Cal Fire Oral Argument Highlights

Cal Fire Local 2881 et al. v. California Public Employees’ Retirement System et al. (State of California), S239958

The California Supreme Court held oral arguments in the Cal Fire case this morning.  Cal Fire is an “anti-spiking” pension case. The specific issue is whether the State properly eliminated the option to purchase “air-time” as part of PEPRA. Here is an initial quick summary:

  • Near the end of the argument Chief Justice Cantil-Sakauye summarized her view of the law as: 1) the terms and conditions of public employment are generally set forth in statute and not contract (Miller case); and 2) the courts have recognized an exception for pensions under the theory of an implied contract. Therefore the Chief Justice pressed the union attorney on why the purchase of air time should be considered a “pension” since the employee did not actually work the years for which the air-time is being purchased.
  • Justice Kruger pressed a related point: If air-time is an implied contract, what is the consideration?  And if a condition is the “purchase” of the air-time why is there a contract before payment?
  • Justice Cuéllar asked whether the union’s argument would also apply to other benefits such as life insurance and 401(k) investment options.

My Prediction: I think the Court is going to rule in favor of the Governor in this specific case and hold that there was no “vested” right to purchase air time.  While the Justices asked tough questions on both sides, the Justices seemed far more skeptical of the union’s position.  The tough questions to the Governor’s attorney seemed more to be the Justices trying to find where to “draw the line.”

Impact on the Marin Case and the California Rule

The most interesting part of the argument involved questions that got very close to the issue in the Marin County case involving the California Rule on pensions.  Several justices asked the Governor’s attorney whether there is an impediment to changing pensions prospectively for current employees.  The Governor’s attorney said several times that contract law did not prohibit such a change.  Later he clarified that prospective changes for current employees would not violate any “vested” rights as long as there was still a “reasonable substantial pension benefit.”  The Justices jumped all over this term and tried to get the Governor’s attorney to define it.  I don’t think there was total clarity even at the end.  However, what was interesting was that the Justices seem to agree that there is not clarify in the case law about vested rights.  In other words, several Justices made statements that lead me to think it’s not clear to them that there is a “California Rule” as asserted by the unions.  For example, Chief Justice Cantil-Sakauye remarked that the discussion in Allen about a vested right to deferred compensation was “never fully developed.”

[Note: I took a lot of notes of the oral argument so I hope to write more about this case later. However, I wanted to get an initial summary out to people who were not able to listen to the oral argument right away.  This is just what I think are the highlights.]

 

 

 

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PERB Issues 2017-18 Annual Report

PERB has released its annual report for fiscal year 2017-2018. (The report is available here.)  Here is my annual summary of the statistics in the report:

Unfair Practice Charges
690 unfair practice charges (UPCs) were filed in fiscal year 2017-18. In fiscal year 2016-2017, there were 672 UPCs. This means fiscal year 2017-18 saw a 2.7% increase in UPCs compared to the prior year. The change in the number of UPCs varied by statute. The MMBA saw a 13.4% increase (from 261 to 296). The Dills Act saw a 46.7% decrease (from 60 to 32). EERA saw a 15.4% increase (from 240 to 277).  HEERA saw a 9.9% decrease (from 81 to 73). The Trial Court Act saw a decrease from 15 UPCs the prior year to 9, while the Interpreter Act remained the same at 1 UPC. Finally, there were 2 UPCs filed under the new Public Employee Communications Chapter. Continue reading

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PERB: Unions Have Right to Use Employer Email System

Los Angeles Unified School District (2018) PERB Decision No. 2588-E (Issued on 10/17/18)

Earlier this year, in Napa Valley CCD (2018) PERB Decision No. 2563-E, PERB adopted the holding of the National Labor Relation Board in Purple Communications, Inc. (2014) 361 NLRB No. 126, which held that employees have the right to use employer e-mail systems for union activities on nonworking time. (Click here for my blog post.) In this case, the Board addressed whether the holding in Napa Valley CCD extends to employee organizations.

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PERB Clarifies Standard on Employee Speech; Affirms Adoption of Purple Communications

Chula Vista ESD (Yvellez) (2018) PERB Decision No. 2586-E (Issued on 9/28/18)

[Note: I’ve fallen behind in commenting on recent PERB cases. There have been quite a few significant PERB cases in the last few months.  This is one of the more important ones…]

In 2012, the President of the Chula Vista Educators (CVE) union resigned to become the school district’s Human Resources Director. Once this change was announced, the CVE’s Vice-President sent an email to the new President and other teachers stating, in part:

I am deeply dismayed by your letter describing your ascendency to President of CVE. It does not appear in any way to convey the offense the union should take at what I believe is a clear case of a breach of fiduciary duty by our past President …

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PERB Advisory Committee Meeting on October 11, 2018

The Public Employment Relations Board (PERB) has announced a meeting of its Advisory Committee for October 11, 2018 at 11 am.  The location will be at the PERB headquarters in Sacramento at 1031 18th Street, First Floor, Room 103, Sacramento, CA.

According to the meeting agenda the Advisory Committee meeting is “an opportunity for the Board, its staff, its constituents and the public to openly discuss the topics outlined below relating to PERB’s mission in the administration of the eight collective bargaining statutes over which PERB has jurisdiction.”  There is no formal “membership” for the Advisory Committee; all members of the public are welcome.

The scheduled agenda items are: 1) Potential new or revised regulations governing pre-hearing matters, including but not limited to, subpoenas, document production, and motions; and 2) Potential new or revised regulations governing filing of exceptions with the Board itself.

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