Public Employment Relations Board (SEIU Local 1021) v. City of Fremont (Alameda County Superior Court Case No. RG13677821) (PERB Case No. SF-CE-1028-M)

PERB recently granted a request for injunctive relief (IR) filed by SEIU Local 1021 against the City of Fremont (City).  The case began when a bargaining unit employee submitted a petition, with the required proof of support, seeking to decertify SEIU.  The City accepted the petition and began preparing to hold a decertification election.  Shortly thereafter, the City concluded that the official recognized employee organization was the Fremont City Employees Association (FACE), and not SEIU; and that FACE was merely affiliated with SEIU.  Based on this fact, the City sent the petitioner a letter concluding that the City’s decertification procedures were not applicable and that the appropriate procedure would be for FACE to seek disaffiliation from SEIU.  That employee subsequently notified the City that FACE had conducted an internal election to disaffiliate from SEIU.  However, the City then received a letter from FACE stating that no election had taken place and that FACE remained affiliated with SEIU.  Faced with these completing claims, the City stopped bargaining with SEIU and withheld dues to SEIU until the dispute was resolved.

SEIU filed an unfair practice charge and requested IR.  PERB granted the IR request.  In arguing that there was reasonable cause to believe an unfair practice had occurred, PERB cited to the following actions by the City: 1) improperly processing the decertification petition; 2) failing to arrange for a neutral third party to conduct the decertification election; 3) unlawfully assisting the employee by providing legal advice; 4) refusing to bargain with SEIU and withholding dues; and 5) violating its duty of neutrality by expressing support for FACE over SEIU.

As for irreparable harm, PERB argued that the City had essentially “locked out” SEIU and that the purposes of the MMBA would be subverted without IR.  PERB asserted that the failure to bargain in good faith has long been understood as likely causing irreparable injury to the union.  Even if monetary relief could be awarded, employees could not be made whole for the value of the right to enjoy union representation, according to PERB.

PERB filed its complaint and requested a Temporary Restraining Order (TRO) on May 1, 2013.  The superior court granted the TRO on May 7, 2013.

Comments:

1. Because they are so rare, every IR granted by PERB is worth examining.  Most IR’s granted by PERB involve either: 1) an election, or 2) a health and safety issue.  The election cases typically involve some organizational effort that, without prompt injunctive relief, would be rendered meaningless with the passage of time.  This case is somewhat unique in that the City did not appear to be moving ahead with an election, but rather trying to maintain the status quo in the face of a potential question concerning representation (QCR).
2. In terms of ”reasonable cause” for the TRO, I want to comment on 2 of the 5 alleged unfair practices.  First, PERB alleged that the City committed an unfair practice by failing to arrange for a neutral third party to conduct the decertification election.  PERB alleged that because the City included a “no representation” option on the ballot that the City inserted itself as an interested party in the election and therefore was not a “neutral” party.  This is one area where PERB caselaw is sparse.  MMBA section 3507.1(c) does require a neutral third party to be involved in most determinations for exclusive or majority representation.  At least on its face, section 3507.1 does not apply to severance or decertification elections.  So it appears that the Office of the General Counsel has taken the position that the “neutral party” requirement for conducting elections should be extended to decertification elections.
3. Most local rules already call for the use of a neutral third party, like the State Mediation and Conciliation Service (SMCS), to conduct elections.  So PERB’s position shouldn’t have much of a practical effect on most employers.  I will note that it used to be SMCS’ position that it would not conduct an election if one of the parties objected.  So here, if SEIU asserted that the decertification election was improper, it’s not clear to me that SMCS would have agreed to conduct the election.  However, although SMCS is the most popular election service in the public sector, there are other “neutral” parties that can be contracted to conduct an election.
4. Now that the State Mediation and Conciliation Service (SMCS) is part of PERB, PERB is promulgating regulations to govern elections conducted by SMCS in MMBA jurisdictions.  My understanding is that SMCS does not intend to charge for this service (which they do now).  If having SMCS conduct an election is going to be free, that seems like a great option to me.
5. Second, PERB alleged that the City improperly gave the petitioner legal advice.  PERB suggested that merely pointing out technical deficiencies would have been fine.  However, PERB alleged that the City went too far by opining that disaffiliation, not decertification, was the appropriate procedure and suggesting that it supported the disaffiliation effort.  This caught my attention because PERB is drawing a very fine line for employers to walk.  It can easily trap the unwary.  Here, my initial thought was that it was reasonable for the City to explain to the petitioner why disaffiliation, and not decertification, was appropriate in this situation.  It seems to me the City was just explaining its local rules to an interested party.  However, together with other actions by the City, PERB felt this went too far.  So an employer faced with such a situation will want to be very careful in its communications with any party.
6. Finally, it’s worth pointing out that PERB has taken a very aggressive stance here in terms of irreparable harm.  Here, there is no organizing effort to protect.  Rather, the City felt it needed to maintain the status quo in the face of a QCR.  Obviously, PERB did not believe there was a QCR.  But still, it’s an aggressive stance to take that the mere delay in bargaining constitutes irreparable harm.  I wonder if this might signal a more aggressive use of the IR process by PERB in the coming years.

County of Los Angeles v. Los Angeles County Employee Relations Commission (Cal. Supreme Court Case No. S191944) (Issued on 5/30/13)

The California Supreme Court has finally issued its decision in this case. The issue is one of first impression: whether California’s constitutional right of privacy limits a union’s ability to obtain the home addresses of bargaining unit members from the employer.

Facts

SEIU represents several bargaining units in the County of Los Angeles. As of 2007, SEIU had contact information for approximately 46,000 union members but did not have that information for about half of the 14,500 non-union members in the various bargaining units. Historically, the parties’ Memorandum of Understanding (MOU) required that SEIU provide its Hudson notice to the County Employee Relations Commission which would then mail the notice to all bargaining unit members. During negotiations in 2006, SEIU proposed changing the MOU to require the County to provide home addresses for all bargaining unit members directly to SEIU. The County refused. One of the arguments raised by the County was that non-members have a constitutional right to privacy which outweighed any need by SEIU for the information.

Court Decision

The Supreme Court rejected the County’s argument. First, the Court held that under the MMBA, employee contact information is presumptively relevant. In making this holding the Court relied heavily on NLRB and PERB precedent. Because PERB is the expert agency in the field of public sector labor relations, the Court stated that it would follow PERB precedent unless it is “clearly erroneous.” Under PERB’s decision in Golden Empire Transit Dist. (2004) PERB Dec. No. 1704-M, employee contact information must be disclosed absent a compelling need for privacy because such information is necessary to allow the union to communicate with employees.  Therefore the burden was on the County to demonstrate why the contact information should not be provided to SEIU.

Next, the Court considered whether California’s constitutional right to privacy affected the SEIU’s right to employee contact information under the MMBA. To decide this issue the Court applied the balancing test set forth in Hill v. National Collegiate Athletic Assn.(1994) 7 Cal.4th 1. Applying that test, the Court held that employees do have a legally protected reasonable expectation of privacy in their home contact information. However, the Court held that providing home contact information to a union was not a serious invasion of that privacy and that the balance of interests favored disclosure. Accordingly, the Court concluded that:

[A]lthough the County’s employees have a cognizable privacy interest in their home addresses and telephone numbers, the balance of interests strongly favors disclosure of this information to the union that represents them. Procedures may be developed for employees who object to this disclosure.

However, the Court also cautioned that:

“Although we have concluded that a balancing of interests generally favors disclosure, this balance might, in some cases, tip in favor of privacy when an individual employee objects and demands that home contact information be withheld.” (Emphasis added.)

In terms of what procedures can be developed, the Court rejected the lower courts order that the County utilize an opt-out procedure modeled after civil class actions. Instead, the Court held that the development of such procedures should be left to the employers and unions.

Comments:

1. This is a clear victory for PERB. There was a question in my mind about how much consideration a court would give to a PERB decision in a case where PERB was not directly involved (for example, a case involving peace officers or the City/County of Los Angeles). The answer is quite a lot. Here, even though PERB did not issue the decision being contested, the Court deferred to PERB precedent. It will be interesting to see if this decision prompts the groups—particularly the cops—still not under PERB’s jurisdiction to reconsider whether they should be. After all, if you’re going to be bound by PERB precedent wouldn’t you want some opportunity to influence it?
2. This decision appears to allow for procedural safeguards to protect employee privacy rights but does not specify what those safeguards might be. The Court mentions that safeguards can be bargained between the employer and union. That’s obviously true. But let’s say you can’t reach agreement with the union. Can you impose a set of procedural safeguards? Or can you adopt a local rule that sets forth procedural safeguards? Under the MMBA, any local rule must be reasonable. But that just begs the question of what is reasonable under this decision.
3. In my humble opinion, any reasonable local rule would have to incorporate an opt-out system, as opposed to an opt-in system. This is because the Court has made it clear that there is a strong presumption that the union is entitled to employee contact information. Indeed, the Court strongly suggests that any assertion of privacy must be initiated by the employee, and not the employer. Even with an opt-out system (for example, allowing an employee to check a box on a form asking the employer not to share the home address with the union) there is a question in my mind whether the employee must articulate some specific reason for opting out. For example, the Court mentioned that fear of harassment might be a concern.  So must the employee cite to a concern, like harassment, or is checking off a box sufficient?  It’s not clear.
4. All-in-all, while this decision provides guidance on how a union’s right to contact bargaining unit members intersects with the right of privacy, it does not address how these principles are to be implemented in the real world. So there will still be some growing pains in this area going forward.