Fairfield-Suisun Unified School District (2012) PERB Dec. No. 2262-E (Issued 5/08/12)

This case involved an allegation that a school district (district) made an unlawful unilateral change in policy.  Specifically, the parties had a memorandum of understanding (MOU) that required “progressive discipline” to be followed except where the misconduct endangered the safety of others or where there is an emergency.  Subsequently, the district adopted a “zero tolerance” policy for drug use.

What gave rise to this specific unfair practice charge was a drug test involving a school bus driver.  During the drug test, the school bus driver refused to comply with the protocols established by the drug testing facility to ensure the integrity of samples.  The district considered the employee’s refusal to comply with instructions to be a refusal to comply with the district’s “zero tolerance” drug testing policy.  As a result, the employee was terminated without going through the steps of “progressive discipline.”

The hearing officer found that the district complied with the MOU and dismissed the charge.  The Board, however, rejected the proposed decision.  The Board found that the district changed its policy on “progressive discipline” by adopting the “zero tolerance” drug testing policy without bargaining with the union.  The Board then rejected the district’s defense that the safety exception to the progressive discipline policy applied.  Specifically, the Board found that the employee’s refusal to comply with the testing facility protocols did not endanger anyone or compromise anyone’s safety.

Member Dowdin-Calvillo filed a concurrence.  She joined in the result but not in the majority’s rejection of the safety exception.  Member Dowdin-Calvillo held that since the district did not invoke the safety exception when it first fired the employee, it was clear that the district did not rely on the safety exception.  Thus, Member Dowdin-Calvillo saw no need to reach that issue.

Comments:

1. I disagree with this decision.  My major disagreement is with the majority’s rejection of the district’s argument that the “safety” exception to progressive discpline applies to these facts.  Presumably, if the employee had tested positive and been fired, the Board would have upheld the termination as a “safety” exception to progressive discipline.  But here, the Board rejected the safety exception because the employee was fired not for testing positive, but for refusing to comply with the testing protocols.  The Board held that the employee’s refusal to comply with protocols did not endanger anyone.
2. I concede that the employee’s refusal to comply with the protocols did not pose a safety issue by itself.  But I believe this is too narrow a view of “safety” and ignores the reality of drug use and drug testing.  You can’t have an effective drug testing policy where the penalty for refusing to be tested is less than the penalty for testing positive.  For example, consider the laws regarding driving under the influence.  My understanding is that in California, if you refuse to be tested after being arrested for DUI you are subject to severe penalties almost as severe as the penalty for a DUI conviction, in addition to the fact that you can still be convicted of DUI.  When you think about it, this makes sense because if the penalty was less, anyone who was drunk would just refuse to be tested.
3. This case presents similar public policy issues.  Imagine an employee with a federal driver’s license.  Last week he smokes marijuana.  This week he gets picked for a random drug test.  He has two choices: 1) get tested, test positive, and get fired; or 2) refuse to be tested and receive a penalty less than termination.  What do you think the employee is going to do?  The employee is obviously going to refuse to be tested in order to save his job.  In my opinion, such a result is contrary to public policy.
4. Here, I think a strong argument can be made that adhering to the testing facility’s protocols is an integral part of the drug testing policy.  Following that logic, an employee who refuses to comply with the protocols poses as much as a safety risk as an employee who tests positive.

Central Contra Costa Transit Authority (2012) PERB Dec. No. 2263-M (Issued on 5/08/12)

The underlying unfair practice charge in this matter was filed by the Amalgamated Transit Union, Local 1605 (ATU) against the Central Contra Costa Transit Authority (Authority). The Office of the General Counsel dismissed the charge on the ground that the Authority, as a joint powers authority, is not an employer covered by the MMBA.  This appeal followed.

The sole issue on appeal was whether PERB had jurisdiction over the Authority.  What presumably raised this issue was the Board’s decision in North Orange County Regional Occupational Program (1990) PERB Decision No. 857-E (“North Orange County”) issued in 1990.  In that case, PERB overturned prior precedent by holding that a JPA created by five school districts was not a “public school employer” for purposes of EERA.  Last year, the Legislature overturned North Orange County with the passage of AB 501.

The Authority argued that since AB 501 only changed the language in EERA, JPA’s remain uncovered by the MMBA.  The majority—comprised of Chair Martinez and Member Huguenin—rejected the Authority’s argument and reversed the dismissal.  The majority found that the language in the MMBA, which covers “any public agency,” is broader than the term “public school employer” under EERA; and more important, broad enough to cover JPA’s under the MMBA.

The dissent—by Member Dowdin-Calvillo—argued that North Orange County is controlling of the issue here.  Under North Orange County, the dissent would find that the term “public agency” does not cover JPA’s.  According to the dissent, the majority opinion “represents an unwarranted expansion of the Public Employment Relations Board’s (PERB or Board) jurisdiction beyond that vested in it by the Legislature.”

Comments:

1. This case raised an issue that I didn’t think was in dispute.  As we know, the National Labor Relations Act (NLRA) expressly excludes “any State or political subdivision thereof” from its coverage.  In California, the governmental entities excluded by the NLRA have been subject to a variety of public sector labor statutes.  In my mind, I’ve always thought of the term “any public agency” in the MMBA as a catchall to capture any governmental entity that is exempt from the NLRA but not covered by another public sector labor statute.
2. As a matter of public policy, I don’t have a problem with this decision.  In a prior post, I argued that AB 501 was unnecessary because JPA’s excluded from EERA would still be covered by the MMBA.  (See prior post here.)  However, excluding JPA’s from the MMBA would mean that they would be covered by the NLRA or not covered by any labor relations statute at all.
3. With respect to being covered by the NLRA, I don’t see that as a good thing.  It’s true that you can avoid card check under the NLRA, but other than that I’m not sure an employer is better off being subject to the NLRA.  In my opinion, the National Labor Relations Board is much more prone to switching positions with every change in administration.  This creates instability and uncertainty which no employer wants.  So for me, I would rather be subject to PERB.
4. Admittedly, there is the possibility that a governmental entity could be excluded from the NLRA and also excluded from the MMBA and other California labor statutes.  This was probably the goal of the Authority here.  However, such a result would be a short-lived victory as there is little doubt in my mind that the Legislature would promptly “correct” the situation by amending the MMBA.

UPTE-CWA Local 9119 (Witke) (2012) PERB Case No. 2253-H (Issued on 04/23/12)

This case involves an appeal from a dismissal.  Charging party asserted two grounds for appeal that I want to discuss.  First, charging party asserted that the Board agent who issued the dismissal engaged in improper “ex parte” contact.  Specifically, charging party asserted that the Board agent improperly talked with the other side without charging party being part of the conversation.  In rejecting any impropriety, the Board held that:

[T]here is no prohibition on ex parte communications in the initial charge processing stage of an unfair practice proceeding… Ex parte communications at the charge processing stage of unfair practice proceedings are a routine and necessary part of the performance of a Board agent’s regulatory duties.

In support, the Board cited to PERB regulation 32620, subdivision (b), which allows Board agents to answer questions and facilitate communication between the parties, and PERB regulation 32620, subdivision (d), which requires Board agents to convey facts to the charging party gathered during the investigation of the unfair practice charge.

Charging party also asserted that the Board agent granted multiple extensions without requiring the other party to comply with PERB regulation 32132, subdivision (b), which requires requests for extensions to be in writing.  In its decision, the Board acknowledged that respondent did not comply with 32132, subdivision (b).  The Board further stated:

While violations of PERB regulations will not be condoned, neither will they be used to undermine the authority of a Board agent in the performance of his or her duties.  The Board agent is responsible for determining whether the facts as alleged in the charge state a prima facie case and whether the charging party is capable of providing admissible evidence in support of the allegations.

Here, although the Board found that respondent did not comply with PERB regulations, the Board held that charging party did not suffer any prejudice.  As a result of that finding, the Board denied the appeal and affirmed the dismissal.

Comments:

1. Experienced PERB practitioners are aware that PERB Board agents routinely talk with the parties individually during the investigation of an unfair practice charge.  These conversations are technically “ex parte” since the other side is not privy to them.  This decision is the first one I’m aware of that attempts to explain why this practice is permissible under PERB’s regulations. 
2. I’m not sure I’m entirely convinced that the PERB regulations cited make it “clear” that ex parte communication is permissible.  It’s not clear to me that the regulations address that issue at all.  However, it’s certainly true that the system set up by PERB requires that the Board agent be free to discuss a case with a party without the other party being present.  It’s very similar to dealing with a complaint filed with the Department of Fair Employment and Housing or the Equal Employment Opportunity Commission.  Once an investigator is assigned, that individual will often have “ex parte” contact (including responding to requests for extensions of time) as part of the investigation.  Practically, I have found that conversations with the Board agents are very helpful.  Often times the Board agent will point me to the areas where he or she would like more information, and therefore help me focus my response.
3. With respect to extensions, in the last several months I have heard from practitioners, and personally experienced, a “crack-down” by PERB with respect to PERB regulation 32132, subdivision (b).  Before, it was very common to call the Board agent to request an extension of time to file respondent’s initial response and have it granted.  You would then confirm the extension in writing to PERB and serve the confirmation on the other party.  Several months ago, Board agents began insisting that requests be in writing, as opposed to being just confirmed in writing, and that the position of the other party be put in the request pursuant to PERB regulation 32132, subdivision (b).  This decision seems to explain why this change in practice occurred.
4. I’m fine with PERB’s change in practice.  However, it does put respondents in a difficult position in trying to timely respond to charges.  PERB’s practice is to require a response fourteen (14) days after the giving you notice of the charge.  For many respondents (and this also applies to unions that are respondents), it can take more than fourteen (14) days just to route a charge to the proper individuals in the organization and gather the necessary information.  Indeed, I almost always find myself in the position of having to request an extension of time beyond the fourteen (14) days initially provided by the Board agent.  Those requests are almost always granted.  Now, parties must be sure to make such requests in writing three (3) days before the due date pursuant to PERB regulations.  That sometimes is very difficult to do.  My hope is that PERB will consider extending the time given to file an initial response.  Ideally I would have thirty (30) days to respond; that seems reasonable since that’s what I get to respond to a lawsuit in court.

City of Glendale (2012) PERB Dec. No. 2251-M (Issued on 04/18/12)

This case involves an unfair practice charge for bad faith bargaining filed by the Glendale City Employees Association (Association) against the City Glendale (City). The charge alleged two theories of bad faith bargaining. The one that caught my attention was the allegation that the City negotiated to impasse on a permissive subject of bargaining.

The specific issue was a pension cost-sharing proposal by the City.  The parties had previously agreed to a cost-sharing model to deal with increases in PERS pension costs.  The cost-sharing model provided that the City would pay the full amount of the PERS employer rates between 0 and 7%.  If the employer rate exceeded 7%, a 50/50 cost sharing arrangement would apply until a cap.  For example, if the PERS employer rate increased to 8%, the City would pay 7.5%, and the employee would pay 0.5% of the employer rate.  In addition, the employees paid the full employee rate.

As part of bargaining for a new contract, the City proposed the following:

PERS Retirement Cost Sharing: Increase current costsharing provisions for the employer portion of the PERS contribution from 0.5% to 2.0%.  In the event that this Last, Best and Final proposal does not result in a ratified agreement, the City shall seek implementation of a 1.5% base salary decrease in lieu of the increased PERS cost-sharing, and this alternate proposal shall be considered incorporated into the City’s written proposal of July 19, 2010.

The Association alleged that the cost-sharing proposal was a permissive subject of bargaining and that the City committed an unfair practice by insisting to impasse on it.  In dismissing the charge, the Board held that even if the cost-sharing proposal was a permissive subject of bargaining, the Association failed to raise any objection to it during bargaining.  Further, the Board found that the City did not insist to impasse on the cost-sharing proposal but offered a salary reduction in lieu of the cost-sharing proposal prior to declaring impasse.  Accordingly, the Board dismissed the unfair practice charge.

Comments:

1. This case provides a great example of how savvy employers are attempting to bargain changes to defined benefit pension plans in an effort to rein in costs.
2. Some readers may be wondering, “Why is a proposal on pension costs a permissive subject of bargaining?  Aren’t pensions a mandatory subject of bargaining?”  This decision does not directly address these questions but rather assumes the City’s proposal is a permissive subject.  However, I think it was wise of the City to assume the proposal is permissive.  Here’s why.  In general, pensions for current employees are a mandatory subject of bargaining.  The wrinkle here is that the City was providing its pensions through a PERS contract.  Under PERS—as with most defined benefit plans—there is a set percentage of the pension cost allocated to the employee.  The rest of the cost of the pension (and the risk) is borne by the employer.   The “conventional wisdom” is that employees have a “vested” right to continue to accrue pension benefits under the pension formula in place on their date of hire.  If the employer could force the employee to pay all or part of the employer’s share, arguably the employee’s “vested” right would be eviscerated.  So while employees can voluntarily agree to pay a portion of the employer’s PERS cost, it is legally questionable whether employees can be forced to pay any portion of the employer’s share as part of a last, best, final offer imposed upon impasse.  A savvy employer that realizes this will have a contingency plan in place, which typically is an equivalent salary reduction.
3. Why would a union agree to voluntarily pay part of the employer’s pension costs as opposed to taking a salary reduction?  For one, taxes.  The additional payment by employees towards an employer’s pension costs can be designed to be taken pre-tax.  Thus, it has less of a financial hit on employees than an equivalent salary reduction.  Also, if the justification for the concessions are pension costs, employees have more assurance that concessions are being used to address pensions costs by directly paying a portion of the employer’s share as opposed to just taking a salary reduction.
4. In addition to the “vested” rights issue, depending on the governing statutes, some pension plan changes require agreement from affected employee unions.  This is another reason an employer may not be able to impose certain pension changes upon impasse and why a equivalent salary reduction may be a better option.
5. Finally, I use the term “convention wisdom” to describe the concept that employees have a vested right to accrue benefits under the pension formula in existence at the time of hire because it’s not clear to me that that is in fact the law.  In the private sector, employers can “freeze” pension benefit accruals going forward.  So while you can’t take away what an employee has already earned, a private employer can move an employee into a less generous pension formula going forward.  I believe there is an argument that public employers may have this same right in certain situations.  But that’s a post for another day…

National Union of Healthcare Workers (2012) PERB Dec. No. 2249-M (Issued on 04/18/12)

This unfair practice charge arises out of a decertification election involving in-home support services workers in Fresno County.  The decertification petition was filed by the National Union of Healthcare Workers (NUHW) against the incumbent SEIU-United Healthcare Workers West (SEIU).  NUHW alleged that SEIU committed unfair practices during the election by 1) interfering with balloting, 2) engaging in physical and verbal threats, 3) misrepresenting information to bargaining unit members, and 4) unlawfully destroying bargaining unit members’ personal property.  NUHW filed an unfair practice charge seeking to have the election set aside.

Citing to United Teachers-Los Angeles (Ragsdale) (1992) PERB Dec. No. 944 (“Ragsdale”), the Board agent dismissed the allegations of interference with balloting and engaging in physical and verbal threats because NUHW failed to identify by name the alleged SEIU agents responsible for the conduct.  In reversing the dismissal, the Board rejected the Board agent’s reliance on Ragsdale for requiring the names of the SEIU agents.  Instead, the Board held that:

… [T]he name of a person alleged to be an agent of an employee organization or an employer is not an indispensable element in a prima facie case. We reject a formulaic application of an oft-quoted statement from our decision in Ragsdale. We favor a more nuanced analysis turning on the elements of the particular prima facie case. In Ragsdale, the Board itself adopted the warning and dismissal letters of the Board agent as the decision of the Board. We do not believe that in so doing the Board then intended to adopt a statement from the Board agent’s warning letter as a litmus test for assessing the sufficiency of factual allegations.  Our test for sufficiency of allegations was and is set forth in our regulation, namely, “a clear and concise statement of the facts and conduct alleged to constitute the unfair practice.” (PERB Reg. 32615(a)(5).) The Ragsdale formulation, that a “Charging Party must allege with specificity who, what, when, where and how” of the respondent’s alleged violation identification may be useful in explaining to a charging party how to plead a violation, but is it is not a hurdle over which every charging party must leap at the risk of dismissal.

Comments:

1. The Board’s discussion of Ragsdale is interesting.  In setting forth the requirements of an unfair practice charge, PERB has often used the phrase, “The charging party’s burden includes alleging the “who, what, when, where and how” of an unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB. Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.)”  This phrase—including the citation to Ragsdale— appears in over 130 ALJ and Board decisions.  So by rejecting the “formulaic” application of Ragsdale, is the Board signaling a new direction for its Office of the General Counsel? Is the Board lowering the bar for the issuance of a complaint?
2. Perhaps I’m reading too much into this case.  But it certainly seems to me that the Board is signaling at least a slight change in how unfair practice cases will be processed.  The Board appears to be telling its Board agents to dig deeper and consider whether the “who, what, when, where and how” is really necessary before dismissing a charge.  The end result will likely be the issuance of more complaints.  Any increase may be de minimis, but only time will tell.
3. This case also highlights a suggestion I have made for years.  I do not think that PERB should designate all of its Board decisions precedential.  This case illustrates one of the problems in designating every single case precedential.  Sometimes there will be a phrase in a warning/dismissal letter or proposed decision that will take on a life of its own even though the Board may not have intended it.  By selecting only certain decisions to designate as precedential, the Board will be able to spend more time making certain the language in a precedential decision is just the way the Board wants it.  Only designating certain Board decisions as precedential would require a regulatory change, but that’s something the Board will hopefully consider.