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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Governor Vetoes AB 2305, 2886 and 3034

On Friday, September 28, the Governor vetoed AB 2305, 2886, and 3034.  These bills would have expanded PERB’s jurisdiction by adding, respectively: peace officer unions; the Orange County Transportation Authority and the San Joaquin Regional Transit District; and the supervisory units of the San Francisco Bay Area Rapid Transit District. Here is the Governor’s veto message:

These bills expand the Public Employment Relations Board’s jurisdiction to cover labor disputes involving several local public agencies. Over the years, the Legislature has expanded the Board’s jurisdiction, but the necessary funding for the increased workload has not kept pace. This has resulted in significant backlogs at the Board – both labor and employers have complained about this problem. This Administration has recently increased the Board’s funding to help correct this problem. The Board’s jurisdiction should not be expanded again until the Board’s ability to handle its previously expanded caseload is established.

I must admit, I was surprised by the veto. However, the Governor is correct that beginning with the MMBA in 2001, the Legislature has not only added more employees to PERB’s jurisdiction, but also added many new laws for PERB to enforce. All this has helped to create a backlog at PERB where today, the oldest case before the Board was docketed on October 8, 2014, which means the case was probably filed in 2013. Even if that case is an anomaly, there are 6 cases on the Board’s docket from 2015, and 14 cases from 2016.  This fiscal year, the Governor gave PERB an additional 7 positions.  That should certainly help.  But I’m skeptical that 7 positions alone will do the job unless there are also other changes in how PERB’s processes its cases…

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PERB Bills Awaiting Action by Governor

Several bills affecting PERB are awaiting action by the Governor:

  1. SB 1085: Requires public employers to grant reasonable leaves of absence to employees to serve as stewards or officers of the union.  The union must reimburse the public employer for all compensation paid to the employee.
  2. AB 2305: Brings peace officer unions under PERB’s jurisdiction. I previously wrote about the status of this bill here and here.
  3. AB 2886: Brings the Orange County Transportation Authority and the San Joaquin Regional Transit District under PERB’s jurisdiction.
  4. AB 3034:  Brings the supervisory units of the San Francisco Bay Area Rapid Transit District under PERB’s jurisdiction.

The Governor has until September 30, 2018, to sign or veto these bills.

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Gov Signs Law Prohibiting Lawsuits for Pre-Janus Damages

Yesterday, the Governor signed SB 846 which protects unions and public employers against lawsuits seeking the payment of agency fees collected prior to the Janus decision.  (Click here for the SacBee article on this bill.) The law adds Government Code section 1159 which provides that it is a “complete defense” to such lawsuits if the fees were collected pursuant to state law – which they all were. According to the Legislature, public employees who paid agency fees prior to June 27, 2018—the date of the Janus decision—had no legitimate expectation of receiving that money under any available cause of action. Therefore unions and public employers have no obligation to refund fees taken before that date.

The law applies to all actions currently pending as well as any future actions. The Legislature also stated that the new law is clarifying of existing law rather than a change to it. Because the new law was part of a budget appropriations bill, it is intended to take effect immediately.

The impact of this bill remains to be seen.  All the lawsuits that have been filed so far have been filed in federal court and allege a violation of the U.S. Constitution. It’s unclear to me whether this bill would have any effect on those federal lawsuits.

[Note: The initial version of this post incorrectly referred to the bill as AB 846.  It’s SB 846.]

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