differently, peal the second time, the court stood by a good faith protected disclosure,” the the court concluded. Therefore, CSU its prior decision that Ohton had to file court said, pointing out that improper did not satisfactorily address Ohton’s a petition to overturn the university’s governmental activity is often hard to complaint. decision before bringing a civil action uncover. The rationale that the allega- for damages. The appellate court did Punishment and Discipline tions were refuted fared no better. “A find, however, that CSU had not satis- post-investigation conclusion that the The appellate court concluded that factorily addressed Ohton’s complaint complaint was unfounded does not nec- the act required CSU to identify the because it applied the wrong standard essarily mean the complaint was made retaliators in its final determination let- of good faith when it determined his in bad faith,” the court advised. Nor did ter and state whether they were referred allegations about Craft’s drunkenness the possibility of a personal agenda per- to criminal prosecution or disciplined. were not protected. suade the court that Ohton’s disclosure It stated: The Whistleblower Act defines a protected disclosure as a good faith To effectuate the goal of protecting communication about an improper ‘We disagree that whistle blowers, [the act] makes retal- governmental activity or dangerous iatory conduct a criminal offense and condition “if the disclosure…was made a whistleblower’s authorizes CSU to impose discipline, in for the purpose of remedying that addition to whatever criminal punish- condition.” It allows the whistleblower reliance on hearsay ment might be pursued. to file a complaint along with a sworn precludes a finding the Because the university did not dis- statement that the contents are or are close whether the retaliators had been believed to be true. Elsewhere in the complaint was disciplined or referred for prosecution, law, the term “good faith” means the the court found that CSU did not absence of dishonesty or deceit, the protected.’ “satisfactorily address” the complaint. court observed. The court concluded The appellate court directed the trial that the good faith requirement is met was not made in good faith. The act court to grant the petition to overturn when the complainant files a statement “does not require the impossibly high McClain’s decision. (Ohton v. Board of under penalty of perjury which the com- standard that the complainant’s motives Trustees of California State University plainant believes to be true and provides be pure, or untainted by a personal or [2010] 1402 Cal.App.4th 180.) ] honest information to the investigator. vindictive agenda,” the court declared. The court found no evidence that Moreover, the allegation was not Ohton had made the allegation about entirely refuted, the court pointed out. Craft’s public drunkenness in bad faith. The reluctant eyewitness confirmed McClain’s decision reported that the in- that he had seen Craft drunk, but at a vestigator did not conclude that Ohton different game. Yet CSU had relied on was dishonest. its finding of falsity when it concluded The court criticized the reasons the that Ohton had not made a protected investigator found an absence of good disclosure. February 2 0 10 cper journal 49

so sparsely in three other hospitals that nurses are forced to skip meal and rest After the Last, Best, and Final breaks to provide continuity of care to patients. The University of California has The union pointed to record medi- After nine sessions in August, imposed terms on one of the most cal center profits and demanded an CNA declared impasse. In November, powerful unions representing U.C. 8 percent increase effective October neutral factfinder John Kagel issued his employees, the California Nurses As- 2009. U.C. asserted it would be un- recommendations based on 10 days of sociation. Despite a factfinding report fair to raise nurse salaries while other evidence presented to a three-member recommending a 4 percent increase over university employees are suffering pay factfinding panel. the next year for most nurses, the uni- cuts from furloughs. To protect patient The panel observed that each versity implemented no general salary care, medical center employees, other medical center had some arrangements increases. The Coalition of University than senior managers, have not been for meal and break relief. The neutral Employees and the health care unit subject to the sliding-scale furloughs factfinder recommended that break that began in September 2009. (See story on furloughs in CPER No. 196, The university hired pp. 53-56.) After nine sessions an attorney from U.C. demanded that the union agree to employee contributions to the in August, CNA Littler Mendelson to university’s defined benefit plan, which declared impasse. has not required contributions from bargain the contract. either employees or U.C. since 1990. The university is restarting employer relief staffing “be provided as adjusted represented by the University Profes- and employee contributions for unrep- for conditions within each medical sional and Technical Employees, CWA, resented employees in April 2010, but center.” He also urged that each facility are facing “final” offers and requests has been unable to persuade unions to notify and discuss with the professional for impasse. In recognition of the dire agree to contributions by employees practice committee any changes in base economic conditions, the University they represent. (See stories in CPER staffing. The committees, which consist of California-American Federation of No. 193, pp. 46-48; CPER No. 181, pp. of bargaining unit nurses, are set up to Teachers librarian unit tentatively 42-44.) U.C. also announced it was in- suggest improvements in patient care agreed to extend its agreement until creasing contributions to health benefit and nursing practice, including health September 30, 2012. premiums for retirees not in Medicare. and safety and staffing matters. Kagel For the first time, the rates were not tied advised administrators to discuss staffing Raise Recommended to the rates of active employees. CNA with the committees before implement- CNA and U.C. began reopener ne- was alarmed that the university’s move ing changes. gotiations in August 2009, on benefits, signaled the first step toward eliminat- The neutral factfinder sided with staffing, and 2009-10 wages for 11,000 ing retiree health benefits. the university on benefits. He recom- nurses. In an unusual move, the univer- The parties also sparred over mended the union accept university of- sity hired an attorney from Littler Men- staffing levels. CNA asserts that the fers on health benefits that are provided delson to bargain the contract instead of university is not meeting state regula- to all employees. Although he noted the using an in-house negotiator. tions at one medical center and staffing union’s concern with future erosion of 50 cper journal No. 198

retiree health benefits, he recommend- for a multi-year agreement. But the non-senior managers received bonuses ed that CNA accept U.C.’s proposal and university did not offer a general salary of 5 to 15 percent. The university did discuss the issue during the next round increase. Instead it dangled longevity not answer CPER requests for more of negotiations. U.C. also convinced increases only for clinical nurse IIs and detailed information. It is clear, though, the neutral factfinder that it needs to IIIs at the Los Angeles medical center. that $3.1 million — more than 9 per- restart pension contributions. Kagel CNA did not bite. cent of the incentive pay total — went recommended that the parties agree to On December 30, U.C.’s nego- to 38 senior managers. shift to the pension plan the 2 percent tiator announced the university was As CPER went to press, CNA contributions employees now make to implementing the terms of its last, spokesperson Beth Kean warned that a defined contribution plan. best, and final offer. Active and retiree nurses are preparing to strike, but have Kagel urged the university to health benefit contributions increased. not set a date. raise salaries, but not immediately. He In April, nurses will begin to contrib- Negotiations Stalled cited evidence that there were plenty of ute 2 percent of salary to the pension qualified applicants for nurse vacancies plan. Although all eligible nurses will Other unions that may be looking at the medical centers, so there was no receive step increases in July, the only at a similar path in the near future are present need to attract employees with improvements to the salary scale are CUE and UPTE. CUE and U.C. are in wage increases. “But what is apparent,” new 2 percent steps for nurses in clini- mediation after the Public Employment he continued, “is that as time moves on, cal nurse II positions with 20 years of Relations Board certified the parties even in the short-term the contractual experience and 12 years of U.C. service, were at impasse, over CUE’s objection. wage rates of major competitors will or those in CN III positions with at least UPTE received a “final” offer from move ahead of current [clinical nurse] 20 years of experience and 18 years of U.C. for its health care unit in October. II Medical Center wage rates.” Catho- university service. The parties are not bargaining, but also lic Healthcare West just agreed to a 2 Nurses insist the university has have not reached impasse. percent increase, another in May 2010, enough money for the raises recom- As CPER went to press, librarians and a 1 percent lump payment in July, mended by the factfinder. On January represented by UC-AFT were deciding he observed. Kaiser’s contract provides 21, 2010, the U.C. regents approved whether to ratify a tentative agreement a 5 percent raise each year. Kagel bonuses for 38 senior executives at the that extends the contract. The parties recommended a 2 percent increase in medical centers for achieving savings have been in reopener negotiations on clinical nurse II wages in late March through joint purchasing, increasing 2008-09 salary and professional devel- and a 2 percent increase in September, net revenues, and decreasing catheter- opment for nearly two years. The move as well as the usual step increases that related infections. A bonus of more than would preserve salaries and provide a all major hospital systems give for every $218,000 went to David Feinberg, chief small increase in professional develop- year of service. executive officer of UCLA Medical ment funds in return for extending Center, whose base salary is $739,000. the contract one year to September Pension Contribution Imple- Mark Laret, CEO of U.C. San Fran- 30, 2012. Severance pay rights were mented cisco Medical Center, will enjoy a established for librarians in small units The parties were unable to reach $181,000 incentive payment. Although at certain campuses. Pension benefits agreement after the factfinding report bonuses also went to other medical cen- were not at issue since librarians receive was issued. As suggested by the fact- ter workers, including bargaining unit the same benefits and merit increases finder, U.C. offered step increases in employees, CNA asserts that nurses that tenured and tenure-track faculty July 2010, and backed off its proposal received a few hundred dollars, and that receive. ] February 20 10 cper journal 51

Discrimination less) that could have been obtained in a limited civil case, but the plaintiff did not bring the action as a limited civil case and thus did not take advantage of the cost- and time-saving advantages of California Supreme Court Restricts limited civil case procedures.” Attorney’s Fees in Certain FEHA Cases The court acknowledged that the FEHA, at Government Code Sec. The California Supreme Court, in request, applying its discretion under 12965(b), provides for an award of at- a unanimous decision, ruled that cases Sec. 1033(a). torney’s fees to the prevailing party and brought under the state’s Fair Employ- The Court of Appeal reversed, that FEHA fee awards “are intended ment and Housing Act are not exempt holding that Sec. 1033(a) did not apply to provide fair compensation to the from Code of Civil Procedure Sec. in FEHA actions. It reasoned that the attorneys involved in the litigation… 1033(a). The section provides that a purpose of the code section was “to and encourage litigation of claims that court has discretion to deny attorney’s encourage pursuit of minor grievances in the public interest merit litigation.” fees when it finds that the matter should in courts of limited jurisdiction” and have been brought as a “limited civil that this rationale does not apply in case,” where the amount in controversy statutory discrimination or civil rights The plaintiff did not does not exceed $25,000. The high actions where “even a modest finan- take advantage of the court rejected the argument that its cial recovery can serve to vindicate a holding would discourage attorneys substantial legal right.” Also, it said cost- and time-saving from representing individuals who had that denying attorney’s fees under Sec. been discriminated against, thereby un- 1033(a) “would discourage attorneys advantages of limited dermining enforcement of the FEHA. from taking meritorious cases.” The civil case procedures. Employers’ attorneys welcomed the appellate court agreed with Chavez’ at- decision. torney that, if the case had been brought as a limited civil action, she could not It also recognized that California courts Background have deposed all the named defendants, have applied the United States Supreme Robert Chavez, a police officer let alone other witnesses. It also noted Court’s holding regarding fee awards with the Los Angeles Police Depart- that the city had refused to engage in in Title VII cases to the FEHA, that is, ment, filed several lawsuits against the settlement discussions, forcing Chavez “a prevailing plaintiff should ordinar- city alleging a number of violations of to litigate his claims for five years and ily recover attorney fees unless special the FEHA, including retaliation for through various courts. circumstances would render the award having filed administrative complaints unjust, whereas a prevailing defendant Supreme Court Decision with the Fair Employment and Housing may recover attorney fees only when Commission. The case went to trial and The high court, in an opinion au- the plaintiff’s action was frivolous, the jury decided in favor of Chavez on thored by Justice Joyce L. Kennard, re- unreasonable, without foundation, or only the retaliation provision, award- versed the Court of Appeal. It explained brought in bad faith.” ing him $11,500 in damages. Chavez’ that Sec. 1033(a) “applies when a plain- The state Supreme Court per- attorney requested fees in excess of tiff has obtained a judgment for money ceived no conflict between these two $870,000. The trial court denied the damages in an amount (now $25,000 or statutes. “In exercising its discretion 52 cper journal No. 198

under section 1033(a) to grant or deny witnesses or failed to draw inferences County of San Mateo (1989) 213 Cal. litigation costs, including attorney fees, that were reasonably supported, al- App.3d 231. Here, it said, the plaintiff’s to a plaintiff who has recovered FEHA though not compelled, by the plaintiff’s success “was modest at best.” Further, damages in an amount that could have evidence,” said the court. However, if Chavez did not claim that the jury’s been recovered in a limited civil case, the trial court is “firmly persuaded” favorable decision on the retaliation the trial court must give due consid- that the plaintiff’s attorney could not claim “had any broad impact or resulted eration to the policies and objectives reasonably have had that expectation in significant benefit to anyone other of the FEHA and determine whether or reached that conclusion, “the trial than himself.” denying attorney fees, in whole or in court may deny, in whole or in part, the The court cited another established part, is consistent with those policies plaintiff’s claim for attorney fees and principle governing attorney fee awards and objectives,” the court said. If so, it litigation costs.” applicable to this case: “A fee request continued, the plaintiff’s failure to file that appears unreasonably inflated is the suit as a limited civil case “may be A reduced award is a special circumstance permitting the considered a special circumstance that trial court to reduce the award or deny would render a fee award unjust.” appropriate where a one altogether,” according to Serrano The court gave detailed instruc- v. Unruh (1982) 32 Cal.3d. 621. In tions to the trial court to “evaluate the plaintiff achieves only this case, the court surmised, the trial entire case in light of the information limited success. court probably concluded that the fee that was known, or should have been request was “grossly inflated in light known, by the plaintiff’s attorney when of the single claim on which plaintiff the action was initially filed and as it The court found no statutory provi- succeeded.” developed thereafter.” This evaluation, sions indicating that the legislature ever And, said the Supreme Court, the court said, should avoid “‘hindsight intended to prohibit the use of limited because the trial court was familiar bias,’ which is the recognized tendency civil case procedures in the prosecution with all of the trial proceedings and for individuals to overestimate or exag- of FEHA claims. It also disagreed with with the evidence presented at trial, gerate the predictability of events after the Court of Appeal’s reasoning that “it was in a much better position than they occur.” “If, based on the available litigating an FEHA claim is “invariably this court, or the Court of Appeal, to information, the plaintiff’s attorney expensive and time consuming.” In determine whether this action could might reasonably have expected to be addition, it noted, although discovery have fairly and effectively been litigated able to present substantial evidence is restricted in limited civil cases, the as a limited civil case” and whether supporting a FEHA damages award trial court has the authority to grant Chavez’ attorney should have real- in an amount exceeding the damages additional discovery if warranted. ized that the recovery would be under limit for a limited civil case, or if the Applying its holding to the case $25,000 before the case proceeded to plaintiff’s attorney might reasonably before it, the court found that the trial. “We have no reason to question have concluded that the action could trial court did not abuse its discretion the trial court’s determinations on these not fairly and effectively be litigated as when it denied Chavez’ attorney an points,” said the court. (Chavez v. City a limited civil case, the trial court should award of fees. Under California law, a of Los Angeles [2010] 47 Cal.4th 970.) ] not deny attorney fees merely because, reduced fee award is appropriate where for example, the trier of fact ultimately a plaintiff achieves only limited success, rejected the testimony of the plaintiff’s instructed the court, citing Sokolow v. February 20 10 cper journal 53

Alvarado was terminated. He filed No Punitive or Compensatory Damages a lawsuit alleging, in part, employment Available for ADA Retaliation Claims discrimination and retaliation in viola- tion of the ADA. The district court granted the employer’s motion to bar The Ninth Circuit Court of Appeals hotline to complain that his supervisor, him from seeking punitive and com- has ruled that plaintiffs who claim that Tina Montague, had made inappropri- pensatory damages for his retaliation their employer retaliated against them ate comments about his age. Three claim and precluding him from a trial in violation of the Americans with Dis- days later, Montague gave Alvarado his by jury on that claim. abilities Act are not entitled to a jury first performance counseling record. The appellate court agreed with trial or to compensatory or punitive He then received six more over the the district court’s reading of the statute. damages. In Alvarado v. Cajun Operat- next nine months. Alvarado called the It was not persuaded by Alvarado’s argu- ing Co., the court determined that such hotline again to complain, arguing that ment that because compensatory and claims are redressable only by equitable the counseling records were in retalia- punitive damages are available under relief according to the plain language tion for his first call. the Civil Rights Acts of 1964 and 1991, of the act. He also complained to Montague they are available for ADA retaliation Tannislado Alvarado, age 65, about pain he experienced in his hands claims. worked as a cook at Church’s Chicken. when he worked in the walk-in refrig- The court examined the language He performed satisfactorily for three erator. She sent him to a doctor who of the act’s anti-retaliation provision and one-half years, according to job diagnosed arthritis and cleared him to at 42 USC Sec. 12203 and noted that evaluations by his supervisors. That return to work the same day. it does not delineate specific remedies changed after Alvarado called Church’s

The cure for boredom is curiosity. There is no cure for curiosity. cper -- Dorothy Parker, writer

This second edition includes recent developments relating to legislative approval of collective bargaining agree- ments; a discussion of recent Supreme Court cases that recognize civil service law limits; and a section on PERB procedures, including recent reversals in pre-arbitration deferral law.

This Guide provides a thorough description of the Dills Act — how it works, its history, and how it fits in with other labor relations laws. Also included are Public Employment Relations Board enforcement procedures, the text of the act, and a summary of all key cases that interpret the act, with complete citations and references to CPER analyses. In addition, there is a summary of PERB rules and regulations, a case index, and a glossary of terms designed for Dills Act users.

Pocket Guide to the Ralph C. Dills Act By Fred D’Orazio, Kristin Rosi and Howard Schwartz • 2nd edition (2006) • $12 http://cper.berkeley. 54 cper journal No. 198

available for retaliation claims. Rather, court noted that the Seventh Circuit, Covered entities are now pro- it references remedies contained in in Kramer v. Banc of Am. Sec. (2004) hibited from discriminating against 42 USC Sec. 2000e-5(g)(1), which 355 F.3d 961, cert. denied (2004) 542 an individual on the basis of genetic provides that the court may enjoin U.S. 932, ruled that compensatory and information in regard to any aspect an employer from engaging in the punitive damages are not available for of employment, including hiring, dis- unlawful practice, “and order such af- ADA retaliation claims, concluding charge, job assignment, compensation, firmative action as may be appropriate, that “a close reading of the plain lan- promotion, layoff, training, benefits, or which may include but is not limited guage of Sec. 1981a(a)(2) makes it clear any other term, condition, or privilege to, reinstatement or hiring of employ- that the statute does not contemplate of employment. ees, with or without back pay…, or compensatory and punitive damages GINA also provides that no covered any other equitable relief as the court for a retaliation claim under the ADA.” entity may request, require, or purchase deems appropriate.” While 42 USC While several district courts have held genetic information relating to employ- 1981a of the 1991 Civil Rights Act to the contrary, “we are persuaded that ees or applicants. The act, however, expanded those remedies to include the Seventh Circuit’s reliance on the provides for six narrow exceptions. punitive and compensatory damages plain language of 42 USC Sec. 1981a(a) Employers and other covered enti- for specified disability claims, it did (2) adheres more closely to the precepts ties do not violate the act where they not include ADA retaliation claims of statutory construction,” said the inadvertently acquire genetic informa- among them. court. (Alvarado v. Cajun Operating Co. tion, such as during an impromptu Although this issue was one of first [9th Cir. 2009] 588 F.3d 1261.) ] conversation about the well-being of impression for the Ninth Circuit, the one of the employee’s family members. The test is the intent of the employer or other covered entity in acquiring such information. GINA Employer Provisions Now in Effect The second exception protects em- ployers that obtain genetic information The Genetic Information Non-Dis- members, i.e., an individual’s family as part of an employer-sponsored health crimination Act of 2008 prohibits medical history. or genetic services program, such as a discrimination by health insurers and With the exception of the United wellness program. This only applies employers on the basis of genetic States government, GINA applies to to aggregated, anonymous data about information. Title I of the act covers both private and public employers with groups, not data that identifies specific health insurers. Title II of the act, which 15 or more employees, employment individuals. imposes significant restrictions on the agencies, labor unions, and apprentice- The third applies to informa- ability of employers to obtain and use ship and training programs. It prohibits tion that is voluntarily shared by the genetic information, took effect on discrimination on the basis of genetic employee. This exception is meant to November 21, 2009. information, the intentional gathering cover medical and genetic information Genetic information includes of genetic information about employees provided by the employee, or his or information about an individual’s ge- or applicants, and retaliation against her physician, to comply with medical netic tests and the genetic tests of an any employee who complains about a certification requirements of the Fam- individual’s family members, as well as violation of the act. It also contains new ily and Medical Leave Act or other information about any disease, disorder, rules protecting genetic information similar laws. or condition of an individual’s family obtained by employers. February 20 10 cper journal 55

It’s not enough that we do our best; sometimes we have to do cper what’s required. -- Sir Winston Churchill, statesman

The right to procedural due process is one of the most significant constitutional guarantees provided to citizens in general and to public employees in particular. Its entitlement has been created by statute, charter, ordinance, and other local laws or enactments. This pocket guide provides an overview of due process in public sector employment to assist employees and their employers in understanding their respective rights and obligations.

The guide― required reading ― explains who is protected, what actions are covered, what process is due, remedies for violations, and more. A section focuses on the due process rights afforded to several specific types of employees: state civil service, public officers, police officers, school district employees, and community college district employees. The Pocket Guide also includes a discussion of Skelly and other key cases on due process and the liberty interest. Pocket Guide to

Due Process in Public Employment By Emi Uyehara • 1st edition (2005) • $12 http://cper.berkeley.edu

Another, fourth, exception pro- laboratory, or in order to identify hu- because he or she has opposed any act tects employers that acquire genetic man remains. Such an employer may or practice made unlawful by GINA, information through commercially conduct genetic testing of its employ- or who makes a charge, testifies, assists, and publicly available materials, such ees for quality control to detect sample or participates in any manner in an as newspapers, magazines, periodicals, contamination. investigation, proceeding, or hearing and books, providing the employer is GINA requires that all employers under the act is prohibited. It is also not searching those sources with the safeguard genetic information, regard- illegal to harass a person because of his intent of finding genetic information. less of how it is obtained. It must be or her genetic information. The fifth exception protects cov- kept separate from personnel files. The same remedies, including ered entities that gather genetic infor- The act permits covered entities compensatory and punitive damages, mation while monitoring the effects of to disclose genetic information if it is are available under Title II of GINA toxic substances in the workplace in ac- requested by the employee or his or as are available under Title VII of the cordance with the law or where the em- her union, in response to a court or- Civil Rights Act and the Americans ployer has first obtained the employee’s der, in support of certain occupational with Disabilities Act. knowing and voluntary authorization. health research or investigations into The Equal Employment Oppor- The employee must be provided with GINA compliance, as part of the ad- tunity Commission is charged with the results of the monitoring. ministration of disability and medical issuing regulations implementing Title The last exception protects em- leave laws, or requested by contagious II of the act. On March 2, 2009, it ployers that conduct DNA analysis disease officials. published a Notice of Proposed Rule- for law enforcement, such as a forensic Retaliation against an employee making with proposed regulations. It 56 cper journal No. 198

received over 40 public comments in review by the Office of Management clear retroactive intent. In so holding, response. The EEOC has announced and Budget and will be issued when the it noted that it was “following our sister that the final regulations are now under review process is completed. ] circuits,” those being the District of Columbia Circuit, and the Fifth, Sixth, and Seventh Circuits. Applying the law as it stood prior to Employee with TMD Not Disabled Under ADA the amendments, the court found that Becerril was not entitled to reasonable The Ninth Circuit Court of Appeals, in her by reassigning her because of her accommodation because she did not Becerril v. Pima County Assessor’s Office, disability and by refusing to engage produce evidence sufficient to support found that the plaintiff’s temporoman- in the interactive process after she her claim that she has a disability. She dibular disorder was not a disability requested reasonable accommodation. asserted that she has “a physical or within the meaning of the Americans The district court dismissed her case, mental impairment that substantially with Disabilities Act and that, therefore, and she appealed. limits one or more major life activities” she was not entitled to reasonable ac- The Ninth Circuit upheld the because the TMD substantially limits commodation. The court also held that district court’s ruling. The appellate court concluded that, even if it assumed The employer that Becerril had established a prima The court found that facie case of discriminatory reassign- articulated ment, her claim would fail because the Becerril was not nondiscriminatory employer articulated several legitimate, substantially limited nondiscriminatory reasons for the reas- reasons for the signment. There was no evidence that in speaking. reassignment. Becerril was reassigned because of her disability. Rather, the evidence showed her in speaking, eating, seeing, sleeping, that the reassignment was the result and thinking and concentrating. The she failed to state a prima facie case of of complaints about her misconduct. court disagreed. It found that Becerril discriminatory reassignment. The fact that Lyons never articulated was not substantially limited in speaking Becky Becerril, who suffers from his concerns about the misconduct or because “she is limited only in talking TMD, worked originally in the mobile investigated the complaints does not constantly for a long time, and under home section of the county assessor’s show pretext, the court said, because stress.” Her limitation in eating hard office. Her supervisor, Richard Lyons, he testified he was concerned about foods is not “of central importance in reassigned her to the office’s public ser- the “morale problem” caused by the daily life.” She produced no evidence vice section. The public service section allegations, not about the allegations on how her impairment substantially is stressful, and Becerril’s condition is themselves. limits her seeing or sleeping. “And aggravated by stress. Becerril requested Before turning to the failure to ac- though her pain and grogginess limited a transfer as a reasonable accommoda- commodate claim, the appellate court her thinking and concentrating at times tion under the ADA. Her request was ruled that the ADA Amendments Act when she was working, Becerril has not denied. of 2008, which expanded the definition raised a genuine issue of material fact Becerril filed a lawsuit, claiming of disability, cannot be applied retroac- on whether her intermittent symptoms that the office had discriminated against tively because Congress did not show substantially limited her ability to think February 20 10 cper journal 57

and concentrate not just at work but Pima County Assessor’s Office [9th Cir. Supreme Court Decision outside of work as well.” (Becerril v. 2009] 587 F. 3d 1162.) ] By a unanimous vote, the justices agreed with Roby that the Court of Appeal erred when it excluded person- Personnel Management Decisions Can nel management actions as evidence Be Basis for Harassment Claim of harassment. The lower court had relied on Reno v. Baird (1998) 18 Cal.4th The California Supreme Court, in ment, Schoener disciplined Roby for 640, 131 CPER 62, which said “neces- Roby v. McKesson Corp., held that the her absences. sary personnel management actions Court of Appeal erred when it excluded Schoener also made negative com- do not come within the meaning of personnel management actions as evi- ments about Roby’s body odor even harassment,” to bar plaintiffs from us- dence in support of a claim of workplace though she knew that it was a side ef- ing personnel management decisions harassment. In its opinion, the court fect of the medication. Shoener called discussed the differences between Roby “disgusting” because of the sores Harassment and harassment and discrimination under on her arms and her excessive sweating. the Fair Employment and Housing Schoener ignored her at staff meetings, discrimination are Act, while recognizing that “they are did not give her gifts that she gave to sometimes closely sometimes closely interrelated, even other employees on her staff, and ef- overlapping, particularly with regard fectively excluded Roby from office interrelated with to proof.” parties by requiring her to cover the Charlene Roby, a McKesson em- office telephones. She frequently repri- regard to proof. ployee, suffered from “panic attacks” manded Roby in front of coworkers and that came on with short notice and spoke to her in a demeaning manner. to support harassment claims. Absent temporarily kept her from doing her She made demeaning comments about that evidence, the Court of Appeal job. The medication she took to treat her to other employees. found insufficient evidence to support her condition caused unpleasant body McKesson disciplined and ulti- Roby’s claim. odor. Roby also developed a connected mately terminated Roby because of her The Supreme Court instructed disorder that caused her to dig her absences. Roby brought suit alleging that, “the FEHA’s discrimination provi- fingernails into her arms, resulting in harassment, disability discrimination, sion addresses only explicit changes in open sores. and failure to accommodate under the the ‘terms, conditions, or privileges of McKesson’s attendance policy FEHA. The case went to trial, and employment’; that is, changes involving required 24-hour advance notice for the jury found for Roby and awarded some official action taken by the employer.” all absences, and provided for progres- her over $4 million in economic and Where the employer is an institution sive discipline based on the number of non-economic damages, and over $15 or a corporation, it must have taken absences without advance notice. Roby million in punitive damages. On ap- some official action with respect to the accrued a number of such absences in peal, the court reduced the damages employee, “such as hiring, firing, failing connection with her panic attacks. Al- awards and ruled that the evidence was to promote, adverse job assignment, though her supervisor, Karen Schoener, insufficient to support the harassment significant change in compensation or was aware of Roby’s unpredictable ail- verdict. benefits, or official disciplinary action.” 58 cper journal No. 198

A little learning is a dangerous thing, but a lot of cper ignorance is just as bad. -- Bob Edwards, NPR radio host

In concise and understandable language, this compact edition explains the many rights afforded public employees in California — state, local government, and school employees — and in the federal workforce. It provides an overview of the rights that have been granted to individual employees by the United States and California Constitutions and by a variety of statutes, including 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 and the state Fair Employment and Housing Act.

Part I covers personal rights that public employees enjoy, such as free speech, equal protection, due process, privacy, and protections against wrongful termination. Part II explains the rights of individual employees 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, regardless of union membership or political activity. Pocket Guide to

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

On the other hand, said the court, the victim of harassment by a supervisor the way to get ahead in the workplace “harassment often does not involve any who conveys abusive messages that cre- was to engage in sexual conduct with official exercise of delegated power on ate a hostile working environment. This their supervisors. The court held that behalf of the employer.” Relying on its would give the employee two separate this demeaning message could give rise opinion in Reno, the court explained claims for injury under the FEHA. to an actionable hostile work environ- that “harassment focuses on situa- In support, the court pointed ment. tions in which the social environment to Miller v. Department of Corrections “Thus, in Miller, the immediate of the workplace becomes intolerable (2005) 36 Cal.4th 446, 174 CPER 60, source of the plaintiffs’ alleged injuries because the harassment (whether ver- in which it determined that widespread was the offensive sex-based message that bal, physical, or visual) communicates sexual favoritism in the workplace could the supervisor conveyed, not a demo- an offensive message to the harassed constitute sexual harassment against the tion or an unfavorable job assignment, employee.” non-favored employees. “Significantly, and therefore, the plaintiffs’ cause While discrimination and harass- the favoritism at issue in Miller took the of action was for harassment, not for ment are separate wrongs, they are form of official employment actions, discrimination,” the court explained. sometimes closely interrelated, and including promotions and favorable job “Nevertheless, official employment can be overlapping, particularly with assignments given to female employees actions constituted the evidentiary basis regard to proof, the court explained. It involved in sexual relationships with a of the harassment cause of action, be- saw no reason why an employee who is particular male supervisor,” the court cause the supervisor used those official the victim of discrimination based on an said. These actions conveyed a demean- actions as his means of conveying his employer’s official action cannot also be ing message to female employees that offensive message.” Miller “makes it February 20 10 cper journal 59

clear that in some cases the hostile mes- Schoener’s managerial role, but rather can provide evidentiary support for a sage that constitutes the harassment is for her own purposes. harassment claim by establishing dis- conveyed through official employment However, the court instructed, criminatory animus on the part of the actions, and therefore evidence that Miller “makes it clear that some official manager responsible for the discrimina- would otherwise be associated with a employment actions done in further- tion, thereby permitting the inference discrimination claim can form the basis ance of a supervisor’s managerial role that rude comments or behavior by the of a harassment claim,” it continued. can also have a secondary effect of same manager was similarly motivated “Moreover, in analyzing the sufficiency communicating a hostile message. This by discriminatory animus.” of evidence in support of a harassment occurs when the actions establish a When all of Schoener’s actions are claim, there is no basis for excluding widespread pattern of bias.” In this case, considered, including official employ- evidence of biased personnel manage- the court concluded that while some of ment actions, there was ample evidence ment actions so long as that evidence is Schoener’s actions towards Roby could to support the jury’s finding of harass- relevant to prove the communication of be characterized as official employment ment in violation of the FEHA, said the a hostile message.” actions rather than hostile social inter- court. It ordered the jury’s judgment In this case, said the court, Roby’s actions, “they may have contributed against both McKesson and Schoener Pocket Guide to discrimination claim sought compen- to the hostile message that Schoener reinstated. sation for official employment actions was expressing to Roby in other, more The court also held, by a vote of Workplace Rights of Public Employees motivated by improper bias, such as explicit ways.” The court cited Shoe- five to two, that the jury’s award of the progressive disciplinary warnings, ner’s shunning of Roby during staff punitive damages against McKesson ex- assigning her to answer the telephones meetings, her belittling of Roby’s job, ceeded the amount permitted under the during office parties, and her termi- and the reprimands she gave Roby federal constitution, and lowered the nation. On the other hand, Roby’s in front of coworkers. “Moreover,” award to $1,905,000. (Roby v. McKesson harassment claim sought compensa- said the court, “acts of discrimination [2009] 47 Cal.4th 686.) ] tion for hostile social interactions that affected the workplace environment because of the offensive messages that Adverse SPB Decisions Do Not Foreclose they conveyed to her, such as Schoe- Retaliation Claim ner’s comments about her body odor and arm sores. Other examples were The State Personnel Board partially a reasonable, good faith belief that her Schoener’s refusal to return Roby’s upheld two of the three suspensions DFEH charge was well-founded. It also greetings, her gestures towards Roby, challenged by a California Unemploy- found there was substantial evidence to and her refusal to give gifts to Roby ment Insurance Appeals Board em- support the jury’s verdict in favor of the that she gave to others. “None of these ployee. Those decisions, however, did employee. events can be fairly characterized as not eliminate a necessary element of the Travel Discrimination an official employment action,” said employee’s claim that the CUIAB had the court, because “none involved suspended her in retaliation for filing Cynthia George had been an Shoener’s exercising the authority that a sex discrimination charge with the administrative law judge for 12 years McKesson had delegated to her so as Department of Fair Employment and in the Fresno office, where ALJs are to cause McKesson, in its corporate Housing, the Fifth District Court of required to travel to outlying areas to capacity, to take some action with re- Appeal held. The court ruled that the conduct hearings. When she began spect to Roby.” They were not done in employee did not need to prove she had to inquire about travel assignments, 60 cper journal No. 198

a calendaring supervisor told her tion complaint. Although the first sus- of her suspensions. The court found that travel assignments favored two pension was overturned, the SPB did that the claims were different. At the male ALJs. After examining past as- not overturn the second suspension. SPB, the employee pursues the right signments, George told the presiding The board found she had been abusive to remain employed under the merit ALJ that she believed male ALJs were to staff, improperly refused to conduct system. An FEHA claim is based on receiving preferences, leaving less de- a hearing, and mocked Temple, but the the right to be free from discrimination sirable schedules for the female ALJs. suspension was reduced by a week. and retaliation for opposing discrimi- A coworker, ALJ Betsy Temple, In July 2003, George filed a re- nation. The court reiterated prior case told George that if she pursued her taliation complaint with the DFEH. A law holding that an employee is not complaint, headquarters would change month later, she was suspended again required to raise an FEHA claim in the the practice of assigning travel, lim- for an inexcusable absence and two civil service process, and the doctrine iting the flexibility to respond to other incidents. The SPB found only of res judicata does not completely the absence substantiated and reduced the suspension. The first suspension George sued for retaliation under An employee is not was overturned. the Fair Employment and Housing Act. required to raise an The trial court denied the CUIAB’s motions for summary judgment on FEHA claim in the individual preferences. She warned the ground that the issues before the George that she would be “sorry” she civil service process. SPB were not the same and did not had complained. preclude litigation of the retaliation Nevertheless, George filed a issues George presented in court. At bar the FEHA lawsuit if the employee charge with the DFEH, alleging sex trial, the jury awarded George damages. pursues remedies through the civil discrimination. Within a month, the CUIAB appealed. service administrative process. But, as department changed the assignment the Supreme Court held in Johnson v. system to a standardized procedure. Not Res Judicata City of Loma Linda (2000) 24 Cal.4th Five months later, in March 2002, The appellate court rejected the 61, 144 CPER 33, while the doctrine Temple became presiding ALJ. In argument that George’s retaliation of res judicata does not apply, issues October 2002, she suspended George claim was barred by the doctrine of decided in a prior proceeding may not for attendance problems. George res judicata, meaning the same claim be relitigated in a later FEHA lawsuit, was suspended again for three weeks had already been adjudicated by the the court advised. in November 2002, for refusing to SPB. George did not claim retaliation conduct a hearing, being abusive to Issues Not Precluded in her SPB hearings, the court pointed office staff, disobeying an order from out. And, even though the SPB has The court explained that when an Temple, and mocking Temple in front jurisdiction over retaliation claims, she issue involved in a prior proceeding is of staff. was not required to raise her retaliation also essential to prove a later FEHA At the SPB hearings, George con- claim at the SPB. claim, an adverse finding on the is- tended that misconduct did not occur The CUIAB argued that the SPB sue may preclude the FEHA lawsuit. or that it did not warrant discipline. and retaliation complaints were based For example, a prior finding that a She did not argue that the suspensions on the same claim — the impropriety termination was for incompetency were in retaliation for her discrimina- February 20 10 cper journal 61

or poor attendance may decide a key retaliation against an employee who made before the DFEH complaint issue in a discrimination claim — that opposes a discriminatory action or who did not make it irrelevant and inad- the termination was not based on race participates in the FEHA process. The missible. The statement was relevant — because the prior determination court ruled that the Yanowitz standard to whether Temple acted with retalia- establishes that the employer’s reason of reasonable and good faith belief tory intent, and Temple admitted that for termination was not a pretext for applied only to a plaintiff’s opposition she knew about the DFEH complaint discrimination. conduct, not to participatory conduct. before she became presiding ALJ, the In George’s case, though, the Yanowitz required that an employee court noted. While Temple’s intention court found that the SPB’s rulings did who refuses to follow an employer’s may have been innocent, the jury was not establish that George’s suspensions directive show that she acted because free to find that Temple intended to were not retaliatory. While the SPB she had a reasonable, good faith belief warn George that she would suffer re- did decide that some of the reasons for that the directive was discriminatory. taliation, the court said, or to find that the suspensions were legitimate, the Because disobeying a directive would Temple’s displeasure with the resulting decisions did not preclude George’s ordinarily be grounds for discipline, standardized assignment system caused claim that the CUIAB accumulated the George court explained, the em- her to retaliate against George. several minor incidents and used them ployee must prove the conduct is pro- Other evidence that supported to issue a retaliatory suspension. As tected. But the statute does not require the verdict was George’s discipline- the trial court had noted, the board a reasonable, good faith belief before free 12-year work history, the close found the first suspension was not an employee is protected from filing a timing between Temple’s promotion justified and that several allegations DFEH charge, the court held. to presiding ALJ and the change in used to support the second and third George’s treatment, and the number Substantial Evidence of Retaliation suspensions were not substantiated. of unsubstantiated allegations used Although the findings that certain The court found that Temple’s to support the suspensions. All would incidents justified discipline were bind- statement that George would be tend to prove that retaliatory intent ing on George, the court held that the sorry she complained about the travel was a substantial and motivating fac- rulings against the CUIAB “leave the assignment scheme showed a nexus tor in the series of suspensions, the question whether George was treated between George’s DFEH complaint court explained. (George v. California more harshly than other employees and Temple’s later actions suspending Unemployment Insurance Appeals Board because she had challenged the ALJ her. The fact that the statement was [2009] 179 Cal.App.4th 1475.) ] travel policy as being discriminatory.” Therefore, the FEHA claim was not precluded in its entirety. Evidence of Non-Discriminatory Intent Yanowitz Not Applicable Entitles Employer to Mixed-Motive Instruction CUIAB argued that George did not show that her DFEH charge was Where an employee establishes a prima which, if standing alone, would have the result of a reasonable and good facie case of workplace discrimination induced the employer to make the same faith belief that the employer acted in violation of California’s Fair Em- decision, the employer is entitled to a mixed-motive jury instruction. In unlawfully as required under Yanowitz ployment and Housing Act, and the Har- the Second v. L’Oreal USA, Inc. (2005) 36 Cal.4th employer claims that it had a legitimate ris v. City of Santa Monica, 1028, 174 CPER 23. The FEHA bars non-discriminatory reason for its actions District Court of Appeal held that the 62 cper journal No. 198

trial court deprived the employer of a returned a verdict in Harris’ favor, and trial court refused, and instead gave an legitimate defense when it refused to the city appealed. instruction that the city was liable if give the requested instruction. Harris’s pregnancy “was a motivating Court of Appeal Decision Wynona Harris was hired by the reason/factor for the discharge.” This City of Santa Monica as a bus driver. In cases where the evidence estab- instruction did not provide the city with She had a “preventable” accident within lishes that the employer had “mixed a complete defense, the court explained. her 40-day training period, which she motives” for its employment decision, It failed to instruct the jury that the city successfully completed. She was made that is, where both legitimate and ille- could escape liability “if the jury found a part-time probationary employee, an gitimate factors contribute to the deci- the city would have terminated Harris at-will position. She had a second “pre- sion, “the burden falls to the employer anyway for performance reasons even ventable” accident within the first three to prove by a preponderance of the if she had not been pregnant.” The months of her probationary period. evidence that it would have made the trial court’s refusal to give that jury in- Her supervisor, in grading her overall same decision even if it had not taken struction therefore prejudiced the city, performance for that time, indicated the illegitimate factor into account,” concluded the appellate court. “further development needed.” Ac- said the appellate court, citing Grant- The court was dismissive of Har- cording to Harris, her supervisor told Burton v. Covenant Care, Inc. (2002) 99 ris’ contention that the city waived the her that she was doing a good job and Cal.App.4th 1361. mixed-motive defense when it did not that, but for the second accident, she In this case, explained the court, plead it in its answer to her complaint, would have graded her “demonstrates Harris was an at-will employee, mean- but rather that the defense was an after- quality performance.” ing that she could be fired for “a good thought developed by the city during Harris reported late to work two reason, a bad reason, a reason based trial. Harris cited no authority that the times during the next three months. on erroneous facts, or for no reason at mixed-motive instruction constitutes Bob Ayer, the transit services manager, all, as long as its action is not for a dis- an affirmative defense that a defendant was instructed to examine her file and criminatory reason.” The city asserted waives if not alleged in its answer to told the assistant director that Harris that it had sufficient non-discriminatory the complaint. “A defendant’s answer was not meeting the city’s standards reasons to terminate Harris: two pre- must allege affirmative defenses that for continued employment. About one ventable accidents, two incidents when involve a ‘new matter’ or risk waiving week later, Harris told her supervisor she was late to work, and a performance the defense,” the court explained. “The that she was pregnant. He reacted with evaluation of “further development city’s motive for firing Harris is not a displeasure and asked her to get a note needed.” new matter….” from her doctor clearing her to work. The city asked the trial court to Although the trial court erred by Two days after presenting such a note, give the jury the following instruc- failing to give the mixed-motive jury Harris was fired. tion: “If you find that the employer’s instruction, the city is not entitled to Harris sued the city, alleging preg- action was actually motivated by both judgment notwithstanding the verdict, nancy discrimination in violation of discriminatory and non-discriminatory ruled the Second District, “because the FEHA. The city maintained that reasons, the employer is not liable if it there was substantial evidence to sup- it had a legitimate, non-discriminatory can establish by a preponderance of port the jury’s verdict.” “The jury was reason to fire her. The trial court re- the evidence that its legitimate reason, entitled to disbelieve the city’s evidence fused to give the jury an instruction on standing alone, would have induced that Harris’s pregnancy played no role in the mixed-motives defense. The jury it to make the same decision.” The her discharge,” and “moreover, Harris February 20 10 cper journal 63

offered sufficient evidence to permit a The appellate court sent the mat- relationship” to a disabled person. It jury to conclude the city acted with dis- ter back for a new trial. (Harris v. City reasoned that such broad language criminatory animus against her.” of Santa Monica [2009] 178 Cal.App.4th “evinces a congressional intention to 1157.) ] define standing to bring a private action under 504…as broadly as is permitted by Article III of the Constitution” and Teacher Who Advocated for Disabled that this conclusion is consistent with Students Can Sue for Retaliation Congress’ statutory goal to protect the rights of the disabled. “Indeed,” it said, “empathetic people who teach and A teacher who claimed she was re- to respond to her emails and phone interact frequently with the disabled taliated against because she complained calls, excluding her from important staff are those most likely to recognize their about the treatment of her disabled meetings, changing her work assign- mistreatment and to advocate on their students has standing to sue her em- ments to sites further from her home, behalf.” ployer pursuant to the anti-retaliation reducing her caseload, and refusing to The court also found that for the provisions of both Section 504 of the let her fill in for other teachers during same reasons, Barker had standing to Rehabilitation Act of 1973 and the their vacations. She also alleged that she sue under the anti-retaliation provi- Americans with Disabilities Act, held was forced to leave her job because her sions of the ADA. The statute provides the Ninth Circuit Court of Appeals supervisors subjected her to an intoler- that no private or public entity shall in Baker v. Riverside County Office of able work environment. The district discriminate against or coerce, intimi- Education. Overruling the district court, court dismissed her complaint, finding date, threaten, or interfere with “any the Court of Appeals found that Sec. that she did not have standing to sue individual” because that individual has 504’s anti-retaliation provision grants because she herself was not disabled. opposed any act or practice made un- standing to non-disabled people who The Ninth Circuit reversed the lawful by the act or has enjoyed or aided are retaliated against for attempting to district court. It found that “the broad or encouraged any other individual in protect the rights of the disabled. language in section 504 and its corre- the exercise or enjoyment of any rights Susan Lee Barker, employed as a sponding anti-retaliation provision in under the act. Here again the use of the resource specialist program teacher for Title VI of the Civil Rights Act does not phrase “any individual” without limita- disabled students, voiced concerns to demonstrate that Congress intended tion indicates congressional intent to her supervisors that the special educa- to limit standing under section 504 to grant standing “as broadly as is permit- tion services provided by the county only those with disabilities.” The court ted by Article III of the Constitution,” violated federal and state law. She filed noted that Sec. 504 and its anti-retal- said the court. a class discrimination complaint with iation provision use the “all-inclusive The court reversed and remanded the Office for Civil Rights alleging that phrases ‘any person aggrieved’ and ‘any the case to the district court. (Barker v. the county office of education denied its individual,’ and no language further Riverside County Office of Education[9th disabled students a free and appropriate limits who ‘any person aggrieved’ or Cir. 2009] 584 F.3d 821.) ] public education. ‘any individual’ may be.” “In particu- In her lawsuit, Barker claimed that lar,” continued the court, “the statutes after her supervisors learned of the do not include language requiring such class discrimination complaint, they individuals to have disabilities in order retaliated by intimidating her, failing to have standing” nor to have any “close 26 cper journal No. 198

counsel unanimously voted in favor Local Government of an agreement with the Coalition of LA City Unions to implement an early retirement plan. The goal was to retire 2,400 of the longest-serving Mayor Takes Action as L.A. Budget Deficit Grows and highest-paid city employees. It was first proposed by the coalition in These are not happy times in the City ways to resolve the budget crisis. But May 2008. The agreement includes of Los Angeles. As employee unions others, like Councilman Jose Huizar, an increase in employee contributions fought to stave off more layoffs, the opined that the city has “a $15 million to their retirement plan and deferral chief administrative officer, Miguel plan to address a $200 million gap.” of wage increases. In exchange, the Santana, painted a dire picture of the The next day, Mayor Antonio Vil- coalition got a pledge from the city financial crisis facing the city. Even the laraigosa issued an order to the heads that there would be no furloughs or “b-word,” bankruptcy, has been ut- of all city departments, demanding layoffs of employees represented by tered by some city council members. In that they take “immediate action.” The its member unions for the duration of January, political pressure caused some mayor’s detailed directive calls for the their contract. transfer of 360 jobs into special-funded departments, 1,000 layoffs, limitations The city’s pension Villaraigosa issued on hiring, quicker processing of early an order to take retirement applications, and a loan system faces a huge from the council of $40 million in unfunded liability. ‘immediate action.’ discretionary funding to shore up the city’s reserves. “We will deplete at least Part of the problem is that the early supporters to rethink a proposal $300,000 of our much needed reserves city’s pension system faces a huge to cut 1,000, jobs — even though city every day we spend studying these op- unfunded liability. CAO Santana, who budget advisors said it would save the tions, rather than taking action.” has asked the city council to consider a city $65 million. Other voices said Soon after the mayor’s order was ballot measure that would significantly that delays in addressing the shortfall circulated, the Los Angeles city attor- reduce the pension payments for newly would only make matters worse. In ney wrote a memo asserting that the hired city workers, asserts that the cur- fact, what was considered to be a $208 mayor does not have the authority to rent system is unsustainable. million shortfall just last month has order layoffs. In January, as revenues fell far now ballooned into a $212 million Like other local governments, Los short of projections, city leaders raised deficit. That number is expected to Angeles’ finances have fallen prey to the prospect of eliminating 1,000 more jump higher next year when a $484 the state’s general malaise. Over 2,000 jobs, cutting “less-essential” city ser- million shortfall is projected by CAO city jobs have been lost since July. But, vices, and privatizing some city-owned Santana. the situation worsened this fall, when enterprises, such as parking garages At its last meeting, the city council city officials prepared to order 22,000 and golf courses. Officials began to ducked the issue and put off for 30 days employees to take 26 furlough days, project that the city might not be able a decision to cut an additional 1,000 and planned to issue more than 900 to cover its operating expenditures jobs. Union leaders have urged the city layoff notices. In one effort to pre- through the fiscal year. This prompted to forgo layoffs and search for different serve jobs and services, the L.A. city February 20 10 cper journal 27

Mayor Villaraigosa to suggest that the In the midst of this debate, Vil- The council also postponed plans to city might have to tap into its emer- laraigosa was criticized for his plan eliminate three city departments — the gency reserves to stay afloat. Council to continue to hire police officers to Department on Disability, the Envi- Member Bernard Parks said “the threat replace those who retire or resign. ronmental Affairs Department, and the of bankruptcy is real.” The mayor has pledged to maintain a Human Services Department — and Coalition leaders complained that police force of nearly 10,000 officers. to search for new revenue sources, the city was not processing the early But Council Member Parks, who used including federal stimulus money. The retirement applications fast enough. to serve as police chief, said that police council also voted to move 300 workers While 3,000 workers applied for early hiring could be avoided. CAO Santana into positions that operate outside the retirement, by January, only 400 had told the council that the city could save general fund. been removed from the payroll. The $63 million by cancelling plans to hire CAO Santana continued to voice unions charged that the city “has not 100 officers and by laying off about 600 concerns that the city would have to moved with the urgency or diligence probationary officers on the force and drain a large portion of its reserve fund that is expected given the current in the police academy. That idea was to make it to the end of the fiscal year. shortfall.” It has failed “to maximize “a non-starter” for some members of And, he said, the city’s failure to act negotiated savings and expenditure the council. could cause Wall Street to downgrade reduction opportunities.” “Without At its last meeting, the council the city’s bond rating and raise the cost leadership,” the coalition said, the city asked for another list of possible job of borrowing the money it will need to “is on course to lose as much as $58 cuts and, after an eight-hour hearing, make it through the next few years. million in savings.” tabled the layoff plan for a month.

We are always saying: “Let the Law take its Course,” cper but what we really mean is: “Let the Law take OUR Course.” -- Will Roger, humorist

The Meyers-Milias-Brown Act governs labor-management relationships in California local government: cities, counties, and most special districts. This update from the last edition covers three years of Public Employment 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 PERB doctrine including a return to the Board’s pre-Lake Elisinore arbitration deferral standard and reinstatement of the doctrine of equitable tolling; new federal court developments in the constitutional rules governing agency fees, and more.

This booklet provides an easy-to-use, up-to-date resource for those who 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. Pocket Guide to the Meyers-Milias-Brown Act By Bonnie Bogue, Carol Vendrillo, Marla Taylor and Eric Borgerson • 13th edition (2006) • $15 http://cper.berkeley.edu 28 cper journal No. 198

The following day, in his capac- department heads not to ask for ex- The mayor warned department ity as the city’s chief executive officer, ceptions from the list of potential heads that spending more that the city Villaraigosa announced he was using retirees. is taking in “is unsustainable.” These the powers provided to him by the city Mayor Villaraigosa also asked for actions must be taken immediately, charter to direct transfers and layoffs. authority from the city council to allow he said, “to address the current year The mayor’s “Urgent Directive” employees covered by the Los Angeles shortfall within the remaining five ordered department heads to take County Employee Retirement System months of our fiscal year.” The job cuts immediate action to transfer general to retire without the usual 30 to 60 day he announced would save $50 million fund employees to positions in special advance notice. “Waiving this advance this fiscal year. funded and proprietary departments. application requirement,” he said, But these savings may not mate- “will not only expedite retirements, rialize. In a memo sent to employees which will provide needed relief to the in the city attorney’s office, Chief The failure to act General Fund, but also will allow those Deputy City Attorney Bill Carter said could cause Wall employees who are facing layoffs and the charter does not give the mayor the who are retirement eligible to leave authority to compel department heads Street to downgrade the City family in the most humane to lay off employees. Brian Curry, legal way possible.” counsel to the mayor, reacted by saying the city’s bond rating. Finally, the mayor asked the city that, as the city’s chief executive officer, council to move $40 million in uncom- the department heads answer to him. This move will permit 360 employees mitted special and discretionary funds Villaraigosa expects those managers to avoid layoffs, he projected. The into the city’s reserve until it reaches 5 to comply with his wishes and make mayor directed that his transfer plan percent of the overall city budget. the transfers and layoffs he asked for, be completed in two weeks, with a Curry said. ] detailed day-by-day timeline included in the ambitious scenario. Department heads also were Once Employee Retires, Civil Service Commission ordered to eliminate 1,000 filled, full- Lacks Jurisdiction time positions. He instructed the per- sonnel department to “immediately” begin the process of calculating senior- The jurisdiction of the Los Angeles Angeles Civil Service Commission ity and displacement rights. Managers Civil Service Commission is divested challenging the health services depart- in proprietary departments, like the when a county employee whose ap- ment’s decision to suspend her without airport, harbor, and Department of peal is pending before the commission pay for 30 days pending an investiga- Water and Power, were asked to hire as elects to retire. Because her future tion into allegations of inappropriate many displaced workers as feasible. He status as an employee is no longer an conduct. The department then notified asked those managers to report back in issue, ruled the Court of Appeal, the Latham of its intent to discharge her. one week with their projected hiring challenge to her discharge becomes a Latham filed an appeal with the needs over the next 12 months. wage claim, over which the commis- civil service commission that chal- The mayor also said the city had sion has no jurisdiction. lenged both actions. A hearing officer to retire as many persons as possible The case began when Margaret assigned by the commission began and “as quickly as possible.” He told Latham filed an appeal with the Los receiving evidence on Latham’s ap- February 20 10 cper journal 29

peal. Six months later, before the The commission then issued its relying on Zuniga v. Los Angeles County commission hearing officer issued a final opinion, rejecting the depart- Civil Service Commission (2006) 137 decision on the appeal, Latham vol- ment’s request to dismiss the appeal Cal.App.4th 1255, the “bright line untarily retired. She did not advise and adopting the hearing officer’s re- proposition” is that “where an em- the commission or the department of port. The ultimate decision imposed a ployee retires during the pendency of her retirement and the hearing officer reduction in rank, not a suspension. a civil service appeal, her future status conducted a two-day hearing. The department filed a petition as an employee by definition is no lon- asking the superior court to vacate ger at issue. The then-pending appeal the commission’s decision and dismiss becomes a wage claim brought by a A person who has Latham’s appeal on the ground that retired is no longer her retirement had divested the com- mission of any jurisdiction to render a The commission a member of the decision in her civil service appeal. does not retain civil service. The superior court granted the department’s petition, and the com- jurisdiction over a mission complied with the court’s former employee. A month later, the hearing officer order setting aside its decision and issued an extensive report. He found adopting a new final order dismissing that the department had wrongly sus- her appeal. former civil servant.” Under Zuniga, pended Latham for 30 days without Latham argued on appeal that her the commission has no jurisdiction pay pending an investigation because election to retire did not eliminate her over such a wage claim because neither her errors and omissions did not pres- claim that she should have retained the Charter nor Civil Service Rules ent any emergency circumstances jus- her job and that she is entitled to back vests such jurisdiction.” “In short,” said tifying a pre-investigation suspension. pay from the date the department dis- the court, “the Commission only has The hearing officer also found that the charged her until the date she retired. authority to address matters involving evidence did not support the decision She also argued that her subsequent a member of the civil service, and a to discharge her, finding instead that retirement did not negate the fact that person who has retired is no longer a the appropriate discipline for Latham’s she had been discharged 20 months member of the civil service.” errors was a 30-day suspension. earlier and did not alter the nature of Latham argued that Zuniga was While the appeal was pending her separation from employment. not controlling because, in her case, before the full commission, the de- Latham is correct, the Court of the hearing officer had taken signifi- partment requested that Latham’s Appeal said, that the commission had cant testimony before she retired. That appeal be dismissed, arguing that the jurisdiction over her civil service ap- factual difference does not change the commission had lost jurisdiction over peal at the time she first contested her legal analysis, said the court. In both the matter. The department charged discharge. But the case “does not end cases, the civil service appeal had com- that Latham’s intervening retirement there.” “We agree,” said the court, menced before the employee retired. meant that any further proceedings by “that her retirement had no trans- “If there were a ‘once jurisdiction the commission would be meaningless formative effect on her discharge to vests it vests forever rule,’ then Zuniga because she could not be reinstated the extent that, if the discharge was would have come out the other way.” once she had retired. unlawful, her retirement did not ‘cure’ But Zuniga rejected that argument, the unlawfulness.” But, said the court, explained the court, and concluded 30 cper journal No. 198

that the commission does not retain ju- may be asserted in another forum,” opting to use furloughs. To avoid risdiction over a former employee. At said the court, citing Sec. 6.20.1000(B) layoffs, Sacramento County reached the time of resignation, said the court, of the Los Angeles County Code that an agreement with United Public whether evidence has been received or authorizes the restoration of salary or Employees to delay for two years a 6 not, the underlying claim becomes one earned paid leave of absence under percent upcoming wage increase and for back pay. And, without an express certain circumstances. Underscoring to take 13 mandatory furlough days. grant of jurisdiction, the commission the basis of its ruling, the court com- In Santa Cruz, court employees agreed lacks the authority to investigate the mented that commission jurisdiction to 23 furlough days rather than have charges and award back pay. must be based on express authority layoffs imposed. The court noted that Latham’s re- in the charter, not on the absence of A “Court Funding Coalition” tirement only affected the availability any other designated forum. (County formed, urging the AOC to redirect of relief through the civil service. “We of Los Angeles Dept. of Health Services v. money earmarked for the construction express no view on whether she has a Civil Service Commission; Latham, RPI. of new courtrooms and to inaugurate viable civil claim for back pay which [2009] 180 Cal.App.4th 391.) ] a new computerized case management system. Protest rallies were staged by court staff in Burbank and Alameda. Court Closures, Furloughs Focus The Deputy Sheriffs Association Critical Attention on AOC

Last April, the State Judicial Coun- ees, like SEIU and the California Fed- The debate began cil, the policymaking body of the eration of Interpreters, and from the to focus on the California courts, discussed employee California Sheriffs Association, whose furloughs at its meeting. The Adminis- members serve as the courts’ security AOC itself. trative Office of the Court, the agency personnel. Union members rallied in responsible for implementing council front of the Supreme Court in San policies, campaigned for a uniform plan Francisco, asking that they be allowed announced it would explore its legal covering the trial courts, the Courts of to participate in the discussion of how options should the AOC go forward Appeal, and even the Supreme Court to address the budget cuts. with a proposed plan to replace its with a predictable schedule to lessen While a statewide plan was de- sworn deputy sheriffs with non-sworn public confusion. In May, because the bated, the Los Angeles County court security guards. courts’ budget had been slashed by system — the largest in the country In July, the debate began to focus approximately $400 million, a plan — announced it would close all of on the AOC itself. Unions called for emerged to close all state courthouses its 600 courthouses one day a month legislation that would make court fi- one day a month. beginning in July. To L.A. court em- nancial records available for scrutiny The Board of Governors of the ployees, this amounted to a 4.5 percent by outsiders. Judges in Sacramento State Bar endorsed the monthly clo- pay cut. Alameda County courts took County signed a petition opposing sure plan and, in Sacramento, the leg- more drastic action, sending out 73 the court closures, calling the AOC islative budget conference committee pink slips. With those layoffs set to “bloated” and “impervious.” This signed off on it. begin in June, employees circulated group charged that administrators But opposition quickly was voiced a “no confidence” petition critical made court closures the first cost- by unions representing court employ- of the Alameda court’s CEO for not cutting option instead of the last. February 20 10 cper journal 31

Other critics pointed out that the said that the AOC’s across-the-board Just prior to a hearing before the As- AOC budget had increased 77 percent approach was inappropriate since 20 sembly Committee on Accountability since 2004; the number of employees county court systems had the resources and Administrative Review, new costs had risen from 491 to 785. The AOC to avoid closures. associated with the computer system responded that the growth of the or- Because the California Constitu- put the tally at $1.75 billion, five times ganization became a necessity when tion does not permit a reduction in more than originally projected. And lawmakers transferred court oversight a judge’s salary mid-term, the court the planned rollout got pushed from from the 58 individual counties to the closure plan could not apply to them. 2009 to 2013. Critics also complained centralized AOC staff. Most judges were willing to surrender that there was little oversight of spend- But when salary data acquired by a day’s worth of compensation. For ing for the project; others charged the Sacramento Bee reported that 29 example, in Los Angeles County, 93 that the AOC’s budget projections did percent of AOC employees earned percent of the judges took a volun- not include millions of dollars spent tary furlough day. But, when it was by individual counties to interface publicized that the AOC had spent Some jurists opted to $337,000 on a judges’ training pro- donate one day’s pay. gram and $86,000 for a retreat in San Sheriffs said a change Francisco, some judges were outraged would compromise and became resistant to diverting their more than $100,000 a year, and when salary savings to the state’s court bud- the safety of a provision hidden in a budget trailer get. In Orange County, some jurists bill surfaced that would have given the opted to donate one day’s pay directly the courtrooms. AOC more power to scrutinize local to the county court system. Sacra- court spending, groups impacted by mento County judges donated their with the computerized system or the the court closure plan called for an one-day salary to a private foundation considerable staff time devoted to the audit of the agency. that directed money to programs for project. Despite the vocal opposition, children and the elderly. Judges in San The legislative committee con- however, the judicial council approved Mateo and San Luis Obispo counties vened on October 28 to an overflow the one-day-a-month furlough plan, exercised alternative donation options. crowd that heard from judges, law en- effective September 16. In Los Angeles, $1 million collected forcement officers, and labor unions. Several judges attacked the plan from the bench was redistributed SEIU legislative advocate Michelle for seriously impacting the public’s directly to court employees via a local Castro explained that the union had constitutional right of access to the fund — Contributions for Access and long pushed hard for AOC account- courts. In particular, the judiciary said Retention of Employees, i.e., CARE. ability and transparency, and that it would delay juvenile dependency On the first furlough day, Sep- need was exacerbated when it made cases, applications for restraining tember 16, court workers picketed the the decision to close the courts and orders, and criminal arraignments. In AOC office in San Francisco. furlough workers. Sacramento, Superior Court Judges In October, the legislature The AOC continued its call to use Maryanne Gilliard and Loren McMas- launched an investigation into the non-sworn court security personnel ter became vocal critics of the closure AOC’s budget, the significant increase instead of deputy sheriffs, a switch it plan, predicting that it would create in its staff, and the price tag for the estimated would save $100 million a a “monstrous” backlog. They also centralized case management system. year. But the California Sheriffs Asso- 32 cper journal No. 198

ciation took issue with that claim and countered that such a change would County’s Effort to Win Unions’ ‘Non-Support’ displace 4,000 deputies and seriously for Arbitration Measure Not Misuse of Public Funds compromise the safety of the state’s courtrooms. The County of Santa Clara did not to disassociate itself from such action” In an editorial in a legal newspa- impermissibly expend public funds and agree to “not directly or indirectly per, Los Angeles County Presiding for partisan electoral purposes when, initiate or support” any future efforts Judge Charles W. McCoy asserted during negotiations, it bargained for to place binding interest arbitration that the budget crisis has brought the unions’ non-support of an initiative on the ballot. Neither union agreed judicial branch of government “to a measure calling for binding interest to the “non-support” clause, and talks crossroads.” He chided that the AOC arbitration. Applying the Stanson rule, with the county languished for months and the Judicial Council must decide which bars the use of public funds without a settlement. what matters most — keeping the for campaign activities, the Court of The lawsuit was brought by coun- courts open, laying off thousands of Appeal found that the Meyers-Milias- employees, or rushing to build expen- Brown Act authorized the county’s sive new courtrooms. Days later, the The line between discussion of the ballot measure while legal newspaper revealed that AOC bargaining with the unions. employees had received raises and authorized and The court also found that the promotions which added $4.2 million county had made no quid pro quo offers unauthorized activities to payroll costs. Regional administra- to the unions to win their agreement to tors got a 10 percent pay hike, on top depends on style, a bargaining proposal that they with- of a base salary of $198,000. hold their support for the initiative tenor, and timing. As if operating in a parallel uni- and disassociate themselves from the verse, the San Francisco court system petition drive to get the arbitration contemplated closing half of its 30 ty taxpayers alleging that the county measure on the ballot. civil departments, causing delays of improperly spent public funds for In 2004, several unions represent- over a year. partisan electoral purposes by bargain- ing county employees began an effort Last month, the Alliance of Cali- ing for the unions’ non-support of the to add a provision for binding interest fornia Judges continued to question ballot measure. They also challenged arbitration to the county charter. Dur- the AOC on the propriety of allocating the legality of an email sent by one ing negotiations with the Correctional court operating funds to finance the member of the board of supervisors Peace Officers Association and the case management system. The group urging voters to reject the proposed Registered Nurses Professional Asso- of about 200 judges charged that the arbitration amendment. When the ciation, the county presented officials Government Code requires the AOC trial court sided with the county, the of both unions with a proposal seeking to get the courts’ consent before us- thorny legal issue advanced to the their agreement for a contract term ing operation funds for information Court of Appeal. not to “directly or indirectly initiate technology purposes. The appellate court’s lengthy or support any effort to place binding On January 21, the judicial council decision includes an exhaustive review interest arbitration on the ballot.” The voted to extend the monthly court of California case law that proscribes proposal also obliged each union and closures until June. ] the use of public funds for partisan their officials to “take immediate action political activities. These cases draw February 20 10 cper journal 33

a distinction between expenditures by materials, the entity lacks authority to sion demanding that RNPA withdraw a government body for informational make such expenditures. its support for the taxpayer measure. purposes, which generally are permis- In this case, the county looked As determined by the trial court, the sible, and expenditures for campaign to the MMBA as authorization for county’s increased wage offer was based activities, which generally are not. But, its conduct during collective bargain- on its receipt of information about a the court cautioned, the line between ing, and the court agreed. Relying on wage increase obtained by nurses at authorized and unauthorized activi- federal case law, the court concluded Stanford University and salary rates ties is not always clear and depends that interest arbitration is a permis- at other local area hospitals. on the style, tenor, and timing of the sive subject of bargaining. And it was Having found no quid pro quo, the activity, and the audience to whom it not persuaded that it was outside the court addressed whether the county is directed. confines of union and management engaged in campaign activity or infor- Relying on the Supreme Court’s collective bargaining because the mational activity when it discussed the ruling in Vargas v. City of Salinas (2009) arbitration measure was presented to unions’ non-support of the proposed voters as an initiative. A public entity In Seal Beach Police Officers Assn. The county’s proposal v. City of Seal Beach (1984) 36 Cal.3d frequently will 591, 60X CPER 9, the Supreme Court was ‘basically ‘take sides.’ recognized that the electoral process informative and and the MMBA can coexist. Likewise, said the Court of Appeal, collective factual.’ 46 Cal.4th 1, the court explained that bargaining and the initiative process the constitutionally suspect conduct are not mutually exclusive. initiative during negotiations. This is a public entity’s use of the public Because the MMBA does not conduct does not resemble typical cam- treasury to mount an election cam- explicitly authorize expenditures for paign activity, said the court. “It more paign. But the law does not preclude partisan campaigning in clear and closely resembles pursuit of a proper a governmental entity from publicly unmistakable language, the court informational role by presenting the expressing an opinion about the mer- carefully looked at the factual cir- agency’s view of a ballot proposal at its of a proposed ballot measure. The cumstances surrounding the county’s a meeting of an organization that has court recognized that a public entity negotiations with CPOA and RNPA. expressed interest in the topic.” frequently will “take sides” and not Deferring to the factual findings of the The court read the language of remain neutral. The mere circum- trial court, the Court of Appeal found the county’s proposals to be “basi- stance that a public entity may have an insufficient evidence that the county’s cally informative and factual” and not opinion or position on the merits of a wage offer to CPOA was made as a intended for further distribution as ballot measure is not improper. quid pro quo for the union’s agreement campaign material. The fact that the Citing the leading case, Stanson v. not to support the binding interest county expressed an opinion about the Mott (1976) 17 Cal.3d 206, the court arbitration ballot measure. Regarding merits of the ballot measure is not im- explained that, in the absence of clear the nurses, the court accepted the trial proper, said the court, noting that the and unmistakable language specifically court’s findings that the county’s offer proposals were “framed in the dispas- authorizing a public entity to expend of a wage increase was not conditioned sionate language of contract, not in the public funds for campaign activities or on their acceptance of a contract provi- exhortatory tone of persuasion.” 34 cper journal No. 198

Adopting the reasoning of Jordan associated with sending the email v. City of Santa Barbara (1996) 46 Cal. was minimal, the court found it was App.4th 1245, the court concluded exempt from the statute barring the that, since the collective bargaining use of public resources for campaign activity occurred before the initiative purposes. (DiQuisto v. County of Santa had qualified for the ballot, the action Clara [1-22-10] H032345 [6th Dist.] was not an attempt to influence voters ___Cal.App.4th___, 2010 DJDAR because there was no ballot measure 1122.) ] for which to campaign. It found the formulation and drafting of a proposed ballot measure before it qualifies for the ballot is not itself partisan cam- paigning and, in this case, the elec- tion campaign was not yet underway. Further, the bargaining proposals were intended to influence the unions, not the voters. The lawsuit also challenged an email sent by Supervisor Blanca Al- varado encouraging 1,500 individu- als to educate themselves about the initiative and attaching a copy of a newspaper editorial urging a “no” vote. The court concluded that the text of the email urged the recipients to educate themselves; it did not urge defeat of the ballot measure. The text of the email reflected a neutral style and tenor, the court commented, and while Alvarado’s email was sent less than a month before the election, it was one in a series of email blasts and was informational. As for the attached editorial, which expressly exhorted voters to defeat the ballot measure sponsored by the union, the court concluded it was advocacy. However, because it was prompted by the supervisor’s concern over voter confusion, and the expense 68 cper journal No. 198

FERP employees to be assigned Public Sector Arbitration “proportionate workloads, consisting of direct and indirect instructional duties, in the same manner as regular tenured faculty are assigned.” She also Arbitrator’s Resolution of Remedy Dispute Did Not awarded a “make-whole” remedy that Exceed Her Jurisdiction required CSU to review FERP records to identify any faculty who were as- In 2004, the California Faculty As- the FERP assignment should be direct signed an “all-teaching workload” and sociation challenged a California teaching duties. CFA filed a grievance make them whole unless the FERP State University policy regarding the on behalf of all of its members system- employee had volunteered for the teaching assignments of retired fac- wide, claiming that the policy ignored workload. She continued: ulty. Arbitrator Bonnie Bogue found indirect instructional workload credits in favor of CFA on two consolidated for FERP employees. The award will compensate each grievances. When CSU did not imple- In 2005, the union filed another FERP faculty member for the excess ment the remedy as CFA expected, grievance, on behalf of Jon Meisen- workload during terms in which that individual was not allowed compen- the association asked the arbitrator helder, because his FERP workload sated time for indirect instructional for clarification. CSU contended the was not proportional to the normal duties. supplemental remedial ruling modified the award and, therefore, exceeded the CFA asked the Or, the faculty member could arbitrator’s jurisdiction. The university opt to accept a reduced workload in petitioned a court to vacate the ruling. arbitrator to clarify subsequent academic terms to offset In an unpublished decision, the Court her remedy. the excessive workload. In the Meisen- of Appeal held that Arbitrator Bogue helder grievance, Arbitrator Bogue did not exceed her jurisdiction. ordered CSU to compensate the griev- responsibilities, duties, and course ant for the excessive workload by the Excessive Teaching Assignments load in his department during the difference between 33.3 percent and academic year prior to his retirement. The Faculty Early Retirement 42 percent of salary. The normal load in his department was Program allows faculty who are at CFA then asked the arbitrator seven four-unit courses a year. Meisen- least 55 to retire but continue to work to clarify her remedy because CSU helder elected to work one-third his up to 50 percent of the time base they was compensating only those FERP time base. During his second year of worked in the year prior to retire- employees who had been assigned all- retirement, he was assigned to teach ment. As set out in the labor contract teaching loads, not those who had been three four-unit courses, 42 percent of between the parties, faculty workload assigned other excessive direct instruc- a full-time assignment. consists of direct teaching duties and tional loads. CSU objected, claiming Arbitrator Bogue consolidated indirect instructional duties, such as that the award limited the make-whole the grievances for the arbitration and student advisement. In 2004, a CSU remedy to those with all-teaching as- ruled for the association on both. In top administrator informed campus signments, and that CFA improperly the systemwide grievance, she ordered administrators that they could make was asking for the Meisenhelder rem- CSU to issue a directive that the col- all-teaching assignments because the edy to be applied systemwide. contract did not state how much of lective bargaining agreement required February 2 0 10 cper journal 69

The parties had stipulated during concept that CSU was required to The court pointed out that the the hearing that the arbitrator would assign proportionate workloads. Her arbitrator’s jurisdiction in the supple- retain jurisdiction to resolve any make-whole remedy, however, direct- mental remedial phase of the arbitra- dispute over the implementation of ed the university to identify only those tion was to resolve a dispute over the the remedy, but not to reconsider the retired faculty who had been assigned implementation of the remedy, which merits of the award. Arbitrator Bogue all-teaching loads. essentially required that she interpret concluded in her remedial ruling, “The In her supplemental remedial rul- the remedy she previously had award- remedy ordered in the [systemwide] ing, Arbitrator Bogue pointed out that ed. Although the remedy provisions grievance requires a make-whole the systemwide grievance challenged focused on all-teaching assignments, remedy for every FERP participant the administrator’s statement that they did not expressly limit the remedy who had a classroom teaching assign- campuses could assign “all-teaching” to FERP participants with all-teaching ment that was not proportional to loads before the new policy was imple- assignments, the court noted. And, that individual’s pre-FERP teaching mented. She acknowledged that, to be the award included salary for uncom- assignment.” pensated indirect instructional duties. CSU filed a petition to vacate the Case law establishes Particularly since the injunctive relief ruling, and CFA filed a petition to con- required proportionate workloads, the firm it. When the trial court confirmed a deferential court found that the narrow remedy the award, CSU appealed. standard of review advocated by CSU was “illogical.” The court also held that, even if Deferential Review of an award. the remedial ruling was an amendment The appellate court recited case of the award, the ruling was properly law that establishes a deferential stan- confirmed. California’s contractual dard of review of an arbitrator’s award. consistent with the contract, the rem- arbitration law permits an arbitrator Courts generally will not examine an edy must include FERP participants to amend an award to resolve an is- award for errors of fact or law. The who later had been assigned dispro- sue omitted from the original award court reviewed the remedial ruling in portionate direct teaching loads. She through mistake, inadvertence, or light of the restriction on the arbitra- stressed that the original remedy had excusable neglect of the arbitrator “if tor’s authority that she not reconsider directed that each FERP participant be the amendment is made before judicial the merits of the award. compensated “for the excess workload confirmation of the original award, is In her original award, Arbitrator during terms in which that individual not inconsistent with other findings on Bogue concluded that, absent volun- was not allowed compensated time for the merits of the controversy, and does tary agreement of a FERP participant, indirect instructional duties.” Relying not cause demonstrable prejudice to the contract required that the work- on this language, she concluded that the legitimate interests of any party.” load must be a combination of direct the remedy in the systemwide griev- If viewed as a substantive amendment teaching and indirect instructional ance required a make-whole remedy to the original remedy, the arbitra- duties that “is to be proportionate “for every FERP participant who had tor’s remedial decision resolved an to that which was assigned to that a classroom teaching assignment that issue regarding FERP participants individual prior to retirement.” The was not proportional to that individu- with disproportionate direct teach- arbitrator’s injunctive remedy in the al’s pre-FERP teaching assignment.” ing loads that inadvertently had been systemwide grievance reflected the omitted from the original award, but 70 cper journal No. 198

that was consistent with the findings was untimely because it was not is- compared his testimony to that of the on the merits of the controversy, the sued within the timelines the Code of grievant, who the board found to be a court found. The court rejected CSU’s Civil Procedure sets for correcting an credible witness. And, the city would contention that the remedial ruling award. ] not have had to rely on hearsay to es- tablish that the coworker had received a call requesting sexual favors after his cell phone number was written on the bathroom wall. Circumstantial Evidence Insufficient to Link Based on the facts presented to the Grievant With Bathroom Graffiti board, it found just cause lacking to sever the grievant’s nine-year employ- After hearing contradicting opin- The union hired its own expert ment with the city. The board ordered ions from two handwriting experts, witness, who testified that the char- the grievant reinstated and made whole the three-member City of Salinas acteristics in the script of the graffiti Grievance-Arbitration Board found were not specific to the grievant, but The court found insufficient evidence to sustain the to a class of workers. And, the union termination of an employee of the demonstrated similarities between the the narrow remedy city’s Wastewater Department. The graffiti and the penmanship of other advocated by CSU panel’s unanimous decision, written by crew members. It is a fairly common William Riker as the chair of the panel, practice for employees on the waste- was ‘illogical.’ turned on the board’s reluctance to water crew to write graffiti on walls, for all lost wages and benefits. ( uphold the penalty of discharge based lunch pails, and lockers. Service only on circumstantial evidence. The board found the city’s expert Employees International Union, Loc. 521, 6-1-09 The grievant was charged with did not establish with reasonable CTW/CLC, and City of Salinas, . Representatives: Susan J. Matham writing a coworker’s cell phone num- certainty that the grievant was the [assistant city attorney] for the city; ber on the wall of the men’s bathroom only person who could have written Manual A. Boigues [Weinberg Roger and claiming that the coworker was the graffiti. Circumstantial evidence and Rosenfeld] for the union. Arbi- available to give “blow jobs.” can be probative, the board said, but traton board: Dean Carothers [union To make its case, the city relied on “caution is warranted” when it is ex- appointed member], Kelly Halcon [city the testimony of a handwriting expert, clusively relied on to support a penalty appointed member], William E. Riker who concluded it was the grievant who of discharge. [chairperson].) ] wrote the graffiti. The city also argued One critical element in the case it was more than coincidental that, on was the unavailability of the coworker the day the graffiti was discovered, the who was the subject of the graffiti. The grievant was working in close proxim- board was troubled by the grievant’s in- ity to bathroom. The grievant’s past ability to “face his accuser” and conduct interactions with this coworker and his cross-examination. If the coworker had recent positive drug test also were cited come forward, Riker said, the board by the city to support the discharge. could have observed his demeanor and February 2010 cper journal 71

ant reasonably understood this directive Arbitration Log to apply only to future disagreements with a particular substitute teacher. The grievant’s conduct did not warrant a gen- eral admonition to bring all issues with • Discipline Union’s position. (1) The director’s staff members to the administration. Franklin-McKinley School Dist. complaint about the grievant was the (2) The director’s verbal and written and Franklin-McKinley Education basis for the grievant’s “needs improve- communication to the principal about Assn. (2-9-09; 22 pp.). Representatives: ment” rating concerning his “working her interaction with the grievant is a Adrianna E. Guzman (Liebert Cassidy with colleagues.” Therefore, the collec- complaint. The principal accepted the Whitmore), for the employer; Ballinger tive bargaining agreement required that accusations as fact and repeated them as G. Kemp, for the union. Arbitrator: he be provided a copy of the director’s grounds for the written reprimand. Jerilou H. Cossack (CSMCS Case No. complaint. (3) While the grievant’s evaluation ARB-07-0399). (2) The district failed to conduct did not mention the director’s complaint, Issue: Did the district violate the an appropriate investigation into the the written reprimand repeated her contract when it issued a letter of repri- director’s accusations. The principal’s charges and was placed in the grievant’s mand to the grievant? decision to believe the director instead of personnel file. District’s position: (1) The written the grievant does not prove the director’s (4) The contractual requirement reprimand issued to the grievant was version of the interaction is accurate. that complaints be “verified” is analogous not a “complaint” under the terms of (3) The district violated the contract to the due process requirement that the the parties’ contract; it need not be by placing an unverified complaint in the employer conduct a fair investigation. placed in his personnel file. Viewing all grievant’s personnel file. The written The district’s investigation was perfunc- routine supervisory tools as complaints reprimand was based on the director’s tory. would impede management’s ability to unconfirmed allegations. (5) The record supports the griev- direct staff. Arbitrator’s holding: Grievance sus- ant’s assertion that he observed an unsu- (2) The grievant confronted the tained. pervised group of male students acting director of the after-school academic Arbitrator’s reasoning: (1) The rule inappropriately. enrichment program in an angry manner, verbally communicated to the grievant (6) The district lacked just cause to complaining that he had seen packs of that he bring disputes with his colleagues issue the reprimand. The director’s letter unsupervised boys roaming the hallway. to the administration is at variance with was not provided to the grievant, and the He told the director that if the students accepted protocol that staff discuss issues district did not verify the allegations the engaged in misconduct, she would be with other staff members before ap- director made. held responsible. proaching the administration. The griev- (Binding Grievance Arbitration) (3) Because the director perceived the grievant’s conduct as condescending, A t t e n t i o n A r b i t r a t o r s , A t t o r n e y s a n d U n i o n R e p s threatening, and intimidating, she pro- Celebrate your victories or let us commiserate in your losses! Share with CPER readers vided the school principal with a written your interesting arbitration cases. Our goal is to publish awards covering a broad range statement describing the interaction. of issues from the state’s diverse pool of arbitrators. Send your decisions to CPER Editor (4) The grievant ignored a prior Carol Vendrillo, Institute for Research on Labor and Employment, 2521 Channing Way, directive that he take all disputes with his University of California, Berkeley, CA 94720-5555. Or email [email protected]. colleagues to the administration. edu. Visit our website at http://cper.berkeley.edu. 72 cper journal No. 198

• Dues Deductions (5) The SCO’s and CSU’s refusal (4) The record supports the infer- California State University and to provide the union with current sal- ence that CSU can readily produce the State Employees Trades Council- ary data deprives the union of dues pay information. It offered no explana- United (3-5-09); 17 pp.). Representatives: revenues to which it is entitled under tion why it could not, on a routine basis, Maria E. Osorio, for the university; Mat- the contract. produce such data prior to the monthly thew D. Ross (Leonard Carder), for the University’s position: (1) The col- deadline for the union to submit new or union. Arbitrator: Bonnie G. Bogue. lective bargaining agreement does not changed dues calculations to the SCO. Issue: Did the university comply require the university or the SCO to (5) Since only CSU has the pay data with its contractual obligation to deduct modify their procedures to match the that will allow the union to make timely and transmit all authorized dues to the union’s needs. calculations of the amount of authorized union? (2) The legislature designated the dues, the university’s failure to provide Union’s position: (1) The parties’ SCO as the pay agent for CSU; the uni- that data causes its own failure to comply contract requires that the university versity has no authority over the SCO or with its contractual obligation to deduct deduct all authorized dues from union its procedures. and transmit all authorized dues. members’ paychecks and change the (3) The union cannot shirk its con- (Binding Grievance Arbitration) amount of dues deducted upon the tractual obligation to submit a written union’s request. request for any changes in the amount • Progressive Discipline (2) When the union dues’ structure of dues deductions and compel CSU and • Discharge — Hostile work envi- ronment changed from a flat dollar amount to 1.2 the SCO to make the calculations. Public Employees Union, Loc. percent of each employee’s salary, the Arbitrator’s holding: Grievance sus- 1, and West Contra Costa Unified union was unable to recalculate the new tained. School Dist. (10-9-09; 8 pp.). Repre- amount and convey this data to the state Arbitrator’s reasoning: (1) CSU has sentatives: Douglas N. Freifeld (Fagen controller’s office (SCO) by the 15th of not deducted and transmitted the full Friedman & Fulfrost), for the district; the month. amount of dues in months when changes Marcus L. Mitchell (business agent), (3) Because the union does not re- in employees’ pay rates required recalcu- for the union. Hearing Officer: C. Allen ceive the payroll deduction report show- lation of the dollar amount of dues. Pool. ing each employee’s actual salary until the (2) The contract obligates CSU to Issue: Did the district have just cause last day of the month, after pay warrants change existing dues’ deductions upon to discharge the appellant? have issued, there is a one-month delay in the union’s request; the SCO is not a District’s position: (1) The charges the union’s receipt of the full amount of party to the labor agreement. CSU has against the appellant are sufficient to dues for employees whose salaries have no control over SCO procedures or legal support the recommendation of dis- changed and for new hires. authority to compel the SCO to change missal. Despite a steady application (4) A representative of the control- its procedures to accommodate the re- of progressive discipline, including a ler’s office testified that the SCO could quirements of the parties’ contract. written warning, written reprimand, calculate the 1.2 percent of salary, but (3) Procedures of the SCO make and 30-day suspension, he continued to the current payroll system is not set up it impossible for the union to make a engage in a pattern of misconduct, such to do so. The university’s senior person- written request for dues changes in time as insubordination, failure to follow nel manager said that salary data for to receive the full amount of dues in the directives, and neglect of duty. SETC-represented employees is readily month the employee’s salary is changed. (2) When the appellant returned to available; the report could be produced This denies the union the full benefit of work following his 30-day suspension, on the day it is requested. its bargain. he was counseled by management, told February 2010 cper journal 73

what conduct was expected of him, and None of the prior discipline was grieved. (2) Over 75 percent of the complain- advised that anything less would not be With each disciplinary action, the appel- ant’s salary was generated by grants that tolerated. lant was forewarned that if he continued continued past the date of the layoff. The (3) In the six months after the to engage in misconduct, he would be funding that ended accounted for only 25 appellant returned to work, the dis- subject to further discipline, including percent of his time. trict received a variety of complaints discharge. (3) When the complainant told the concerning misconduct similar to that (4) After his return to work follow- project director he could not legitimately which prompted the prior progressive ing the suspension, he continued to dem- include additional persons on the record discipline. He continued his practice of onstrate a pattern of insubordination, of invention, the dean threatened the intimidating and harassing coworkers. failure to follow directives, and harass- complainant with termination. (4) Following an investigation, the ment of coworkers. There is no evidence University’s position: (1) The com- board of education recommended that to support disparate treatment. plainant failed to show that his layoff was the appellant be dismissed from his (5) The district received complaints in retaliation for protected disclosures or classified position. The charges warrant from several of the appellant’s coworkers failure to obey an illegal order. The com- discharge. charging the appellant with intimidation plainant was laid off because the grant Union’s position. (1) Dismissal is not and harassment that created a hostile funding for his position ended. supported by just cause. The district did work environment. The union filed a (2) The university is under no ob- not provide a fair investigation. grievance on behalf of two coworkers ligation to find the complainant work (2) The district did not present alleging the appellant’s behavior caused elsewhere in the university. adequate proof of wrongdoing. a hostile work environment. (3) The directive that the names of (3) The appellant was not aware that (6) The appellant has a persistent individuals who had been researchers the district had any concerns regarding pattern of misbehavior that is sufficient on the project be added to the record of his conduct prior to receiving the state- to support dismissal. invention was not an illegal order; it was ment of charges supporting dismissal. (Advisory Appeal) consistent with past practice. (4) The appellant was treated differ- Hearing officer’s decision: Complaint ently than other employees who were not • Layoff is denied. disciplined for their behavior. • Retaliation Hearing officer’s reasoning: (1) It Whistleblowing Hearing officer’s holding: Appeal is • cannot be verified how much of the University of California (Davis) denied. complainant’s salary was derived from and Complainant (10-30-09; 12 pp.). Hearing officer’s reasoning: (1) The the discontinued grant. However, on- Representatives: Jon Dannenberg for parties’ contract reflects that the district going laboratory work was available the complainant; Danesha N. Nichols, will engage in progressive discipline and and could have been performed by the for the university. Hearing Officer: Paul treat employees fairly when administer- complainant. Staudohar. ing discipline. (2) The project director did not Issue: Was the complainant properly (2) The union did not challenge the make an effort to find work for the laid off by the university? prior disciplinary actions. It acknowl- complainant because of their disagree- Complainant’s position: (1) The com- edges that the appellant engaged in ment over the names to be included in plainant was laid off in retaliation for the charged misconduct, but contends the record of invention. prior whistleblower claims and his re- that it is not sufficient to recommend (3) The order to change the record fusal to change the record of individuals dismissal. of invention was not illegal. The project credited with inventing the operation of (3) The appellant was fully aware of director viewed it as an ethical act con- a supersonic atomizer. the district’s concerns about his behavior. sistent with past practice. 74 cper journal No. 198

(4) The verbal exchange between arbitrator from modifying the level of case to another social worker or take any the complainant and the project direc- discipline if cause is found unless the action himself even though there were tor did not involve a personal threat to level of discipline constitutes an abuse reports the child was thin and weak. the complainant. The project director of discretion. (4) The county had just cause to dis- argued that, by not included the names Union’s position: (1) From May cipline the grievant for failure to direct of the scientists from the funding agen- through July, the grievant had reason to the social worker to make more frequent cies, the complainant was running the feel confident the child was not in im- attempts to meet with the family, for risk that his position would be unfunded minent danger. failure to ensure that a body check of when the grant expired. (2) While it was the grievant’s the child was performed, and for failure (5) There is no convincing evidence responsibility to ensure that certain ac- to use other resources to determine if that retaliation was the motive for the tions were taken by the social worker, the child was medically neglected. The complainant’s layoff. the child’s mother would not answer the 30-day suspension was not an abuse of (Retaliation Complaint Under door or return phone calls. discretion. Personnel Policies) (3) Caseload levels prevented the (Binding Grievance Arbitration) social worker from focusing more time • Discipline — Neglect of Duty on this case or taking the action as the County of Sacramento and SEIU grievant directed. Loc. 1021 (11-24-09; 17 pp.). Repre- (4) If discipline is warranted, the sentatives: Timothy D. Weinland, for grievant should receive a 20-day sus- the county; Leslie Freeman (Weinberg, pension, like the social worker. The Roger & Rosenfeld), for the union. Ar- argument that supervisors are held to a bitrator: Katherine J. Thomson. higher standard fails since the grievant’s Issue: Did the county have good supervisor was not disciplined. cause to discipline the grievant for Arbitrator’s holding: Grievance de- inexcusable neglect of duty or incom- nied. petence? Arbitrator’s reasoning: (1) While County’s position: (1) The grievant’s it is undisputed that the social worker failure to adequately supervise the so- failed to follow guidelines and impeded cial worker assigned to provide services decisionmaking in the case, the griev- caused the death of the child. ant failed to perform several of his own (2) The grievant did not ensure a responsibilities. timely face-to-face meeting with the (2) The grievant had access to the medically neglected child or initiate service delivery log, but failed to urge follow-up contacts. the social worker to attempt to make (3) Staffing problems in the child frequent contact with the child. The protective services department do not grievant failed to direct the social worker excuse the grievant’s conduct. to conduct a body check of the child. (4) While the social worker received (3) Staffing conditions do not ex- a 20-day suspension, the grievant’s 30- plain all of the grievant’s performance day suspension is warranted because, failures. In July, when the case was 90- as a supervisor, he is held to a higher days old and the social worker left for standard. The contract forbids the vacation, the grievant did not assign the February 2 0 10 cper journal 75 Public Employment Relations Board

Orders & Decisions

Summarized below are all decisions issued by PERB in cases ap- changes that affected unit members and requested to meet pealed from proposed decisions of administrative law judges and and confer. The letter was not in evidence at the hearing. other board agents. ALJ decisions that become final because no After more than a month, the labor relations specialist re- sponded, stating he would review the circumstances. exceptions are filed are not included, as they have no precedent In February 2008, job stewards heard that the depart- value. Cases are arranged by statute – the Dills Act, EERA, ment was planning to install surveillance cameras in the HEERA, MMBA, TEERA, the Trial Court Act, and the Court towers and became concerned that unit members could lose Interpreter Act – and subdivided by type of case. In-depth reports their jobs. In mid-February, the labor relations specialist and on significant board rulings and ALJ decisions appear in news the union representative set a tentative meeting for Febru- ary 26. A few days later, the union filed a charge alleging sections above. the department had failed to bargain over its decisions to demolish the security tower and install surveillance cameras in the other towers. A week later, the union representa- tive cancelled the February 26 meeting, complaining that Dills Act Cases the labor relations specialist was trying to use an informal Unfair Practice Rulings meeting to bypass its obligation to engage in a formal meet- and-confer session. Employer’s refusal to bargain over effects of security In March 2008, the tower was demolished and re- booth, surveillance cameras was not unfair practice: placed temporarily with a kiosk closer to ground level. Dept. of Developmental Services and Office of Protec- Security guards testified that they could not see as well and tive Services. had to walk the fence line to observe the grounds. (SEIU Loc. 1000 v. State of California [Dept. of Develop- The board agent issued a complaint alleging the de- mental Services and Office of Protective Services]. No. 2062-S, partment had refused to bargain the effects of the decisions 9-14-09; 2 pp. + 8 pp. B.A. dec. By Member Neuwald, with to remove the tower and install cameras. As the union did Members McKeag and Wesley.) not move to amend the complaint, the ALJ considered only Holding: The employer’s refusal to bargain was not the department’s duty to bargain the effects of the decisions an unfair practice because the union failed to identify in its and not the duty to bargain over its decisions. demand to bargain the negotiable effects on security guards The board affirmed the ALJ’s decision that the depart- of a new security booth and surveillance cameras. ment had not violated the Dills Act by refusing to bargain. Case summary: The Porterville Developmental The ALJ found the union had knowledge of the planned Center has a perimeter fence that had five security towers changes in time to demand to bargain over the effects. Al- staffed by guards represented by the union. In the summer though the union sent a letter demanding to bargain, there of 2007, the chief steward learned of plans to remove one was no evidence that the letter or other union communica- of the towers due to a change in the fence line. In a meeting tions identified specific negotiable effects of the decisions that fall with a labor relations specialist, there was mention to demolish the tower or install surveillance equipment. of surveillance cameras, but the specialist had little informa- Although there was testimony about the effects of the tower tion on the plans. Sometime later, the steward demanded removal, the labor relations specialist’s unrebutted testimony that DDS desist from removing the tower. was that the union did not clearly identify these effects. In December 2007, a union representative sent a letter Since the union did not identify the negotiable effects, the to the department. She alleged the department was making department did not violate the Dills Act when it did not bargain over the effects of the department’s decisions. 76 cper journal No. 198

State did not deny right to representation when ques- istrative time off while the department prepared to reject tioning continued: Dept. of Social Services. him on probation. Foreseeing that he would be terminated, (Menaster v. State of California [Dept. of Social Services], the charging party resigned. Six months later, he requested No. 2072-S, 10-27-09; 6 pp. + 38 pp. ALJ dec. By Act- reinstatement. He was told there were no vacancies, even ing Chair Dowdin Calvillo, with Members McKeag and though the department continued to post openings. Neuwald.) The board adopted the ALJ’s conclusion that the su- Holding: The supervisor’s continued questioning pervisor’s continued requests for information on February after the charging party requested union representation did 9 did not violate the charging party’s Weingarten rights. The not violate the Dills Act where the supervisor eventually charging party reasonably believed the conversation might dispensed with the interview. The charging party did not result in disciplinary action and requested representation, prove the state employer retaliated against him for engaging but the supervisor only asked for information and did not in protected activity when the employer wrote an “expecta- attempt to obtain admissions of wrongdoing. Because he tions” memorandum, placed him on administrative leave, dispensed with the interview when the charging party would rejected him on probation, and failed to reinstate him. not answer the questions, the repeated questioning without Case summary: Soon after his hire in 2005, cowork- providing representation did not violate the act. ers complained the charging party was intrusive and loud, The supervisor never delivered to the charging party gossiped, talked excessively, and made inappropriate and the memo he drafted from his private notes. The board offensive comments. His supervisor warned him several agreed with the ALJ that because the memo was not deliv- times about his excessive socializing and advised him to focus ered, it was not an adverse action constituting discrimina- on his work. The charging party, a doctor, complained to tion against the charging party for exercising his right to his employee representative about working conditions and call his union representative, and could not have chilled the about his non-physician manager’s authority to question exercise of this right. his medical decisions. In late January, union stewards met The board agreed with the ALJ that, although the with the charging party and managers to discuss how to charging party proved his prima facie case that the employer help him pass probation. retaliated against him for complaints to the union by placing On February 1, 2006, the charging party made an him on administrative time off, the department proved it did agitated phone call to his union steward, screaming and so for a legitimate business reason — to develop the necessary swearing about noisy distractions and work problems. The documentation to reject the charging party on probation. steward contacted the doctor’s supervisor for help calming The board found that the charging party adequately him down. When upper management became aware of the placed the employer on notice of his charge that the rejec- incident, they directed the supervisor to ask the charging tion on probation was discriminatory and that the matter party about it. On February 9, the supervisor related to the was fully litigated, but it also found that the department had charging party the information he had and asked if it was a legitimate reason for the rejection. The board also upheld accurate. The charging party declined to provide any in- the determination that the charging party did not prove a formation without his union representative. The supervisor prima facie case that the department retaliated when it did asked him three more times whether be wanted to provide not reinstate him. information, but eventually ended the conversation. The supervisor drafted a memo to the charging party Economic uncertainty justified deferral of bargaining based on notes taken during the charging party’s employ- economic items; no lack of authority: DPA. ment. Management placed the charging party on admin- (Stationary Engineers Loc. 39, IUOE, and State of Califor- nia [Dept. of Personnel Administration], No. 2078-S, 11-24-09; February 2 0 10 cper journal 77

12 pp. dec. By Acting Chair Dowdin Calvillo, with Members items did not show bad faith bargaining since the negotiators Neuwald and Wesley.) had stated from the outset that DPA would defer negotiation Holding: Economic uncertainty justified DPA’s defer- on economic items and DPA did not attempt to renege on ral of bargaining over economic items. The state negotia- any tentative agreements. A change in authority would not tors’ lack of authority to bargain economic items was not bad by itself show bad faith bargaining. faith bargaining because it did not thwart negotiations. The The board found the governor’s letter to employees governor’s letter to employees about proposed furloughs did did not bypass the exclusive representative. The governor not bypass the union. did not seek to bargain with employees over the proposals Case summary: When negotiations began in spring and did not threaten employees with reprisal or promise a 2008, DPA negotiators asserted that they had authority to benefit. The letter also did not announce a final decision, negotiate all issues. Later, they said they did not have author- but instead stated that the governor was working closely ity until the 2008-09 budget passed. Even after the budget with union leadership. Since the letter acknowledged that passed, they continued to claim they lacked authority to negotiations could affect the cost-cutting proposals, it did negotiate economic items. After 11 sessions, DPA had not not undermine the union in the eyes of its members. offered an economic proposal or responded to the union’s economic proposal. In November 2008, the governor wrote Union must put employer on notice that it objects to a letter to employees about his proposal to the legislature to permissive subjects of bargaining: DPA. furlough employees, eliminate two holidays, increase their (California Correctional Peace Officers Assn. v. State of ability to work four 10-hour days a week, and eliminate California [Dept. of Personnel Administration], No. 2081-S, leave from overtime calculation. 11-24-09; 7 pp. dec. + 12 pp. B.A. dec. By Member Neuwald, The board held that DPA’s failure to make or respond with Members McKeag and Wesley.) to economic proposals was insufficient to establish surface Holding: The state did not engage in conditional bargaining. In State of California (DPA) (1986) Dec. No. bargaining by insisting to impasse on permissive subjects 569-S, 69 CPER 51, PERB held that it was permissible to of bargaining where the charge does not show the union defer bargaining over economic items while the governor objected to bargaining the non-mandatory subjects. and the legislature were negotiating the employee compen- Case summary: In April 2006, CCPOA and DPA sation items in the budget. Failure to present or respond to began bargaining for a successor to the contract that expired economic proposals after the budget passed also is not an June 30, 2006. In May 2007, PERB certified that the parties unfair practice because, almost immediately after passage, were at impasse. In August, the union withdrew from media- the state faced a projected $11 billion revenue shortfall. De- tion. DPA presented a package offer containing four items ferral when the state’s financial condition was so uncertain the union believed involved permissive subjects of bargain- was justified, and DPA had reached tentative agreement ing because of the potential to conflict with the union’s or with the union on several non-economic items. employees’ statutory rights. The union responded that the The board also held that DPA negotiators’ lack of proposal had sections that would waive state law, and stated, authority to bargain over economic items was not in itself “That is not a legitimate effort towards agreement.” Its re- sufficient to establish bad faith bargaining. Because the fi- sponse contained three questions about the reach and legal nancial uncertainty would have been an obstacle to reaching effect of the provisions waiving state law. The union found agreement, the negotiators’ lack of authority did not delay DPA’s response to its questions unsatisfactory, but agreed or thwart negotiations. to accept 133 sections of the package offer; it did not reject DPA negotiators’ statements midway through bar- the remainder of the items. One of the acceptable sections gaining that they lacked authority to negotiate economic concerned employees’ rights when involuntarily transferred, 78 cper journal No. 198

a provision the union thought could be read to waive statu- 12-22-09; 10 pp. dec. By Acting Chair Dowdin Calvillo, tory notice rights. After the state implemented portions of with Members Neuwald and Wesley.) its final offer, the union filed a charge complaining that the Holding: The legislature did not make a unilateral state had engaged in conditional bargaining. change by enacting a law altering the method of calculating The board agent found that a proposal on discipline eligibility for overtime, even though the union’s expired for using sick leave was not shown to be a permissive subject contract remained in effect. The governor was not required because the union presented only its legal conclusion that to provide notice and an opportunity to bargain before the provision conflicted with the Labor Code. In addition, submitting the legislation. (See story in State Employment the questions the union posed did not communicate an section.) objection to bargaining about the non-mandatory aspects of the provision. The union also did not object to negotiating Duty of Fair Representation Rulings a provision that waived exemptions to the Fair Labor Stan- dards Act; it generally objected to provisions that waived Delay in processing grievance did not breach duty of state, not federal, law. fair representation: SEIU Loc. 1000. The proposal on involuntary transfer was silent on (Diunugala v. SEIU Loc. 1000, No. 2060-S, 9-8-09; 7 notice, not in conflict with state law notice provisions, the pp. dec. By Acting Chair Dowdin Calvillo, with Members B.A. found. It therefore did not involve a non-mandatory Neuwald and McKeag.) subject. In addition, the union indicated it would accept Holding: Neither the union’s neglect of the grievance the proposal. after the arbitration request nor the ultimate decision not The B.A. found that a provision alleged by the union to arbitrate alleged a breach of the duty of fair representa- to involve a waiver of union rights was a proposal to allow tion. DPA only to request a waiver of rights to notice in specified Case summary: In October 2004, the charging party’s circumstances. Therefore, the provision was not a permis- supervisor denied his request for a merit salary adjustment. sive subject of bargaining. The union took his grievance through step four and re- In its appeal to the board, the union contended the quested arbitration in 2005. The Department of Personnel B.A. misapplied the test to determine whether it placed Administration did not respond to the request. DPA on notice of its objections. The board rejected the In March 2007, a DPA attorney sent the union a letter requesting a status update within 30 days. Despite the charg- argument that Travis Unified School Dist. (1992) Dec. No. ing party’s inquiry to the union, the union did not respond 917, 92 CPER 45, and Chula Vista School Dist. (1990) Dec. No. 834, 86X CPER 13, established a lower burden of proof to DPA’s letter until after the charging party filed a charge than the B.A. used. The board found that the union’s com- with the board. After the charge was filed, the union made munication about waiver of state law did not communicate several attempts to schedule arbitration. that it was unwilling to negotiate the proposals, and the In May 2008, the union informed the charging party clarification questions could be construed as a willingness that it would not take his case to arbitration. The union’s to continue negotiations on the proposals. letter noted that the employee’s evaluation and his written rebuttal contained allegations the union believed would Law changing overtime calculation not a unilateral make it difficult to persuade an arbitrator that a merit salary change by legislature, governor: DPA. adjustment had been deserved. (Stationary Engineers Loc. 39, IUOE, and State of The board agent dismissed the charge, and the charg- California [Dept. of Personnel Administration], No. 2085-S, ing party appealed. February 2 0 10 cper journal 79

The charging party alleged that the union acted in collective bargaining agreement, nor did it participate in bad faith by failing to respond to the March 2007 letter. the alternative mediation process. On November 22, the The board found the union’s part in delaying grievance union informed the charging party that it would not take her processing was mere negligence, which does not breach grievance to arbitration. She was given written confirmation the duty of fair representation. Because the union had no of the union’s refusal on March 11, 2005. obligation to respond to DPA’s letter, and the delay did not On April 6, the charging party filed an unfair prac- prejudice the charging party’s ability to have his grievance tice charge alleging retaliation for the same conduct. That arbitrated, the board found this allegation did not breach charge was dismissed and deferred to arbitration but did the duty of fair representation. not proceed to arbitration. On September 9, she filed The union’s refusal to arbitrate the grievance was not another charge alleging the same retaliatory conduct and in bad faith. The board found the union’s letter set forth a also harassment by the district. PERB issued a complaint rational basis for the decision: the determination it was un- on January 5, 2006, based on the alleged retaliation, but likely to prevail at arbitration. The union’s delay in reaching not the harassment. the decision not to arbitrate did not breach the duty since The ALJ dismissed the charge as untimely. She found there was no showing of any arbitrary, discriminatory, or that the six-month statute of limitations was tolled under bad faith conduct. The union’s negligent delay in making EERA Sec. 3541.5(a)(2) from August 31, 2004, the date that a decision did not in itself extinguish the charging party’s her reassignment was rescinded, to November 11, 2004, 10 right to take the case to arbitration. days after the district dismissed the grievance at step two. At that point. the grievance procedure was exhausted. The ALJ rejected the argument that the statute of limitations EERA Cases should be tolled during the time that the union and the Unfair Practice Rulings district engaged in informal discussions. Informal discus- sions cannot be considered part of the grievance process Charge not timely, equitable tolling does not apply: after the union fails to take the grievance to the next step LACCD. of the contractual grievance process. (Baprawski v. Los Angeles Community College Dist., The ALJ also concluded that the statute was tolled No. 2059, 9-8-09; 4 pp. + 14 pp. R.A. dec. By Member from April 6, 2005, to May 31, 2005, during the pendency McKeag, with Acting Chair Dowdin Calvillo and Member of the first PERB charge, under the principle of equitable Neuwald.) tolling resurrected in Long Beach CCD (2003) No. 1564, Holding: Equitable tolling does not apply because 164 CPER 110. However, the ALJ did not agree with the the parties’ grievance process ended in binding arbitration. charging party’s argument that the statute should be tolled The charging party has the burden of proving the timeli- between the time the first charge was dismissed and Septem- ness of a charge. ber 9, 2005, when she filed the second charge. She believed Case summary: On September 14, 2004, the charg- that PERB’s deferral of the first charge to arbitration man- ing party’s union filed a grievance alleging that the district dated that the union arbitrate. PERB has no power to force rescinded her reassignment because she had asked the union the union to arbitrate, and the charging party’s ignorance of to negotiate for her. The district denied the grievance at the law is no excuse. The total elapsed time, not exclusive step one, and the union appealed to step two. On November of the time that was tolled, was over eight months, in excess 1, the district denied the appeal. The union did not file a of the six-month statute of limitations. request for arbitration within 10 days as required by the The board adopted the ALJ’s proposed decision, subject to a discussion regarding equitable tolling in light 80 cper journal No. 198

of Long Beach CCD (2009) No. 2002, 195 CPER 84, known Gregory was then assigned to work at Brookfield as Long Beach II, a decision issued after the ALJ’s decision. Elementary School with students who had medical needs, The board considered the charging party’s argument that for which she had not been trained, including a girl who the statute of limitations should be equitably tolled from required catheterization. June 3, 2005, through September 1, 2005. She reasoned When Gregory complained to her supervisor, John that it should be tolled because after PERB dismissed her Rusk, of her lack of training, and asked to be returned to her first charge and deferred it to arbitration, she continued to original position, Rusk directed her to report to work and pursue her grievance and did not receive final notice that perform those duties that did not require specific medical the union would not take her grievance to arbitration until expertise. Gregory stopped reporting to work on October September 1, 2005. 10, 2006. The board held that equitable tolling, as defined in On three occasions in October, Rusk met with Long Beach II, did not apply because the parties’ grievance Gregory to discuss her failure to report to work. Gregory process ended in binding arbitration. It rejected the charging maintained she was not absent because she had never been party’s argument that she did not bear the evidentiary burden assigned to Brookfield since the paperwork had not been on the issue of timeliness. Long Beach II held that timeliness completed. Rusk told her that he would arrange a meeting is an element of the charging party’s prima facie case. with Whyte. None of the parties excepted to the ALJ’s finding On January 29, 2007, Gregory was informed by that the statute was tolled during the time that the first Whyte that abandonment of her position was cause for unfair practice charge was being processed by the board. dismissal. Gregory requested a hearing with Whyte, and “Therefore, we do not decide in this decision whether the asserted that she had not abandoned her job. doctrine of equitable tolling applies during the pendency Gregory did not appear at the hearing set for February of proceedings before PERB involving the same factual 14, 2007. After Whyte tried to reach Gregory by phone, allegations.” and was told that she had gone to Africa, the district sent Gregory a job abandonment termination notice. No discrimination where employee terminated for job Two weeks later, Gregory contacted the union and abandonment: Oakland USD. maintained that she did not receive written notice of the (Gregory v. Oakland Unified School Dist., No. 2061, hearing. The district, however, would not alter the job 9-10-09; 11 pp. dec. By Member Wesley, with Acting Chair abandonment termination. Dowdin Calvillo and Member McKeag.) The board found that Gregory engaged in protected Holding: While the evidence established a prima facie activity when she first consulted with a union representative case of discrimination, the district would have terminated about her desire to be transferred; that Whyte, a district the charging party for job abandonment regardless of her official involved in the decision, knew of her protected protected activity. activity; and that termination for job abandonment is an Case summary: As a paraprofessional in Oakland adverse action. The board also found that the timing of USD, Gregory had been transferred to several different the termination and the district’s departure from its pro- positions. At one school, she came in contact with someone cedures of notifying the employee of the date of the job involved in litigation with her father. Gregory consulted the abandonment hearing were circumstantial evidence proving union and then contacted district human relations analyst unlawful motive. It concluded, therefore, that Gregory had Bill Whyte. She informed Whyte that she had met with a established a prima facie case of discrimination in violation union representative who told her to request an immediate of EERA Sec. 3543.5(a). transfer. February 2 0 10 cper journal 81

However, the board determined that the district had Dismissal charge alleging breach of contract, unilateral established an affirmative defense by proving that it would change upheld: LAUSD. have terminated Gregory for job abandonment regardless of (Weightman v. Los Angeles Unified School Dist., No. whether she had consulted with the union. 2073, 10-28-09; 6 pp. dec. By Acting Chair Dowdin Calvillo, with Members McKeag and Wesley.) Retaliation charge untimely, failed to state prima facie Holding: The board upheld the dismissal of the case: Los Banos USD. charging party’s claim that the district interfered with his (Ulmschneider v. Los Banos Unified School Dist., No. rights under EERA by failing to follow contractual griev- 2063, 9-25-09; 6 pp. dec. By Member Neuwald, with Acting ance timelines. Chair Dowdin Calvillo and Member McKeag.) Case summary: The union filed a grievance on be- Holding: The charge was untimely with respect to half of the charging party, a computer teacher, alleging that all allegations of reprisal other than the charging party’s the district had failed to pay him properly for the past two dismissal. The charging party failed to state a prima facie years after an increase in class size. The district dismissed case of discrimination because he did not establish that he the grievance as untimely, finding that it did not concern a was dismissed because of his protected activity. payroll error but rather a change in class size, and that the Case summary: The charging party alleged that the contract provides a grievance over class size must be filed district engaged in “intensified forms of reprisals” against within 15 days. him after he filed numerous grievances, PERB charges, and On appeal, the board held that, to the extent the other governmental complaints, and participated in union charge alleged a contractual breach, it is without authority activities between 2004 and September 11, 2008, when he to provide a remedy. was dismissed for unsatisfactory performance. Further, the statutory duty to negotiate in good faith Applying EERA’s six-month statute of limitations, runs between the employer and the employee organization, the board held that all allegations of unlawful conduct not the individuals it represents. Therefore, the charging that occurred prior to September 11, 2008, were barred. party lacked standing to allege the district violated EERA by The allegation that the district unlawfully suspended the failing to follow the grievance procedures in the contract. charging party without pay effective January 1, 2008, was The charging party did have standing to allege that the likewise untimely. However, regarding the allegation that district’s conduct interfered with the exercise of his EERA the charging party was terminated in retaliation for having rights. But the act does not grant an employee the right to engaged in protected activities, the statute of limitations receive a reasonable settlement offer from his or her employer did not begin to run on that date because, under Regents of or the right to have a grievance taken to arbitration. the University of California (2004) No. 1585-H, 165 CPER 77, the statute of limitations begins to run on the date of Duty of Fair Representation Rulings actual termination, rather than the date of notification of the intent to terminate. No duty of fair representation where personnel matters The charging party failed to establish a prima facie not subject to collective bargaining: SEIU Loc. 1021. case of discrimination because he did not set forth any (DeLarge v. SEIU Loc. 1021, No. 2068, 9-29-09; 2 pp. facts establishing a causal connection between the griev- + 11 pp. R.A. dec. By Member Wesley, with Acting Chair ances and complaints he filed and the district’s decision to Dowdin Calvillo and Member Neuwald.) terminate him. Holding: The union’s duty of fair representation does not extend to representing the charging party at a personnel commission hearing, an extra-contractual matter. 82 cper journal No. 198

Case summary: The charging party, a paraprofes- because the charging party had not filed an appeal. Eight sional, was employed by the Hayward Unified School days later, the charging party claimed there was a “misunder- District. As a “merit district,” personnel matters concerning standing” and that she had intended the extension request classified employees, including discipline and misconduct, to constitute her appeal. The board informed the union that are administered by the human resources department in it considered the charging party’s letter to be a request to accordance with personnel commission rules based on the excuse a late filing and gave it 10 days to respond. The union Education Code. filed its response one day after the 10-day period expired, The district conducted a disciplinary hearing in which and the board denied the untimely response. the charging party was accused of “discourteous, abusive According to PERB Reg. 32136, the board may excuse or threatening treatment of the public, employees, or stu- a late filing for good cause. The charging party claimed that dents.” The union did not file a grievance on her behalf and her appeal was late because of medical reasons and a personal did not represent her at the hearing. A union representative emergency out of state, but she failed to explain how these advised her to appeal the disciplinary decision under the circumstances prevented her from filing a timely appeal, provisions of the personnel commission’s rules. said the board. It found that she did not demonstrate good The union did not represent the charging party at the cause to excuse her late-filed appeal. personnel commission appeal hearing on May 5, 2008. Nothing in the request for extension of time to file The only conduct that occurred within six months an appeal indicated that the charging party intended for it prior to the filing of the charge involved the charging party’s to serve as her appeal. “Had she intended the letter itself to request that the union assist her at the appeal hearing and constitute her appeal, she would not have needed to request the union’s refusal to do so. The duty of fair representation an extension of time to file an appeal,” reasoned the board. attaches to matters that are subject to collective bargain- Nor could it have served as her appeal because it did not ing. The union did not owe a duty to the charging party to comply with PERB Reg. 32635(a), which requires a state- represent her on her appeal because the personnel commis- ment of the specific issues to which the appeal is taken, iden- sion operates independently from the collective bargaining tification of the page or part of the dismissal to which each relationship between the union and the district. appeal is taken, and the grounds for each issue stated.

Administrative Appeals Rulings HEERA Cases No good cause to excuse late-filed appeal: UTLA. (Pratt v. United Teachers of Los Angeles, No. Ad-381, Unfair Practice Rulings 9-25-09, 5 pp. dec. By Acting Chair Dowdin Calvillo, with Failure to provide financial report violated the Dills Members McKeag and Wesley.) Act: SETC United. Holding: The request to excuse the late-filed appeal (Ventura et al. v. State Employees Trades Council United, was denied, and the request for an extension of time to file Dec. No. 2069-H, 10-5-09; 12 pp. dec. By Acting Chair an appeal did not comply with PERB regulations. Dowdin Calvillo, with Members Neuwald and Wesley.) Case summary: The charging party filed a request Holding: The union violated the act by failing to for an extension of time to appeal the dismissal of her un- provide a financial report to the charging parties on request. fair practice charge, and she attached copies of the original The charging parties did not allege facts showing retalia- charge. The board granted her request, but the charging tion, and have no standing to challenge the union’s alleged party did not file an appeal by the date specified. The board’s violation of the MOU as an unfair practice charge. appeals assistant notified the parties that the case was closed February 2 0 10 cper journal 83

Case summary: Charging parties Rutherford, Ven- activity. There was no evidence that they declined to partici- tura, and Duran are elevator mechanics; Ventura and Duran pate in the July 18 demonstration or that SETC had actual were apprentices. In February 2008, their union and the knowledge whether they participated. Other than suspicious California State University agreed in a Joint Apprenticeship timing, there was also no evidence of a nexus between their and Training Committee meeting to provide Ventura and failure to participate and the vote to reduce their pay. Duran temporary permits that allowed them to perform The charging parties have no standing to challenge journey-level duties and receive comparable pay. a breach of the MOU or to charge that the union violated In July, another union engaged in a demonstration at the duty to bargain in good faith. the university. An SETC representative requested that Ru- The board disagreed with the B.A.’s reason for dis- therford attend the demonstration at lunchtime. Rutherford missing the financial report charge. HEERA requires a expressed reluctance and ultimately did not attend. union to make available within 60 days of the end of the fiscal In September, Rutherford discovered that the union year a “written financial report [of financial transactions] in was planning to seek to reduce the pay of Ventura and the form of a balance sheet and operating statement.” The Duran at the next JATC meeting. At the meeting, SETC charge should not have been dismissed for either a failure and university representatives disagreed about the extent to to demonstrate Rutherford requested a balance sheet and which the union had agreed to allow the charging parties to operating statement or to specifically use the term “financial perform journey-level work. After Ventura and Duran were report.” It is the union’s responsibility to provide the correct questioned about their qualifications, the union representa- documents, and it clearly understood that Rutherford was tives voted to reduce their pay but allow them to keep their requesting a financial report. The charge was remanded to temporary permits. the general counsel’s office for processing in compliance Rutherford told SETC representative Rosales he with the decision. wanted to view the union’s annual report to see the ap- prenticeship program costs. Rosales explained that the Search of car by campus police was retaliation for pro- 2007 report was at the auditor, but that quarterly reports tected activity: Trustees of CSU (San Marcos). were available. Although Rutherford requested them, he (California State University Employees Union v. Trustees did not receive any reports before he filed the unfair prac- of the California State University [San Marcos], No. 2070-H, tice charge in October 2008. In November, the secretary- 10-15-09; 12 pp. dec. By Acting Chair Dowdin Calvillo, treasurer sent the third-quarter 2008 report, but not the with Members McKeag and Neuwald.) 2007 annual report, even though the union’s fiscal year Holding: The manager’s complaint to campus police ends December 31. showed retaliation against an employee for using union as- The board agent dismissed the unfair practice charge. sistance and filing a grievance. The charge was insufficient The charging parties appealed the dismissal of allegations to show the university unilaterally transferred bargaining that the union voted to reduce the pay of Ventura and Duran unit work. for their decision not to participate in the demonstration and Case summary: The charge alleged a CSU facilities that the union violated the MOU. They did not appeal the department assistant director, Steve Watters, warned laborer dismissal of the charge that the union did not provide a fi- Cesar Aguilar to stay away from custodian and CSUEU nancial report, but the board decided to review the issue. member Rafael Lopez, “a troublemaker,” before Aguilar The board upheld the B.A.’s determination that SETC became the CSUEU steward for skilled and semi-skilled did not retaliate against Ventura and Duran because they did blue-collar employees in unit 5 in April 2008. Lopez later not allege a prima facie case that they engaged in protected filed a grievance. 84 cper journal No. 198

In May, Aguilar complained to Watters about workers support the allegation that the search occurred because of in unit 6 operating backhoes, driving forklifts, and using Lopez’ grievance. However, a nexus between the search power-washing equipment, all duties listed in job descrip- and protected activity was demonstrated because the search tions for unit 5 classifications. Watters told Aguilar that he occurred five days after Aguilar complained about Lopez’ felt accused and that laborers in unit 5 would not be able workload and the same day Young complained that Wat- to promote because of it. ters was harassing Aguilar. In addition to the suspicious On May 13, 2008, CSUEU representative Brian timing of the search, there were allegations that the police Young demanded that Watters cease assigning non-unit did not give Lopez any reason for searching his car, and members backhoe, forklift, and power-washing duties. The multiple comments showed managers harbored animus next day, Watters told Aguilar not to “take the wrong path” toward the union’s representation of unit 5 members. The and that it was “not a good thing to be getting involved in board remanded the case for the general counsel to issue these kind of topics.” The following day, the department di- a complaint. rector told Aguilar, “We don’t want Young around here.” On June 19, Aguilar complained to the director that MMBA Cases Lopez was being swamped with work. On June 24, Young emailed the CSU human resources director that Aguilar was Unfair Practice Rulings being harassed after Watters discussed his union activity with him. That afternoon, campus police searched Lopez’ Regressive wage freeze proposal not evidence of bad car. The police chief gave Lopez no reason for the search. faith bargaining: City and County of San Francisco. During the search, the chief spoke with Watters. No charge (Stationary Engineers Loc. 39 v. City and County of San was filed against Lopez. Francisco, No. 2064-M, 9-25-09; 4 pp. + 7 pp. B.A. dec. By The board affirmed the dismissal of the allegation Member Wesley, with Members McKeag and Neuwald.) that CSU had unilaterally transferred bargaining unit work Holding: The city’s presentation to the union of a re- because the union did not show that the university ceased gressive bargaining proposal and notification of the obligation assigning unit 5 employees the disputed duties and trans- to select an arbitration panel representative are insufficient to ferred the tasks to unit 6. Because the unit 6 job descriptions demonstrate bad faith or surface bargaining. included “related work activities,” the union’s allegations did Case summary: On November 19, 2008, the city not show that the labor contract established unit 5 members notified the union that it sought to negotiate a successor as the exclusive performers of the work. The charge also did MOU, and asked the union to select a neutral member to not allege that the change in assignments had a negotiable serve on the arbitration panel created by the city charter to effect on unit 5 employees. resolve bargaining impasses. The parties were required to The charge alleged Lopez had engaged in protected name the arbitration panel members by January 20, 2009. activity when he filed a grievance and when he received The city also presented the union with a written bargaining union assistance with his complaint about his burdensome proposal urging that there be no new economic benefits for assignment. The board found that Watters’ complaint to 18 months, which amounted to an 18-month wage freeze. campus security that Lopez had stolen state property was The union filed an unfair practice charge asserting an adverse action, even though Lopez was not disciplined that the city engaged in bad faith or surface bargaining. It or charged with criminal conduct. argued that the city’s 18-month wage freeze was a regressive The date Lopez filed his grievance was not included bargaining proposal because the union already had agreed in the charge and, therefore temporal proximity could not in June 2008 to a 12-month freeze. February 2 0 10 cper journal 85

The board affirmed the board agent’s conclusion that, As a result of the study, the charging party was reclas- even if the proposal were regressive, a single indicator of bad sified and downgraded to the position of public guardian faith is insufficient to establish unlawful conduct. In addition, investigator, with the same salary as that of social service the board agreed with the B.A. that the charge failed to allege worker II, her previous classification. facts showing that the totality of the city’s conduct demon- The county human resources director informed the strated an intent to subvert the bargaining process. charging party that the new investigator position was cre- The union also alleged that the city pressured it to ated because the social service worker II classification did select the neutral arbitrator for the impasse panel two not appropriately describe the work she performed. months before the charter-prescribed deadline. The B.A. A board agent concluded that the charging party did found no factual allegations that the city’s desire to select not suffer an adverse action because, while her job title an arbitration panel thwarted negotiations or was intended changed, she earned the same salary and performed the to subvert the negotiation process. same duties before and after the reclassification. The board agreed with the B.A. that merely inform- The B.A. also found insufficient evidence that the ing a union of its obligations under a local city charter is county took action in retaliation for the charging party’s not recognized as a factor indicative of surface bargaining. grievance filing. No disparate treatment was demonstrated Notification to the union of the city’s selection of its arbitra- by the fact that two other employees performing the same tion panel member was not a demand that the parties move duties earned more than she earned. Both employees earned to the impasse resolution process. It merely reminded the higher salaries and were employed in a higher rank within union of the city charter requirements. the social service worker classification before the study was The union’s assertion that the city violated provisions released. of its local rules was dismissed by the B.A. There were no PERB lacks the authority to determine whether the allegations as to how the city’s actions violated the charter charging party was working out-of-class, said the B.A. That provisions or that the city’s rules are unreasonable. is a contractual issue between the union and the county. The charging party lacked standing to assert that Without adverse action, charge of retaliation for griev- the county had a duty to negotiate with the union over ance filing dismissed: County of Riverside. its decision to reclassify her position because the duty to (Jackson v. County of Riverside, No. 2065-M, 9-25-09; meet and confer is between an employer and the exclusive 2 pp. + 18 pp. B.A. dec. By Acting Chair Dowdin Calvillo, representative. with Members McKeag and Neuwald.) On appeal, the board adopted the B.A.’s decision as Holding: A classification study undertaken to resolve its own. It declined to consider pay stubs as evidence that the charging party’s out-of-class grievance did not result the reclassification had resulted in a pay reduction since the in adverse action because, while her job title changed, the charging party possessed these documents before the B.A. charging party continued to perform the same duties with dismissed her charge. no loss of compensation after the study was implemented. Case summary: The charging party alleged that the Charge failed to show any adverse action linked to county retaliated against her by downgrading her position protected activity: Metropolitan Water District of after she filed an out-of-class grievance. Prior to arbitration, Southern California. the county and the charging party’s exclusive representa- (Jones-Boyce v. Metropolitan Water District of Southern tive entered into a settlement agreement that obligated the California, No. 2066-M, 9-29-09; 13 pp. By Acting Chair county to conduct a classification study. Dowdin Calvillo, with Members McKeag and Neuwald.) 86 cper journal No. 198

Holding: The charging party failed to allege sufficient objective test announced in Newark USD (1991) No. 864, facts in support of her claim that the district placed her on 88 CPER 59, the board found that placement of the charg- administrative leave and terminated her employment and ing party on administrative leave was not an adverse action medical benefits because she engaged in protected activity. “because she gained pay as a result of the status change.” Case summary: The charging party alleged that the The board rejected the charging party’s argument that district placed her on administrative leave and later termi- placement on administrative leave was an adverse action nated her employment and health benefits in retaliation for because it prevented her from obtaining long-term dis- exercising protected activities. A board agent dismissed the ability benefits. PERB found that the charging party failed charge, and an appeal to the board followed. to allege facts showing that disability benefits were denied PERB first found that the charging party did not because she was on administrative leave. engage in activity protected by the MMBA when she in- The board also concluded that the district did not formed the district of her intent to file a claim for long-term terminate the charging party’s employment, but rather disability benefits, submitted discrimination complaints, or implemented her voluntary resignation under the terms of filed a claim for workers’ compensation benefits. Nor did a settlement agreement. she exercise rights conveyed by the act when she complained Even if placement on administrative leave and ter- to the district’s governing body regarding the conduct of mination of employment and health benefits constituted the law firm representing the district in her civil action; adverse actions, the board said, the charge failed to establish this was not a complaint to her employer about her work- a nexus between those actions and the filing of the instant ing conditions. unfair practice charge because the district placed the charg- Nevertheless, the board found that the charging party ing party on administrative leave and terminated her em- engaged in protected activity when she utilized a union rep- ployment before she filed her charge. While the charging resentative in her dispute with the district over a directive party’s health benefits were terminated after the charge was issued by her supervisor concerning absences from work, filed, the board saw no indication that termination of her and when she filed the instant unfair practice charge. benefits was motivated by the unfair practice charge filing. The board found that the charging party’s supervisor Instead, said the board, medical benefits were terminated was aware of her reliance on union representation, but the as a result of the charging party’s resignation. charge did not show that the supervisor played any role in The board refused to accept an addendum to the ap- placing the charging party on administrative leave or ter- peal filed by the charging party after the 20-day appeal pe- minating her employment and health benefits. The board riod, finding no good cause was shown for the late filing. declined to impute the supervisor’s knowledge of the charg- ing party’s protected activity to the district because there County’s personnel rules that do not address relations was no allegation that any district employee other than her between employer and employee organization are be- supervisor was aware of the union representative’s involve- yond PERB’s jurisdiction: County of San Bernardino. ment. The board found, however, that the district knew of (Roeleveld v. County of San Bernardino [County Library], the unfair practice charge since it filed a response. No. 2071-M, 10-20-09; 10 pp. By Acting Chair Dowdin While placing an employee on involuntary paid ad- Calvillo, with Members Neuwald and Wesley.) ministrative leave is an adverse action, said the board, citing Holding: The county’s personnel rules deal with San Mateo CCD (2008) No. 1980, 193 CPER 78, in this case, relations between the county and individual employees. the charging party was on unpaid medical leave at the time They are not local rules under Sec. 3507(a) and are outside she was placed on paid administrative leave. Applying the PERB’s jurisdiction. February 2 0 10 cper journal 87

Case summary: The charging party filed an unfair results.” This language implies that written exam results are practice charge asserting that the county violated its person- a prerequisite to an appeal, but the section does not explicitly nel rules when, based on criteria not in the job description, say so. Because the charging party failed to establish that it hired a full-time library assistant who was not eligible for the civil service commission would have rejected her appeal, the position, failing to consider the charging party’s prior the county’s failure to provide her with a written rejection experience and neglecting to give her a written rejection or exam results was not an adverse action. letter. Even if this is considered an adverse action, the charge First, the board concluded that the terms of the nego- does not establish that the action was the result of unlawful tiated memorandum of understanding between the county motivation. The board reasoned that the failure to send a and the employee organization representing county employ- rejection letter was not new behavior by the county. It was ees expressly state that disputes concerning the personnel the continuation of a course of conduct that began when she rules will be settled by the civil service commission. was verbally notified of the selection results, which occurred A violation of a local rule adopted pursuant to Sec. two days before she sought assistance from the union. 3507 of the MMBA may be processed as an unfair practice under Sec. 3509. Here, however, the board explained, Voicemail message was not ‘acceptance’ of the city’s PERB has no authority to process an alleged violation final offer: City of Clovis. of the county’s personnel rules because they are not local (Operating Engineers, Loc. 3 v. City of Clovis, No. 2074- rules adopted under Sec. 3507. Referring to the preamble M, 10-30-09; 9 pp. dec. By Member Wesley, with Acting of the act, the board reasoned that the only type of local Chair Dowdin Calvillo and Member Neuwald.) rules that may be adopted pursuant to Sec. 3507 are those Holding: The city did not commit an unfair practice that regulate relations between the public agency and the by failing to implement a salary increase because the union employee organization. The board noted that all eight did not accept the city’s final offer of a 3 percent raise when it subjects mentioned in Sec. 3507 that may be addressed by left a voicemail message offering to withdraw its unfair prac- local rules pertain to employer-employee relations. tice charge if the city implemented the final wage offer. In contrast, the county’s personnel rules address Case summary: The parties began wage reopener relations between the county and individual employees. negotiations in May 2007, but failed to reach agreement. They set out procedures for classifying positions, select- In July 2007, the city proffered its last, best, and final offer ing individuals to fill positions, evaluating employee work of a 3 percent salary increase effective July 1, 2007. The performance, and discipline. union rejected the offer and declared impasse. The charging party also alleged that the county retali- Following unsuccessful mediation sessions, the parties ated against her in violation of the act. The board found met to resume negotiations. After exchanging proposals, she engaged in protected activity when she asked for union the city again presented its 3 percent salary increase as its assistance in pursuing claims about the selection process, final offer. and that the county had knowledge of her activities. The union advised the city that its proposal had been The charging party argued that the county took ad- voted down by the membership and again declared impasse. verse action by failing to provide her with a written rejection The city manager then announced to the bargaining unit letter or examination results thereby preventing her from employees that the city “has decided to conclude its efforts appealing the denied appointment to the civil service com- to reach agreement on this issue.” The union filed an unfair mission. County rules require that an appeal must be filed practice charge asserting that the city had engaged in bad within 30 days “after the date of mailing of examination faith bargaining. 88 cper journal No. 198

When the city did not implement the 3 percent Holding: The charging party failed to present a suf- increase, the union’s chief negotiator left a voicemail ficient basis for reconsideration. message for the city’s chief negotiator, indicating that it Case summary: The charging party alleged that would withdraw the pending unfair practice charge if the the county denied her the right to union representation city would implement the increase. The city declined the and retaliated against her by placing her on administrative union’s “trade off.” leave. An administrative law judge concluded that the union’s An administrative law judge found that she failed to voicemail message was a valid acceptance of the city’s offer, satisfy her burden of proof and dismissed the complaint. thereby creating a binding agreement between the parties. The board upheld the ALJ’s proposed decision. On appeal, the board reversed the ALJ, finding no direct The charging party sought reconsideration under testimony regarding the actual content of the voicemail PERB Reg. 32410, which limits the grounds for recon- message. The city’s chief negotiator testified that he un- sideration to prejudicial errors of fact or newly discovered derstood the voicemail message to be “nothing more than evidence. a settlement offer of the unfair practice charge.” Testimony Here, the board found the charging party failed to of the union’s negotiator about his intent is insufficient to meet this standard and merely argued the same facts that sustain a finding that the phone message was a specific and were presented on appeal. Accordingly, it denied the request unconditional acceptance of the city’s offer. for reconsideration. The board also concluded that, even if the voicemail message was an acceptance of the city’s final offer, the No factual allegations that the city improperly closed agreement was not reduced to writing or ratified by the city grievances: City and County of San Francisco. and, in accordance with Sec. 3505.1, was not binding on (Lam v. City and County of San Francisco, No. 2075-M, the parties. Citing Long Beach City Employees Assn. v. City of 11-4 -09; 6 pp. dec. By Acting Chair Dowdin Calvillo, with Long Beach (1977) 73 Cal.App.3d 273, 35 CPER 20, PERB Members McKeag and Wesley.) concluded that the parties’ agreement must be presented to Holding: The charging party failed to allege suffi- the public agency’s governing body to be binding. cient facts to show that the city colluded with his exclusive The ALJ also had concluded that the voicemail mes- representative to close grievances he had filed, that the city sage changed bargaining circumstances, thereby breaking did so in retaliation for his protected activity, or that it had the parties’ impasse and reviving the city’s duty to bargain. a duty to inform him of the closures. While recognizing the board’s holding in Modesto City Schools Case summary: The charging party alleged that the (1983) No. 292, 56 CPER 15, which held that conces- city violated the act by intimidating and colluding with his sions have a significant impact on the bargaining equation, exclusive representative regarding grievance filings, retaliat- PERB concluded that this was not alleged by the union in ing against him for filing grievances and an unfair practice its complaint and was raised for the first time in the union’s charge, failing to notify him or the union of grievance clo- post-hearing brief. Therefore, the board ruled, the city did sure, and violating the city’s administrative code. not have an opportunity to fully litigate the issue. The charge was dismissed by a board agent, and Lam appealed to the board. No grounds for reconsideration demonstrated: San PERB first noted that the charging party’s appeal put Bernardino County. the board and the respondent on notice of the issues raised (Shelton v. San Bernardino County Public Defender, on appeal, as required by Reg. 32635(a). No. 2058a-M, 10-30-09; 2 pp. By Member McKeag, with However, the board found no allegations to support Members Neuwald and Wesley.) the claim that the city conspired with the union to close his February 2 0 10 cper journal 89

grievances. The record indicates that the city considered employee relations’ rules by refusing to take the appeal of the grievances closed because the collective bargaining its determination to deny recognition to the civil service agreement has an election of remedies provision, and the commission. charging party had elected to pursue a remedy through the Applying PERB precedent, an administrative law city’s equal employment opportunity office. judge concluded that, along with the individual clinic The board also found no merit in the assertion that corporations, the county’s ambulatory care department the city committed an unfair practice by failing to notify functioned as a joint employer of the clinics because it co- the charging party that it had closed his grievances. The determined matters governing essential terms and condi- charge did not establish that the city had an obligation to tions of employment. The ALJ found that the department directly notify the charging party. And, the city notified exercised significant control over patient care through the the union’s worksite organizer. The union representative’s hiring process and through performance requirements af- alleged failure to pass this information on to local union fecting the delivery of patient care. The department also officials is an internal union matter, PERB held. jointly prepared the clinics’ budget, individual physicians’ Concerning the retaliation charge, the board found employment agreements and salaries, use of facilities and no basis for inferring that the city retaliated against the equipment, educational opportunities, and dress and groom- charging party for his protected activity. The charge alleged ing standards. no facts to show disparate treatment, departure from past Because the ambulatory care department was a joint practice, or union animus. employer, the ALJ concluded the county had a duty to pro- cess the union’s petition for recognition under its local rules. Representation Rulings Its refusal to do so violated the MMBA as well as its local rules, and interfered with employees’ rights to participate County, as joint employer of clinics, must process in activities of an employee organization. union’s request for recognition under local rules: The ALJ also concluded that, because the only issue County of Ventura. that can be appealed to the county civil service commission (Union of American Physicians and Dentists v. County is the unit determination itself, not whether the county of Ventura, No. 2067-M, 9-29-09; 9 pp. + 23 ALJ dec. By denied recognition to the union as the physicians’ exclu- Member Wesley, with Acting Chair Dowdin Calvillo and sive representative, the county did not violate its own local Member Neuwald.) rules when it refused to process the union’s appeal to the Holding: Because the county retains and exercises commission. control over the manner and method in which work is As a remedy, the county was ordered to process the performed, the county is a joint employer of the physicians union’s request for recognition in accordance with its local who work at its clinics and must process the union’s request rules. for recognition in accordance with the MMBA and its local On appeal, the board affirmed the ALJ’s conclusion rules. However, it is premature to direct the county to pro- that the county is a joint employer of the clinic physicians, ceed with a representation election or recognize the union noting that PERB does not use an “actual control” test. as the employees’ exclusive representative. Here, the county was a joint employer because it retained Case summary: The union filed an unfair practice the right to control the manner and method in which the charge asserting that the county violated the act by refus- physicians performed their work. ing to process its petition for recognition of physicians who The board did not agree with the county that the ALJ provide patient care at the county’s outpatient clinics. The should have identified the specific terms and conditions of charge also alleged that the county violated local employer- 90 cper journal No. 198

employment over which the county is required to bargain, Holding: The charging party failed to allege sufficient as it would have been a premature determination outside facts to show that, by its involvement in the closure of two the scope of the union’s complaint. grievances, the union breached its duty of fair representa- PERB rejected the union’s argument that the county tion. should be ordered to conduct a representational election. Case summary: The charging party alleged that the union breached its duty of fair representation by colluding Duty of Fair Representation Rulings with his employer when it closed two grievances, failing to notify him the grievances had been closed, and failed to No showing that union’s alleged negligence extin- return his telephone calls. guished charging party’s claims or caused irreparable The charge was dismissed, and an appeal to the board harm: IFPTE. followed. (Maxey v. IFPTE Loc. 21, AFL-CIO, No. 2077-M, In agreement with the board agent, PERB found that 11-4-09; 2 pp. + 7 pp. R.A. dec. By Member McKeag, with the allegation regarding telephone calls was untimely. Members Neuwald and Wesley.) PERB found no allegations in the charge establishing Holding: The allegations were insufficient to dem- that the union acted arbitrarily, discriminatorily, or in bad onstrate that the union’s grievance handling amounted to faith. The union’s failure to consult with the charging party a breach of the duty of fair representation. prior to closure of the grievances did not constitute a breach Case summary: The charging party alleged that the of the duty of fair representation. union failed to adequately represent him in connection with The board also found no facts to indicate that the a grievance he filed contesting his termination. He asserted union intentionally withheld information. The allegations that the union did not communicate with him, that his union in the charge establish negligence on the part of the union. representative was not prepared for meetings, and that the However, PERB has held that a union’s negligent conduct union allowed the employer to delay in responding to his breaches the duty of fair representation only when it com- grievance. pletely extinguishes the employee’s right to pursue his or The regional attorney dismissed the charge, finding her claim. Here, the board found no factual allegations that no factual allegations that the union’s shortcomings caused the failure to notify the charging party had any affect on his him to lose the right to pursue his claim or caused him to ability to further pursue his grievances. suffer irreparable harm. The contention that the union breached its duty of fair The R.A. also concluded that the charging party failed representation by failing to notify local union officers that to demonstrate that the union abused its power by acting in the grievances had been closed is an internal union matter, an arbitrary, irrational, or dishonest way. The alleged con- which did not have a substantial impact on the charging duct is tantamount to mere negligence, which is insufficient party’s relationship with his employer. to show a breach of the duty of fair representation. Factual allegations insufficient to support DFR charge: Union’s negligent conduct did not extinguish charging SEIU Loc. 1021. party’s right to pursue claims: SEIU Loc. 1021. (Schmidt v. SEIU Loc. 1021, No. 2080-M, 11-24-09; (Lam v. SEIU Loc. 1021, No. 2076-M, 11-4 -09; 6 5 pp. + 18 pp. R.A. dec. By Member McKeag, with Acting pp. dec. By Acting Chair Dowdin Calvillo, with Members Chair Dowdin Calvillo and Member Wesley.) McKeag and Wesley.) Holding: The allegations raised by the charging party failed to establish that the union’s conduct breached the duty of fair representation. February 2 0 10 cper journal 91

Case summary: The charging party alleged that the Prima facie DFR breach alleged, complaint to issue: manner in which the union handled her workers’ com- IBEW Loc. 1245. pensation claim breached the duty of fair representation. (Flowers v. IBEW Loc. 1245, No. 2079-M, 11-24-09; The regional attorney noted that the union has no duty 5 pp. dec. By Member McKeag, with Acting Chair Dowdin to represent an employee in an extra-contractual matter, Calvillo and Member Neuwald.) such as a workers’ compensation claim or violations of Holding: The allegations raised by the charging party anti-discrimination laws. were sufficient to state a prima facie case that the manner in The R.A. also found that the charge failed to allege which the union pursued his grievance breached the duty sufficient facts to assess when conduct occurred or who of fair representation. acted on the part of the union. At a minimum, the R.A. Case summary: Following the charging party’s ter- said, the charging party must allege sufficient facts from mination, the union filed a grievance. However, thereafter, which it becomes apparent in what manner the exclusive the charging party received no further communication from representative’s conduct was without a rational basis or the union, was not interviewed or consulted by the union, devoid of honest judgment. nor advised of the status of his grievance. Facts provided in the amended charge indicate that The union informed the charging party that it elected the union did respond to the charging party’s request for not to arbitrate the grievance, but did not offer an explana- assistance; it wrote several letters and initiated at least two tion as to why. grievances on her behalf. The R.A. concluded that, based The charging party filed an unfair practice charge on the facts alleged, the union did not ignore the charging asserting that the union’s conduct was irrational and devoid party or fail to address her concerns. of honest judgment. The board agent dismissed the charge, On appeal, the board affirmed the R.A.’s decision and reasoning that the allegation that the union never investi- dismissed the charging party’s assertion that PERB’s ruling gated the charge was conclusory and speculative. in SEIU Loc. 221 (Meredith) (2008) No. 1982, 193 CPER On appeal, the board found that the charging party 79, warranted a different result. In that case, the board an- asserted sufficient facts to demonstrate that the union did nounced that it would look to the cumulative activities of not intend to resolve his grievance. Its failure to question the exclusive representative to determine if the facts alleged the terminated employee supports the assertion that the are sufficient to show arbitrary conduct. A prima facie case union did not conduct an adequate investigation and states can be established based on an overall pattern of conduct, a prima facie case. even if any one action, standing alone, would not constitute While simple case-handling errors and simple neg- a breach of the duty of fair representation. ligence do not constitute a violation of the duty of fair Here, said the board, unlike in Meredith, the union representation, here, PERB concluded, the union’s failure made an effort to represent the charging party by writ- to explain to the charging party why it chose not to process ing letters on her behalf, initiating one grievance, and his grievance states a prima facie case. accompanying her to meetings, and was responsive to her The board remanded the case to the general counsel complaints. for issuance of a complaint. 92 cper journal No. 198

Activity Reports

ALJ Proposed Decisions Williams and Gashaw were equally culpable for overreacting, the facts alleged as the basis for interference were not established. Sacramento Regional Office — Final Decisions Perkins v. State of California (Dept. of Water Resources), Case Oakland Regional — Office Final Decisions SA-CE-1772-S. ALJ Shawn P. Cloughesy. (Issued 12-30-09; final Schwartz v. Regents of the University of California, Case SF- 1-26-10, HO-U-977-S.) The charging party contended that CE-814-H. ALJ Donn Ginoza. (Issued 11-10-09, final 12-29-09, the Department of Water Resources retaliated by issuing her a HO-U-974-H.) The university did not meet HEERA’s public corrective memo for asking questions on behalf of employees notice requirement by announcing its intention to restart em- at a monthly staff meeting. While Perkins was forceful, direct, ployer and employee contributions to the defined benefit plan and repeatedly pressed for an answer, her questions/comments after a “contributions holiday.” Even if the public could have lasted only one minute in an 85-minute meeting. Once told the become sufficiently informed of the “issue” at regents’ meetings, matter would be discussed at another time, she did not attempt to the resolution was adopted before a reasonable opportunity pursue it further. Perkins did not use profanity, foul language, or for public comment. The university’s public notice process, in derogatory remarks. She attempted to get an answer to a question which meetings are held by the director of labor relations after that was of concern to water resource technicians. Such action a notice to the media of the intention to announce bargaining was not so opprobrious, flagrant, insulting, defamatory, insubor- proposals, did not meet the requirement because it was invoked dinate, or fraught with malice as to cause substantial disruption after bargaining commenced. Statements made by the associate or material interference with operations. The charging party’s vice president at the regents’ meetings prior to bargaining were comments were found to be concerted as a logical continuation not sufficient because they occurred without official adoption of group activity. A violation of the Dills Act was found. of the proposal and because delegation of the adoption step to SEIU Loc. 1000 v. State of California (Dept. of Motor Vehicles), a university employee is not supported by the statute or ap- Case SA-CE-1645-S. ALJ Christine A. Bologna. (Issued 10- plicable precedent. 14-09; final 11-10-09, HO-U-971-S.) On June 15, 2007, SEIU Chase v. City of Oakland (Oakland Museum of Califor- Staff Representative Gashaw was scheduled to conduct a union nia), Case SF-CE-500-M and SF-CE-545-M. ALJ Shawn P. meeting. Shortly beforehand, employee Behjat Jounami asked Cloughesy. (Issued 12-10-09, final 1-20-10, HO-U-976-M.) her supervisor, Nathaniel Williams, if she could attend. Williams, The charging party, a job steward with SEIU, contended that a new supervisor, consulted another supervisor and granted the city retaliated against her by denying her the opportunity to permission. Then, Jounami informed Williams that she had work holidays and issuing her a notice of intent to suspend her decided not to go. When Gashaw learned that Jounami would for five days for being insubordinate to her supervisor, rude and not be at the meeting, he asked a job steward to escort him to abusive to another manager, and abandoning her security post. the work unit so he could resolve the miscommunication with The charging party was unable to establish a nexus between her Jounami. Williams’ supervisor, Jackie Perkins, also new, observed protected activities and the adverse actions taken against her. an unknown man in the unit and asked Williams to find out why The complaint was dismissed. he was there. Williams confronted Gashaw. Perkins heard loud voices and immediately moved the discussion to the hall. Los Angeles Regional Office — Final Decisions The unfair practice complaint alleged two separate acts of Meredith v. SEIU Loc. 221, Case LA-CO-1322-E. ALJ employer interference: denial of Jounami’s right to meet with a Bernard McMonigle. (Issued 11-10-09; final 12-08-09, HO-U- union representative and physical restraint of Gashaw as he at- 973-E.) The charging party alleged the union breached its duty tempted to meet with Jounami. No violation was found. Williams of fair representation at a meeting with the school principal and granted Jounami’s request to go to the meeting, but Jounami, for failed to pursue grievances regarding his alleged rejection from her own reasons, declined to attend. Thus, DMV did not deny probation. However, evidence demonstrated that the charging Jounami the right to meet with a union representative. Because party resigned through his actions and was not rejected from February 2010 cper journal 93

probation. The principal did not request the meeting, which share fees from retired annuitants and make the union whole occurred only minutes after the charging party received an un- from the date of request in September 2008. satisfactory evaluation that did not reject him from probation. SEIU Loc. 1021 v. City of Redding, Case SA-CE-553-M. The union had no duty to pursue a probation grievance that it ALJ Christine A. Bologna. (Issued 11-18-09; exceptions filed 12- determined to be unmeritorious or an untimely grievance over 14-09.) A Redding Electric Utility customer service representa- a late evaluation. No violation was found; the unfair practice tive, represented by SEIU, filed a harassment complaint under charge and complaint were dismissed. the city’s policy. As a result of an investigation, the personnel Kern County Probation Officers Assn. v. County of Kern, Case director and the REU director authorized a second investigation LA-CE-343-M. ALJ Thomas J. Allen. (Issued 11-03-09; final 12- into general customer service representative workplace issues. 02-09, HO-U-972-M.) There was no failure to bargain in good On July 22, the personnel director and REU director sent a let- faith to impasse, mediation, and unilateral implementation. The ter to SEIU chapter representatives that the investigation into weight of the evidence showed the county provided the requested customer service issues was completed and results were summa- information. Bargaining delays were caused by extraordinary rized in a confidential report. On July 28 and August 11, SEIU circumstances, not bad faith. The unilateral implementation requested the investigative reports. On August 6 and August conformed to the MMBA. 20, after meeting with SEIU representatives, the city responded Morgan v. Inglewood USD, Case LA-CE-5263-E. ALJ Ann that the reports could not be provided because city policy and L. Weinman. (Issued 12-07-09; final 01-20-10, HO-U-975-E.) the California Public Records Act required confidentiality. The A music teacher was first removed from the extra assignment of unfair practice complaint alleged that the city failed to respond after-school band leader following complaints about the band to SEIU’s request for information. A violation was found. PERB program from several sources, then put on administrative leave has ordered production of the investigative reports; required pending investigation of her serious charges against other teachers production of information relevant and necessary to effectively and parents and counter charges against her, then non-reelected to administer the contract even absent a specific grievance; rejected her teaching position. The complaint alleges this was all in retali- CPRA defenses, standing alone, and approved redaction of ation for seeking union representation at a meeting and for filing confidential information before providing relevant information the original charge. No nexus was found for any of the district’s to exclusive representatives to eliminate privacy problems. As actions. The charge and complaint were dismissed. a remedy, the city was ordered to provide SEIU with copies of both reports, with witness statements accompanying each report, Sacramento Regional Office — Decisions Not Final redacted of employee identifying information. California Department of Forestry Firefighters v. State of Cali- SEIU 1000 v. State of California (Dept. of Corrections and fornia (Dept. of Forestry and Fire Protection), Case SA-CE-1735-S. Rehabilitation)/Kern Valley State Prison), Case SA-CE-1694-S. ALJ Bernard McMonigle. (Issued 12-28-09, exceptions filed ALJ Christine A. Bologna. (Issued 11-10-09; exceptions filed 1-26-10.) A long-standing MOU provision required the state’s 11-30-09.) After receiving written reports from nursing staff collection of fair share fees from non-member employees upon that their supervisor was pressuring them to turn over purchased request of the union. The union had never enforced that provi- meal tickets to her, KVSP Manager Zamora requested an in- sion with regard to retired annuitants employed on a temporary vestigation. On June 26, Supervising Registered Nurse Moore basis. In September 2008, the state refused the union’s request was removed from her assignment. On June 30, Zamora issued to collect fair share fees from retired annuitants, asserting that a cease and desist order to Moore after hearing that she was they were never part of the bargaining unit. The ALJ found that contacting nurses about the investigation. SEIU representative the retired annuitants had been part of the original bargaining Sanchez asked KVSP nurse and SEIU job steward Martinez unit since 1979. He also found that the union had not waived to get documentation from the nurses. At a union meeting to its right under the MOU to collect fair share fees from them. discuss another issue, four nurses raised the meal tickets dispute. A violation was found, and the state was ordered to collect fair Another union representative asked Martinez to talk to cafeteria 94 cper journal No. 198

staff. Martinez questioned the cafeteria manager. After learning management actions appear to have been reasonable and taken that Martinez was asking questions, ISU Correctional Sergeant in good faith. The complaint was dismissed. Williams consulted with Zamora, who directed her to order Martinez to cease and desist from conducting her own investiga- Oakland Regional Office — Decisions Not Final tion into meal tickets. The unfair practice complaint alleged two Berkeley Council of Classified Employees v. Berkeley USD,Case separate acts of employer interference: the order to cease and desist SF-CE-2732-E. ALJ Donn Ginoza. (Issued 12-10-09; excep- any investigation into meal tickets and a statement that Martinez tions filed 12-30-09.) A provision authorizing a public school could be “walked off” the job, i.e., fired. No violation was found. employer to make deductions from employee paychecks in order The second allegation was not established by the evidence based to recoup erroneous overpayments is not a mandatory subject on credibility determinations. The cease and desist order did not of bargaining under CSEA v. State of California (1988) 198 Cal. apply to discussions with KVSP employees/union members, and App.3d 374, which found that such a provision conflicts with was limited to contract cafeteria staff as potential witnesses. No Labor Code Secs. 221, 222, and 224, Code of Civil Procedure’s KVSP representative knew that Martinez was investigating a wage garnishment and attachment law, and constitutionally potential grievance when the decision to give the cease and desist mandated procedural due process. Therefore, the employer’s order was made. No harm to employee rights resulted from the insistence to impasse on such a proposal in this case resulted in cease and desist order. Grievances were filed by SEIU over the a per se violation of the duty to bargain in good faith. meal tickets within days of the July 2 union meeting and the July Mendocino County Public Attorneys Assn. v. County of Mendo- 3 cease and desist order. Martinez remains an SEIU job steward cino, Case SF-CE-432-M. ALJ Donn Ginoza. (Issued 10-07-09; and bargaining unit representative. Since CDCR/KVSP was exceptions filed 10-27-09.) Neither the rule of neutrality follow- concerned about the integrity of the official investigation after ing certification of a new exclusive representative nor the duty receiving two reports of potential witness questioning outside of to refrain from unilateral changes during bargaining requires an ISU within four days, operational necessity and legitimate business employer to implement salary increases scheduled to take effect justification were established. after negotiations for new MOU have commenced, where the CSEA & its Chap. 354 v. Red Bluff Union HSD, Case SA- employer has voluntarily recognized the new exclusive repre- CE-2480-E. ALJ Bernard McMonigle. (Issued 10-15-09; excep- sentative and immediately begins bargaining for a new MOU. tions filed 11-19-09.) In November 2007, the parties reached a The wage increase here attached to the MOUs of the unit from tentative agreement that included a 2.4 percent salary increase. which the employees had migrated, there was no evidence of The union membership ratified it in December. On January 9, employer interference with free choice or refusal to bargain, and the governor announced significant mid-year cuts for education commencing bargaining for a new MOU prior to expiration of and the budget plan for 2008-09. Although on the agenda, the those MOUs would impose an unfair opportunity cost on the trustees did not vote on the tentative agreement at their Janu- employer if it were required to have granted the increase. ary 16 meeting. The assistant superintendent informed union negotiators that the district could not pay a salary increase at Los Angeles Regional Office — Decisions Not Final that time. By March, the district determined it could not certify Riverside Sheriffs Assn. v. County of Riverside, Case LA- to the county office of education that it could afford to pay the CE-353-M and LA-CE-438-M. ALJ Ann L. Weinman. (Issued salary increase. In June 2008, the superintendent recommended 12-30-09, exceptions filed 01-22-10.) RSA filed two unit modi- that the tentative salary agreement be rejected, and trustees fication petitions with the county, seeking to add classifications did so. The ALJ found the facts similar to those in Temple City from two other unions to certain of its own already-established USD (2008) Dec. No. 1972. There, PERB determined that the units. Petitions showed support from employees who would employer was not required to ratify the tentative agreement and be added and from RSA’s recipient units. Relying on the local “was excused by the proposed unprecedented and severe mid- rule requiring “proof that its represented members comprise year cuts in education funding” in 2002-03. Here, the district 15 percent of the employees in the unit,” the county denied the February 2010 cper journal 95

petitions because they did not show support from the remaining 09.) The county unlawfully denied the union’s petition to accrete donor units. The county’s interpretation of the rule was found to per diem employees into three represented units, on the basis be unreasonable and its denial of petitions was unlawful. that the union did not provide a showing of majority support. Heron v. Santa Ana USD, Case LA-CE-5286-E. ALJ Ann The county also unlawfully denied the modified petition on L. Weinman. (Issued 12-15-09; exceptions filed 1-04-10.) A sub- majority support grounds, as well as unreasonable interpretation stitute teacher was given a notice of unsatisfactory performance of the local rule regarding modified petitions. for altering his time card in protest of not receiving extra-period pay. The notice stated any further misconduct could lead to dis- Report of the Office of the General Counsel charge. There was no further misconduct, but he was discharged after submitting a strongly worded response to the notice. The Injunctive Relief Cases notice was not found unlawful, but the discharge was. Two requests for injunctive relief were filed during period Union of American Physicians & Dentists v. County of Orange, of October 1, 2009, through December 31, 2009. Of these, one Case LA-CE-518-M. ALJ Shawn P. Cloughesy. (Issued 12-14-09, request was denied by the board and the other was withdrawn. exceptions filed 12-24-09.) The union contended that the county violated the MMBA as it did not have a local rule that governed Requests denied severance proceedings. It also argued that the county applied an Coalition of University Employees v. University of California unreasonable rule when it required a majority proof of support (IR No. 578, Case SF-CE-905-H). On November 3, 2009, the for the entire unit in order to have it severed. However, the local union filed a request for injunctive relief primarily to prohibit the rule had a “unit modification” rule that covered severance and did university’s imposition of furloughs, layoffs, and campus closures. not receive majority proof of support for the entire unit, but only On November 10, 2009, the board denied the request. for the proposed unit. The complaint was dismissed. Council of Classified Employees/AFT Loc. 4522 v. Palomar Requests withdrawn CCD, Case LA-CE-5226-E. ALJ Ann L. Weinman. (Issued 11- Communication Workers of America v. County of Butte (IR 03-09; exceptions filed 11-23-09.) The charge alleges a unilateral No. 579, Case SA-CE-645-M). On December 22, 2009, the change in discipline policy, by issuing a written reprimand to union filed a request for injunctive relief primarily to prohibit an employee under the terms of the side letter. The issue was the county from proceeding with a petition, filed by the Butte whether the side letter expired with the most recent modifica- County Employees Association, to decertify the union as the tion of the collective bargaining agreement. The side letter was exclusive representative of the county’s social services workers held to still be in effect. unit. On December 30, the union withdrew its request. SEIU Loc. 721 v. County of Riverside, Case LA-CE-456-M. ALJ Ann L. Weinman. (Issued 10-15-09; exceptions filed 11- Litigation Activity 25-09.) The union charged the county with a unilateral change by ceasing the long-standing practice of paying overtime to em- One new case opened during the period of October 1, ployees exempt from FLSA overtime provisions. However, the 2009 through December 31, 2009. county announced its decision more than six months prior to Baprawski v. PERB, Los Angeles County Superior Court filing of the charge. Further, the parties’ new labor contract con- Case No. BS123046. (PERB Case No. LA-CE-4883-E.) In tained new provisions in conformity with the FLSA, and a side October 2009, Baprawski filed a petition for writ of adminis- letter provided premium pay for certain exempt classifications to trative mandamus with the superior court, seeking to set aside avoid recruitment/retention problems. The charge was found to PERB Dec. No. 2059 [upholding ALJ’s determination that the be untimely; the county satisfied its bargaining obligations. unfair practice charge was untimely and dismissing the charge SEIU Loc. 721 v. County of Riverside, Case LA-CE-497-M. and complaint against LACCD] and require PERB to hold a ALJ Ann L. Weinman. (Issued 10-13-09; exceptions filed 11-23- hearing on the merits. 96 cper journal No. 198

Precedential Decisions of the Fair Employment and Housing Commission

California Code of Regulations Title 2, Sec. 7435, authorizes The manager’s conduct was sufficiently severe to the Fair Employment and Housing Commission, an administra- constitute a hostile work environment under the FEHA. tive agency charged with enforcing California’s Fair Employment These working conditions were so intolerable as to consti- tute constructive discharge. and Housing Act, to designate as precedential, any decision, or The manager and the company are liable for sexual part of any decision, that contains a significant legal or policy harassment and creation of a hostile work environment. determination of general application that is likely to recur. Once The complainant was awarded back pay from the date she the commission has done so, the agency may rely on it as precedent was constructively discharged until the date the company and the parties may cite to it in their arguments to the commission ceased doing business. The company alleged that the com- plainant failed to mitigate her damages. However, the severe and the courts. emotional after-effects she suffered rendered her unable One of the commission’s decisions designated as precedential is to work. The commission also ordered $50,000 in actual summarized below. Full text of decisions may be viewed online at damages for emotional distress and an administrative fine http://www.fehc.ca.gov/act/decision.asp. of $25,000.

Manager’s unwanted sexual conduct created hostile work environment. (Department of Fair Employment and Housing v. Artifer Corp., No. 09-05-P, 9-30-09; 23 pp. H.O. dec.) Holding: The manager’s behavior toward a female employee constituted sexual harassment because his conduct was so severe as to create a hostile work environment; the conditions were so intolerable as to constitute construc- tive discharge. The manager’s conduct amounted to sex discrimination. Case summary: The complainant’s manager subject- ed her to continued, unsolicited sexual conduct, including crude and sexually graphic remarks about her appearance and about her coworker. The manager told the complainant to “look as good as possible and flirt with the bank tellers,” invited her to socialize with him after work, and told her to set up a webcam directed at her chest, which the manager used to eavesdrop on her private conversations. The man- ager’s sexual conduct escalated to include grabbing, hugging, explicit sexual comments, and calls to her home. All of the conduct directed at the complainant was unwanted and persisted after she repeatedly told him to stop.