On August 20, 2018, the Labor & Employment Law Section of the California Lawyers Association (formerly the State Bar of California) is holding a webinar on Janus. It’s titled “Janus v AFSCME: How Unions and Employers are Responding to the Decision” and will be held from 12 noon to 1:00 p.m. You can register by clicking here.
I am honored to be one of the presenters for the webinar, along with two of the best-known lawyers in the field: Felix De La Torre, General Counsel for the Public Employment Relations Board and Kerianne Steele with Weinberg, Roger & Rosenfeld.
A lot of interesting things are going in the aftermath of Janus and the three of us are looking forward to sharing that with you on Monday!
Boling v PERB (Cal. Supreme Court Case No. S242034)
In 2012, San Diego Mayor Jerry Sanders helped launch the “Citizens Pension Reform Initiative” (CPRI) in an effort to address the unsustainability of the City’s pension obligations. CPRI supporters gathered enough signatures to qualify the CPRI for the ballot. In November 2012, over 65% of the citizens of San Diego voiced their support for pension reform by voting for the CPRI.
The unions then filed unfair practice charges against the City arguing that Mayor Sanders was acting in his official capacity in supporting the CPRI and therefore the City had an obligation to bargain the initiative with the unions, which it failed to do. The City lost at PERB but prevailed at the Court of Appeal. Today, the California Supreme Court issued a decision overturning the appellate decision and remanding this case for further proceedings.
The key issue in this case was whether Mayor Sanders’ involvement in Proposition B turned it into an action by the City, which in turn required the City to meet and confer with the unions. The Supreme Court held that since Mayor Sanders was the city’s chief executive and empowered by the city charter to make policy recommendations in labor relations matter, he was required to meet and confer with the unions prior to advocating for Proposition B. The Supreme Court reached this holding even though it was undisputed that Proposition B actually met the support requirements for a citizen’s initiative. According to the Supreme Court, “Allowing public officials to purposefully evade the meet-and confer requirements of the MMBA by officially sponsoring a citizens’ initiative would seriously undermine the policies served by the statute: fostering full communication between public employers and employees, as well as improving personnel management and employer-employee relations.”
But the Supreme Court said that, “The line between official action and private activities undertaken by public officials may be less clear in other circumstances… Whether an official played such a major role will generally be a question of fact, on which PERB’s conclusion is entitled to deference.”
- [Disclosure: I helped represent the City in this case before PERB.] This decision is disappointing but not unexpected given the questions at oral argument. Without a doubt, this is a big victory for PERB. The Supreme Court decision gives tremendous deference to PERB’s factual and legal findings. Such deference will continue to make it very difficult to overturn any PERB decision in the appellate courts.
- With respect to the merits of the case, because the Supreme Court deferred to PERB’s determination that Mayor Sanders was acting on behalf of the City, it was an easy call to require the City to bargain with the unions. One of the questions left unanswered is what, if anything, Mayor Sanders could have done to separate his advocacy of Proposition B from his official duties. The Supreme Court did leave open the possibility that government officials can separate their official actions from their private activities. However, the Court did not provide any guidance on what a government official would have to do to make such a distinction clear.
- In terms of a remedy, the Supreme Court remanded this case back to the court of appeal for consideration.
Rebecca Friedrichs is back. But for the death of Justice Scalia, everyone would be talking about “Friedrichs” instead of Mark Janus. But earlier this month, Friedrichs, along with several other teachers, filed a class-action lawsuit against the California Teachers Association and the National Education Association seeking to recoup the agency fees taken from them prior to the Janus decision. The case is titled Scott Wilford et al v. National Education Association (C.D. Cal. 8:18-cv-01169-JVS-ADS). The primary cause of action is for violation of plaintiffs’ constitutional rights under 42 U.S.C. 1983.
I think the plaintiffs have a tough road ahead of them. After the Supreme Court’s decision in Harris v. Quinn—which held that agency fees may not be taken from IHSS workers—a similar lawsuit was brought against the State of Washington and SEIU. (Hoffman v. Inslee (W.D. Wash. Oct. 20, 2016) 2016 WL 6126016.) That lawsuit also involved a cause of action under §1983. In the Washington case, the court rejected plaintiffs’ claims on the ground that a private party sued under §1983 is not liable for money damages if that party was acting in good faith reliance on a facially valid state law. The decision was a district court decision so it’s not binding here. But Friedrichs and the other plaintiffs will have to deal with the same argument: that the public agencies and unions were relying on state law that was supported by the Abood decision which stood for 40 years.
SB 1085 was introduced on February 12, 2018, by Senator Skinner. As first introduced, this bill gave employee organizations the right to establish reasonable restrictions regarding joining and being dismissed from union membership. However, on April 10, 2018, this bill was amended to require that public employers grant reasonable leaves of absence, without loss of pay, to employees serving as union stewards or union officers. This initial version provided that whether the union would reimburse the employer was subject to negotiations between the parties. However, on May 29, 2018, the bill was amended to provide that, “The exclusive representative or employee organization shall reimburse the public employer for all compensation paid to the employee on leave unless otherwise provided by a collective bargaining agreement or memorandum of understanding.” This bill has passed the Senate and is pending in the Assembly.
Both the California State Association of Counties and the League of Cities are opposed to this bill on the grounds that leave time should be subject to negotiations between the parties.
AB 2305 was introduced on February 13, 2018, by Assembly Member Rodriguez. AB 2305 would amend the Meyers-Milias-Brown Act (MMBA) to provide that peace officer unions are subject to PERB’s jurisdiction while individual peace officers remain exempt. This change would allow peace officer unions to file unfair practice charges with PERB instead of having to file such charges directly in a superior court. Continue reading