State of California (Department of Corrections & Rehabilitation) (2010) PERB Dec. No. 2154-S (Issued on 12/30/10)
This case considered whether retired annuitants (individuals who have retired from State service and are then hired back for part-time work) working as correctional officers are automatically members of State Bargaining Unit 6 (BU6), represented by the California Correctional Peace Officers Association (CCPOA). The administrative law judge (ALJ) ruled in favor of CCPOA. The ALJ held that retired annuitants were included in BU6 by operation of the original unit determination by PERB in 1979. That unit determination placed all state employees working as correctional officers, parole agents, and correctional counselors into BU6.
Relying upon Unit Determination for Technical, Skilled Crafts, Service and Professional Employees of the University of California (Lawrence Livermore National Laboratory Casual Employees) (1983) PERB Decision Nos. 290-H and 290a-H (Lawrence Livermore I), a Board majority rejected the ALJ’s proposed decision. The majority held that because there are substantial differences between retired annuitants and full-time employees, any unit determination decision must analyze whether including retired annuitants in a bargaining unit is appropriate. The Board held that:
“Lawrence Livermore I stands for the proposition that retired annuitants are not automatically placed in units containing full-time employees performing similar tasks. Rather, retired annuitants will be placed in such units if they are included in a unit determination or modification petition and if, following a full unit hearing, the Board determines they are appropriately placed in that unit.”
Accordingly, the Board majority dismissed the unfair practice charge.
Board Member Wesley dissented from the majority’s holding that retired annuitants are not members of BU6. Member Wesley stated that the original 1979 unit determination found “a unit of corrections employees to be appropriate.” She noted that the unit determination specifically considered which employees to exclude and only excluded employees in managerial, confidential, or supervisory positions. According to Member Wesley, there is no indication the unit determination decision in 1979 intended to exclude employees in the same classifications who work in less than permanent, full-time positions, such as retired annuitants.
- At first blush, this decision seems to involve a unit issue unique to the State’s BU6. However, the legal principle enunciated by the Board majority in this decision has wide-ranging implications. Namely, the notion that retired annuitants are not automatically included in bargaining units containing full-time employees performing similar tasks presumably would apply to all of the statutes administered by PERB.
- The impact of this decision is also wide-ranging because retired annuitants are fairly common among public employers who are members of CalPERS, which includes many more employers than just the State. Also, this decision presumably would apply to employees who are similarly situated to the retired annuitants in this case. For example, many public employers utilize deferred retirement option plans (DROP’s) that function similarly to the retired annuitant system.
- Lastly, the statement of facts in the decision notes that it was CCPOA attorney Ronald Yank who filed the grievance over the State’s use of retired annuitants to perform BU6 work. Ron was recently appointed to be director of the Department of Personnel Administration, which defended this case against CCPOA. It will be interesting to see whether CCPOA attempts to appeal this case to the courts or whether it will attempt to modify its unit determination to include retired annuitants.