PERB REJECTS SEVERAL PAST CASES TO ANNOUNCE THE STANDARD
FOR A VALID REQUEST FOR EFFECTS BARGAINING
In County of Sacramento, PERB Decision No. 2315-M (4/15/2013), PERB essentially overturned several years of PERB decisions that define what the employee association must do to request to bargain the effects of a non-negotiable management decision.
The County of Sacramento had a written policy which allowed sewer district supervisors to take their county issued vehicles home at the end of their workday in order to facilitate their response to emergencies on nights and weekends. The County notified the union by letter that it intended to discontinue this program for approximately 20 supervisors who had not been called upon frequently to respond to emergencies. The County stated in the letter that the union should contact the County within one week if the union wanted to discuss the issue. The union did not respond. As a result, the County notified the union that the County was giving the employees 30 days’ notice before rescinding their home vehicle assignments. Thereafter, a union representative spoke to a County representative about the issue and they scheduled a meeting. At the meeting, the County representative discussed the data supporting the decision to discontinue the home vehicle assignments. The union representative stated that he would confer with his members and get back to the County.
Thereafter, the union wrote a letter to the County which stated that the employees objected to the discontinuance of their ability to take a County vehicle home and there were “issues which deserved discussion.” In the letter, the union offered meeting dates and times and offered to provide “some ideas” ahead of the meeting. The County later responded with potential meeting dates and further advised the union that it intended to move forward with the discontinuation of the vehicle assignments for the 20 supervisors.
The union proceeded to file an unfair practice charge in which it alleged that the County refused to bargain the effects of its decision to terminate the home vehicle assignments. PERB’s Office of the General Counsel dismissed the charge, finding that the union failed to state a prima facie case. Specifically, the General Counsel, based upon a number of PERB cases, stated that, in order for the union to request to negotiate the effects of a nonnegotiable management decision, the request must include: (1) a statement that clearly indicates that the union is seeking to negotiate the effects of a non-negotiable management decision rather than negotiate the decision itself; (2) an identification of the subject(s) within the scope of representation that are impacted by the decision; and (3) an identification of the specific effects over which the union wishes to bargain. The General Counsel concluded that the union had not met the above standard when it requested to meet with the County.
Although PERB agreed with the General Counsel’s decision to dismiss the unfair practice charge, it concluded that the standard used by the General Counsel, although announced in several PERB decisions, did not reflect the appropriate standard for determining whether a union had perfected a demand to bargain concerning effects. PERB reasoned that the previous cases through dicta had added requirements that placed an “undue burden” on the employee associations seeking to invoke the collective bargaining process. PERB announced the standard for an adequate request to meet and confer over the effects/impacts of a non-negotiable decision: (1) the demand must place the employer on notice that the exclusive representative seeks to negotiate the effects of the decision; and (2) must identify subject(s) within the scope of representation foreseeably affected by the change.
What this Decision Means
PERB has overturned by “disavowing” years of decisions that required unions to specify the effects over which the union requested to meet and confer. The standard announced in County of Sacramento is a much easier standard for the union’s to satisfy, and leaves the public agency employer guessing what specific effects the union seeks to bargain.
TERMINATED EMPLOYEE’S DUE PROCESS RIGHTS VIOLATED WHEN LAW FIRM PARTNER, WHO WAS FROM THE SAME FIRM THAT REPRESENTED THE CITY AT THE ADVISORY ARBITRATION, ADVISED THE CITY COUNCIL CONCERNING WHETHER TO ADOPT THE ARBITRATOR’S DECISION
The City of Pomona terminated a police officer after an internal affairs investigation concluded that he had trespassed, committed a lewd act in public and had made inquiries in his own name with the National Crime Information Center in violation of Justice Data Interface Controller rules. The employee appealed the termination to advisory arbitration. A partner from a law firm presented the case on behalf of the City’s police department. The arbitrator sustained most, but not all, of the findings, but recommended that the termination be reduced to a suspension without pay or benefits.
The City Council then requested that another partner from the same law firm advise the Council concerning its review of the advisory decision and its decision whether or not to adopt the decision. The law firm implemented an “ethical wall” between the two partners, and, as a result, they did not discuss the case and neither had access to the other’s files concerning the matter.
After considering the advisory decision in closed session, the City Council decides to adopt the arbitrator’s findings, but it rejected the proposed discipline. The City Council decided to terminate the employee. Thereafter, the employee filed a writ in which he argued that he had been denied due process and a fair hearing because he was terminated by a City Council that received advice, regarding whether to uphold the arbitration decision, from a law partner of the attorney who represented the police department at the arbitration.
Court of Appeal Decision
In Sabey v. City of Pomona (4/16/2013) 2013 Cal. App. LEXIS 291, the Court of Appeal concluded that the employee’s due process rights had been violated. Despite the use of an “ethical screen,” the Court reasoned that the partners in the law firm owed each other fiduciary duties. As a result, there was reason to suspect that the lawyer advising the decision making body would try to promote the result desired by the partner who had advocated the case at the arbitration. The Court noted that the advising partner had an incentive to build the reputation of the firm, and would, consciously or unconsciously, advise in a manner to benefit the other partner and the firm. Even though the bias may not be intentional, the Court concluded that it created the unavoidable consequence of destroying the appearance of a fair proceeding. As a result, the Court referred the advisory arbitration decision back to the City Council for further consideration with independent legal advice.
Lessons Learned from Decision
If your agency uses an outside law firm to represent the agency at a disciplinary hearing, make sure the agency uses a separate law firm or the public agency’s in-house counsel to advise the public agency board concerning whether or not to uphold the disciplinary action or whether or not to adopt an advisory arbitration decision.
REDUCTION OF RETIREE MEDICAL BENEFITS STILL A THORNY ISSUE
A recent Court decision, in International Brotherhood of Electrical Workers, Local 1245 v. City of Redding (2012) 210 Cal. App. 4th 1114, demonstrates the difficulties public agencies face when seeking to reduce retiree medical benefits.
Since 1979, the City’s MOUs with the union provided that the City would pay 50% of the group medical insurance premium for each retiree and dependent, if any, presently enrolled and “for each retiree in the future” who goes directly from active status to retirement and continues the group medical insurance without a break in coverage. The City also including the above information in job postings and other communications with employees and prospective employees.
The City met and conferred with the union concerning a new MOU, and the City proposed reducing the retiree medical benefit contribution. When the City and union failed to reach an agreement, the City unilaterally implemented a cut to retiree medical benefits by providing a subsidy of 2% per year of service up to a maximum of 50% of the premiums.
Thereafter, the union filed a lawsuit alleging that the City’s action constituted an unconstitutional impairment of contract. The City filed a demurrer challenging the lawsuit on a variety of theories including that the language in the MOUs did not confer a vested right to lifetime retiree medical benefits because the MOU had expired and the benefit could be changed through the meet and confer process (including unilateral implementation). The trial court agreed with the City and dismissed the union’s claims. The Court of Appeal, however, overturned this decision.
Court of Appeal Decision
Relying upon the California Supreme Court decision in Retired Employees’ Assoc. of Orange County, Inc. v. County of Orange (2011) 52 Cal. 4th 1171 (which recognized that vested rights to health benefits for retired employees could be implied under certain circumstances from a county ordinance or resolution), the Court of Appeal determined that whether or not the retiree medical promise was a vested right turned on the parties’ intent. The Court determined that the union’s lawsuit should not be dismissed. The Court reasoned that the language in the MOU that stated “each retiree in the future” would receive a contribution of 50% of the retiree medical premiums demonstrated a promise to active employees of the benefits they would receive at retirement. The language “each retiree in the future” further demonstrated that the promise extended beyond the term and expiration of the MOU.
Despite the serious financial burden that retiree medical benefits place on public agencies, public agencies continue to have difficulty convincing the courts to uphold the agencies’ efforts to reduce such benefits.
If your agency is considering reducing retiree medical benefits, a careful analysis must be done to evaluate the risks that a Court will conclude the promise has vested. The analysis should include: (1) where the so-called promise is found (i.e. resolution, ordinance, charter, policies, MOU, past practice); (2) the wording of the promise, and (3) who will be affected by the proposed reduction.