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co n t e n t s

Features 5 How to Negotiate Using Core Values

Gregory J. Dannis

15 John Duncan Talks About PERBCarol Vendrillo, CPER Editor

Recent DevelopmentsLocal Government

21 Longest Bus Strike in Santa Cruz County History Is Resolved

23 S.F. Firefighters Win Local Bid to Preserve Staffing

24 UAPD Wins Fight Over Health Benefits in L.A. County

28 CSC’s Modification of Termination Not Abuse of Discretion

Public Schools

30 Teachers Unions Beat Back Schwarzenegger

32 Service Workers Stand Up ToSan Francisco Unified School District

34 Oakland Teachers Protest — District Threatens to Dock Pay

35 Religion in California’s Schools

37 Groups Sue to Stop Affirmative Actionin Los Angeles Schools

38 Governor Vetoes CalSTRS Pension Bill

39 State Told to Void 4,000 Teacher Credentials

co n t e n t s

Recent Developmentscontinued

Higher Education

41 Equity Increases Edge Out Merit Pay Plans in CSU Compensation Agreements

42 New Law Limits Public Access to Retirement Fund Information

44 APC Settles With CSU as Factfinding Begins

State Employment

47 New Review Requirements for State MOUs and Side Letters

47 Raises for State’s Excluded Employees Delayed Indefinitely

49 ACSS Bid for Independence Fails

50 State Attorneys and Judges Agree to Pension Concessions

53 Governor Signs Bills That Affect Pay and Benefits

54 SPB Bill Clarifies State’s Equal Employment Opportunity Obligations

Discrimination

55 Offensive Conduct May Violate Title VIIEven Where Not Facially Sex-Specific

56 Monocular Employees Are Disabled Under FEHA,But May Be Barred From Driving UPS Trucks

contents

Recent Developmentscontinued

General

59 Public Employers Not Required to Pay for Costs of Uniforms

61 Undocumented Worker Entitled to Workers’ Comp Benefits

63 Supreme Court Hears Important ‘Free Speech’ Case

Public Sector Arbitration

71 Arbitrator Pool Finds No Evidenceto Support Termination

Departments 4 Letter From the Editor

67 Public Sector Arbitration Log

75 Public Employment Relations Board Cases

80 PERB Activity Reports

4 C P E R J O U R N A L No. 175

l e t t e r f r o m t h e e d i t o r

Dear CPER Readers:

If you consider this issue of CPER as a snapshot, it is immediately obviousthat the public sector arena is dynamic and complex. In my interview with PERBChair John Duncan, for example, one can sense that the board is a maturing,evolving entity, built on a legacy of the past, but clearly adapting to its new respon-sibilities. It was a pleasure to spend time getting to know John. I came away fromour conversation with respect for his commitment to the task at hand.

The musings of Greg Dannis have appeared in CPER many times and, as hasbeen true of past submissions, this article offers even-handed and thoughtful in-sight into the collective bargaining process that only a seasoned practitioner likeGreg can provide. His negotiating strategy provides much food for thought — tolabor and management representatives alike.

Recent developments include a newly forged agreement for attorneys andadministrative law judges in state service that is likely to pique the interest ofother bargaining units. Difficult bargaining is under the spotlight in San Fran-cisco and Oakland, involving both classified and certificated personnel. In SantaCruz, bus operators are back on the job after a month-long transit strike. Highereducation employees in the CSU system have come away with a new agreementbut continue to wrestle with the issue of merit pay. New federal court decisionsaddressing harassment and disability discrimination are reviewed in this issue,along with important rulings affecting undocumented workers and uniform al-lowances.

And then, of course, there’s the fallout from the special election. More on thatin future issues. But suffice it to say that the defeat of the propositions pushed byGovernor Schwarzenegger have given a real boost to the public sector labor unionsthat went to the mat on these issues. What does this mean for 2006? We won’t havelong to find out!

Carol Vendrillo

CPER Director and Editor

December 2005 c p e r j o u r n a l 5

How to Negotiate UsingCore Values

Gregory J. Dannis

I negotiate for a living. I travel to a different district everyday, sometimes even twoor three. Each district is a different country, with distinct personalities, politics,protocols, and cultures.

Often, I am asked by the board or administration to review the negotiatedagreement and recommend changes for upcoming negotiations. In many districts,I have served 20 or more years as chief labor counsel, and so I am familiar with thelanguage of the agreement, and probably negotiated and wrote most of it. Moreimportantly, however, I am familiar with the relationship between managementand labor, and I know the past practices of the parties — the reality of the collectivebargaining agreement in which words on paper are converted into real workingconditions. And the two are rarely the same.

In these circumstances, I often work with my teams to suggest changes andimprovements in the contract. These suggestions are based on knowledge andexperiences unique to each district.

When I am asked this question in new or unfamiliar districts, however, myanswer to the employer usually is, “If you ask me to suggest changes to youragreement, you will be wasting your time, my time, and your money.” Why?Simply because I do not know the district, the relationships, or the workplace andtherefore cannot suggest how to change or improve them. Even more surprising ishow often the district board and bargaining team do not know how to go aboutanalyzing the need for change.

The school employer’s confusion over what to propose in negotiations isexacerbated by the labor law under which we negotiate — the EducationalEmployment Relations Act. In California, about a half-dozen comprehensivebills were proposed and defeated before EERA finally passed in the early fall of1975.

Gregory J. Dannis is a

shareholder of Miller Brown &

Dannis, a law firm with offices in

San Francisco, Long Beach, and

San Diego. In addition to his

employment, labor, and public

entity law practice, he negotiates at

20 to 30 tables annually for public

school and community college

districts. This article was first

presented as the keynote address at

the 2005 Collective Bargaining

Summits sponsored by ACSA,

CSBA, CCSESA, and SEAC.


How do we establish

and maintain a focus

for our negotiations in

the midst of all the

political and economic

turmoil constantly

surrounding us?

EERA was the result of a compromise between schoolunions and employers. In exchange for the unions’ demandfor a comprehensive law mandating collective bargainingand binding agreements, school employers demanded andreceived restrictions on the scope of subjects falling withinthe mandatory duty to bargain, due to the uniquecharacteristics of the public education sector.

This compromise was codified in two major sections ofthe law.

First, the “scope of negotiations” — the range of subjectsover which we are required to bargain — was defined as“limited to matters relating to wages,hours of employment, and other termsand conditions of employment.” Andthus were the seeds of confusionplanted: Did the legislature intend thescope of negotiations to be limited, asmost employers asserted? Or was theoriginal intent to create a broad scopeof negotiability over other terms andconditions of employment, as mostlabor organizations argued?

Second, the law provides that “allmatters not specifically enumerated [asnegotiable] are reserved to the publicschool employer and may not be a subjectof meeting and negotiating.” This soundsgood — an express reservation ofmanagement rights to those areas ofpublic education not specifically listed as negotiable.However, what about all the other terms and conditions ofemployment that are not so specified? A conundrum wascreated at the inception of our bargaining law.

Our model, therefore, was intended to be a hybrid ofsorts. We must meet and negotiate and reach bindingagreements, just like the factory union and employer, but weare not required to bargain over subjects that go to the heartof educating children. Instead, we were supposed to haveretained management discretion in those core areas. I say“supposed to,” because this is not what has come to be.

Instead, the intended reservation of employer discretionto manage and direct the public educational system has beeneroded, if not negated, through administrative and judicial

decisions, and a never-ending supply of legislativeenactments. The system of labor relations in the publiceducational sector has been pervaded by private sectorprecedent resulting in elimination of many limitations thatwere intended to be placed on bargaining. The advocates of“other terms and conditions of employment” prevailed overthe defenders of a “limited” scope of bargaining.

Thus, the original “compromise” of EERA has beenlost.

Given this state of legal affairs, how can we as publicschool negotiators, plan for and conduct negotiations on

behalf of the students and educationalcommunity we serve? How do wedetermine what to propose? How dowe assess and decide whether to accept,modify, or reject what is proposed to usacross the table? How do we establishand maintain a focus for ournegotiations in the midst of all thepolitical and economic turmoilconstantly surrounding us?

For me, searching for answers tothese questions sparked an evolutionaryprocess. When I first begannegotiating, I often felt that the unionswere grounded with a sense of being onthe “right” side and fighting the “goodbattle.” They were, as the BluesBrothers said in the movie, “on a

mission from God.”By contrast, my teams — my governing boards and

administrators — often seemed to concede this “higherground” to the unions and, by default, were left with a moredefensive and reactionary approach to the process. Iquestioned this dynamic for years, asking myself: “What dowe have to be defensive or embarrassed about? We are on arighteous mission too, serving the children of this nationand preparing them to be responsible citizens. We have everyright to be extremely proud of what we do!”

The conventional negotiations process, however, did notseem to lend itself to articulation of our mission; in fact,talking about it appeared to be “against the rules.” But then,I began to ignore those perceived rules. I challenged boards


and administrations to refrain from adopting initialnegotiation proposals until they could answer a few basicquestions, like:

What do we believe is the central mission of ourorganization?If we intend to seek change in the negotiated agreement,what are the underlying reasons for this effort?How do we define a successful outcome of thesenegotiations?And most importantly: What are our core values?

Only after they answered these questions did I proceedto work with my teams to formulate specific proposals.

I believe, and have experienced first hand, that this simpleand forthright approach I created can break through thecomplexities that bedevil our world of bargaining in thepublic schools. I have concluded it is incumbent upon us —each local school district — to adopt our own core values asthe philosophical benchmarks and anchors for allnegotiations in the public school arena. To fully meet ourobligation to our core constituency — the students — wemust draw on the power of saying “what we believe,” ratherthan merely “what we propose.”

How do we do this? How do we negotiate with corevalues? Through the following steps:

By understanding the “capacity” of the negotiationsforum.By building the negotiations team.By establishing negotiations criteria: core values.By anchoring negotiations in core values from the veryfirst proposal.

Understanding the ‘Capacity’ of the NegotiationsForum

We must return to the literal meaning and intent of ourbargaining law by distinguishing between negotiable workingconditions and teaching and learning conditions. Althoughwe will continue to negotiate in good faith over workingconditions as required by law, we must resist agreeing to any

contract terms that have an adverse impact on our ability todeliver quality education. We must redefine the very capacityof the negotiations forum to resemble what it was originallyintended to be — negotiating over working conditions foremployees without compromising the discretion originallyreserved to the public school employer to make basiceducational policy decisions.

Before we write our proposals, our board members,administration, and bargaining teams must answer thefollowing questions:

What is the tolerable pace of change in our district? If weseek changes in health benefits, or hours of work, orteaching time, or teaching duties, how quickly shouldwe expect people and organizations to be able to change?The more fundamental the change and the more ittouches employees on a personal level, the slower thetolerable pace of change is likely to be. This analysisshould help inform our proposals, our dialogue, and ourstrategy.Does the union lead or follow? What are the key relationships?Before we articulate our core values and write ourproposals, we need to know our key audience. Do weneed to convince and persuade union leadership becausethey do in fact lead? Or is leadership merely followingthe direction of the rank and file? If the latter is true,then we must be sure our core values and proposals speakto that audience. And our communication plan must beshaped accordingly.Is this an opportunity for improvement or are we openingPandora’s Box? After nearly three decades ofnegotiations, most agreements represent delicatecompromises that have been refined again and again.When we ponder major change, we must ask: Is therea real opportunity for improvement here, or are weopening Pandora’s Box and creating an environmentwhere decades of compromise may unravel intosomething worse than the status quo? When wechallenge the unions to engage in “reality-basedbargaining,” we must uphold our end by beingrealistic and seeking change that is attainable.Is this the appropriate forum in which to seek change? Weare so used to thinking that every proposed change must


be brought to the bargaining table that we often do notstop to analyze whether it is indeed the appropriateforum. If we seek to change educational policy anddirection, the table may not be the right place to do so.And, even if such change invokes a negotiable subject,we must clearly define the parameters of thatnegotiability so that we bargain working conditions andnot teaching and learning conditions.

Building the Team

Bargaining with core values means that we must rethinkhow we select the teams that will bestrepresent and communicate thosevalues. Boards and superintendentsmust answer critical questions, such as:

Why should an individual be onthe team?What experience does he or shebring to the table?What perspective does he or shebring to the table?

We need to value differentperspectives to be able to analyzewhether proposals are consistent withour core values. The team makeupshould signify to the district communitythat we are committed to thenegotiations process and understand itspotential for significant impact on theservices we offer. The team must have manifest authority tobargain; it will be apparent immediately to the union team ifit does not, and the process will be broken at its inception.

Establishing Negotiations Criteria Around CoreValues

This is the key step, and probably the hardest to do.How do we agree on a list of core values that apply to ourentire district? How do we start? Who do we ask? What dowe ask? How many should there be? How do we gain

consensus on and ownership of the core values by all districtconstituents?

If we do not have core values to guide us, how can wehave consensus on our missions? How do we determine howto prioritize our needs and goals and to best allocate ourever-shrinking resources for the benefit of students?

Most importantly, how do we inject the axiom thatchildren are at the core of everything we do, now and in thefuture, into a process intended to address the needs of adultswho serve those children?

Based on experiences I have had since creating thisbargaining approach and refining it over the years, I offer

these answers:

Start with the board andadministration. Gather as many boardmembers and administrators togetheras possible, as well as your bargainingteams — all of them if you can. Set asideat least three hours. Have a skilledfacilitator run the meeting. Divide intomixed groups — do not put all the boardmembers together, for example. Eachgroup should have chart paper and pens.

Ask the key questions. Ask eachgroup to answer one or more of thefollowing key questions and to charttheir answers. Ask them to answer asfew questions as possible — even onlyone sometimes will do. Examples:— How would you define “success”in the upcoming negotiations?

— What are our most important values?— What are the most serious issues facing the district?— If you could change one area of the negotiated

agreement, what would it be and why?— If you could change one thing about how the district

negotiates, what would it be?— If you could change one thing about how the union

negotiates, what would it be?— If you could change one thing about how we deliver

instruction on a daily basis, what would it be?

How do we inject the

axiom that children

are the core of every-

thing we do...into a

process intended to

address the needs of

adults who serve

those children?


Key questions are intended to be open-ended in order toallow for generation of the greatest variety of responsesand to prevent “directing” the thought process to yieldcertain results.Key questions are intended to evoke substantive responses(our values, most serious issues, changes to theagreement), procedural responses (how we/they negotiate),and responses based on thinking about educationalservices for children, rather than the agreement (how wedeliver instruction).Have each small group chart as many answers as possibleto the key questions.Have each small group report out to the whole group;post the charts on the wall.Have the whole group work together to begin organizingthe answers into recognizable categories, e.g., economic,substantive, procedural, the relationship, etc. This willoccur surprisingly easily.Delegate to the bargaining team the task of reducingthe grouped answers to a statement of core values. Theresulting draft should be shared with the whole groupfor comment, input, and suggestions.The bargaining team should finalize the core values.The final version should be approved by thesuperintendent and governing board.The core values should be communicated to the districtcommunity even before negotiations begin.

Anchoring Negotiations in Core Values From theInitial Proposal

The initial proposal. Once your core values have beenadopted, they should be incorporated in total into your initialproposal, where they will thereafter serve as a foundation forthe district team throughout negotiations. How can we bestuse the core values in this manner? Here are a few things Ihave done over the years:

Lead off the initial proposal with a statement of the corevalues and how they were developed.This statement should appear prior to any formalproposals.

Include a statement of commitment by the district thatnot only its initial proposal, but all subsequent proposals,will be guided, informed, and assessed by these corevalues.Perhaps more importantly, include a statement that thecore values will be used to assess the “merits” of all unionproposals, and will guide and inform the district’sresponses to such proposals.

Proposals and counterproposals. When writingproposals and counterproposals, refer continually to one ormore of your core values, using as many or as few as arerelevant to the subject matter at hand. For example:

“The union has proposed that unit members be allowedto use 10 days of personal necessity leave withoutproviding any reason. The district believes that a keycomponent to student success is the presence of theregular teacher in the classroom as much as possible.Therefore, since the district cannot reconcile the union’sproposal with the district core value regarding studentsuccess, it must decline to accept the proposal.”“The union has proposed to spend down the reserve,which is one-time money, to grant an ongoing salaryincrease. The district’s core value regarding fiscalresponsibility includes preserving its fiscal health nowand in the future. Therefore, the district cannot acceptthe union’s proposal to use one-time revenues to supportlong term, ongoing fiscal obligations.”“The union has proposed a reduction in the workdayand work year, with no reduction in salary. This wouldreduce the time spent in direct student contact as well asopportunities for professional development. The districtmust decline to accept this proposal since it would beinconsistent with its core value to enhance rather thanimpede the ability of the district to deliver qualityeducation programs to students.”

Accepting union proposals. Application of core valuesto union proposals must be objective and even-handed.Therefore the district must be prepared to accept unionproposals that are consistent with the district’s core values;failure to do so will undermine the integrity of the core values,


as well as the credibility of the district team. Utilization ofcore values means acceptance of good ideas either becauseof or despite their source. Even-handed application of thecore values also will demonstrate the kind of behavior youwant the union to emulate as the negotiation process evolves.

For example, a district had an established practice ofadding three hours of aide time to classrooms that exceededa certain number of students. The union proposed to codifythis practice in the contract. The district agreed, but addedlanguage to its proposal that precluded a teacher fromreceiving the aide time if the teacher intentionally exceededthe maximum class size to secure an instructional aide. Inresponse, the union team referred to the district’s core valuesregarding student success and optimum learningenvironments. The union asserted it shared these core valuesand that teachers would not, therefore, deliberately seek tocreate larger class sizes just to obtain an instructional aide.The district caucused very briefly, returned to the table,withdrew its proposal on the additional language, andpromptly accepted the union’s proposal based on itsconsistency with the district’s core values.

This example illustrates the effective and even-handeduse of core values and reflects how consistent applicationoften results in the union’s eventual reference to the district’score values in its proposals. It also gave the district theopportunity to model good negotiating behavior by listeningto the union and accepting its proposal very quickly, followingan assessment of the proposal through the core values.

Writing proposals and counterproposals. Districtsshould continue to repeat and refer to their core values ineach written proposal and counterproposal. No longershould we simply say “we accept” or “we reject” or “werespond with the following counterproposal.” Instead, thereshould be a written rationale accompanying each writtenproposal that refers back to the core values. This is importantnot only for the purpose of reinforcement, but also forcommunicating the district’s position in negotiations to alarger audience. This allows the district to remain constantlyproactive regarding its own mission, beliefs, and values,rather than merely reacting to union proposals. This is anessential element of negotiating with core values.

Preclude conflict and seek change: reality-basednegotiations. All too often, the traditional negotiations forum

involves two sides girding to wage battle with each other, aseach seeks change for the benefit of its constituents. In orderto preclude conflict that is likely to result from an effort toseek change, the school employer sometimes decides to notseek change at all. This is understandable, for the preservationof labor peace is a laudable goal.

However, my core values include the following:

To preserve if not improve the existing cooperativerelationships with the union, not as an end in itself, butbecause it furthers the accomplishment of the core valueof promoting student success.To not place the preservation of labor peace at thepinnacle of the educational pyramid such that we mustsacrifice the quality of educational programs to maintainthe peace.

By using these or similar core values, we are able toenter and participate in the negotiations forum not from abattle-minded perspective (to which the union is compelledto respond), but rather from one of “this is what we believe.”We seek change based on these beliefs, and not a desire tobeat or defeat a union agenda. This is our agenda, and it isstudent-centered.

As such, we seek to engage in “reality-basednegotiations.” This means that:

We will not make unrealistic or overreaching proposalsthat threaten core values of the union or its members.We will not engage in “wish-list” negotiations.We will make proposals that are based only on realsubstance and need.We will provide complete and absolute disclosure of allavailable financial information.We will respond to all proposals objectively and withsupporting rationale.We will accept union proposals that are consistent withour core values.

Once the district team establishes and practices thesenorms at the bargaining table, it is likely that the unioneventually will begin to respond in kind.


Common Mistakes Using Core Values

The adoption of core values represents a districtwidecommitment to and “ownership” of philosophicalbenchmarks that are to be used fairly and consistentlythroughout the negotiations process. This creates aresponsibility that the district must fulfill to preserve theintegrity of those values. Core values cannot and should notserve as an excuse or rationale to avoid bargaining in goodfaith, or confronting issues posed by theunion. In other words, core values arenot an end unto themselves; rather, theyare tools to help us organize ourpriorities in negotiations.

Here are some common mistakesto avoid.

Using core values as a pretext forrigidity and inflexibility. Once adistrict “owns” its core values, it is easyto fall into the trap of using them tojustify a rigid and inflexible stance onall issues and proposals that appear atfirst glance not to align exactly withthose values.

For example, after listening to thedistrict repeatedly reject most of itseconomic proposals calling for thescaling back of programs to fund asalary increase, a union commented at the table, “We’re tiredof hearing about your core values because all they are is anexcuse to say ‘no’ to everything we propose.”

The district took this comment to heart and, aftercaucusing and consulting with the superintendent, realizedthat the union’s claim had merit. The district was citing itscore value of “preserving quality education programs forstudents” as a rationale for rejecting all union efforts toreallocate funds from some programs to salaries. Uponreflection, we realized that our core value stressed “quality”educational programs, not every program currently inexistence. The district team came to realize that not allprograms were necessarily of the highest quality or of benefitto students. The district shared this perspective with theunion, and negotiations moved forward.

In order to maintain our credibility at the bargainingtable, we must be prepared to be self-critical of our positionsas they relate to our core values.

Adopting positions contrary to our core values. Manydistricts facing financial crises continue to search for ways toreduce expenditures. Options sometimes include raising classsizes, increasing workload, seeking greater employeecontributions for health benefits, and the like. If suchproposals are on the horizon in your district, be sure to

consider:

How will the district reconcile aproposal to increase class sizes with acore value of enhancing learningconditions to promote student success?

How will the district explain aproposal to increase workload with acore value that recognizes thecontributions of all employees andseeks to preserve quality workingconditions?

How will the district reconcile aproposal to increase employee benefitcontributions with a core value thatpromises not to threaten the core valuesof the union or the employees itrepresents?

These apparent contradictions can be reconcileddepending on the unique facts and circumstances of eachdistrict. The point, however, is to anticipate that the district’score values likely will be used as weapons to attack thedistrict’s own proposals.

The ‘people vs. programs’ paradox. Almost all corevalues statements will include at least one that promotes thepreservation of educational programs for the benefit ofstudents. This is not surprising, since the purpose of usingcore values is to put the needs of students at the forefront. Manydistricts use this core value, in good faith, as a reason to assertthat all new revenues received by the district have been swallowedup by the expense of maintaining programs. Therefore, theargument usually goes, there is no money left over for any salaryincrease or cost items proposed by the union.

Core values cannot

and should not serve as

an excuse or rationale

to avoid bargaining

in good faith or

confronting issues

posed by the union.


In short, the core value of preserving programs prevailsover the possibility of providing people with a salary increase.This would appear to be an appropriate use of core values.However, consider the following example from a real district.

The district is experiencing rapid and continuingdeclining enrollment. There is no cap on active or retiredemployee benefits, and millions of increased dollars are beingallocated annually due to the rising cost of benefits.Employees have not received a raise in three years. Althoughdistrict teachers used to be among thehighest paid in the county, they now areat the bottom in comparison to others.The district’s chief human resourcesofficer readily admits they no longer areable to attract the most qualifiedcandidates, who can start at otherdistricts for as much as $20,000 moreannually. The district is renownedstatewide for offering excellentprofessional development and training tonew teachers and for spending millionsof dollars annually on such efforts. But,once teachers are trained, they are leavingthe district in droves, and other districtsare snatching them up because theyknow these teachers are among the besttrained in the state. For the fourth year ina row, the district is asserting it cannot afford to provide asalary increase because it would mean sacrificing programsfor students. The district has articulated a core value ofpreserving quality educational programs for students.

Do you see any contradictions in this picture? Is thisdistrict being true to its core value? This district is caught inthe paradox of the illusory distinction between people andprograms. At bottom, core values speak to the most effectiveand wise allocation of precious resources. Here, the districtis spending about $20,000 a year per teacher on professionaldevelopment, and about $60,000 a year per teacher on salaryand benefits. Thus, if a teacher leaves after four years, thedistrict has lost an investment of $320,000. If 100 teachersleave each year, the district is losing an investment of $32million! As more teachers leave, the district is finding itincreasingly difficult to attract the most-qualified

replacement teachers. The district has not critically examinedthe vast array of programs it currently supports.

Is this district being true to its core value of maintainingquality educational programs for children? The answer isno. The “people versus programs” paradox ignores the realitythat the quality of programs depends entirely on the qualityof the people who inhabit and deliver those programs. Ifthose very people become disgruntled due to non-competitivesalaries, and if they begin to leave the district, and if we cannot

attract quality replacements, theprograms suffer and so, ultimately, willthe students.

In order to be true to its corevalue, this district and many otherslike it must acknowledge the viciouscycle of decline in educational andinstructional quality that already hasbegun. In order to be true to its corevalue, this district must:

Stop and reverse the cycle bycritically examining every program andcurtailing or eliminating those not trulybenefiting children, based on the levelof expenditure.

Set as a priority improvedcompensation for the people who

inhabit quality programs.Establish a budget priority for equitable compensationincreases with forethought to multiyear planning, ratherthan approaching compensation as an afterthought whenall the money has been spent.Take these actions openly, transparently, and in a trulycollaborative partnership with all stakeholders, includinglabor.

If this district is true to its core value of providing qualityeducational programs for children, it will show a commitmentto the future of these programs by valuing the people whoinhabit the programs. And, based on my experience, thosepeople will be much more reasonable in their bargainingpositions as long as they see the district has a true vision forthe future.

People will be much

more reasonable in

their bargaining if

they see the district

has a true vision for

the future.


In short, core values must be thoughtful, reasoned, anduniversal, no matter what actions they may appear to mandate.They derive their strength from their purity of purpose butare extremely vulnerable to challenge if actions do notmeasure up to the words.

Adopting boilerplate or overused core values. Theworst mistake we, as school employers, could make wouldbe to adopt boilerplate core values and start to use themstatewide. This would be as wasteful and meaningless as unionboilerplate proposals that we encounter. When we see suchproposals, we exclaim, “What does this proposal have to dowith the unique needs of our district?” And we question whyour local union is seeking to inject a statewide agenda intoour local community.

The same objections will occur if we as employers adopta statewide agenda of identical core values. Instead, the corevalues of every district should be unique and consistent withlocal needs and priorities. All educational agencies will havea similar, student-centered theme, but the specifics of thattheme should vary from district to district.

Another common mistake is to overuse a core value tothe point where it loses substantive meaning. For example,we have all heard the core value of “attracting and retainingthe most qualified employees.” I think this phrase has lost allmeaning because the unions have used it as rationale tosupport any and all economic demands. I believe “attractand retain” has morphed into “attain and retract” — attainthe highest salaries and benefits possible at the price ofretracting the programs and working conditions that attractedemployees to the district in the first place.

Core value statements do not rest on their own merits;rather, they must be explained, supported, and justified.Therefore, avoid the pitfall of latching onto core values thathave become meaningless through overuse.

Conclusion

One would expect the core values that guide us to beself-evident. Since I have begun using them, however,reactions have ranged from surprise, to anger, to indignation.That these self-evident values become controversial whenactually declared out loud proves, in my view, the criticalneed for districts to articulate them everywhere and at everyopportunity, for they have been lost, forgotten, orovershadowed by the collective bargaining process. And wecannot allow them to become extinct, or we lose sight of thevery purposes for which we exist.

Our role, our duty, and obligation as negotiators forpublic schools is to not allow our core values to beovershadowed in the shuffle of the negotiations process andlost altogether in the negotiated agreement.

This is not an easy task, for negotiation is a wondrouschaos; a swirling maelstrom of emotions, politics, substance,and symbolism. As the demands on public educationincrease, and the resources flowing to the system shrink, thechaos merely intensifies.

How can we bring order to this chaos? How can we copewith the dichotomy between expectations and resources?How do we stay focused on the achievement of oureducational mission even as we are legally required tonegotiate seemingly independent working conditions that,in reality, sometimes hamper the achievement of that mission?

The answer lies in the adoption and articulation of, andadherence to, a set of core values to guide everything we doin the negotiations process. If we do this, we as negotiatorswill be able to fulfill our obligation to represent and advocateon behalf of the educational interests of millions of children.

We have core values that reflect this advocacy and it istime to place these values at the center of the negotiationsforum. If we do this objectively, forthrightly, and consistently,each of us can stand up at the end of the day and say withpride, “We negotiated today based on what we believe is inthe best interest of the students we serve.” ❋❋❋❋❋


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John Duncan TalksAbout PERB

Carol Vendrillo, CPER Editor

CV: You were the first PERB member appointed by GovernorSchwarzenegger. How did that come about? What is your prior relationshipwith the governor?JD: I didn’t have a “prior relationship” to speak of until the recall election. WhileI knew some of Arnold Schwarzenegger’s policy and political advisors, and hadmet him briefly at various events, I hadn’t talked to him at length until I was askedto brief him on labor-related issues — particularly the state’s workers’compensation crisis — about 10 days after his announcement on the Jay Lenoshow. Luckily, I was vacationing with my family in Malibu. My biggest problemwas that I didn’t have any clothes besides shorts and a swimsuit, so “businesscasual” was going to be stretch. (I barely made it to Malibu Sportswear before theend of the day.) The briefing was at his home in Brentwood, where I was joined byformer State Labor Commissioner Victoria Bradshaw, Governor Pete Wilson’sformer Chief of Staff George Dunn, and eventually by Governor Wilson as well.I was very impressed with his business and overall marketing savvy and quickgrasp of issues. He hardly fit the “action hero,” “movie star,” vacuous stereotypethat some had suggested. (By the way, Arnold was wearing shorts and a polo shirt,I guess that’s L.A. business casual.)

Later, I was asked to head up the Labor and Workforce Agency as a memberof the transition staff. This turned out to be a pleasant, slight role reversal for mebecause I then had the opportunity to contact Steve Smith, who had contacted meon behalf of Governor Davis’ transition team a few years before, when I wasdirector of the State Department of Industrial Relations. The Public EmploymentRelations Board was one of the agencies that fell under my responsibility forreview at the time.

Last year, John Duncan

became the sixth

chairperson at the Public

Employment Relations

Board. He talks with CPER

Editor Carol Vendrillo

about PERB’s mission,

expanded responsibilities,

and progress.


One of the board’s

most important jobs

is to provide guidance

to the parties through

clear and concise

decisions.

I remembered being struck by how dire the budgetsituation was at PERB. I couldn’t understand how this hadbeen allowed to happen and felt it was somewhat ironicevidence of the incompetence of the previous administration.How could the governor and his staff not adequately fundtheir labor board? I felt that funding and the related backlogof cases at the board level needed to be addressed immediately.This was an important board with newly acquired jurisdictionover the Meyers-Milias-Brown Act, specifically designed tokeep parties out of court and to handle disputes in a neutraland timely fashion. The board wasfailing the constituents it was supposedto serve. This had little to do with thehard work of the long-time, dedicatedPERB staff, many of whom had beenput on “surplus” funding — civilservice terminology that often precedesactual layoffs.

Prior to the recall, my consultingbusiness had started to take off aftermany months of hard work, so I wasn’tsure I was ready to return to stateservice, even if I was lucky enough tohave been presented with a politicalappointment. However once offered thePERB position, I was attracted to thechallenge of turning an agency around, the role ofadjudicating as a neutral, and the ability to author one’s owndecisions.

What is your labor relations background?Here are a few highlights. Prior to my appointment as PERBchair in February 2004, I was president of DuncanConsulting, Inc., where I specialized in providing labor-related advisory services to a variety of corporate, legal, andgovernmental clients. As I just noted, I was a member of thegovernor-elect’s transition team handling the Labor andWorkforce Development Agency. I also served in GovernorPete Wilson’s cabinet for two years as director of theDepartment of Industrial Relations and, before that, as chiefdeputy director of that department. I also was the chairpersonof the California Employment Training Panel from 1999 to2000. I hold a masters degree in public administration from

Harvard University’s John F. Kennedy School ofGovernment.

What do you think the role of PERB should be interms of practitioners engaged in collective bargainingin California?PERB is a small, quasi-judicial administrative agency thatoversees collective bargaining statutes encompassing 7,000public employers and over two million public employees.Its mission in a nutshell, from my perspective, is to effectively

provide employers, unions, andemployees a neutral forum in which toresolve disputes — in a timely fashion.Its purpose to practitioners — as outlinedin the various acts we administer — is topromote the improvement of personnelmanagement and employer-employeerelations within the public sector in theState of California.

It is important to recognize thatthe board emphasizes mediation andconciliation as a first step in the process,with a focus on getting a quickresolution. Approximately 75 percent ofthe board’s complaints are resolvedthrough voluntary settlement

agreements. In cases where mediation is not successful, theparties have the opportunity to litigate their disputes, ideallyquickly and efficiently. One of the board’s most importantjobs is to provide guidance to the parties through clear andconcise decisions. The board itself issued a record 142decisions in fiscal year 2004-05. I am proud of that fact, butwe need to do even better in the months and years ahead,especially now, with a full complement of five board members.

What do you perceive as your role as chair of theboard?In general, I perceive my role as trying to keep cases movingbetween board members’ offices and to have decsions issued.Maintaining a friendly and collegial atmosphere is critical.(I have heard horror stories of past boards where a positiverelationship was not the case.) As chair, I work closely withsenior PERB managers, such as Chief Administrative Officer


Eileen Potter, Chief ALJ Fred D’Orazio, and GeneralCounsel Bob Thompson, on budget, regulatory reform,personnel issues, and other administrative matters. Also, aschair, I present PERB’s budget to the legislature and testifyon other matters as necessary.

How important do you think it is that the board speakwith one voice, and how important are dissenting opinions?While speaking with “one voice” is desirable, it is not critical.What is important is clear, concise, and timely decisions thatoffer guidance to the parties. I don’tbelieve in “muddying up” a decision justto achieve unanimity. Dissentingopinions are sometimes importantmarkers in themselves, just as they are inthe courts. Ideally, deliberation alsoshould mean collaboration, no matterwho is technically the author of each case.

What has been the most surprisingpart of the job?A nice surprise is that almosteverywhere I go in this position I meetsomeone who worked at PERB at onetime or another — including yourself.And I am impressed with the length oftenure of many of the staff. PERB hasthe benefit of excellent staff in every area. Many have beenwith PERB since it was created or came to the agency soonthereafter. Having the ability to discuss PERB’s history withthese staff members has been a great help.

How do you respond to criticism about the backlog ofcases on the board’s docket, and what are the statisticsregarding case handling at the board level?When there is criticism about the backlog, I point out thatwhen I was appointed there were more than 90 cases on theboard’s docket. I have made reduction of the backlog myhighest priority. At the end of the last fiscal year (June 30,2005), the number of cases was down to 63.

At the beginning of January 2004, 20 cases had been onthe board’s docket for over a year. At the end of the last fiscalyear, that number was down to seven. Now that we have a full

five-member board, my goal is to encourage the other boardmembers to work with me to get that number to zero and toassure that no case is on the docket for more than six months.Issuing timely decisions is paramount. We owe that to the parties.

I worked at PERB from 1979 to 1988, in its earlydays. At that time, most of our cases involved novel issuesthat the board had never before addressed. What are someof the issues currently facing the board?The board was faced with novel issues immediately upon the

enactment of EERA in 1976. The boardcontinued to face many novel issueswith the subsequent enactment of theDills Act and HEERA. Under EERA,bargaining units were formed for thefirst time and many elections were heldin school districts around the state. Theboard then had to establish largestatewide bargaining units under theDills Act and HEERA, and to run largeelections under those statutes.

After exclusive representativeswere in place, there was the task ofdeciding cases that would establishbedrock principles of labor law inCalifornia. A few examples are theanalytic framework for discrimination

cases (Novato in 1982) and interference cases (Carlsbad in1979); the scope of bargaining and the question of how theEducation Code and other state laws intersect with thecollective bargaining statutes (San Mateo in 1983, Anaheimin 1981); the test to prove a unilateral change (Grant in 1982);the right to representation (Redwoods in 1984 and adoptionof Weingarten, a 1975 case); free speech rights of employers(Rio Hondo in 1989); access rights under the Dills Act (twoleading state cases in 1980 and 1981); employer dominationof employee organizations (Oak Grove in 1986, Redwoods in1987); right to information (Stockton in 1980); the right tostrike (Modesto in 1983, San Ramon in 1984, Compton in 1987,Sacramento in 1987, and others); duty of fair representation(Rocklin in 1980, San Francisco in 1982); and agency feeregulations and decisions in the mid-1980s.

Dissenting opinions

are sometimes

important markers

in themselves, just

as they are in

the courts.


This was an exciting time at PERB. The agency wasestablishing a body of law that would guide parties into thefuture, and the staff, as well as practitioners, were gainingexperience and knowledge. Because California was one ofthe leading states to enact collective bargaining statutes forpublic employees, other states looked to us for guidance,and we looked to states like Wisconsin, New York, andPennsylvania to see what they were doing.

When the case law was generally settled in these keyareas, PERB proceeded to apply the law and refine theprinciples through the end of the 1980s and the ’90s. No newstatutes were enacted, and we operatedmore or less on a “business-as-usual”basis.

Then came what I would call a newera at PERB, when major developmentspresented novel issues once again. Ibelieve it has re-energized theagency and the community we serve inways that are similar to the atmospherethat existed in the late ’70s and early’80s.

And again, we are breaking newground. In 2001, we acquiredjurisdiction over the MMBA. As aresult, the number of unfair practicefilings quickly almost doubled becauseof the huge number of bargaining unitsin local government and also because,for the first time, parties had an administrative agency toadjudicate their complaints. We provide a less-formal andless-expensive procedure than going to court, and the partiesare taking advantage of it.

Then came the court employee, court interpreter, andtransit acts. We now are faced with new issues that grow outof different employment settings, and we have promulgatednew regulations to implement the new acts. We have casesdealing with the application of local government rules, strikerights of employees, bargaining disputes between unions andthe courts, and more. We now are dealing with newpractitioners we have never met before — union andmanagement representatives and lawyers who work only forlocal government unions and county counsels. These

practitioners have new issues to bring before us and newways of looking at the issues they bring. It’s fresh and veryinteresting, especially to the staff who were around in theearly days.

In addition, there is an overall greater interest in havingPERB resolve disputes. Requests for injunctive relief are atan all-time high (15 this quarter), and the parties on bothsides of the table are showing a greater interest in litigatingPERB decisions. Appellate litigation is at an all-time high withcases in Fresno (discrimination), U.C. (health benefits), Oakland(subcontracting), and King City (change in contract formula), to

name a few. Further, some of the areasthat appeared to be well settled, in fact,still present interesting and difficultquestions. One example is a case thatinvolves the accommodation betweenthe State Personnel Board and PERB asa result of the Supreme Court’s 1981ruling in Pacific Legal Foundation v.Brown.

After many years of shrinkage,PERB has hired three new attorneys inthe general counsel’s office and anadministrative law judge. All five seatson the board are filled. All thingsconsidered, this is a pretty excitingperiod for PERB and the communitywe serve. I think it rivals the early dayswhen the agency was charting the course

for the future. Given our new jurisdiction and the influx ofcases and issues, we are doing the same thing now.

What is the most rewarding part of the job? Whatpart is most frustrating?The most rewarding part is when parties shake hands on asettlement arrangement. As a result, we, as a board, neversee, or have to rule on, a dispute. Next is the moment whenan important decision you have authored is issued. The mostfrustrating part is not being able to issue decisions even morequickly.

We provide

a less-formal and

less-expensive

procedure than going

to court, and the

parties are taking

advantage of it.


Any advice for practitioners before the board? Whatdo you see as the best practices for advocates, and what“turns you off” when you and your board counsel arereviewing the case record?Overall, many who practice regularly before the board arevery experienced and in fact are leaders in the field of publicsector law in the state. Nevertheless, if I could suggest twobrief words of advice: ensure that you have an orderly andcomprehensible record and always be open to the possibilityof a settlement.

Also, please look at our website — www.perb.ca.gov.We’ve made many improvements over the last year, allowing

board decisions to be accessed and reviewed online as wellas instituting a feature for parties to sign up for emailnotification when new decisions are issued. And, we are inthe process of finalizing a pilot program so that unfairpractice charges can be filed online as well as through theusual PERB process.

We have created an advisory committee composed ofkey members of the public sector labor and managementcommunities to assist in developing further recommendationson how PERB can improve. In sum, PERB is dedicated toreaching out to its constituents in multiple ways. ❋❋❋❋❋

Center for Collaborative SolutionsCenter for Collaborative SolutionsCenter for Collaborative SolutionsCenter for Collaborative SolutionsCenter for Collaborative Solutions

Working together effectively is critical to achieveing the kind of workplaces we allwant. And it requires strong skills to build and maintain effective labor-managementrelations at all levels of the organization — skills as a negotiator, a problem solverand a relationship builder.

The CCS Conference is designed to help you:

♦♦♦♦♦ Learn about cutting-edge approaches to collective bargaining.♦♦♦♦♦ Gain the skills you need to be an effective negotiator.♦♦♦♦♦ Build your communications and conflict resolution skills.♦♦♦♦♦ Improve your ability to negotiate money and health care issues.♦♦♦♦♦ Find solutions to your workplace problems.♦♦♦♦♦ Strengthen your labor-management relationship.♦♦♦♦♦ Learn new ways to build collaborative workplaces.

March 29-31, 2006Disneyland Paradise Pier Hotel, Anaheim

Working Together to Build a Better Workplace

For complete information, call 916-567-9911 or visit the CCS website, www.ccscenter.orgCosponsors: the Federal Mediation and Conciliation Service and the California State Mediation and Conciliation Service

FINDING THE MAGIC!FINDING THE MAGIC!FINDING THE MAGIC!FINDING THE MAGIC!FINDING THE MAGIC!The 17th Annual Conference


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December 20 0 5 c p e r j o u r n a l 21

Local Government

Longest Bus Strike in Santa Cruz CountyHistory Is Resolved

After five weeks of labor discord, theSanta Cruz Metropolitan Transit Dis-trict reached agreement with theUnited Transportation Union, Local23, ending a 35-day strike by 141 busoperators. The parties began bargain-ing back in April, facing a contract ex-piration date of June 30, 2005. Talksappeared to stall, but on September 8,the parties agreed to forego a strike orlockout as they continued to work to-ward an agreement.

With the help of state mediators,members of both negotiating teamssigned off on a tentative agreement. But,on September 23, the transit boardvoted it down and, according to attor-ney Carol Koenig of the San Jose lawfirm of Wylie, McBride, Jesinger,Platten & Renner, that provoked thework stoppage. Bus operators walkedoff the job on Tuesday, September 27.Thereafter, when the union presented aproposal for a three-year contract, thedistrict took the position that it wouldreturn to the bargaining table but onlyif the bus operators came back to work.

Management officials had a differ-ent take. General Manager Les Whitetold CPER that the board rejected itsbargaining team’s recommendation toagree to the mediated settlement be-

cause the board felt the deal unwiselywould have increased medical benefitcosts and created a crisis in the future.

At that point, according to Koenig,the district instituted some work-rulechanges in line with its last and finaloffer. When the union filed a grievanceprotesting that action, managementtook the position that, since there wasno longer a contract in place, there wasno longer a grievance procedure towhich the union could avail itself.“That was not acceptable,” saidKoenig.

The work stoppage that ensuedproved disruptive to the 23,000 dailyriders. It shut down 37 local and high-way bus routes, turned the U.C. SantaCruz campus into a parking lot, andprompted the Hub for SustainableTransportation to give away about 100bicycles to students and other low-in-come residents who were dependent onbus service to get to their jobs.

One of the more contentious itemsin the dispute concerned the union’sdesire to rebuff management’s effortsto do away with a general leave pro-gram that allows a certain number ofbus operators to take off up to onemonth without pay but with benefits.The board viewed the provision as an

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Recent DevelopmentsRecent DevelopmentsRecent DevelopmentsRecent DevelopmentsRecent Developments

22 c p e r j o u r n a l No. 175

onerous work rule that forces taxpayersto pay for overtime shifts to cover forthe operators on leave. The union coun-tered that the demands of the job maketime off a necessity.

The parties reached a compromiseagreement on Saturday, October 29, andthe board convened on Sunday eveningto give its tentative approval. Becausethe board had rejected a prior team-supported accord back in October,union leaders informed managementthat its members would not vote on the

proposed pact until the transit districtboard first assented to the provisions.The board gave its unanimous approvalto the proposed contract at the meetingon Sunday evening. By a vote of 108 to14, union members ratified the agree-ment on Monday, October 31. Theboard formally adopted the new con-tract on November 2.

In the end, the union gave up someground on the general leave provision.The number of slots will be decreasedduring the months when ridership isdown. General Manager White toldCPER that, overall, the number of avail-able slots will decrease from 39 to 15.

The district will pickup more medical

benefit costs for employees’ famly

coverage.

Another concession provides that ac-crual of vacation time will be based onstraight time, not on all hours worked,which has included overtime assign-ments.

But the new agreement, which runsfrom September 1, 2005, until June 30,2008, addresses two matters of criticalconcern to union members. Koenig toldCPER that the district has agreed to pickup more of the medical benefit costsfor employees’ family coverage. Underthe old contract, the employer’s contri-bution was capped at $600 per month.During the term of the new contract,the amount of the employer’s contribu-tion gradually will increase to $1,200per month for family coverage. Pre-mium costs above that amount will bepicked up by the employee. Single em-ployee coverage will increase from azero contribution to $50 per month.White explained that under the oldagreement, full family benefits costemployees about $400 a month. Thatamount will be reduced to $115 untilJanuary 1, 2006, and gradually will in-crease thereafter. According to White,the parties’ intent is to maintain anemployer-to-employee payment per-centage ratio of 90 to 10.

The new contract also adjustsdownward the percentage of theemployer’s PERS contribution that willbe charged to employees.

Future salary increases are depen-dent on a formula based on sales taxrevenues and are tied to a percentageincrease over previous years. White ex-plained that there will be no increase in

the base wage for 2005. However, ifsales tax revenues go up in 2006-07 tomore than 3 percent over the 2005-06level, 30 percent of that increase willbe used to fund increased wages. Simi-larly, if in 2007-08, the sales tax goesup more than 6 percent over 2005-06,30 percent of that increase will be allo-cated to employee salary increases.

The new agreement adds a lon-gevity step increase for employeeswith 20 or more years of service withthe district.

The new agreementadds a longevity

step increase.

As part of the parties’ accord, theunion will dismiss all legal actions thatwere filed during the course of nego-tiations, including an unfair practicecharge lodged with the Public Employ-ment Relations Board. The final settle-ment also includes resolution of a dis-pute concerning implementation of anIndustrial Wage Commission orderinvolving missed meal breaks.

As a way to win back riders whocame up with alternative means of trans-portation while the bus operators wereon strike, White has pledged to pro-pose that riders be given 10-days worthof free rides. ✽✽✽✽✽


S.F. Firefighters Win Local Bidto Preserve Staffing

medical supervisors be made availablearound the clock.

The city controller estimated thatthe proposition would add an addi-tional $4.4 million to $6.6 million ayear to the city’s current fire protectionbudget of $158 million. These costs,according to the controller, would re-sult from increased firefighter salariesand benefits.

Prop. F supporters argued that themeasure was “vital to public safety”because San Francisco has the seventh

By a solid margin, San Francisco vot-ers endorsed a local measure that willrequire the city to maintain and oper-ate all 42 firehouses, and emergencyand rescue vehicles and equipment, atthe same levels as were in place on Janu-ary 1, 2004. Proposition F, entitled theNeighborhood Firehouse Protection

The proposition adds detailed lan-guage to the city charter, mandating thatall existing neighborhood firehousesremain open 24 hours a day, and thatthe emergency apparatus currently lo-cated at each firehouse be adequatelystaffed to be able to respond to a fire ormedical or other emergency.

The proposition states: “The FireDepartment shall not close, abandon orconsolidate any existing firehouse, orprovide a level of service at thatfirehouse or for the apparatus withinthat firehouse, lower than that existingas of January 1, 2004,” except undercertain circumstances spelled out in thenew charter provision. A firehouse canbe closed only for unsafe structural con-ditions or to retrofit or renovate thebuilding. These closures must be ap-proved by the board of supervisors andaccompanied by a detailed plan for re-storing adequate services to the neigh-borhood served by that firehouse, “assoon as possible.”

The fire department can relocateapparatus from one firehouse to anotheronly if it gets the board’s approval anddemonstrates that the shift of equipmentis necessary to meet the safety needs ofthe citizens, and that the change willnot prevent 24-hour-a-day service inthat neighborhood.

The initiative also requires that aminimum number of ambulances and

Language providesthat all existing

neighborhood firehouses remain open.

Act, was put on the ballot by Local 798of the International Association ofFirefighters. The local ballot measurewas brought before the voters in reac-tion to a so-called “brownout” policyinitiated by Fire Chief Joanne Hayes-White last year, whereby the city begantemporarily closing firehouses on a ro-tating basis to save money.

Proponents of the measure chargedthat the brownouts pose a serious threatto the health and safety of San Fran-cisco residents. They claimed that thefirehouse closings lengthened the re-sponse times in one of the most denselypopulated cities in America.

Opponents charged themeasure would thwart

smart, cost-savingreform plans.

busiest fire department in the nation —with almost five times as many emer-gency responses as Oakland and fourtimes as many as San Jose.

Opponents countered that SanFrancisco has more fire stations persquare mile than any comparable cityand that the proposition is an irrespon-sible raid on the city’s budget “underthe false guise of protecting publicsafety.” They charged that the measurewould thwart smart, cost-saving reformplans and called it “budget balloting atits worst.”

Supporters of Prop. F included theSan Francisco Deputy Sheriffs Associa-tion, the San Francisco Police Officers


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Association, the San Francisco Cham-ber of Commerce, and the San Fran-cisco Building and Construction TradesCouncil. Elected officials signing onin support of the measure includedAssembly Member Mark Leno, Sena-tor Dianne Feinstein, CongresspersonNancy Pelosi, State Senator CaroleMigden, and San Francisco MayorGavin Newsom.

Opponents of the proposition in-cluded the public policy group San Fran-cisco Planning and Urban ResearchAssociation, Coleman Advocates forChildren and Youth, the San FranciscoTaxpayers Union, and San FranciscoTomorrow.

Approximately 57 percent thosewho voted voiced support for Proposi-tion F on November 8. ✽✽✽✽✽

UAPD Wins Fight OverHealth Benefits in L.A. County

After a protracted battle, the Union ofAmerican Physicians and Dentists andthe Los Angeles County EmployeeRelations Commission appear to havereached a final resolution. In October,the California Supreme Court declineda request to review the decision of theSecond District Court of Appeal thatordered the county to reinstate twomedical benefit plans it no longer of-fered to county physicians once theyopted for union representation.

During negotiations with UAPD,the county took the position that twosuperior health benefit programs —Flex and Megaflex — would not be of-fered to the doctors because a countyordinance provided that only unrepre-sented employees could participate inthose plans. When collective bargain-ing reached impasse, the county uni-laterally withdrew those plans from thebenefits available to the physicians.

The union then took its case toSacramento, where it won passage ofan amendment to the Meyers-Milias-Brown Act which specifically instructsthat the governing body of a publicagency with a population of over 4 mil-lion — referring exclusively to LosAngeles — “shall not discriminateagainst employees by removing or dis-qualifying them from a health benefitplan…on the basis that the employeeshave selected or supported a recognizedemployee organization.” This amend-ment, Government Code Sec.3504.5(c), was made retroactive to July1, 2001.

When the dispute came to theCourt of Appeal, the court concludedthat the MMBA amendment took pre-cedence over the local ordinance and,by operation of its retroactivity provi-sion, nullified the county’s decision towithdraw coverage under the two medi-


cal plans to the physicians once theyopted to be represented by UAPD.

Bargaining History

In 1999, physicians employed invarious county hospitals and clinicselected UAPD to represent them intheir negotiations with the county. Dur-ing the course of the election campaign,county representatives made it knownthat if the physicians voted to be repre-sented by the union, they no longer

would be eligibile for inclusion in theFlex and Megaflex benefit plans. Thecounty took this position in reliance ona county ordinance which provides that,absent a contrary designation by thecounty, only unrepresented employeesmay participate in the two superiorhealth benefit programs.

Following an election, UAPD wascertified as the exclusive representativeof the county’s physicians and com-menced collective bargaining with thecounty in November 1999. Duringthese talks, the county adamantly main-tained that the newly represented phy-sicians were eligible only for theChoices health plan, one less desirablethan the Flex and Megaflex plans. While

negotiations continued and the partiesreached agreement on approximately30 other issues, they were unable to re-solve their differences on the benefitsplans.

Once impasse was declared, afactfinding hearing was conducted byMichael Prihar, who issued a non-bind-ing report. He concluded it was unrea-sonable for the county to remove theunionized physicians from the Flex andMegaflex programs, and that doing sowould be counterproductive to thecounty’s goals of retaining and recruit-ing qualified professionals.

The county rejected the factfinder’sreports and reiterated its position thatrepresented and non-represented em-ployees must receive different benefitpackages. To no avail, UAPD arguedthat the physicians were the only countyemployees ever to lose Flex andMegaflex benefits. The union claimedthat as a result of the county’s action,each class member would lose $20,000a year. In August 2001, the countyimplemented the benefits change totake effect January 2002.

In October 2001, six doctors whofeared loosing the Flex and Megaflexplans launched a decertification drive.The effort was initiated by a letter sentin August 2001 by Dr. Lionel Cone, aphysician supervisor in the bargainingunit. Cone urged five or six subordi-nate pediatricians to decertify theunion. County management officialsquickly advised Cone to remain neu-tral with respect to the decertificationeffort and to refrain from sending anymore letters concerning it.

Unfair Practice Charges

The union filed two unfair prac-tice charges with the commission. Italleged that the county failed to bar-gain in good faith by conditioning theeligibility for the more desirable ben-efit plans on employees’ status as rep-resented or non-represented. HearingOfficer Fred Horowitz considered thetotality of the bargaining history andconcluded that the county had engaged

in lawful hard bargaining. He notedthat the parties participated in 18 bar-gaining sessions and six mediation ses-sions. Of the 37 articles in the newlyproposed memorandum of understand-ing, tentative agreement was reachedon 30. Only five articles remained un-resolved after completion offactfinding. And, Horowitz found noevidence of delays or dilatory tactics bythe county during the course of the ne-gotiations. “There is no dispute theCounty remained steadfast” in its pro-posal to remove the physicians from theFlex and Megaflex plans and rejectedall alternative proposals the union sug-gested to reach a compromise. But, he

The MMBA amendment took

precedence over thelocal ordinance.

A factfinder concludedthat it was

unreasonable to remove physicians

from the programs.


said, the union failed to establish thatmanagement’s intransigence on the is-sue violated the good faith bargainingdemands under the county’s employeerelations ordinance or the MMBA.

Horowitz also observed that thecounty ordinance did not prevent thecounty from reaching an agreementwith the union to extend eligibility forFlex and Megaflex benefits to repre-sented employees. And he found no evi-dence that county negotiators had as-serted at the bargaining table that eli-gibility under the plans was not nego-tiable.

Horowitz also commented onfactfinder Prihar’s recommendationthat the county continue to provide theFlex and Megaflex benefit package tothe represented physicians. “There isno requirement in the ERO or Meyers-Milias-Brown for a party to be forcedto make a concession or yield to anyparticular demand so long as the over-all course of bargaining is conductedin good faith,” he said. The county’s“rigid, inflexible approach” to the eli-gibility of the physicians for the twobenefit plans was not unlawful or in badfaith.

UAPD’s second unfair practicecharge alleged that the letter and de-certification petition circulated by Dr.Cone unlawfully interfered with em-ployees’ rights to have the union serveas their representative. Horowitz foundthat while Cone’s memo to his col-leagues reasonably could be viewed asmanagement’s direct interference withthat right, there was no evidence that

the memo had any adverse impact onthe physicians. With approximately800 members of the bargaining unit,wrote Horowitz, “there was no show-ing the views or votes of the five or sixpediatricians who received the memowere influenced as a result.” Any harmcaused by the Cone memo was deminimus, he concluded.

Megaflex benefits to the Los Angelesphysicians represented by UAPD. Ac-cording to the bill analysis, the pro-posed legislation was aimed at restor-ing the health benefits to UAPD mem-bers. And, the Assembly and Senatemembers who voted for the bill, andthe governor who signed it, understoodit to offer a solution to the dilemma fac-ing physicians who wanted to join theunion but would have to give up theirhealth benefits to do so. The legisla-ture also understood, said the court, thatthe statutory amendment would over-ride the local county ordinance.

The fact that the local ordinanceallows for the possibility that the unionand the county might agree to acceptthe less-generous benefit plan duringnegotiations did not alter the court’sdecision. The court explained:

Both in its now overridden ordi-nance and its announced “firm andconsistent” policy, the county “re-moved” and “disqualified” employ-ees from this county-wide benefitplan if they “selected” an employeeorganization. Given the ordinance’sclear provisions and the County’srigid policy, the remote possibility theCounty might agree to grant an ex-ception during negotiations with theunion was illusory and, in any event,insufficient to comply with the spirit,and indeed the letter, of 3504.5(c).In essence, the County’s ordinancesaid “we’ll discriminate against youby taking away this major health ben-efit if you unionize, unless we deignto give it back to you during nego-tiations with your union. But don’tcount on that because we have a ‘firmand consistent’ policy against mak-ing such an exception.” Small won-

The amendment wasenacted for the expresspurpose of overturning

the county’s denial.

The commission affirmedHorowitz’s decision. However, UAPDfiled a request for reconsiderationbased on the legislature’s interveningenactment of Sec. 3504.5(c) — whichretroactively prohibited the countyfrom denying represented employeesparticipation in a health benefit planavailable to non-represented employ-ees. The commission denied the union’srequest, and UAPD sought judicial re-view through a petition for a writ ofmandate. When the trial court deniedthe writ, the union appealed.

Court of Appeal Decision

In large part, the legislative historyof Sec. 3504.5(c) formed the basis ofthe appellate court’s opinion that thestatutory amendment was enacted forthe express purpose of overturning thecounty’s denial of the Flex and


der the County itself admitted in itsargument to the Legislature that3504.5(c) overrode this ordinance.

The legislative intent behind Sec.3504.5(c) sets up the presumption thatrepresented employees must have avail-able the same health benefits as unrep-resented employees unless its unionrepresentative voluntarily agrees to adifferent arrangement.

In any event, said the court, theunion never agreed that the countycould remove or disqualify the repre-

against employees by disqualifyingthem from a health plan on the basisthat the employees have selected a rec-ognized employee organization.

Whether or not the county had en-gaged in bad faith bargaining largelybecame a “non-issue” once Sec.3504.5(c) took effect and imposed aretroactive ban on the denial of ben-efits to represented employees, said thecourt. “Whether the County engagedin bad faith bargaining or good faithbargaining, the negotiations led to animpasse on the health benefits issue.The County refused to promise itwould allow physicians who joined theunion to remain in these two healthbenefit plans and indeed threatened toremove and disqualify them from suchparticipation. But by the time theCounty got around to implementing itsthreat, the Legislature had intervened— albeit retroactively — and made itillegal for them to do so.”

The Court of Appeal rejected thecounty’s argument that it did not violateSec. 3504.5(c) because it did not removethe unionized physicians from the twomedical plans immediately after theyjoined the union but only after complet-ing negotiations with UAPD. “Nothingin 3504.5(c) or its legislative historysuggests delayed discrimination is per-missible and only an immediate denialof benefits for union members wouldviolate the statute,” said the court.

Likewise disregarded was thecounty’s contention that it did not vio-late Sec. 3504.5(c) because the Flex andMegaflex programs are “cafeteria” pro-

grams, not the health benefit programsmentioned in the statute. “This argu-ment does not survive scrutiny,” thecourt remarked. These two programsprovide health benefits, the court noted,even though they also may offer otheradditional benefits. And, when thecounty removed the physicians fromthese programs, they were relegated tothe Choices plan in order to continuetheir health care coverage.

With regard to the letter and peti-tion of Dr. Cone, the Court of Appealaffirmed the opinion of hearing officerHorowitz that those efforts were deminimus. It noted that the letter onlywent to a handful of physicians andthere was no evidence that these indi-viduals were influenced by Cone’s mis-sive. In addition, the court noted, thecounty took immediate corrective ac-tion, advising Cone to remain neutralas to union activities.

The court instructed the county toreinstate all physicians who wereUAPD members retroactive to July 1,2001, to the Flex and Megaflex pro-grams and to make them whole for thebenefits they were denied. What thismake-whole award will amount to isuncertain at this point. However,Lawrence Rosenzweig, attorney for theunion, told CPER the award may totalas much as $20 million. (Union ofAmerican Physicians and Dentists v. LosAngeles County Employee Relations Com-mission [7-25-05] B170644 [2d Dist.],131 Cal.App.4th 386; petition for re-view denied 10-12-05.) ✽✽✽✽✽

The legislature madethe terms of the new

subsection retroactive.

sented physicians from the Flex andMegaflex health benefit programs. In-stead, in August 2001, the county uni-laterally implemented its policy of re-moving the physicians from the plans.But, said the court, the county’s August2001 action “came too late.” By retro-active application of the new law, as ofJuly 1, 2001, it was illegal for the countyto remove or disqualify representedemployees, “including and especiallythese 800 represented physicians,” be-cause the legislature made the terms ofthe new subsection retroactive. There-fore, at the time the county purportedto act to disqualify the union membersfrom the Flex and Megaflex plans, thecounty was barred from discriminating


CSC’s Modification of TerminationNot Abuse of Discretion

For a second time in as many months,the San Diego County Civil ServiceCommission and Sheriff WilliamKolender have squared off over the ap-propriate level of discipline to be metedout to an offending deputy sheriff. In acase discussed in CPER No. 174, pp.38-40, the Court of Appeal determined

substantial evidence to support thesheriff’s conclusions.

Background

Sergeant Edward Salenko was as-signed to investigate the circumstancessurrounding a request for time off byDeputy Chris Pangalos. On Septem-ber 14, 2004, Pangalos asked to be re-lieved of that evening’s shift in order tosocialize with visiting family members,and he told Sergeant Leroy Draheimhe would call in sick if he did not getthe time off. Draheim told Pangalos hewould get permission if a deputy werefound to cover for him. That evening,Pangalos called Lieutenant DavidMcNary and said he needed time offbecause of his stepdaughter’s illness.Pangalos did not report to work thatevening.

Salenko’s commander reviewed hisreport and sought clarification as towhether McNary had approvedPangalos’ sick leave. Salenko revisedthe report, stating that he had askedMcNary if he approved the use of sicktime and McNary had replied “yeah.”At a hearing before the commission, itwas established that Salenko neverasked McNary whether he approvedPangalos’ sick leave and that Salenkodid not reinterview McNary for the re-vised report. Salenko’s report also in-cluded references to an interview he

allegedly conducted with SergeantBrenna Madsen, an officer initially as-signed to investigate Pangalos’ con-duct. Madsen disputed Salenko’s char-acterization of the scope and nature oftheir conversation.

The sheriff viewed Salenko’s re-port as unprofessional because it re-ferred to formal interviews he neverconducted and misattributed state-ments to two members of the force. Asa result, Kolender terminated Salenkofor failure to meet department stan-

The commission disagreed concerning

Salenko’s truthfulness.

the commission had abused its discre-tion when it opted for a 90-day suspen-sion rather than termination of a deputywho lied about his observations involv-ing the abuse of an inmate.

Now, in a second case entitledKolender v. San Diego County Civil Ser-vice Commission, the Fourth DistrictCourt of Appeal found no abuse of dis-cretion in the commission’s modifica-tion of discipline imposed by SheriffKolender for an officer’s shoddy reportwriting. The court ruled that the com-mission was entitled to independentlyreview the evidence concerning asergeant’s investigation into allegationsof sick leave abuse and was not merelyrequired to assess whether there was

It is the exclusiveprovince of the trierof fact to determine

credibility.

dards, poor reporting, untruthfulness,and acts incompatible or inimical to thepublic service.

Commission’s Review

Salenko appealed the terminationto the civil service commission, and anevidentiary hearing was conducted bya hearing officer. Based on Salenko’stestimony, the commission disagreedwith the sheriff’s accusations concern-ing Salenko’s truthfulness. It concludedthat Salenko’s report was “admittedlyabysmal” and “showed significant care-lessness.” However, it determined thatalthough Salenko’s inaccuracies wereegregious, they did not appear inten-


tional. The commission found there tobe no motive for him to be untruthful.It modified the sheriff’s terminationorder and directed that Salenko be sus-pended for 90 days and demoted fromthe rank of sergeant to deputy sheriff.

Sheriff Kolender asked the courtto vacate the commission’s order, as-serting that there was insufficient evi-dence to support it and that the com-mission should have given substantialdeference to his department’s factualfindings. The trial court affirmed thecommission’s ruling, and Kolender ap-pealed.

Court of Appeal Decision

The court’s analysis first focusedon the reasonable inferences to bedrawn from Salenko’s explanations forthe two discrepancies in his report. Thesheriff perceived Salenko to be untruth-ful, not merely sloppy and forgetful. But,in deference to the trier of fact’s cred-ibility determinations, the court foundotherwise. It approved the hearingofficer’s decision to credit Salenko’stestimony that his notes were disorga-nized while conducting the investiga-tion and that he had lost track of howmany individuals he spoke with and whosaid what.

In the court’s view, conflicts in theevidence or testimony that is subject tojustifiable suspicion does not warrantthe reversal of a judgment. It is the ex-clusive province of the trier of fact todetermine the credibility of a witnessand the truth or falsity of the facts onwhich a determination depends. “Tes-

timony may be rejected only when it isinherently improbable or incredible,”said the court. It must be “unbeliev-able per se,” “physically impossible,” or“wholly unacceptable to reasonableminds.”

The court concluded that thecommission’s modification of disci-pline did not demonstrate an abuse ofdiscretion. It found in mitigation thatSalenko was a 17-year veteran who hadreceived mostly positive reviews andlacked training concerning the propermethod of documenting investigativereports.

A second critical component of thesheriff’s appeal was the argument thatthe commission should have reviewedhis department’s findings of fact forsubstantial evidence and should nothave conducted an independent reviewof the evidence. But the court disagreed.The court focused on GovernmentCode Sec. 31108, which authorizes thecommission either to affirm, modify, orrevoke the sheriff’s termination order,and on Charter Sec. 904.1, which des-ignates the commission to serve as theadministrative body for the county inpersonnel matters and conveys to thecommission the power to affirm,modify, or revoke any disciplinary or-der. While neither of these provisionsspecifies the appropriate standard of re-view, the court found the commission’sbroad authority to modify the sheriff’stermination order is more consistent withan independent review than with a sub-stantial evidence review of the sheriff’sfindings. The court reasoned:

The Commission modifies by usingits own judgment to evaluate thefacts and the law and reach a conclu-sion that might differ from the Sher-iff. Otherwise, there would be no needfor the statute to authorize theCommission’s adjudicatory review,and the Commission could simplyexist to rubberstamp the Sheriff’s dis-ciplinary orders.

In support of its conclusion, thecourt reviewed the legislative historyof Government Code Sec. 31108, find-ing that, when modified in 1943, thecommission’s findings became bindingon the county employer, not advisory,as was previously the case. Thus, thecourt concluded, the new version of thestatute strengthened the commission’soversight role and, with respect to pu-nitive action, placed ultimate author-ity in the commission. (Kolender v. SanDiego County Civil Service Commission;Salenko, RPI [8-22-02; certified for pub-lication 9-21-05] D045266 [4th Dist.],132 Cal.App.4th 1150, 2005 DJDAR11605.) ✽ ✽ ✽ ✽ ✽

30 c p e r j o u r n a l N o . 1 75

Public Schools

Teachers Unions Beat BackSchwarzenegger

Teachers had the most to lose frompassage of three of the four initiativespromoted by Governor Schwarzeneggerin the November election, and theirunions led the fight to defeat them.Proposition 74 would have extendedteachers’ probationary periods fromtwo to five years and would havechanged the dismissal process to make

lized their members in an impressiveeffort perhaps unprecedented in Cali-fornia politics. Earlier this year, theCalifornia Teachers Association, withroughly 300,000 members, approved afee increase of $60 per member for atotal of $50 million to add to its politi-cal funds. The Virginia-based Right toWork Foundation filed a lawsuitagainst CTA in an attempt to restrainthe union from using in its campaignthe funds raised from the dues increase.A federal judge refused to issue a re-straining order, and CTA was free toallocate the money to oppose the ini-tiatives. It spent over $55 million tofight the governor’s propositions, farmore than any other group. Other edu-cation unions that also contributed mil-lions to defeat the propositions in-cluded the California Federation ofTeachers, which spent approximately$3.6 million; California School Em-ployees Association, which spent ap-proximately $2.1 million; and, theAssociation of California SchoolAdministrators, which contributedapproximately $1 million.

In a successful public relationscampaign, the unions recast each of theinitiatives, turning them back on thegovernor.

Prop. 74, which Schwazeneggertermed the “Put Kids First Act,” be-came the “Blame Teachers” initiativein the unions’ parlance. The unions ar-gued that Schwarzenegger was tryingto make Californians believe that teach-ers were responsible for the woeful con-dition of the state’s public schools. Theymaintained that there is no evidencethat lengthening the probation periodhas any impact on teacher quality andcharged that the focus should be onproven reforms known to boost studentlearning, like smaller class sizes andup-to-date textbooks. Opponents of themeasure also raised the specter that its

Education unions contributed millions todefeat the propositions.

it easier to fire teachers. Proposition75 would have required public em-ployee unions, including teachersunions, to obtain written consent fromeach member before using his or herdues for political purposes. Proposition76 would have given the governor thepower to ignore Proposition 98 — thevoter-approved, minimum-fundinglevels for schools. All of the proposi-tions were voted down by a comfort-able margin.

Teachers unions throughout thestate raised dues, donated millions ofdollars, joined coalitions, and mobi-

The unions recast eachof the initiatives,

turning them backon the governor.

passage would discourage new teach-ers from entering the profession.

Prop. 75, called the “PaycheckProtection Act” by proponents, becamethe “Paycheck Deception Act” in adsand literature crafted by opponents. Ac-cording to CTA, the initiative was“about politics, not fairness.” In its lit-erature, CTA argued that “the initia-tive is sponsored by corporate specialinterests who want to limit the politi-cal voice of teachers, nurses, police andfirefighters,” and, if passed, “publicemployees who wish to participate

December 2 0 0 5 c p e r j o u r n a l 31

Fran Liebowitz

But equal But equal But equal But equal But equal access to theaccess to theaccess to theaccess to theaccess to the

r igh ts and ob l iga t i ons con-r igh ts and ob l iga t i ons con-r igh ts and ob l iga t i ons con-r igh ts and ob l iga t i ons con-r igh ts and ob l iga t i ons con-

ferred by EERA is ! Here in oneferred by EERA is ! Here in oneferred by EERA is ! Here in oneferred by EERA is ! Here in oneferred by EERA is ! Here in one

conc ise gu ide , CPER prov idesconc ise gu ide , CPER prov idesconc ise gu ide , CPER prov idesconc ise gu ide , CPER prov idesconc ise gu ide , CPER prov ides

summar ies o f a l l ma jo rsummar ies o f a l l ma jo rsummar ies o f a l l ma jo rsummar ies o f a l l ma jo rsummar ies o f a l l ma jo r

dec is ions o f the Pub l icdec is ions o f the Pub l icdec is ions o f the Pub l icdec is ions o f the Pub l icdec is ions o f the Pub l ic

Employment Re la t i ons BoardEmployment Re la t i ons BoardEmployment Re la t i ons BoardEmployment Re la t i ons BoardEmployment Re la t i ons Board

and the cour ts tha t in te rpre tand the cour ts tha t in te rpre tand the cour ts tha t in te rpre tand the cour ts tha t in te rpre tand the cour ts tha t in te rpre t

and app ly the law, the h is toryand app ly the law, the h is toryand app ly the law, the h is toryand app ly the law, the h is toryand app ly the law, the h is tory

and complete text of the act ,and complete text of the act ,and complete text of the act ,and complete text of the act ,and complete text of the act ,

and a summary of PERBand a summary of PERBand a summary of PERBand a summary of PERBand a summary of PERB

r egu l a t i o n s .r e gu l a t i o n s .r e gu l a t i o n s .r e gu l a t i o n s .r e gu l a t i o n s .

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Gu ide cove rs d i sc r im ina t i on ,Gu ide cove rs d i sc r im ina t i on ,Gu ide cove rs d i sc r im ina t i on ,Gu ide cove rs d i sc r im ina t i on ,Gu ide cove rs d i sc r im ina t i on ,

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activity, strikes and job actions,activity, strikes and job actions,activity, strikes and job actions,activity, strikes and job actions,activity, strikes and job actions,

unilateral action, and more.unilateral action, and more.unilateral action, and more.unilateral action, and more.unilateral action, and more.

Pocket Guide to

the Educational

Employment

Relations Act


Having been unpopularin high school is notjust cause for bookpublications.

(6th edition)

would have to sign a form each year al-lowing union dues to be used for po-litical activities, a restriction on politi-cal speech that would apply only to pub-lic employees, not to private sectoremployees or corporate contributions.”Recognizing the political power of theteachers unions, supporters of the ini-tiative targeted teachers in a massiveemail campaign. A “Yes on 75” cam-paign letter was sent to 90,000 teach-

three years’ revenue, giving the gover-nor new powers to make unilateral cutsin the face of fiscal emergencies. It alsowould have eliminated the provision ofProp. 98 that sets a minimum fundingguarantee for education and mandatesthe restoration of funding when theminimum funding level is suspended.Opponents renamed the initiative the“Cuts School Funding Act.” Thoughthe proposition also would have al-lowed the governor to cut funding forhealth care, police, fire, and other vitalservices, it was the potential financialimpact on schools that received themost attention in the “No on 76” cam-paign. Education groups said that theproposal would have immediatelyeliminated $4 billion from schools andwould have given the governor thepower to cut education funding mid-year. This initiative gave the teachersunion and other education groups an-other opportunity to remind voters thatthe governor broke his promise whenhe refused to repay the $2 billion thathe took from education two years ago.

“These were bad ideas,” saidBarbara Kerr, president of CTA, afterthe election was over. “I’m not goingto apologize for teachers pulling out oftheir pockets their money to fight badideas.” On election night, Kerr told aroom full of elated activists that “thisgovernor wasted $50 million, and hedoes not have the courage to apologizeto all of you for the trash he talked aboutyou. He doesn’t have the courage tosay he was wrong, that we’re the realheroes of California.” ✽ ✽ ✽ ✽ ✽

‘[The governor] doesn’thave the courage

to say he was wrong,that we’re the real

heroes of California.’

ers’ school-email inboxes in October.The letter, sent “from the desk of” twoSouthern California teachers andfunded by two GOP donors, outragededucators. CTA claimed that theemailing violated a state law punish-able by three years in prison. It referredthe matter to district attorneys for in-vestigation.

Prop. 76 was called the “LiveWithin Our Means Act” by GovernorSchwarzenegger and was touted by sup-porters as the “keystone” measure in thegovernor’s plan to overhaul the statebudget. It would have limited statespending to an average of the previous

32 c p e r j o u r n a l N o . 1 75

Service Workers Stand Up ToSan Francisco Unified School District

San Francisco Unified School Districtcustodians, secretaries, cafeteria work-ers, guards, and other employees rep-resented by the Service EmployeesUnion International, Local 790, areprepared to do whatever it takes to getwhat they consider to be adequate healthinsurance coverage for their familiesand a fair wage increase. The 1,200members of Local 790 have been work-ing without a contract for the past year,during which their leaders negotiatedunsuccessfully with the district. Theworkers, without authorization from theunion, organized and engaged in a one-day sickout on the first day of school,which did not result in any movementon the part of the district. Fed up, theyvoted to strike by an overwhelmingmargin.

The school district workers havenot received a raise in over three yearsand do not have the same health carebenefits for their dependents as do otherdistrict employees. The district main-tains there is no money for significantraises or improved benefits becauseGovernor Schwarzenegger has short-changed public schools. It points to thefact that it recently dealt with a $22.5million budget gap for the currentschool year, which resulted in theshutting of five schools.

Union Demands

During the course of the negotia-tions, the union has requested a 2.5 per-cent pay raise for two consecutive yearsplus cost-of-living adjustments, andimproved health care coverage for de-pendents. The union also wants protec-tion against the contracting out of bar-gaining unit jobs and is urging that

lations Board, but those efforts brokedown on October 2. The union repeat-edly has asked Mayor Gavin Newsomto get involved, but he said he would doso only if both sides agreed. Initially,the district refused, then it reversed thatposition on October 11.

PERB has ordered the parties toengage in factfinding. Under provi-sions of the Educational EmploymentRelations Act, any findings of fact andrecommendation of the factfindingpanel are submitted in writing to theparties privately before they are madepublic. Each side has 10 days to decidewhether to accept the panel’s recom-mendations for resolving the impasse.If no agreement is reached, the districtgenerally can implement its last andbest offer, and the union can legallystrike. Union leaders say they may notwait until that process is complete be-fore staging a strike, even though sucha job action likely would be illegal un-der state labor laws.

The union currently is seeking a 2percent wage increase in June 2006,with another 1.25 percent in Decem-ber 2006 and an additional 1.25 per-cent in April 2007. It is asking for freeemployee health care and 75 percent ofthe Kaiser rate for dependents, effec-tive March 1, 2006. It also is request-ing the consolidation of temporary, as-needed, and permanent-exempt posi-tions “so people who’ve been with thedistrict for years will stop being cheatedout of benefits.”

The 1,200 membersof Local 790 voted to

strike by an over-whelming margin.

some temporary positions be made per-manent. It also has asked for provisionsthat would make custodians responsibleonly for tasks that principals request inwriting, and is demanding the districteliminate the requirements that theywash the outside of windows and par-ticipate in the district recycling pro-gram. The district has rejected each ofthese demands.

The district declared an impassein the negotiations in mid-September.The strike vote took place between Sep-tember 21 and 23. Both sides agreed toengage in informal mediation pendingaction by the Public Employment Re-


Learning without thought is labor lost.District’s Situation

The district offered two options forwage and health care. One would pro-vide a 2 percent raise in June 2006, andanother in June 2007, but no increasein dependent care coverage. The otherwould allow only one 2 percent raise,on June 30, 2007, with free health carecoverage for the employee and one de-pendent, and 75 percent coverage forother dependents. The provision wouldbe valid for two years.

from $225 to $410. The union rejectedthe new proposal.

Union members are outraged bySuperintendent Arlene Ackerman’s re-cent 12 percent raise to $250,000 andthe fact that she will receive a $375,000severance package when she leaves herposition on June 30, 2006. “TheSuperintendent’s total compensationpackage for this year could pay for de-pendent health coverage for all of ourfamilies. But the District thinks perksfor top bureaucrats are more importantthan being able to take our kids to adoctor,” reads a statement posted onSEIU 790’s website.

Ackerman claims her raise andseverance package are normal for ur-ban superintendents and that she is justan easy target. She argues that the dis-trict is in a bind because whatever itgives to SEIU 790, it will have to giveto other unions representing districtemployees. Every union in the districtis working under an expired contract,with the exception of the principals andvice principals. Ackerman calculatesthat giving raises and improved healthcare coverage to all workers would costthe district $42 million, money it justdoes not have. “We’d have to start cut-ting teachers, and we’d have to look atclosing a lot of schools,” she said. “Ourbacks are to the wall, and there’s noplace for us to go.”

Possible Strike

Josie Mooney, executive directorof SEIU 790, claims the union’s pro-posal would actually cost the district

$2.5 million and that Ackerman’s fig-ure is a misrepresentation because sheunfairly factored in costs associatedwith teachers and other district unions.Local 790 called for her immediate fir-ing for giving misleading figures to thepress. “We will never reach an agree-ment with someone who does nothingbut lie,” said Lawanna Preston, chiefnegotiator for the union. The schoolboard declined to act on the union’sdemand. However, on November 9,

‘The District thinksperks for top

bureaucrats are moreimportant than being

able to take our kids to a doctor.’

The district has not agreed to anychange in the classification language,meaning that workers now classified as“temporary” or “as-needed” would notbe reclassified regardless of how longthey have been with the district. “Per-manent exempt” workers would con-tinue to be paid for no more than 3.5hours a day with no retirement benefits.

In early November, the board ofeducation presented a new contract of-fer, which includes a 1 percent raise onJune 30 and a 2 percent raise on June30, 2007. It also offered to increase themonthly share of its cost for dependents

Local 790 called forAckerman’s immediate

firing for givingmisleading figures

to the press.

2005, it named Deputy SuperintendentGwen Chan to succeed Ackerman onan interim basis starting in March orApril 2006 when Ackerman starts us-ing her vacation and sick days to fillout her contract. It is anticipated thatChan will stay in the position until apermanent replacement is found.

Ackerman offered to leave her po-sition earlier than planned, while stillwaiting until July to receive her sever-ance package, and to immediately with-draw from labor negotiations. In return,she demanded that the union put thedistrict’s latest proposal to a vote of itsmembers, agree to wait to strike until

34 c p e r j o u r n a l N o . 1 75

after receiving the factfinding panel’srecommendation, and consent to givethree days’ notice before it strikes. Theunion rejected her offer.

If SEIU 790 does go out on strike,it likely will have the support of theteachers union, whose executive boardhas voted to call on all its members tohonor a picket line. Dennis Kelly, presi-dent of United Educators of San Fran-cisco, issued a statement reading: “Weare doing everything in our power to

help SEIU and the district reach a settle-ment and avoid a strike. But make nomistake about it — denying health ben-efits for families of district workers isunacceptable to UESF and unaccept-able to San Francisco.”

The United Administrators of SanFrancisco, which represents principalsand vice principals, also issued a state-ment in support of SEIU, though it saidthat their members will continue towork during a strike. ✽ ✽ ✽ ✽ ✽

Oakland Teachers Protest —District Threatens to Dock Pay

Approximately 400 teachers left workearly on October 26 to protest the gut-ting of art and music programs in Oak-land Unified School District class-rooms. The rally, organized by the Oak-land Education Association, began atabout 2:30 p.m., after students had beendismissed but about an hour beforemost teachers’ school days are sched-uled to end.

In a letter sent to school adminis-trators earlier in the week, district gen-eral counsel Roy Combs warned thatteachers who participated in the rallycould have their pay docked. “We ap-preciate every person’s right to exercisetheir freedom of speech, “ he said. “Butemployees who leave work early to do soshould not expect the district to pay themwhen they are not working.”

Oakland’s 2,600 teachers havebeen working under the terms of a con-

tract that expired in June 2004. Theunion has demanded a 4 percent raiseover two years, which would restoreprevious salary reductions. The loweststarting salary for a teacher under theold contract is $37,900, and the maxi-mum teacher salary is $66,680. Theunion also opposes the district’s pro-posal to cap its share of teacher healthinsurance premiums at the currentlevel.

Union leaders say that most of thedistrict’s 59 elementary schools —mainly those in the poorer neighbor-hoods — have no class periods dedi-cated to art. That is because most el-ementary schools no longer send artsinstructors to fill in for teachers duringtheir weekly “prep” periods, accordingto the union.

The union vowed to fight if the dis-trict docked any participant’s pay. “We

I always wondered whysomebody doesn’t dosomething....Then Irealized I was somebody.

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will protect you,” union executive boardmember Betty Olson-Jones told thecrowd. “If we allow them to get awaywith this, our contract is not worth the

Religion in California’s Schools

paper it’s written on.” School boardmember Dan Siegel, an attorney, saidthat his firm would represent anyteacher whose pay is docked. ✽✽✽✽✽

Recent headlines have focused on thetrial in federal court in Harrisburg,Pennsylvania, regarding a local schoolboard’s requirement that biology teach-ers there include the theory of “intelli-gent design” in the curriculum as analternative to evolution. The plaintiffs,a number of parents, claim that the re-

lawsuit, Williams alleged the districtillegally restricted him from using re-ligious excerpts from the Declarationof Independence, various state consti-tutions, and writings by George Wash-ington, John Adams, and WilliamPenn. The administrators said the ma-terials were inappropriate for el-ementary school students.

A federal judge threw out three ofWilliams’ four claims, finding that hisconstitutional rights were not violatedbecause teachers do not have a FirstAmendment right to determine class-room curriculum. However, allowed togo forward was Williams’ claim thatthe principal singled him out as a self-described “orthodox Christian” by cen-soring and reviewing his teaching ma-terial while not doing the same for otherteachers.

The parties settled the case in Au-gust, accepting the district’s existingpolicy that “allows teachers, no matterwhat their religious beliefs, to use ap-propriate educational material (includ-ing supplemental handouts of histori-cal significance) during instructionaltime that has religious content — solong as it is objective, age appropriate,and in compliance with curriculum.”

The materials cannot be used to influ-ence the religious beliefs of students,according to the agreement. It alsospecified that the district has the finalsay in determining whether instruc-tional materials are appropriate. In ex-change, Williams agreed to drop hissuit. He resigned less than a week afterthe settlement was finalized.

In another case now pending in aSacramento federal court, LarryCaldwell, the parent of a student in theRoseville Joint Union High SchoolDistrict, claims that the district vio-lated his rights to free speech, equalprotection, and religious freedom inthe way it handled his request that it

The district restricteduse of historical

documents withreligious references.

quirement violates the constitutionalproscription against teaching religionin public schools. But the growing con-flict concerning the boundary separat-ing church and state in public educa-tion is not limited to Pennsylvania. Sev-eral examples of the factional debatecan be found right here in California.

Stephen J. Williams, a fifth-gradeteacher, sued the Cupertino UnionSchool District’s superintendent,school board, and school principal whenthey restricted his use of historical docu-ments with religious references. In his

Materials cannot be used to influence

religious beliefs.

add arguments against evolution intothe biology class curriculum. Caldwellwanted the district to include videos andwritten materials challenging some as-pects of Darwin’s theory of evolution.Roseville’s teachers sent the items toseveral universities for review and de-cided the lessons were not appropriatefor their classrooms. Caldwell also pro-posed what he termed the “Quality Sci-ence Education Policy,” which, ifadopted, would have required teachersto “help students analyze the scientificstrengths and weaknesses” of evolution.The school board rejected the proposal

36 c p e r j o u r n a l N o . 1 75

Pocket Guide to K-12Certificated EmployeeClassification and Dismissal

FFFFFOOOOOR OR OR OR OR ORRRRRDDDDDEEEEERRRRRIIIII NNNNNG IG IG IG IG INNNNN FFFFFOOOOORRRRRMMMMMAAAAAT IT IT IT IT IOOOOON,N ,N ,N ,N ,SSSSSEEEEEE THE THE THE THE THE BE BE BE BE BAAAAACCCCCK CK CK CK CK COOOOOVVVVVEEEEER OR OR OR OR OF THF THF THF THF TH IIIII S IS IS IS IS ISSSSSSSSSSUUUUU E OE OE OE OE OF F F F F CCCCCPPPPPEEEEERRRRR

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For K-12 employees, their union representatives, and public schoolemployers, including governing board members, human resourcespersonnel, administrators, and their legal representatives.

Navigate the of ten-convo luted web of laws, cases , and regulat ions that govern or af fectNav igate the of ten-convo luted web of laws, cases , and regulat ions that govern or af fectNav igate the of ten-convo luted web of laws, cases , and regulat ions that govern or af fectNav igate the of ten-convo luted web of laws, cases , and regulat ions that govern or af fectNav igate the of ten-convo luted web of laws, cases , and regulat ions that govern or af fectc lass i f icat ion and job secur i ty r ights of publ ic school employees .c lass i f icat ion and job secur i ty r ights of publ ic school employees .c lass i f icat ion and job secur i ty r ights of publ ic school employees .c lass i f icat ion and job secur i ty r ights of publ ic school employees .c lass i f icat ion and job secur i ty r ights of publ ic school employees .

The guide covers d ismissa l , suspension , leaves of absence, layof fs , pre-hear ing andThe guide covers d ismissa l , suspension , leaves of absence, layof fs , pre-hear ing andThe guide covers d ismissa l , suspension , leaves of absence, layof fs , pre-hear ing andThe guide covers d ismissa l , suspension , leaves of absence, layof fs , pre-hear ing andThe guide covers d ismissa l , suspension , leaves of absence, layof fs , pre-hear ing andhear ing procedures , the Commiss ion on Profess ional Competence, the Commiss ion onhear ing procedures , the Commiss ion on Profess ional Competence, the Commiss ion onhear ing procedures , the Commiss ion on Profess ional Competence, the Commiss ion onhear ing procedures , the Commiss ion on Profess ional Competence, the Commiss ion onhear ing procedures , the Commiss ion on Profess ional Competence, the Commiss ion onTTTTTe ae ae ae ae acccccher Credent ia l ing , the credent ia l revher Credent ia l ing , the credent ia l revher Credent ia l ing , the credent ia l revher Credent ia l ing , the credent ia l revher Credent ia l ing , the credent ia l revooooo ca t ica t ica t ica t ica t ion proon proon proon proon process . . .and mcess . . .and mcess . . .and mcess . . .and mcess . . .and more .o re .o re .o re .o re .

By Dale Brodsky


by a 3 to 2 vote. Caldwell claims thatschool officials prevented meaningfulconsideration of his proposals by re-fusing to put the policy on the board’sagenda, defaming him in public meet-ings, and failing to provide a clear pro-cedure for his requests. The districtasserts that Caldwell had ample oppor-tunity to present his ideas to the boardand to science teachers.

Whether the words “under God”should be removed from the Pledge ofAllegiance recited by students in the ElkGrove Unified School District is the

The Supreme Courtwill decide if ‘under

God’ should beremoved from

the Pledge.

central issue in a case now pending inanother Sacramento federal court. InSeptember, the district court judge de-termined that inclusion of the words inthe pledge violates the Constitution’sEstablishment Clause, relying on theNinth Circuit’s decision in Newdow v.United States Congress (9th Cir. 2002)292 F.3d 597.

The issue ultimately will be de-cided by the United States SupremeCourt, which sidestepped it last year ina case between some of the same par-ties. In that case, the court determinedthat the plaintiff, Michael Newdow, did

not have standing to complain on hisdaughter’s behalf and dismissed thecase. Newdow also is a plaintiff in thecurrent case in which he is joined bytwo other parents. The district court,

in its September decision, also foundthat Newdow lacked standing to sue,but the court determined that the othertwo plaintiffs did have standing. ✽✽✽✽✽

Groups Sue to Stop AffirmativeAction in Los Angeles Schools

Anti-affirmative action groups havefiled two lawsuits against the Los An-geles Unified School District, claim-ing that some of its programs violateProposition 209, the 1996 ballot ini-tiative that made race-based affirma-tive action programs illegal in publiceducation, contracting, and employ-ment. The lawsuits were filed by thePacific Legal Foundation on behalf ofthe American Civil Rights Foundation,a nonprofit organization whose mem-bers include Los Angeles residents andtaxpayers.

The complaint in the first suit al-leges the district used “racial discrimi-nation and preferences” in assigningteachers to schools. “Its fixation withthe skin color of teachers puts the dis-trict in direct defiance of Proposition209,” states the complaint.

Under the “Teacher IntegrationTransfer Program,” any probationary orpermanent teacher may file a teacherintegration transfer request for the pur-pose of improving the racial and ethnicbalance in a school, provided theteacher’s transfer will not adversely af-fect the ethnic balance of the faculty atthe sending school. The ACRF objects

that the percentage of minority teach-ers at any K-12 school or magnet schoolmust follow a preset ratio. “In otherwords, if a particular school needs morewhite teachers to meet the racial ‘bal-ance’ formula, a white applicant wouldreceive a racial preference for transfer-ring to that school, while a minorityapplicant might be denied — regard-less of the teacher’s seniority or quali-fications,” according to a statement re-leased by the PLF.

The second suit is directed at thedistrict’s Magnet Program and the Per-mits With Transportation Program.The plaintiffs allege that the magnetprogram is based on “a district objec-tive of maintaining racial or ethnic ‘bal-ance’ at each school.” They claim thatstudent applicants to a magnet programmust identify themselves as one of sevenraces or ethnicities and if the studentdoes not, or identifies him or herself asmultiracial/multiethnic, the studentwill be disqualified. The transportationprogram provides free transportation tominority students wishing to attend pre-dominantly white schools and for whitestudents wishing to attend predomi-nantly minority schools. Students also

38 c p e r j o u r n a l N o . 1 75

are required to state a specific race orethnicity on their applications to thisprogram.

“What we have in Los Angeles is aschool system that identifies teachersand students by their race or ethnicityabove all other factors,” said WardConnerly, a principal advocate ofProposition 209 and spokespersonfor the ACRF. “It’s a disgrace that thestate’s largest school district is movingteachers and students around like pawnsin their unconstitutional game of ra-cial balancing.”

“The school district is sending thewrong message to our kids that it’s okayto categorize people by the color oftheir skin,” said Sharon L. Browne, prin-cipal attorney for the PLF. “The dis-trict is illegally wasting staff time andtaxpayer dollars tracking students’ andteachers’ race and calculating racial

quotas.” She said “the goal of the liti-gation is to force the district to end theuse of race in its programs. “Otherwise,we want to see a California appellatecourt decision that says the use of raceviolates the Constitution. Then we’llbe satisfied.” ✽✽✽✽✽

Prop.209 states court-ordered desegregation

plans should not beimpacted.

Kevin S. Reed, acting generalcounsel for the district, said he was sur-prised and “a bit perplexed” by the law-suits. “Proposition 209 specificallystates court-ordered desegregationplans should not be impacted,” he said.“These policies are at the core of thecourt-ordered desegregation plan thedistrict has had since the 1970s.” Themagnet program and the transportationprogram have been the district’s mainoptions for seeking integrated educa-tional experiences. They grew out of a1976 court order that required LAUSDto take steps to stop racial isolation, saidthe district.

Governor VetoesCalSTRS Pension Bill

Governor Schwarzenegger rejected abill passed overwhelmingly by the leg-islature that would have required thestate to repay $500 million withheldfrom the State Teachers’ RetirementSystem in 2003 to reduce the state’sbudget deficit. (See story at CPER No.161, pp. 46-47.) Authored by Assem-bly Member Gene Mullin (D-SouthSan Francisco), A.B. 55 would have es-tablished a five-year payment planstarting in 2008-09.

Schwarzenegger cited a pendinglawsuit between the state and CalSTRSas his reason for rejecting the legisla-tion, which passed the Senate by a voteof 33-1 and the Assembly by 78-1. TheDepartment of Finance is appealing aSacramento Superior Court ruling thatfound the legislature violated the stateConstitution by withholding the moneyfrom a special pension fund. The fundprovides cost-of-living protection forapproximately 63,000 retired teach-ers whose buying power is eroded byinflation.

“This bill does not end the law-suit. If this bill made it clear it settledthe lawsuit, I would consider signingit,” said Schwarzenegger in his vetomessage.

However, supporters of the mea-sure said that the purpose of the billwas to end the lawsuit while giving thelegislature two years to deal with thebudget deficit before making the firstpayment. “We had always indicated ifthey passed the bill and the governorsigned it we would go ahead and settlethe legal case. By going through theappeals process, it essentially is goingto cost the state more money,” said EdEly, spokesperson for the CaliforniaRetired Teachers Association, one ofthe bill’s sponsors.

The governor also referred to thestate’s legal argument that the $500million cut did not harm the fund andthe system’s ability to meet its obliga-tions. While current retirees are notexpected to see any loss of benefits,CalSTRS officials say that the missed


payment could have a long-term im-pact on the pool if it is not paid backbecause the fund would shrink quicklyif there is a sustained or double-digitpercentage increase in consumer prices.

It is anticipated that the paymentas set out in the bill would cost about

$800 million, including annual inter-est. Under the provisions governingCalSTRS, members would lose anymoney not repaid by 2036. If the $500million is not repaid by then, the fundestimates that it will lose $6.3 billionin principal and interest. ✽✽✽✽✽

child development or teaching meth-ods and were required to complete onlya self-study plan during the first threemonths of teaching.

Judge Warren did not rule onwhether the credentials would be legalif the state met the public review re-quirement. He allowed the teachers toremain in their classrooms but withoutthe “highly qualified” label. His orderspecified that the change would not af-fect the teachers’ positions, salaries, orbenefits.

State Told to Void 4,000Teacher Credentials

A San Francisco superior court judgehas ordered the California Commis-sion on Teacher Credentialing to re-voke the credentials it issued to about4,000 teaching interns since March2003. Judge James Warren found thecommission failed to comply with astate law that requires new rules to besubjected to public review.

The commission, in an attempt tocomply with the requirements of thefederal No Child Left Behind Act, cre-ated the new internship category in2003 so that thousands of teachersworking on emergency credentialscould be reclassified and considered“highly qualified.” The act requires thestates, starting in 2003, to hire only“highly qualified” teachers at schoolsreceiving Title I funds for low-incomestudents, about half of all publicschools in California. It also requiresthat all teachers in core academiccourses be “highly qualified” by the endof this school year. The act leaves the

definition of “highly qualified” up toeach state but requires the teachers tohave full state certification and speci-fies that a state cannot shortcut its owncertification requirements by issuingemergency credentials.

The lawsuit, brought by Califor-nians for Justice, an advocacy group forpoor and minority students, alleged thatCalifornia tried to get around the act’srequirements by issuing the new two-year credentials, known as IndividualInternship Certificates. Californians forJustice contends that these were actu-ally emergency credentials. Like emer-gency credentials, the certificates wereissued to teachers who were collegegraduates enrolled in courses to qualifyfor regular credentials. The new cre-dentials added the requirement that stu-dents hold a degree in the subject theyplanned to teach, or pass a test in thatsubject. However, unlike participants inestablished internship programs, theywere not required to obtain training in

Californians for Justicecontends that the

Individual InternshipCertificates were

actually emergencycredentials.

The judge’s order will impact onlyabout 1,700 to 2,000 teachers, saidMary Armstrong, the commission’sgeneral counsel, because many othershave completed their internship pro-grams and acquired preliminary teach-ing credentials. Armstrong maintainedthat the teachers in the certificate pro-gram “met the letter of the federal andstate requirements for highly qualifiedteachers.” As of CPER press time, thecommission responded to the court’sruling by scheduling a public hearingon the program and a vote on the mat-

40 c p e r j o u r n a l N o . 1 75

ter early this month. If adopted, thecommission could start issuing newcertificates again in January.

Re-enactment of the programcould result in another lawsuit, how-ever. The plaintiff’s goal is to get theCommission on Teacher Credentialingto create an internship that meets legalstandards and provides more mentor-ship and support for new teachers,explained Solomon Rivera, executivedirector of Californians for Justice. “TheIndividualized Internship Certificate willbe on the table again, and if enoughchanges aren’t made to it, we may have togo back to the court,” she said. ✽✽✽✽✽


Higher Education

Equity Increases Edge Out Merit Pay Plansin CSU Compensation Agreements

Finalization of a state budget boostedthe efforts of the California State Uni-versity and its unions to wrap up salarynegotiations. With both the CSU Em-ployees Union, SEIU Local 2579, andthe California Faculty Association, theuniversity set aside battles over meritpay plans in an attempt to keep employ-ees’ salaries from falling further behind

Having watched employee salariesstagnate for several years as the CSUbudget was cut, the Chancellor’s Of-fice augmented the 3 percent compen-sation pool by .5 percent for raises injobs where pay disproportionatelylagged the market. The universitysettled over the summer with the Unionof American Physicians and Dentistsand the State Employees Trades Coun-cil–United for total compensation in-creases of 3.5 percent. (See story inCPER No. 174, p. 57.)

CSUEU, which represents fourbargaining units totaling about 15,000employees in health care, operations,technical, and administrative/clericalsupport positions, began reopener ne-gotiations by demanding a general raiseof 17 percent in addition to equity andother compensation increases. CSUclaimed the demand would boost em-ployees’ compensation 37 percent. Theemployees’ last raise was a 1.5 percentincrease in July 2002. The union as-serted it had lost 17 percent in buyingpower over the last 13 years. The uni-versity was willing to agree to smallraises, but also wanted to increase park-ing fees, which have remained level forseveral years.

The agreement contains a 2.075percent general salary increase retro-

active to July 1. In addition, eligibleemployees with satisfactory service willreceive a 2 percent step increase ontheir employment anniversary dates,the first service-based increase since1999. The parties established, but didnot fund, the service salary increaseprogram during 2004-05 reopener ne-gotiations. (See story in CPER No. 168,pp. 60-62.) Employees who have pro-gressed more than 60 percent throughtheir salary ranges are not eligible forservice increases but will receive a $400bonus this month. Custodians who worktoo few evening hours to be eligible fora shift differential will receive a 4 per-cent bonus.

The market salaryincreases will go to

about 3,000 employees.

market rates. So important was marketequity to CSU that it agreed to imple-ment 2005-06 salary increases for thefaculty before completing negotiationson the rest of the contract. Soon after-ward, the board of trustees announceda five-year plan to raise all employees’salaries to market rates.

CSUEU Reopener Pact

Although the total state funding forCSU rose 5.8 percent in 2005-06, theenacted state budget increased CSU’sbudget base by only 3 percent for ex-penditures such as employee compen-sation, maintenance, and inflation.

The union calls themerit salary increasea ‘proximity increase.’

The market salary increases willgo to about 3,000 employees. The raisesrange from 1 percent for custodians to5 percent for nurses and pharmacists.Salaries in most of the targeted classi-fications will rise 3 percent.

There will be no merit-based in-creases for 2005-06. Dennis Dillon,CSUEU vice president of representa-tion, told CPER that the union calls themerit salary increase a “proximity in-crease” because proximity to the cam-pus president’s office seems to be themost accurate predictor of whether anemployee receives the discretionaryincreases. “No custodian has ever re-


ceived a merit salary increase,” he said.CSU Assistant Vice Chancellor forHuman Resources Sam Strafaci assertsmerit pay increases will be back on theCSU agenda during full contract bar-gaining next year.

CSUEU was able to cap parkingfees at their present levels. CSU willcontinue to provide a $500 rural health-care subsidy for employees in areaswithout access to health maintenance

acted, the chancellor announced hishope that salary increases of 3.5 per-cent could be provided quickly.

CFA was amenable to immediateraises, but the university wanted anagreement to set aside money from thecompensation pool each of the follow-ing three years for a merit-pay plan thathas not yet been designed. CFA insistedthat merit-pay funding not detract fromthe pool of money available for generalsalary increases, which are needed tokeep up with the cost of living and closethe gap between CSU faculty salariesand those of faculty in similar universi-ties. The California PostsecondaryEducation Commission reported inMarch that average faculty salaries atCSU were 13 percent less than those incomparable institutions in 2004-05,and projected to lag 17 percent in2005-06.

Angry about the “strings” attachedto the offer of an immediate pay raise,CFA called for a cooling-off period.Upset that management personnel were

receiving a straightforward salary in-crease while the parties dithered overcomplex pay plans, the Academic Sen-ate called for a resumption of bargain-ing. A few days later, after a meeting ofthe collective bargaining committee ofthe board of trustees, CSU agreed to animmediate 3.5 percent general increasewithout reaching agreement on the fullcontract.

Strafaci told CPER that CSU didnot want to hold up increases since thefaculty had not had raises for severalyears and because the increases wouldbe retroactive to July 1 no matter whenbargaining concluded. He hopes thatsettling the 2005-06 salary issues leadsto less-contentious negotiations. Themajor issues between the parties involveemployment security for non-tenure-track lecturers, merit-pay plans,workload, grievance procedures fordisciplinary cases, early-retirementprograms, and pay for summer-termteaching.

Average faculty salaries at CSU were

13 percent less thanthose in comparable

institutions in2004-05.

organizations. The university will con-tinue to contribute an amount equal to100 percent of the average health planpremium for its employees and 90 per-cent of the premium for dependents.

CFA Salary Increases

CFA is engaged in bargaining fora successor contract to replace the onethat was set to expire last June but whichhas been extended through January 15,2006. The parties started bargaining inthe spring. At first no salary proposalswere exchanged while the partiesreached tentative agreements on minorissues. After the state budget was en-

New Law Limits Public Access toRetirement Fund Information

As a result of S.B. 439 (Simitian, D-Palo Alto), the University of Califor-nia and the California Public Employ-ees Retirement System will be able torefuse to disclose certain documentsrelating to their investments in privateequity funds. The law stems from a pairof lawsuits to force disclosure of infor-mation concerning public retirement

funds’ investments in non-public com-panies such as venture capital firms. Thesuit against U.C. was filed by a profes-sor and the Coalition of University Em-ployees, which represents clerical andchildcare workers at the university.That suit was inspired by a legal actionthe San Jose Mercury News and theCalifornia First Amendment Coali-


By Carol Vendrillo, Ritu Ahuja and Carolyn Leary

Finally...a resource to the act that governs collective bargaining at the University of California and

the California State University System

• Full text of the act• An explanation of how the law works and how it fits in

with other labor relations laws• The enforcement procedure of the Public Employment

Relations Board• Analysis of all important PERB decisions and court

cases that interpret and apply the law

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Pocket Guide to theHigher EducationEmployer-EmployeeRelations Act(1st edition 2003)


tion filed against CalPERS for simi-lar information.

Citing the California PublicRecords Act, the trial court orderedU.C. to turn over investment-relateddocuments to CUE in 2003. The uni-versity was unable to persuade the Courtof Appeal or the California SupremeCourt to review the order. After U.C.was forced to hand over documents, theuniversity and CalPERS complainedthat two venture capital firms refusedto accept public retirement systems asinvestors in new funds.

In response, CalPERS and theUniversity of California cosponsoredS.B. 439 to protect from disclosure in-formation regarding the investments ofprivate equity funds, hedge funds, ven-ture funds, and absolute return funds.Public retirement systems in Califor-nia still will be required to discloseupon request the names of the “alter-native investment” firms, the amountof contributions made to and receivedfrom the firms, internal rates of return,management fees, and annual profitsfrom the investments. But the bill pro-tects from disclosure portfolio posi-tions of the alternative investmentfunds, quarterly and annual financialstatements, meeting materials of alter-native investment firms, due diligencematerials, and capital call and distri-bution notices, as long as they have notbeen already disclosed.

The bill was drafted with the helpof the California First AmendmentCoalition. CUE took no official posi-tion on the legislation.

APC Settles With CSU as Factfinding Begins

After 28 months of negotiations, theCalifornia State University has reachedagreement on a new three-year contractwith the Academic Professionals ofCalifornia, Laborers’ InternationalUnion of North America, Local 1002.The 2,100 student services profession-als, lead library assistants, and otheracademic support employees will re-ceive a 3 percent general salary increaseretroactive to July 1, 2005. Raises of 3percent for 2006-07 and 4 percent for2007-08 are conditional on state fund-ing. A new merit-bonus program willreplace a prior performance-pay sys-tem. The probationary period for unitpositions will be reduced from twoyears to one. CSU gained an agreementthat APC will not engage in or supportsympathy strikes.

Although the parties entered thefactfinding process last spring, no hear-ing was held. A discussion between thefactfinder and the other two panel mem-bers, one from CSU and one from APC,jump-started the stalled negotiationsand led to the settlement.

Pay Plans

A contentious issue in the negotia-tions was merit pay. (See story in CPERNo. 172, pp. 63-65.) APC did not wantany portion of the compensation poolbeing diverted to “discretionary in-creases that go to few employees.”However, CSU insisted on a merit payplan. As a compromise, the permanent

increase in state funds will be divided,with the majority of the amount goingto a raise in base pay; the remainingportion will prefund a merit-bonus pro-gram. APC agreed to prefund futurebonuses by setting aside an amountequivalent to a .5 percent raise fromboth the 2005-06 and 2006-07 fund-ing increases. Just under $1 millionwill be available for merit bonuses eachyear afterward. Once the program is

APC believes a bonusis more appropriate to

recognize superiorperformance than apermanent increase.

prefunded, money set aside for meritpay no longer will reduce the amountof new funding available for generalraises and other pay boosts that benefitall unit employees. Barbara Peterson,Northern California vice president ofAPC, told CPER that APC believes abonus is more appropriate to recognizesuperior performance in an applicableyear than the permanent increase in anemployee’s base pay that was a featureof past performance-pay programs.The tentative agreement requires thatthe merit-bonus funding be exhaustedon bonuses every year.


In the previous collective bargain-ing agreement, the parties set up simi-lar funding for long-term satisfactoryservice bonuses, payable every five yearsafter 10 years of service, and educationalachievement stipends for masters anddoctoral degrees received during theterm of the agreement. The bonus poolis about $1.1 million. As part of the ten-tative pact, the parties agreed to dis-tribute to bargaining unit members anymoney left after payment of the long-term service bonuses and educationalachievement stipends. If the amount

of 2.5 percent, and any compensationfunding above that will be set aside formerit bonuses.

In 2007-08, a planned 4 percentraise for each employee will come froma 3 percent general increase and a 1percent increase to the salary ranges. Ifstate funding is less than requested,implementing the previously promised2.5 percent raise will take precedence,followed by funding for the merit-bonus pool, before further salary in-creases occur. The compensation poolswill not be reduced by more than theyare reduced for other non-faculty units.

Leave Improvements

APC garnered increased leave thatother units already have bargained —five days of funeral leave and 30 days ofparental leave. The maximum donationan employee may make for the cata-strophic leave of others was elevated to40 hours per year.

The current contract limits vacationaccrual to 320 hours for employees withless than 10 years of service and to 440hours for longer-term employees. Thecollege president can permit carryoverof accumulated vacation leave in theevent the employee is prevented fromtaking vacations in December becauseof emergencies, critical projects, injury,or sickness. APC negotiated another pro-cedure to ensure that managers allow va-cations for employees who may be forcedto forfeit leave due to denials of vaca-tion requests in the last quarter of theyear. If the manager and employee can-not agree on vacation dates, the man-ager must choose one of three periods

the employee identifies in the first sixmonths of the following year. If the em-ployee does not propose three schedul-ing options, the manager dictates thevacation schedule.

Newly Arbitrable Terms

As might be guessed from the pre-occupation with forfeited vacation,APC is concerned that its unit mem-bers are overloaded. The new agree-ment will allow an employee to take agrievance claiming an “unreasonableor excessive workload” to expedited

APC negotiatedanother procedure to

ensure that managersallow vacations.

payable to each full-time employee isless than $100, the leftover moneywould be rolled over to the bonus/sti-pend fund for the next year.

While salary increases for 2005-06 are definite, the lack of certainty instate funding led to conditional lan-guage for 2006-07 and 2007-08 raises.Unit members are likely to receive a 3percent general salary increase in thesecond year of the contract, and anamount equivalent to a .5 percent raisewill be set aside for merit bonuses. Inthe event CSU does not receive theamount requested in its budget, salaryfunds will go first toward a general raise

An employee maytake a grievance

claiming an‘unreasonable or

excessive workload’ toexpedited arbitration.

arbitration. The arbitrator will be lim-ited to issuing a cease-and-desist orderif he or she sustains the grievance.

The parties’ lengthy fight overCSU’s promulgation of new policiesmay be at an end due to new proce-dures, including arbitration as a lastresort, for addressing future proposedpolicies. (See CPER No. 172, p. 65.)APC will accept disputed policies withmodifications it has negotiated. Allunfair practices over unilaterally


implemented policies will be with-drawn.

An employee can appeal a repri-mand to the college president, but notuse the grievance procedure. If, how-ever, the reprimand is based on viola-tion of a policy, and the reprimand iscited in a later disciplinary action, theemployee can choose to appeal the dis-ciplinary action through the grievanceand arbitration process rather than theState Personnel Board.

The parties’ battle over the savingsclause was settled by an agreement toarbitrate any dispute over whether acontract provision conflicts with thelaw. The arbitrator’s opinion may be va-cated by the court.

CSU Vice Chancellor for HumanResources Sam Strafaci praised the unionfor its creativity in overcoming some ofthe most intractable obstacles. Petersontold CPER that APC believes the agree-ment is the best the union could havebargained. The new agreement providesAPC the option to extend the contractfor up to two years beyond 2007-08,without having to submit to new oraltered merit-pay plans, if it agrees toaccept compensation offers that CSUmakes near the expiration of the con-tract.


State Employment

New Review Requirements forState MOUs and Side Letters

More than 40 percent of the currentcollective bargaining agreements be-tween the state and its employee unionswere provided to the legislature lessthan 24 hours before the legislatureapproved them. That is the figure Sena-tor Jackie Speier (D-San Francisco)cites to explain why she authored S.B.

To ensure the legislature obtainsfeedback from any interested party,DPA must post the entire MOU, as wellas a summary, on its website as soon asthe MOU has been ratified by unionmembers and has been submitted to thelegislature.

Speier pointed out that MOUs of-ten are submitted to the legislature inthe final days of the session when thereis little time to discuss them and “im-mense pressure” to vote for them. Al-though agreements might still arrive onthe last day of the session, this bill en-sures that legislators have available athorough financial review before theyvote. The legislative analyst indicatedthat information about MOUs some-times has reached her office after leg-

islative deliberations. While unions ar-gued the bill was unnecessary becausethe Department of Finance already isresponsible for submitting cost fore-casts to the legislature, the legislativeanalyst pointed out that secondary orhidden costs have not been disclosed insome cases. She referred specifically tolooser sick-leave approval provisionsfor correctional officers in the currentMOU that resulted in a 20 percent jumpin use of sick leave and likely increasedovertime pay to cover the shifts ofguards who were absent.

The new law also requires DPA tosubmit to the Joint Legislative BudgetCommittee any side letter or addendumthat is not already contained in anMOU and that would require expendi-ture of $250,000 or more in employeecompensation. The committee then has30 days to decide whether the side let-ter “presents substantial additions thatare not reasonably within the param-eters of the original memorandum ofunderstanding.” If so, the side lettermust be approved by the legislature. ✽✽✽✽✽

MOUs often aresubmitted when there

is little time to discuss them.

621. The new law requires the Depart-ment of Personnel Administration,which negotiates on behalf of the state,to provide the legislative analyst witha tentative memorandum of under-standing and DPA’s estimate of costsand savings stemming from the MOU.The legislative analyst has 10 days toissue the legislature an analysis of thefiscal implications of the bill. The leg-islature cannot act to approve or disap-prove an MOU until the legislativeanalyst has issued the fiscal analysis orhas had the MOU for 10 days.

Raises for State’s Excluded EmployeesDelayed Indefinitely

Despite being warned by the LittleHoover Commission that the state’smanagement personnel are not ad-equately compensated, the state em-ployer has not taken any observablesteps to address the problem for mostoccupational groups. In June 2004,

the Excluded and Exempt EmployeesSalary-Setting Task Force recom-mended the creation of an advisorycommission to set salaries and benefitsfor excluded employees, managers, andsupervisors who do not have collectivebargaining rights. Only supervisors’

48 c p e r j o u r n a l N o . 175

organizations, not managers’ represen-tatives, have the right to meet and con-fer with their employer, but the state canset salaries without their agreement.Legislation that would establish a sal-ary commission for excluded employ-ees, A.B. 1186 (Horton, D-Inglewood),became a two-year bill after the stateDepartment of Personnel Administra-tion registered its opposition.

Inadequate Compensation

There is no dispute that managersin state service do not receive compen-sation that is competitive with theircounterparts in the rest of the publicsector. The Little Hoover Commission,an independent state commissioncharged with reviewing the efficiencyand effectiveness of state agencies, re-ported that career executives in stateservice make between $69,000 and$117,000, while employees in similarpositions in the federal service earnbetween $107,000 and $162,000. Themost a department director can makeworking for the state is $131,400, butmost top out at $123,000. Their coun-terparts in Sacramento County makebetween $106,000 and $163,000 formanaging smaller budgets and feweremployees. In Serving the Public: Man-aging the State Workforce to Improve Out-comes, the commission emphasized thata substantial number of managers areeligible to retire in the next 10 years,and the state must develop competitivepay packages to attract, retain, and re-ward others.

Supervisors are insufficiently com-pensated even when compared to otheremployees within state service. Whilethe state previously maintained at leasta 10 percent differential between thesalaries of supervisors and the highestsalaries of those they supervised, DPAadmits that there has been “salary sepa-ration erosion” in almost every occu-pational group. In 2002, A.B. 2477(Steinberg, D-Sacramento) set up theState Excluded and Exempt Employ-ees Salary-Setting Task Force to rec-ommend a process for determiningsalaries for excluded employees. (See

subordinates can earn overtime paywhile supervisors are exempt exacer-bates low supervisor pay.

The task force attributed the com-pensation woes of excluded employeesto DPA’s practice of setting excludedemployees’ salaries after collective bar-gaining with the state’s employeeunions is concluded. DPA asserts it setssalaries after it looks at the effect ofcollectively bargained raises on the dif-ferential between supervisors and sub-ordinates, and admits that excludedemployees are an “afterthought.” Thetask force summarized the process inits June 2004 report:

Under the current salary-setting pro-cess, compensation for rank-and-fileis negotiated without regard to theimpact on higher-level classifications.The impact of negotiated compen-sation on higher-level classes is typi-cally determined only after the unit’scollective bargaining negotiations arecomplete. At that time, it is oftendifficult or impossible to determinethe impact on the higher-level classi-fications and then make appropriateadjustments because of a lack of ap-propriated funds and/or defined com-pensation ceilings.

No Raise Yet

That pattern of conduct is still ondisplay. The excluded employees whohave received pay increases for 2005-06 are those who supervise or manageemployees in bargaining units wherethis year’s compensation is settled, in-cluding highway patrol officers, correc-tional officers, and engineers. As for the

It is possible for thesupervisor to earn

15 percent less than a subordinate.

story in CPER No. 162, pp. 19-21.)The task force found that in one oc-cupational class, base pay of the first-line supervisor was only 1.5 percenthigher — $83 a month more — thanthe highest-ranking subordinate. How-ever, when collectively bargained re-cruitment and retention pay for therank-and-file employees was factoredin, it was possible for the supervisor toearn 15 percent less than a subordinate.Longevity pay, education pay, and otheradditions to rank-and-file salariescause the same salary inversions. Insome occupational groups, the fact that


other excluded employees, DPA LaborRelations Officer Frank Marr says heis happy to meet with supervisors’ or-ganizations that have meet and conferrights, but DPA has no plan yet for anexcluded employees’ salary program.“We are currently in bargaining withthe rank-and-file organizations. Thatwill have an impact,” he told CPER. He

tion for benchmark classifications. Thecommission would use the data alongwith cost-of-living indexes, rank-and-file compensation, and other factors tomake annual salary and benefit recom-mendations for excluded employees.The task force also exhorted the stateto “take immediate steps to alleviate theimpact of salary compaction associatedwith the degree of salary separation be-tween supervisory employees and theirrank-and-file subordinates.”

But most supervisors’ organiza-tions say they see no progress. TheAssociation of California State Super-visors asserts that its experience dur-ing a recent meet and confer session issymptomatic of the administration’sdisregard for excluded employees. OnAugust 26, ACSS had scheduled a ses-sion with DPA. Assembly MemberJerome Horton attended, but no onefrom DPA showed up until Horton in-sisted on speaking to DPA DirectorMichael Navarro a half-hour after themeeting was scheduled to begin. Dur-

ing discussions, Navarro admitted DPAhad no plan to address salary compactionand did not believe there would be anyfunding for supervisors’ raises next yeardue to the $7 billion budget deficit.

Marr told CPER that the mix-upwas merely a misunderstanding. Themeeting with ACSS was on Chief ofLabor David Gilb’s calendar, but he hadbeen called to a deposition. The depart-ment was not notified that AssemblyMember Horton would be there. WhenDPA Director Navarro found out thatGilb had not appeared, Navarro clearedhis calendar to attend the meeting.Marr assured CPER that, despite the ap-pearance that excluded employees’ con-cerns are being ignored, there are strongadvocates for them within DPA who areworking “behind the scenes.”

Legislation and Lawsuits

To implement the recommenda-tions of the salary-setting task force,Assembly Member Horton introducedA.B. 1186. The bill would create an

DPA has no plan toaddress salary

compaction.

identified funding and the governor’sapproval as obstacles to setting com-pensation for excluded employees. “Wehave no ability to put money out there.”

It is this process that the task forcefound “seriously flawed” more than ayear ago. The task force urged creationof an advisory commission that wouldconduct market surveys of compensa-

acss bid for independence fails

Last spring, the Association of California StateSupervisors attempted to disaffiliate from the CaliforniaState Employees Association in a mail-ballot election, butnot enough ballots were cast. (See story in CPER No. 173,pp. 39-40.) Believing that the low voting rate was due tothe mail ballot procedure, ACSS followed up with a secondattempt during the CSEA General Council meeting whichall delegates attended in October. Sixty-one percent of thevoting delegates cast their ballots for independence, but a

two-thirds supermajority was necessary to allow ACSS tobreak away. ACSS President Tim Behrens has no immedi-ate plans to attempt another disaffiliation vote. His new fo-cus is on enhancing communication between CSEA and itsaffiliates concerning efficiency in providing services. ACSSis operating at a budget deficit, and another affiliate, ServiceEmployees International Union Local 1000, has refused topay CSEA $2 million that CSEA was counting on to balanceits budget. The dispute will be arbitrated this month.

50 c p e r j o u r n a l N o . 175

advisory commission that receives ad-ministrative support from DPA. Itspecifies the criteria the commissionshould consider and requires annualrecommendations to the legislature af-ter public hearings. DPA estimated itsannual increased costs from the billwould be $375,000. At the August meet-ing, Navarro reiterated DPA’s opposi-

motion will not apply. The disincen-tives are so great that the organizationis trying to convince the departmentchief to allow supervisors to voluntar-ily demote while continuing their su-pervisory duties.

The Little Hoover Commission, theExcluded and Exempt EmployeesSalary-Setting Task Force, and thegovernor’s California PerformanceReview each have urged quick actionto create a policy for excluded-employeecompensation, alleviate salary compac-tion, and implement market-based

CDFF is trying toconvince the

department chief toallow supervisors tovoluntarily demote.

tion to the bill. DPA says it recently hasexpanded its salary-survey unit to per-form much of the work the commis-sion would undertake. It also objectsthat the commission would be an ob-stacle to salary-setting, and would di-minish executive authority. Althoughthe bill was set for hearing in the Sen-ate Appropriations Committee, it washeld under submission.

One organization has lost patiencewith the lack of action. The supervi-sors section of CDF Firefighters votedin November to file a lawsuit. CDFFclaims that the California Departmentof Forestry and Fire pays its supervi-sors 20 percent less than those they su-pervise. As a result, almost 40 percentof the supervisory positions are vacantand 90 percent of those eligible for pro-

compensation. DPA’s own strategicplan set a goal to develop a “new ap-proach” for determining excluded em-ployee compensation by November 30,but the administration has not yet pre-sented any details. Meanwhile the clockis ticking as massive retirements loom.As the task force reported, “Because ofthe compaction problem, some quali-fied and deserving employees arechoosing not to step into leadershiproles, thereby depriving the state — andthe public — of creative and dedicatedleadership.” ✽✽✽✽✽

State Attorneys and Judges Agree to Pension Concessions

The Schwarzenegger administrationwon important concessions in a newtwo-year memorandum of understand-ing with the California Attorneys, Ad-ministrative Law Judges and HearingOfficers in State Employment. CASE,which represents 3,400 unit members,agreed to increase employee retirementcontributions and to allow unit mem-bers to opt out of the California PublicEmployees Retirement System. Theagreement also will require the pensionbenefits of new employees to be basedon a three-year final compensation av-erage that moderates pension benefits.The pact will begin to remedy severesalary lags of senior attorneys at the topstep of the salary range and reduce lim-its on promotions. A boost to the mini-mum salary for entry-level attorneysmay help to counteract the effects on

new hires of phased-in employer con-tributions to dependent health care pre-miums and the use of the three-yearaverage final compensation figure inpension calculations.

Working Without a Contract

The CASE contract expired July2, 2003, after a 5 percent raise becameeffective July 1. Unlike other state em-ployee unions, CASE did not agree withthe Davis administration to defer the 5percent raise in exchange for additionalpersonal leave days and increasedhealth benefit contributions. After therecall election, Governor Schwarzenegger’sDepartment of Personnel Administrationdid not return to the bargaining tablewith CASE until October 2004. As aresult, unit members’ pay has been stag-nant while they absorbed all the in-


creases to health benefit premiums in2004 and 2005.

CASE primarily has been focusedon boosting the salaries of unit mem-bers. According to the union, attorneys’salaries increased only 29.5 percentfrom 1991 to early 2005, while the Cali-fornia Consumer Price Index rose 42percent. On average, local county coun-sel, city attorneys, and district attorneysare paid 20 percent more than state at-torneys with comparable experience orduties. Out of 40 attorneys employedby the University of California, all butsix are paid more than the highest-paidstate attorney. Entry-level state admin-istrative law judges are paid 17 percentless then federal administrative lawjudges at entry level, and senior stateALJs are paid 28 percent less thansenior federal ALJs.

DPA’s Clout

The state entered negotiations de-manding a reduction of two holidays,the right to impose up to five furloughdays during fiscal emergencies, achange in overtime calculations, andcaps on unused leave. In addition, thestate proposed fixed-dollar health ben-efit contributions, rather than the for-mulas that 14 unions negotiated withthe Davis administration, and phased-in eligibility for benefits for new em-ployees. In line with the pension reformclimate earlier this year, the state de-manded that employees share equallyin retirement costs, that unions agreeto allow their employees to opt out ofCalPERS in return for a salary stipend,

Pocket Guide

to the

Ralph C. Dills Act


State State State State State employees, discover howemployees, discover howemployees, discover howemployees, discover howemployees, discover how

the Dills Act fits in with yourthe Dills Act fits in with yourthe Dills Act fits in with yourthe Dills Act fits in with yourthe Dills Act fits in with your

collective bargaining rights. CPER’scollective bargaining rights. CPER’scollective bargaining rights. CPER’scollective bargaining rights. CPER’scollective bargaining rights. CPER’s

Pocket Guide includes a concisePocket Guide includes a concisePocket Guide includes a concisePocket Guide includes a concisePocket Guide includes a concise

description of the act, how it works,description of the act, how it works,description of the act, how it works,description of the act, how it works,description of the act, how it works,

its history, and how it fits in withits history, and how it fits in withits history, and how it fits in withits history, and how it fits in withits history, and how it fits in with

other labor relations laws. Alsoother labor relations laws. Alsoother labor relations laws. Alsoother labor relations laws. Alsoother labor relations laws. Also

included are an up-to-date text ofincluded are an up-to-date text ofincluded are an up-to-date text ofincluded are an up-to-date text ofincluded are an up-to-date text of

the act, summary of all key casesthe act, summary of all key casesthe act, summary of all key casesthe act, summary of all key casesthe act, summary of all key cases

that interpret the act (withthat interpret the act (withthat interpret the act (withthat interpret the act (withthat interpret the act (with

complete citations and references tocomplete citations and references tocomplete citations and references tocomplete citations and references tocomplete citations and references to

CPER CPER CPER CPER CPER analysis), summary of PERBanalysis), summary of PERBanalysis), summary of PERBanalysis), summary of PERBanalysis), summary of PERB

regulations, case index, andregulations, case index, andregulations, case index, andregulations, case index, andregulations, case index, and

glossary of terms.glossary of terms.glossary of terms.glossary of terms.glossary of terms.

Useful for labor relations andUseful for labor relations andUseful for labor relations andUseful for labor relations andUseful for labor relations and

personnel officers, union officerspersonnel officers, union officerspersonnel officers, union officerspersonnel officers, union officerspersonnel officers, union officers

and shop stewards, managers andand shop stewards, managers andand shop stewards, managers andand shop stewards, managers andand shop stewards, managers and

supervisors, negotiators, andsupervisors, negotiators, andsupervisors, negotiators, andsupervisors, negotiators, andsupervisors, negotiators, and

consultants.consultants.consultants.consultants.consultants.

If the shoe doesn’t fit,must we change thefoot?

Gloria Steinem

and that new employees only be allowedto enter a defined contribution plan, nota defined benefit plan.

Over the last year, DPA has won anumber of these concessions from eachunion with which it has concluded ne-gotiations. The California Associationof Psychiatric Technicians agreed tofixed-dollar employer contributions tobenefits and the exclusion of sick leavefrom calculations for overtime pay eli-gibility. (See story in CPER No. 170,

CASE agreed to allowemployees to opt out

of CalPERS.

pp. 57-59.) The California Union ofSafety Employees agreed to thosechanges and also settled for phased-independent benefit contributions fornew employees. CAUSE’s new con-tract allows reduction in the number ofholidays if all other unions agree. It alsodoes not prevent implementation offurloughs or changes to the retirementsystem that are enacted by the legislatureor through the initiative process. (Seestory in CPER No. 173, pp. 40-43.)

Pension Concessions

CASE successfully resisted lan-guage allowing furloughs, since mostof its unit members are overtime-exempt professionals whose work isnot confined to an eight-hour day.

52 c p e r j o u r n a l N o . 175

Furloughs for most would amount tounpaid days of work. But the newMOU would allow a reduction of oneholiday.

To the dismay of other state em-ployee unions, however, DPA scoredbig in pension concessions in its nego-tiations with CASE. On July 1, 2006,employees will begin to contribute 1percent more of their salary towardtheir retirement unless they havesigned up for a low-benefit Tier II plan.

liabilities for both current and futureretirees, an exodus of active employeesfrom the system eventually would re-duce the size of the retirement fund andincrease CalPERS’ unfunded liabilities.The small size of the attorney unit, inaddition to the likelihood that few cur-rent attorneys and judges will opt out ofthe system, renders the effect small fornow. But if other state employee unionsare pressured to settle for opt-outprovisions and employees decide theywant additional take-home pay, the needfor higher employer contributions to off-set underfunding could become real.

Proponents of the tentative pactcontend that the impact of a three-yearaverage is less for attorneys and ALJsthan for many employees in state ser-vice because CASE unit members spenda large portion of their careers at thetop step of the highest salary range andhave few options for promotion. Thatmay have been true for some stretchesof time, but the pay raises due to seniorattorneys in the next 10 months showthat significant boosts to their salariesdo occur and can dramatically affectthe size of the retirement check.

Salary Lags Addressed

All unit members will receive a 2.5percent increase retroactive to July 1.The minimum attorney salary will beraised 15 percent to $4,410 per montheffective July 1. On July 1, 2006, unitmembers will receive another cost-of-living adjustment. The increase ispegged to the Western Urban Con-sumer Price Index, but the raise will

not be less than 2 percent, even if theindex rises less than 2 percent; nor willit be more than 4 percent. Senior attor-neys at the top and bottom steps of theirsalary ranges will gain more than oth-ers. On July 1, 2006, the top and bot-tom steps of the ranges will be boosted5 percent before the cost-of-living in-crease becomes effective. The monthlysalary of the highest paid attorney IIIswill go from $8,517 to at least $9,350,and possibly to $9,533. The new maxi-

DPA scored big inpension concessions.

They also can avoid contributions toCalPERS altogether by opting out ofthe system and receiving a stipend ofone-half the employer’s normal retire-ment contribution.

CASE also agreed to implementfor new employees a return to a for-mula that calculates benefits based onthe average of the employee’s salary inthe last three years of employment.Current employees still will be entitledto benefits based on the final year ofcompensation.

The opt-out provision is highlycontroversial among public employeeunions. They argue that large numbersof employees opting out of CalPERSreduces the retirement security of notonly the individual employees, but allpublic employees. Since the contribu-tions of active employees help cover the

Significant boosts to salaries can

dramatically affectthe retirement check.

mum for attorney IVs could range from$10,336 after a 2 percent COLA to$10,538 if a 4 percent COLA occurs.Half of the attorneys in the unit are atthe top of the attorney III or IV ranges.

The pact increases the state’s an-nual health care contributions in Janu-ary 2006, by $1,188 for single employ-ees and $2,724 for families. However,for the dependents of new employees,the state will contribute only half of itsnormal contributions in the first yearof employment and only 75 percent ofthe contribution in the second year.There will be no increased contribu-tions to cover rising premium costs inJanuary 2007.


The agreement also settles a pend-ing arbitration concerning the numberof attorney IIIs that an agency mayemploy. Only 55 percent of the attor-neys in an agency may now be at levelIII, but that cap has been raised to 65percent, which will allow some deputylegal counsel IIs to receive promotions.The cap has been eliminated in anyagency that is allowed to employ levelIV attorneys.

The deal represents an immediate15 percent raise for lowest-paid attor-neys and nearly a 10 percent increase

September 2004 to September 2005,this year’s increase will barely keep pacewith inflation.

The contract was ratified by nearly75 percent of CASE members. The leg-islature will need to approve the pactwhen it returns. There is a question

whether any other employee unions willtry to persuade legislators to voteagainst the MOU. Although some law-makers may be sympathetic, it wouldbe surprising if they blocked conces-sions that union members overwhelm-ingly approved. ✽✽✽✽✽

The deal represents animmediate 15 percent

raise for lowest-paidattorneys.

in compensation for the highest-paidattorney IIIs over the next 10 months ifthe 2006 cost-of-living increase is only2 percent. By contrast, single employ-ees in the second-lowest pay range willsee only a 4.75 percent net boost incompensation this year, after factoringin the employer health contributionincrease. But next year’s higher retire-ment deduction and health premiumincreases in January 2007 could signifi-cantly erode the additional 2 to 4 per-cent increase they receive next July. Asthe Western Urban Area ConsumerPrice Index increased 4 percent from

Governor Signs Bills That Affect Pay and Benefits

Military Pay

State employees serving in the mili-tary may bring home more cash afterpassage of A.B. 276 (Baca, D-San Ber-nardino). Employees serving after Sep-tember 11, 2001, in the “War on Ter-rorism” are entitled to payments fromthe state for one year to make up thedifference between their military payand the state salary they would earn ifnot in military service. In the past, de-ductions from state checks were madenot just for standard military pay, butalso for hazardous-duty and other bo-nus pay the soldiers earned. In somecases, the state has asked for repaymentof salary that was calculated before thestate became aware of extra pay. Oneyouth correctional counselor was askedto return nearly $4,000. Because of thelegislation sponsored by the Califor-nia Correctional Peace Officers Asso-ciation, state law now excludes hazard-ous-duty, hostile-fire, or imminent-danger pay from the calculation of thedifference between state salary and mili-tary pay.

Catastrophic Leave for ExcludedEmployees

Current regulations of the Depart-ment of Personnel Administration al-low supervisors and managers to trans-fer accumulated annual leave, holidayleave, vacation leave, and compensat-ing time-off credits to an employee whohas exhausted all of his or her own leavedue to the catastrophic illness or injuryof the employee or a family member.Non-supervisory employees could nottransfer leave to a supervisor or man-ager. The California State EmployeesAssociation sponsored A.B. 747(Blakeslee, R-San Luis Obispo), whichallows excluded employees to receiveleave donations from rank-and-fileemployees as well as other supervisorsand managers. It places the cata-strophic leave program into statutorylaw. Use of donated leave is capped at12 continuous months.

54 c p e r j o u r n a l N o . 175

Post-Retirement EmploymentCap

Employees who have retired fromstate employment can work for up to960 hours annually for a state agencywithout affecting retirement pay. A.B.1166 (Canciamilla, D-Martinez)

changes the period during which thecalculation is made from a calendaryear to a fiscal year. It also clarifiesthat the total of all hours worked for allstate agencies combined cannot exceedthe 960-hour cap. ✽✽✽✽✽

SPB Bill Clarifies State’s Equal EmploymentOpportunity Obligations

gators. Investigations are taking toolong, and reports are inadequate, ac-cording to the SPB. The number of dis-crimination complaints filed with statedepartments was 78 percent higher in2001 than in 1995, prior to the passageof Prop. 209.

The new law requiresplans to removenon-job-related

employment barriers.

State agencies are required to collectstatistical information on the compo-sition of the state’s workforce. But somemanagers are confused about whetherProposition 209, the constitutionalamendment that banned preferentialtreatment based on race and other at-tributes, invalidated equal employmentopportunity measures in state law. TheState Personnel Board sponsored A.B.124 (Dymally, D-Compton) to removestatutory requirements that conflictwith Prop. 209, such as the requirementto establish affirmative action goals andtimetables. But it also reiterated statedepartments’ duties to create and main-tain equal employment opportunityplans and complaint procedures.

The SPB observed that many de-partments recently have failed to com-ply with statutory requirements to de-velop EEO plans, inform employees ofcomplaint procedures, train managersin EEO issues, or submit workforceanalyses and action plans to the board.Departments have reduced EEO staffand have used untrained EEO investi-

clarifies that agencies must report andmonitor affirmative action plans relat-ing to individuals with disabilities.

The bill emphasizes departments’responsibility to collect and reportdata. In a press release, the SPB ex-plained, “The statistical information isnecessary to insure that underutilizationof any group is not attributable to dis-crimination, that outreach programs forattracting, promoting and retaining stateemployees are broad and inclusive, andthat selection procedures are job-related.” ✽✽✽✽✽

The new law removes referencesto “improving the representation” or“correcting underrepresentation” ofwomen and minorities from existingstatutes but requires plans to removenon-job-related employment barriers.It clarifies that underutilization in theemployment of members of racial,gender, and ethnic groups does notjustify preferential action, but may beaddressed by other means. It also


Discrimination

Offensive Conduct May Violate Title VIIEven Where Not Facially Sex-Specific

Title VII’s prohibition against sexdiscrimination in employment may beviolated even where the employer’s ac-tions are not motivated by sexual de-sire or sexual animus, held the NinthCircuit Court of Appeals in a case in-volving the harassment of female em-ployees of a labor union representingteachers and other public school em-ployees.

Three female employees allegedthat Thomas Harvey, assistant execu-tive director of the National EducationAssociation of Alaska, harassed themverbally and physically on many occa-sions. The court found that “the recordreveals numerous episodes of Harveyshouting in a loud and hostile mannerat female employees,” that “the shout-ing was frequent, profane, and oftenpublic,” and that there was “little or noprovocation for these episodes.” Thecourt noted that “Harvey’s verbal con-duct also had a hostile physical accom-paniment,” including lunging acrossthe table at an employee, grabbinganother’s shoulders and yelling, “Getback to your office,” and pumping hisfist in the direction of an employeewhile stepping towards her. “Harvey’sbehavior clearly intimidated femaleemployees,” said the court, pointing totestimony that his actions had put one

employee in a “state of panic” and madeher feel “physically threatened most ofthe time,” whereas another omittedsubmission of overtime hours becauseshe was “too scared of Mr. Harvey toturn them in.”

The Court of Appeals reversed thedistrict court’s dismissal of the case,finding that the lower court erred inholding that the “because of sex” lan-guage in Title VII required that thebehavior be either of a sexual nature,i.e., motivated by lust, or motivated by“sexual animus toward women aswomen.” The Ninth Circuit stated:

In applying this sexual animustest, the district court seemed to findit significant that Harvey did not seek“to drive women out of the organi-zation so that their positions couldbe filled by men.” He noted that theworkplace was a teacher’s union, inwhich women were traditionally nota minority. However, a pattern ofabuse in the workplace directed atwomen, whether or not it is moti-vated by “lust” or by a desire to drivewomen out of the organization, canviolate Title VII. Indeed, this caseillustrates an alternative motivationaltheory in which an abusive bully takesadvantage of a traditionally femaleworkplace because he is more com-fortable when bullying women thanwhen bullying men. There is no logi-cal reason why such a motive is any

less because of sex than a motive in-volving sexual frustration, desire, orsimply a motive to exclude or expelwomen from the workplace.

But, said the court, the motive be-hind the actions is not the determiningfactor. “The ultimate question…iswhether Harvey’s behavior affectedwomen more adversely than it affectedmen,” it proclaimed, citing Oncale v.Sundowner Offshore Servs., Inc., (1998)523 U.S. 75, 129 CPER 11. Referring

The ultimatequestion...is whether

Harvey’s behavioraffected women more

adversely than it affected men.

to its holding in Ellison v. Brady (9th Cir.1991) 924 F.2d 872, 88 CPER 48, inwhich it ruled that the courts must con-sider what is offensive and hostile to areasonable woman, rather than a rea-sonable person, the court stated:

We acknowledge that our invo-cation of the “reasonable woman”standard, which renders sex-specificdifferences in the subjective effectsof objectively identical behavior suf-ficient to ground a claim of discrimi-nation, was rooted in the context ofexplicitly sex- or gender-specific con-duct or speech. We now hold thatevidence of differences in subjectiveeffects (along with, of course, evi-


dence of differences in objective qual-ity and quantity) is relevant to de-termining whether or not men andwomen were treated differently, evenwhere the conduct is not facially sex-or gender-specific.

Evaluating the qualitative effects,the court found that there was at least adebatable question as to the differencesin treatment of male and female em-ployees. The record shows a few in-stances of hostile behavior toward male

Turning to the quantitative com-parison of treatment between male andfemale employees, the court rejected theassociation’s argument that becauseHarvey had more regular contact withfemale than with male employees thedifferential effect on women was merelyincidental. The court announced that itwas joining at least two other circuits,the Seventh and Eighth, in holding that“an unbalanced distribution of men andwomen in relevant employment posi-tions, and the fact that some men werealso harassed, does not automaticallydefeat a showing of differential treat-ment.” “To hold otherwise would allowthe accident of a mostly female workplaceto insulate even a culpable employer fromliability,” explained the court.

The court also concluded thatthere was no question that there was a

triable issue of fact as to whether the workenvironment created by Harvey was suf-ficiently severe to violate Title VII:

The rule is that “the required show-ing of severity or seriousness of theharassing conduct varies inverselywith the pervasiveness or frequencyof the conduct,” [citing Ellison].Where the conduct in question wasallegedly a “daily thing,” there canbe little question that a reasonablejuror might infer that Harvey’s pat-tern of verbal and physical intimida-tion, as confirmed by a wide range ofemployees, was sufficiently severe tosatisfy the statute.

(Equal Employment Opportunity Commis-sion et al. v. NEA, No. 04-35029; EEOCet al. v. NEA, Alaska, No. 04-35201 [9thCir. 9-2-05] 422 F.3d 840, 2005 DJDAR10858.) ✽

The subjective effects ofthe treatment were

very different for menand women.

employees that may have had a quali-tatively different “bantering” charac-ter. On the other hand, there was astrong suggestion that the subjectiveeffects of the treatment were very dif-ferent for men and women. “There isno evidence in the record that any maleemployee manifested anywhere nearthe same severity of reactions (e.g., cry-ing, feeling panicked and physicallythreatened, avoiding contact withHarvey, avoiding submitting overtimehours for fear of angering Harvey, call-ing the police, and ultimately resign-ing) to Harvey’s conduct as many of thefemale employees have reported,” saidthe court.

Monocular Employees Are Disabled Under FEHA,But May Be Barred From Driving UPS Trucks

In one opinion deciding three differ-ent cases, the Ninth Circuit Court ofAppeals ruled that certain United Par-cel Service employees with monocularvision are disabled within the meaningof California’s Fair Employment andHousing Act. The court also con-cluded, however, that UPS did not dis-criminate by refusing to allow them todrive trucks because the employer dem-onstrated that the employees would“endanger the health or safety of others

to a greater extent than if an individualwithout a disability performed the job.”

In analyzing the trial court’s find-ing that some of the employees werenot disabled under the FEHA, theCourt of Appeals first addressed thethreshold question of whether theplaintiff’s qualifying medical condition“limits a major life activity” within themeaning of the act. The court distin-guished this test from the federalAmericans With Disabilities Act testrequiring that a plaintiff’s condition


“substantially limit a major life activity.”The court quoted extensively from thePoppink Act of 2000, which amendedthe FEHA to include language spell-ing out how courts are to address limi-tations on a major life activity. It foundthat the language of the Poppink Actwas applicable to the cases before it,even though the act was not passed un-til after the employees already had filed

Judging depths at near distances is asignificant aspect of the major lifeactivity of seeing. As the affidavits andtestimony demonstrate, nearfielddepth perception is important to anumber of activities that sight nor-mally is used to perform. The FEHAdoes not require that the disabilityresult in utter inability or even sub-stantial limitation on the individual’sability to perform major life activi-ties. A limitation is sufficient.

The court instructed that in de-ciding whether an individual’s limita-tion qualifies as a disability under theFEHA, “the proper comparativebaseline is either the individual with-out the impairment in question or theaverage unimpaired person.” It is notproper to compare the individual’s limi-tation to those of other impaired people,said the court.

In short, under FEHA and its rel-evant interpretations, the districtcourt erred by holding that [the driv-ers] are not limited in the major lifeactivity of seeing simply because otherpeople with common vision impair-ments are also limited. [The drivers]demonstrated that seeing, and a vari-ety of tasks for which seeing is com-monly used, are made difficult forthem because of their monocularityand consequent inability to performstereopsis. FEHA requires no more.

In one of the other cases before it,the Ninth Circuit affirmed the trialcourt’s holding that the applicants weredisabled as they were limited in themajor life activity of working. The courtpointed out that Sec.12926(k)(1)(B)(iii)of the Poppink Act specifies that “work-ing” is a major life activity under the

The applicants werelimited in the major

life activity of seeing.

their lawsuits. This is because, as notedby the California Supreme Court inColmenares v. Braemar Country Club, Inc.(2003) 29 Cal.4th 1019, 159 CPER 52,the amendments did not change the lawbut were enacted in “an effort simply toclarify the true meaning of FEHA’s lim-its test.”

Rejecting the finding of the trialcourt, the Court of Appeals found thatthe applicants in one case were limitedin the major life activity of seeing. Theapplicants explained that theirmonocularity made a variety of activi-ties difficult for them, especially becauseof their inability to perform stereopsis,the process of combining two retinalimages into one, affecting depth per-ception, particularly at short distances.As the court explained:

Things are going toget a lot worse beforethey get worse.

Lily Tomlin

Pocket Guide to

Unfair Practices:

California Public

Sector


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FEHA and that this is so “regardless ofwhether the actual or perceived work-ing limitation implicates a particularemployment or a class or broad rangeof employments,” citing Sec. 12926.1(c).The court rejected UPS’ argument thatthe word “employment” means “occu-pation” and that the district court haderred in holding that the applicants’“exclusion from the single position offulltime UPS package car driver, not-withstanding their ability to perform

Though the applicants in bothcases were disabled within the mean-ing of the FEHA, UPS did not dis-criminate against them unlawfully, heldthe court. This is because UPS satis-fied the act’s safety-of-others defense.Section 12940(a)(1) provides that theFEHA “does not prohibit an employerfrom refusing to hire or discharging anemployee where the employee, becauseof his or her disability cannot perform[the job’s essential] duties in a mannerthat would not endanger the health orsafety of others with reasonable accom-modations.” The Fair Employment andHousing Commission, charged withinterpreting and enforcing the FEHA,issued a regulation explaining thissection:

It is a permissible defense for anemployer or other covered entity todemonstrate that after reasonable ac-commodation has been made, the ap-plicant or employee cannot performthe essential functions of the posi-tion in question in a manner whichwould not endanger the health orsafety of others to a greater extentthan if an individual without a dis-ability performed the job.

The court determined that, underthe act, “even a modest increase in therisk that a problem will occur is sig-nificant when the potential conse-quences of that problem are very seri-ous.” The court acknowledged that thesafety-of-others defense requires an in-dividualized showing that safety wouldbe compromised, but the court pointedto the FEHC’s statement that “there isno ground for barring the application

UPS satisfied the act’s safety-of-

others defense.

other jobs (both within and outside ofUPS), constitutes a limitation” in work-ing. The court stated:

Even if the district court inter-preted “particular employment” toonarrowly, however, we still wouldhave to affirm its partial summaryjudgment for Plaintiffs with respectto working. Plaintiffs demonstratedthat they are limited in working ascommercial delivery drivers, not onlybecause they are excluded from work-ing as fulltime package car driversfor UPS, but also because they areexcluded from any driving positionthat requires [Department of Trans-portation] or state certification.Thus, even if “particular employ-ment” is interpreted more broadlythan “single position with a singleemployer,” Plaintiffs’ monocularitylimits their ability to work in the oc-cupation of commercial delivery driver.

of categorical evidence” to individual-ized defenses. The evidence presentedin this case showed that monocular driv-ers as a whole are involved in more ac-cidents than others as a whole and that“peripheral vision plays an importantrole in avoiding accidents and that themonocular driver has less opportunityto see a child or any other pedestrianor cyclist or car darting from the im-paired side.”

The fact that each applicant wastested and that none met the central vi-sion acuity standard of UPS’ VisionProtocol was a “sufficiently individu-alized determination” to satisfy thesafety-of-others defense, found thecourt. The court concluded that “the[drivers’] failure to meet the Vision Pro-tocol demonstrates that their perfor-mance of the duties of a fulltime pack-age car driver would endanger thehealth and safety of others to a greaterextent than if an individual without adisability performed the job.” (EqualEmployment Opportunity Commission, etal. v. United Parcel Service, Inc., No. 03-16855; Bryan et al. v. UPS, Inc. No. 04-15928; Bryan et al. v. UPS, Inc., No. 04-16403 [9th Cir, 9-15-05] 424 F.3d 1060,2005 DJDAR 11418.) ✽✽✽✽✽


General

Public Employers Not Requiredto Pay for Costs of Uniforms

In a case with application to the Stateof California, the University of Cali-fornia, and local governments, the FirstDistrict Court of Appeal rejected theargument that public entities are re-quired to pay all costs associated withpurchasing, replacing, cleaning, andmaintaining required work uniforms.

Code Sec. 2802 are superseded by con-stitutional and statutory provisions andnegotiated collective bargaining agree-ments.

Labor Code Sec. 2802 appears inthe employment relations division ofthe statute and provides: “An employershall indemnify his or her employee forall necessary expenditures or losses in-curred by the employee in direct con-sequence of the discharge of his or herduties, or of his or her obedience to thedirections of the employer, even thoughunlawful, unless the employee, at thetime of obeying the directions, believedthem to be unlawful.”

City and County Employers

Consistent with their constitu-tional grants of authority, the courtnoted that the charters of Santa ClaraCounty, Fresno County, and the City ofFresno provide for the compensationof all public employees. The general-law counties of Tuolumne and Yoloalso have implemented negotiated uni-form allowances.

In addition, the Meyers-Milias-Brown Act provides a comprehensivecollective bargaining process. Underthis law, each of the local governmentshas entered into a memorandum of un-derstanding that contains provisions

for annual or quarterly uniform allow-ances. Those contracts are “indubita-bly binding on the contracting parties,”said the court, citing Glendale City Em-ployees Assn. v. City of Glendale (1975)15 Cal.3d 328, 27 CPER 35. “Againstthis background of public entity author-ity in the area of conditions and termsof employment of public employees,and express negotiation of uniform al-lowances, plaintiffs have the difficulttask of explaining how a section of theLabor Code concerning indemnifica-tion can trump the constitutional andstatutory authority expressly given to,and exercised by the public entity de-fendants.”

The MMBAprovides a

comprehensivecollective bargaining

process.

In seven consolidated cases — in-cluding claims brought by employeesof the University of California, thecounties of Fresno, Santa Clara,Tuolumne, and Yolo, the City ofFresno, and the Department of Correc-tions, California Youth Authority, De-partment of Forestry, California Con-servation Corps, Military Department,Department of Parks and Recreation,and Department of DevelopmentalServices — the court found that the in-demnification provisions of Labor

Payment to employeesfor work uniforms

is a wage.

In an effort to meet that challenge,the employees first argued that the costof an employee’s uniform is distinctfrom wages and, therefore, there is noconflict between Sec. 2802 and thewage-setting powers conferred by theConstitution. Rejecting this conten-tion, the court cited several private sec-tor cases as well as Ventura CountyDeputy Sheriffs Assn. v. Board of Retire-ment (1997) 16 Cal.4th 483, 126 CPER19, which concluded that the county’spayment of an annual uniform allow-ance was compensation because it pro-vided a benefit to the employee in that


it substitutes for other attire the em-ployee would have to purchase.

The court concluded that, like anyother payment of wages, compensation,or benefits, payment to employees forwork uniforms is a wage. The impactof this determination, said the court,“places plaintiffs’ claim of entitlementto compensation for uniform expensesas indemnification under section 2802in direct conflict with a public entity’spower to provide for compensation ofits employees and to bargain with em-ployee representatives under theMMBA concerning payment for ex-penses relating to uniforms.”

The court also cited County ofRiverside v. Superior Court (2003) 30Cal.4th 278, 160 CPER 19, whichfound that statutes like the Public SafetyOfficers Procedural Bill of Rights Actare “limited to providing proceduralsafeguards” and therefore impinge onlyminimally on the authority of a gov-ernment employer to set employeecompensation. “The fact that the Leg-islature may impose minimum stan-dards or procedural requirements ongovernment employers does not sup-port the elimination of an entire com-ponent of employee compensationfrom the control or bargaining duty oflocal government employers,” said theCourt of Appeal.

Those plaintiffs who were publicsafety employees also asserted that Sec.2802 concerns a statewide interest be-cause their uniforms are related tosafety. “Assuming that protecting work-ers from safety hazards on the job is amatter of statewide concern,” said thecourt, “no case holds that an ordinarywork uniform implicates worker safety.”Section 2802 has been a basic indemnifi-cation statute since its enactment in 1872,said the court, and “there is no reason-able definition…that would transformit into a worker safety statute.”

Summing up, the court concluded:

None of the cases relied on byplaintiffs support their attempt toapply the indemnification provisionsof section 2802 to preempt the con-stitutional power of cities and coun-ties to set the terms of employee com-pensation. They produced no author-ity construing section 2802 to nul-

lify the provisions of the constitu-tion or the MOU’s entered into afterthe give and take of collective bar-gaining negotiations undertaken incompliance with the MMBA. Theissue of public employee wages andterms of compensation are indisput-ably matters of local concern, as ourSupreme Court has repeatedly stated.

University and State EmployeeClaims

The Constitution conveys to theU.C. regents a broad grant of authorityto manage its own internal affairs, in-cluding the determination of employeecompensation and benefits. As for thestate, the court referred to GovernmentCode Sec. 19850.1, which makes stateemployees responsible for the purchaseof uniforms required as a condition ofemployment. It requires the state toprovide for an annual uniform allow-ance “for the replacement of uniforms.”This statutory provision “evidences aclear intent that state employees areresponsible for uniform expenses sub-ject to the provisions agreed upon inthe course of collective bargaining,”said the court.

“In summary, even if section 2802applies to claims for the costs of workuniforms, counties and cities are notsubject to that requirement by virtue ofthe constitutional powers granted tothem to manage their own affairs andset the compensation of their own em-ployees. Similarly, because of theunique constitutional status of the Re-gents, it is not subject to general lawsrelating to employee compensation. By

‘No case holds that anordinary work

uniform implicatesworker safety.’

The court also rejected the argu-ment that the right to indemnificationclaimed under Sec. 2802 is a matter ofstatewide concern as an indispensablepart of the statutory scheme that pro-tects employees’ rights to minimumwages. The court referred to SonomaCounty Organization of Public Employeesv. County of Sonoma (1979) 23 Cal.3d296, 8 CPER SRS 1, holding that “thedetermination of wages paid to employ-ees of charter cities as well as chartercounties is a matter of local rather thanstatewide concern.”


statute, the state is not responsible forpurchasing uniforms, and is requiredby a different statute to provide an al-lowance for uniform replacement. Noauthority indicates that any of these

public entities are mandated by section2802 to pay for work-related uniformcosts.” (Goshorn v. State of California [10-11-05] A107130 [1st Dist.], 133 Cal.App.4th 328, 2005 DJDAR 12187.)

Undocumented Worker Entitled toWorkers’ Comp Benefits

An unauthorized alien worker is en-titled to workers’ compensation ben-efits provided by California law, an-nounced the Second District Court ofAppeal, despite federal law that prohib-its the hiring or continued employmentof such an employee. The Court of Ap-peal reasoned that by prohibitingreinstatement remedies to undocu-mented aliens, state law avoids conflictwith the Immigration Reform and Con-trol Act, and with the United StatesSupreme Court ruling in Hoffman Plas-tic Compounds, Inc. v. NLRB (2002) 535U.S. 137.

Farmers Brothers Coffee sought toblock the provision of workers’ com-pensation benefits to Rafael Ruiz on thegrounds of federal preemption and itscontention that Ruiz had obtained em-ployment and an expectation of ben-efits by means of fraud. The Workers’Compensation Appeals Board rejectedthat assertion, and Farmers appealed.

Under federal law, it is unlawful tohire or continue to employ someone theemployer knows to be an unauthoriziedalien, or one who is not lawfully admit-

ted for permanent residency or autho-rized to be so employed by federal im-migration law. The IRCA provides forgraduated civil penalties for violationsand criminal penalties for employerswho are found to have engaged in a pat-tern or practice of hiring unauthorizedaliens in violation of the law. It also is afederal crime to knowingly accept afalse immigration document for pur-poses of satisfying the requirements ofthe statutes.

In contrast, California LaborCode Sec. 3351(a) defines an “em-ployee” as “every person in the serviceof an employer under any appointmentor contract of hire or apprenticeship…whether lawfully or unlawfully em-ployed,” including aliens.

Labor Code Sec. 1171.5 furtherprovides that “all protections, rights,and remedies available under state law,except any reinstatement remedy pro-hibited by federal law, are available toall individuals regardless of immigra-tion status who have applied for em-ployment, or who are or who have beenemployed, in this state.” That section

further establishes that, “for purposesof enforcing state labor and employ-ment laws, a person’s immigration sta-tus is irrelevant to the issue of liability,and in proceedings or discovery under-taken to enforce those state laws no in-quiry shall be permitted into a person’simmigration status except where theperson seeking to make this inquiry hasshown by clear and convincing evi-dence that the inquiry is necessary inorder to comply with federal immigra-tion law.”

The Court of Appeal first observedthat the IRCA includes no express pre-emption language concerning stateworkers’ compensation laws. The onlypreemption provision indicates that it

State law is not inconflict with the

IRCA’s express pre-emption provision.

supersedes state or local laws impos-ing civil or criminal sanctions on thosewho employ, recruit, or refer unautho-rized aliens. Since the purpose of theCalifornia Workers’ Compensation Actis to furnish treatment and compensa-tion for persons suffering workplaceinjury, irrespective of the fault of anyparty, its benefits are not a penalty im-posed on employers. Therefore, thecourt concluded, since there is no pro-vision in the statutory scheme impos-


ing civil or criminal sanctions for theemployment of illegal aliens, state lawis not in conflict with the IRCA’s ex-press preemption provision.

Observing that the IRCA does notprovide for or prohibit compensationfor injured workers, the court con-cluded that Congress had not occupiedthe field of workers’ compensation anddid not foreclose the possibility that thestates may supplement it.

The court next considered whetherCalifornia workers’ compensation lawpresents an actual conflict with theIRCA by standing as an obstacle to theaccomplishment and execution of thefull purposes and objectives of Con-gress.

California law expressly has de-clared that immigration status is irrel-evant to the issue of liability to pay com-pensation to an injured worker, said thecourt. “Were it otherwise, unscrupu-lous employers would be encouragedto hire aliens unauthorized to work inthe United States, by taking the chancethat the federal authorities would ac-cept their claims of good faith relianceupon immigration and work authori-zation documents that appear to begenuine.” The court explained:

If compensation benefits were todepend upon an alien employee’s fed-eral work authorization, the Work-ers’ Compensation Appeals Boardwould be thrust into the role of de-termining employees’ compliancewith the IRCA and whether such com-pliance was in good faith, as well asdetermining the immigration statusof each injured employee, andwhether any alien employees used

false documents. Benefits would bedenied to the undocumented injuredemployee for the sole reason that heis undocumented. Thus, the reme-dial purpose of workers’ compensa-tion would take on an enforcementpurpose, in direct conflict with theIRCA.

Farmers argued that the SupremeCourt’s Hoffman Plastic decision placedthe states in just that position of en-forcement. Hoffman held that the poli-cies underlying the IRCA prohibitedthe National Labor Relations Board

stating the undocumented employee.“Section 1171.5, subdivision (b), avoidsconflict with Hoffman’s back pay pro-hibition by making an exception to theexclusion of evidence of the employee’simmigration status ‘where the personseeking to make this inquiry has shownby clear and convincing evidence thatthe inquiry is necessary in order to com-ply with federal immigration law,’ andby excluding any reinstatement remedyprohibited by federal law….Thus,where reinstatement is prohibited byfederal law, section 1171.5 would alsoprohibit backpay, which was the intentof the Legislature in passing section1171.5 and related statutes.”

The court concluded that theWorkers’ Compensation Act, with theaddition of Sec. 1171.5 prohibiting re-instatement remedies to undocu-mented aliens, is not in conflict withthe IRCA and comports with the rea-soning of Hoffman since prohibitedremedies include backpay.

The court made short shrift ofFarmers’ contention that Ruiz did notfall within the definition of “employee”set out in Sec. 3351 because he was “un-lawfully employed” as a result of hisuse of fraudulent documents. Dis-counting what it called Farmers’ “ques-tionable logic,” the court distilled theargument to be that, consistent withpublic policy and federal immigrationlaw, an employee who obtains employ-ment in a manner contrary to federallaw should not benefit from an illegalemployment relationship. It is the taskof the legislature to establish public

Immigration status isirrelevant to the issue

of liability to paycompensation.

from awarding backpay to illegal aliensas a remedy for unfair labor practices.The Hoffman court reasoned that anaward of backpay would unfairly re-ward an illegal alien because of his orher inability to mitigate damages byworking in the United States.

But, the court explained, LaborCode Sec. 1171.5 was enacted by theCalifornia legislature in response toHoffman to avoid any conflict with theIRCA by providing that an employee’simmigration status was irrelevant to hisor her workers’ compensation claim,except with regard to the issue of re-instatement since the employer wouldbe committing a federal crime by rein-


policy, said the court. And, once it hasdone so, “the courts may not simplyfashion a policy more to their liking.”

Finally, the court addressed thecontention that Ruiz’s use of a fraudu-lent Social Security card and “greencard” to secure employment violatedInsurance Code Sec. 1871.4, whichmakes it a criminal offense to make aknowingly false or fraudulent material

Employment, notcompensable injury,

was obtained byfraudulent documents.

representation for the purpose of ob-taining workers’ compensation ben-efits. The court found no evidence thatRuiz had been convicted of a violationof Sec. 1871.4. Furthermore, said thecourt, Ruiz was not required to be a law-fully documented alien to be an em-ployee entitled to workers’ compensa-tion benefits. It was employment, notthe compensable injury, that Ruiz ob-tained as a direct result of the use offraudulent documents. (Farmers Broth-ers Coffee v. Workers’ Compensation Ap-peals Board [10-17-05] B180839 [2d Dist.],___Cal. App. 4th___, 2005 DJDAR12381.)

Other state courts that have re-jected preemption challenges to theirworkers’ compensation laws includeConnecticut, Florida, Georgia, Minne-sota, New Jersey, and Pennsylvania.

Supreme Court Hears Important ‘Free Speech’ Case

The United States Supreme Court re-cently heard oral argument in a casethat raises critical issues involving thefree speech rights of public employeesand the constitutional protections trig-gered by comments about matters inthe workplace. The case before the highcourt involves a deputy district attor-ney in Los Angeles, Richard Ceballos,who alleged in a federal lawsuit that hewas demoted for disputing the veracityof an affidavit prepared by a deputysheriff to obtain a search warrant in acriminal drug case. Ceballos testifiedfor the defense that he believed the af-fidavit included false statements. Hesubsequently sued the county and then-District Attorney Gil Garcetti, alleg-ing that, as a whistleblower who spokeout against police misconduct, his FirstAmendment free speech rights shouldbe protected.

Ceballos’ suit was dismissed byDistrict Court Judge Howard Matz,who found that the district attorney’sspeech was not protected. But the NinthCircuit Court of Appeals reversed, find-ing that Ceballos’ speech was protectedbecause it addressed a matter of publicconcern.

At the core of the case are two im-portant free speech rulings dealing withpublic employees — Pickering v. Boardof Education (1968) 391 U.S. 563 andConnick v. Myers (1983) 461 U.S. 138,22 CPER SRS 73. In Pickering, thecourt ruled that a school board violated

a teacher’s First Amendment rightswhen it fired him for writing a letter tothe newspaper that was critical of theboard’s action. That case announcedthat public employees could not be dis-ciplined for exercising their FirstAmendment right to express them-

Ceballos sued as awhistleblower whospoke out against

police misconduct.

selves on matters of public concern.Pickering enunciated a balancing testthat requires the courts to balance theemployee’s right of speech against thegovernment employer’s interest in run-ning an orderly and efficient workplace.

In Connick, the balance was tippedin the opposite direction. In that case,the court found that an attorney whocirculated a critical questionnaire to hercolleagues in the office was not speak-ing on a matter of public concern, butas an employee about a personnel dis-agreement with her boss.

In arguments before the SupremeCourt in October, the justices focusedon whether the Constitution protectspublic employees from retaliation forwhat they say in the course of their du-ties. Ceballos and his supporters argued


that he was a whistleblower and shouldbe entitled to free speech protection.The other side argued that extendingFirst Amendment protections to job-related speech would go too far becauseall speech uttered by a public employeecould be cloaked in the mantle ofspeech about matters of public concern.

Some commentators have urgedthe high court to step back from thecurrent focus on whether the matter atissue is one of public concern and, in-stead, to adopt an approach that looksmore at the workplace disruptioncaused by the speech.

A decision in the case, Garcetti v.Ceballos, Supreme Court No. 04-473,is expected before the end of the court’sterm in June.


Public Sector Arbitration

Arbitrator Pool Finds No Evidenceto Support Termination

A custodian who had worked for theCity of Modesto for almost 30 yearswas reinstated by Arbitrator C. AllenPool for failure to produce adequateproof of any infraction, let alone reli-able evidence to support termination.

The grievant in this case was partof the night custodial crew responsiblefor maintaining a group of buildingsknown as the corporate yard. Crewmembers worked from 7 p.m. to 3:30a.m., but returned to the service yard20 to 30 minutes before the end of theirshift to unload the truck and prepare itfor the next crew, store materials andmachinery, and complete paperwork.

One morning in March 2003, acleaning crew supervisor arrived earlyto find the night crew had left work be-fore the end of the shift. Over a seriesof days, he proceeded to observe bothhis crew and the custodial crew, catch-ing them leaving early on more thanone occasion.

As a result of his observations, thecity initiated a formal investigation todetermine if there was a pattern of thecrews leaving early. Crew members,crew leaders, and supervisors were in-terviewed. Based on the grievant’s ad-mission that he occasionally left earlyand that he had been disciplined for a

similar offense in 1995, the grievant wasdismissed for neglect of duty, dishon-esty, absence without leave, and otherfailures of good behavior that woulddiscredit the city.

The city contended that it had af-forded the grievant due process and thatit had just cause for terminating thegrievant based on his own admissionthat he had left his shift early, therebyviolating the city’s trust and acceptingpay for time not worked. The grievantpreviously had been disciplined for asimilar offense and had been warnedthat future occurrences could lead totermination. The city considered thegrievant’s long service, but found it wasoutweighed by the seriousness of theoffenses.

The union charged that the cityfailed to conduct its investigation withdue diligence and that just cause waslacking for the grievant’s termination.The grievant was a dedicated employeewith a long service to the city. More-over, there was insufficient evidence toprove that the grievant left early or in-tentionally defrauded the city or de-prived it of public funds. In addition,the city failed to provide sufficient no-tice or to follow principles of progres-sive discipline before implementing thetermination.

Pool initially observed that with-out adequate proof of an infraction, anypenalty would be considered unjust.Here, the evidence provided in thegrievant’s interview was unreliable andinsufficient to support just cause.

First, Pool found the city failed toconduct a proper interview with thegrievant, who was hindered by his un-familiarity with the nuances of theEnglish language. Interrogators led thegrievant to answer what they wantedto hear. For example, based on the

The grievant was hindered by his

unfamiliarity with thenuances of the

English language.

grievant’s statement that he returned tothe service yard around 3:10 a.m. ev-eryday to complete paperwork, the in-terrogators focused on how long thepaperwork took to complete. They didnot try to determine if he performedany other work when he returned to theyard. If they had asked, he would haveinformed them that he spent time un-loading the truck and preparing it forthe next crew.

The city also failed to credit evi-dence from the grievant’s crew leaderwho said when interviewed that thecrews spent 20 to 30 minutes complet-


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ing paperwork and housekeeping du-ties he described. The supervisor cor-roborated the grievant’s statement thatthe grievant left work early only if hehad worked through his breaks and hadreceived permission from the crewleader.

While the city investigators reliedon the supervisor’s testimony that thegrievant had not called to request au-thorization to leave early on the days inquestion, Pool noted that the supervi-sor had not been called to testify at the

Pool found this was not only inaccu-rate, but bordered on being capricious.

Lastly, Pool based his recommen-dation to reverse the discharge on aninaccurate summary of the investiga-tion which stated that the grievant ad-mitted to misconduct. As demonstratedby a corrected copy of the transcriptprovided to Pool, at no time during theinterview did the grievant admit to leav-ing work early or falsifying records.

Pool found the only corroboratingevidence — a statement by a coworker— to be questionable. The statementwas not made under oath and was madeby a coworker whose relationship to thegrievant was unknown and thereforeunreliable.

Pool found “absolutely no reliableevidence” to prove the grievant had apattern of leaving work early, with orwithout authorization, that he sataround wasting time, made fraudulenttime entries, or was paid for time notworked. In fact, Pool found no evidencethat the grievant engaged in any mis-conduct at all. As the city clearly failedto meet its burden of proof, the griev-ance was sustained and the grievant re-instated. ([Grievant] and City of Modesto[4-28-05] 10 pp. Representatives: W.Robert Phibbs, Esq. [Goyette andAssoc.], for the union; Carol Schmidt,Esq. [deputy city attorney], for the city.Arbitrator: C. Allen Pool.) ✽ ✽ ✽ ✽ ✽

The recommendationto reverse the discharge

was based on aninaccurate summary of the investigation.

hearing and there was no evidence of-fered to support his statements. And,the city failed to acknowledge that thesupervisor’s statement corroborated thefact that the crew needed to leave theworksite early to return to the serviceyard.

Another critical flaw cited by Poolwas the city’s reliance on the observa-tions of the garage crew supervisor. Inhis report, the supervisor stated that,although he observed the two crewsleaving early, he could not identify in-dividual members. However, the city’snotice claimed the supervisor person-ally observed the grievant leaving early.


Arbitration Log

AAAAA t t e n t i o n At t e n t i o n At t e n t i o n At t e n t i o n At t e n t i o n A t t o r n e y s a n d U n i o n Rt t o r n e y s a n d U n i o n Rt t o r n e y s a n d U n i o n Rt t o r n e y s a n d U n i o n Rt t o r n e y s a n d U n i o n R e p se p se p se p se p s

Celebrate your victories or let us commiserate in your losses! Share with CPER readersyour interesting arbitration cases. Our goal is to publish awards covering a broad rangeof issues from the state’s diverse pool of arbitrators. Send your decisions to CPER Edi-tor Carol Vendrillo, Institute of Industrial Relations, 2521 Channing Way, Universityof California, Berkeley, CA 94720-5555. Or email [email protected]. Visitour website at http://cper.berkeley.edu.

• Contract Interpretation —TransferOrange Unified School Dist.,

Special Education Dept. and OrangeUnified Education Assn. (4-13-05;14 pp.) Representatives: William J.Shanahan (CTA Staff - retired), for theunion; Steven Montanez, Esq. (Parker& Covert LLP), for the district. Arbi-trator: Joseph F. Gentile.

Issue: Was the grievant’s move tothe elementary school a “transfer” or a“reassignment”?

Pertinent contract provisions: Section4.110 – A transfer is a change in schoolor work site but within a position clas-sification in a field covered by the unitmember’s credentials....All transfersshall be made for just cause.

Section 4.483 – Unit membersshall not be involuntarily transferred intwo consecutive school years.

Section 13.100 – In addition, theBoard retains the right to hire, assign,transfer, reassign, evaluate, promote,terminate, and discipline employees.

Union’s position: (1) The grievant isa resource specialist program (RSP)teacher in the district’s Special Educa-tion Department. In 2002, the grievantwas transferred from Panorama El-ementary School to Riverdale Elemen-tary School and then transferred againthe following school year, this time tothe Adult Transition Program. On July1, 2004, the district informed the griev-ant that he was being transferred to

California Elementary School for the2004-05 school year. This was thegrievant’s third transfer in three yearsand, as such, violated Sec. 4.483 of theagreement.

(2) In 2004, the grievant submit-ted a “Transfer Request – CertificatedStaff” form, requesting a transfer to ahigh school RSP position for the 2004-05 school year, which the district ac-cepted. The district’s acceptance of thisform “inferentially” supports the viewthat the grievant’s move was a transferand not simply an assignment, as thedistrict argues.

(3) The contract language, whichis clear and unambiguous, appliesequally to all bargaining unit employ-ees unless there is specific language ex-empting some members of the unit.There is no language exempting spe-cial education teachers from the invol-untary transfer provisions, and so itmust apply to them as well.

District’s position: (1) The grievant’sassignment to California Elementary

School was not a transfer, involuntaryor otherwise, but a reassignment cov-ered by Sec. 13.100.

(2) RSP teachers are part of thedistrict’s Special Education Depart-ment and are assigned from this depart-ment to school sites based on the num-ber of special education students, theexpertise needed, the available facili-ties, and other school site and districtneeds. This is supported by the postingprocess for special education positions.Special education postings list only theneed, such as secondary, and that theposting will stay open until filled. Cer-tified vacancy postings identify thegrade, school, and a transfer closingdate. Even the union acknowledged thatthe special education posting it pro-vided from 2001-02, which identifieda school site, was a unique situation.

(3) If the grievant’s assignment doesnot qualify as a reassignment, then itwould be considered an administrativetransfer as permitted by Sec. 4.500.

68 c p e r j o u r n a l N o . 175

(4) Special education teachers donot need to complete a “Transfer Re-quest – Certificated Staff” form, so thefact the district accepted it as a cour-tesy is not dispositive.

Arbitrator’s decision: The grievancewas denied.

Arbitrator’s reasoning: (1) The unionargued that Sec. 4.483 is clear and un-ambiguous and should be applied with-out considering extrinsic evidence.However, if the section were applied asis to the special education teachers, itwould prevent the district from meet-ing its staffing needs at the variousschool sites.

(2) The evidence persuasivelyshows there is no dispute that specialeducation teachers have been assigneddifferently than other teachers in thepast.

(3) It has been acknowledged thatthe agreement distinguishes betweentransfer and assignment in the citedprovisions.

(4) Section 4.483 is neither clearnor unambiguous when applied to spe-cial education teacher assignments andthe past practice reasonably clarifiesand untangles the ambiguity. There-fore, the past practice should be en-forced.

(5) The grievant’s move is to beconsidered an assignment, not a trans-fer. Therefore, there was no violationof the agreement. As this conclusion isdispositive, there is no need to considerthe district’s alternative argument thatthe move was an administrative transfer.

(Binding Grievance Arbitration)

• Grievance TimelinessIrvine Teachers Assn. and

Irvine Unified School Dist. (5-27-05;11 pp.) Representatives: Laurie Atkinson(executive director), for the union; An-thony P. DeMarco, Esq. (Parham andRajcic), for the district. Arbitrator:Katherine J. Thomson.

Issue: Was the grievance timely? Ifso, did the district violate the agree-ment by not allocating enough middleschool counselors?

Pertinent contract provisions: 21.2.2.– Level One: Within fifteen days or af-ter grievant knows by reasonable dili-gence after the occurrence of the al-leged act or omission giving rise to thegrievance, the grievant shall completeand file a grievance form with both thedistrict and the association. The filingof the grievance shall be acknowledgedby the dated signature of the person re-ceiving the grievance. The unit mem-ber and the immediate supervisor shallconfer within ten days following the fil-ing of the grievance.

Union’s position: (1) The contractclearly states that when enrollment ex-ceeds 750 students, the school will staffadditional counselors. Although thedistrict claims it has been providingextra funding rather than staff for anumber of years, the union was notaware that the district was not follow-ing the agreement until contract nego-tiations in May 2003, and it was notuntil a December 9 meeting with thedistrict that the union actually wasprovided with the data showing theviolation.

(2) On January 9, 2004, after re-ceiving this proof of the district’s ac-tions, the union filed a grievance re-garding the under-allocation of coun-selors. As noted in the grievance, theunion became aware of this issue as ofDecember 9, 2003.

(3) The parties historically haveplaced matters on hold while attempt-ing to resolve issues and, in this case,the district confirmed its agreement toset aside the contractual time line todiscuss the grievance. The district didnot object to the filing of the grievance.

(4) The grievance was timely filedas the union had not seen the data onschool enrollment and counselor num-ber until the December 9 meeting. Fur-thermore, the district agreed to setaside the time-line issue when it did notobject to the filing of the grievance inthe first place. If it were going to denythe grievance for untimeliness, it shouldhave refused to process the grievancein the first place and should not havetaken it to arbitration. The district gaveup any right to object to timelinesswhen it accepted the grievance.

District’s position: (1) The district’slong-standing practice has been to as-sign only one counselor to each middleschool regardless of enrollment. As at-tested to by the previous union presi-dent, the union had been informed ofthe practice as early as 1994. At the veryleast, the current union leadership ac-knowledged that the issue was discussedduring the May 2003 contract negotia-tions. Furthermore, they admitted theyhad access to the data they needed toverify the enrollment and staffing lev-


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els, as it was posted on the districtwebsite. The union clearly knew aboutthe issue well before December 9, 2003.Therefore, the grievance was untimelywhen it was filed in January 2004.

(2) While the district agreed to setaside the time line to discuss the griev-ance, it did not agree to waive the 15-day time line for filing the grievanceand made timeliness objections at eachstep of the process. The time limitsshould not be extended merely becausean employee did not think to file agrievance or because the union was notaware of facts that were known to itsmembers. The agreement requires thata grievance be filed within 15 days ofthe time the union knew by reasonablediligence of any violation.

(3) The grievance is not timely andshould be denied. If it is not denied, itshould be noted that the counselor staff-ing practice has been handled this wayfor 15 years and has gone unchallengedby the union that entire time.

Arbitrator’s decision: The grievancewas denied.

Arbitrator’s reasoning: (1) Unless theparties have been lax in their practice,failure to file a grievance within thecontractual time limits will result in a

grievance being dismissed. The con-tract between the parties contains aclear 15-day limit for filing a grievanceonce a party knows or, with reasonablediligence, should have known of the actor omission. There is no evidence thatthe parties were lax in their practice, sothe contractual limits apply.

(2) The union had knowledge ofthe district’s practice long before De-cember 9, and perhaps as far back as1994. However, each year the districtmade counselor assignments marked aseparate act in violation of the con-tract. The issue focuses on whether theunion timely filed the grievance for the2003-04 counselor allocation at themiddle schools. While the union con-tended it was not aware of the enroll-ment until the December 9 meeting,evidence was presented that the unionknew of it earlier and easily could haveobtained the information sooner if ithad wanted to challenge the practice.Furthermore, the union failed to statewhy the information was not requestedor discovered earlier.

(3) Despite the union’s argumentthat the district waived its timelinessdefense, it is undisputed that the dis-trict made timeliness objections at each

step of the grievance. In addition, thereis no evidence that the union requested,or the district granted, any extension tofile the grievance. Lastly, it would dis-courage the resolution of grievances tohold that the district waived its objec-tion by agreeing to take the grievanceto arbitration. Therefore, as long as aparty clearly maintains its objections asdid the district, it does not waive thedefense by agreeing to process the griev-ance.

(4) The grievance was not timelyfiled and the district did not waive itstimeliness objections. Therefore thegrievance was dismissed and will notbe considered on the merits.


• Absenteeism• Discrimination — Disability• Discrimination — Reasonable

Accommodation• Discipline — Attendance

University of California, SanFrancisco and Coalition of Univer-sity Employees (6-23-05; 31 pp.) Rep-resentatives: Mary Higgins (Coalitionof University Employees), for theunion; Jesse Drucker (Human Re-sources), for the university. Arbitrator:Bonnie G. Bogue.

Issue: Did the university have justcause to suspend the grievant for fivedays or to dismiss her?

University’s position: (1) The griev-ant, employed as an administrative as-sistant at the adult psychiatric clinicsince November 1998, has a chronicattendance problem and has performedunsatisfactorily.

70 c p e r j o u r n a l N o . 175

(2) The grievant’s very first evalu-ation documented that she socializedexcessively, had difficulty arriving atthe office in a timely manner, and wasnot always present for the full eight-hour workday. The grievant subse-quently was issued counseling memosand was warned about her attendanceproblem.

(3) In her next performance reviewin 2001, the grievant again was informedof continuing performance problemscaused by her unpredictable absences,excessive tardiness, and failure to informher supervisor when she would be late.In 2002, the grievant again was coun-seled for not informing her supervisorshe was going on vacation, leavingwork unfinished, and conducting per-sonal business during work hours.

(4) In 2002, the grievant was per-mitted a temporary reduction of herwork hours to accommodate the diag-nosis of multiple sclerosis. When thegrievant resumed a full-time schedulein 2003, she was permitted to start workat 8:30 a.m. Her attendance problemscontinued.

(5) From January 2 through Janu-ary 31, 2003, the grievant was late ev-ery day but one and did not notify hersupervisor. She was issued a warningletter and advised that failure to im-prove her performance could result indiscipline up to and including dismissal.

(6) The grievant’s next evaluationin June 2003, later determined to beinvalid, clearly put her on notice thather attendance was unacceptable. Italso noted that she had difficultly per-forming time-sensitive and complex

tasks, was erratic in her billing-slipinput, was late filing notes needed byclinicians, failed to call insurance com-panies for authorization, and had otherperformance problems.

(7) The grievant’s attendance con-tinued to decline. Between January 31and July 28, she had called in sick orwas late to work 103 of the 113 work-ing days.

(8) On July 28, the grievant was is-sued a five-day suspension for exces-sive absences, poor work performance,and an incident involving unprofes-sional conduct.

(9) The grievant’s performance didnot improve after the suspension. Inthe 16 workdays after her return, thegrievant only worked a regular workschedule on two days. She arrived late,and failed to notify her supervisor. OnAugust 26, the grievant was advised ofthe university’s intent to terminate her.

(10) The grievant was given ampleopportunity to improve her perfor-mance, but failed to do so. Her defi-ciencies placed an additional burden onthe other staff members and had a di-rect impact on patient care. Her ac-commodation request was granted andyet her performance continued to slide.The university followed principles ofprogressive discipline, giving the griev-ant every opportunity to rectify herproblems, but she did not do so. Thesuspension and termination were theappropriate levels of discipline, and theuniversity did not discriminate againstthe grievant in any way.

Union’s position: (1) The universitydiscriminated against the grievant for

her disability when it disciplined her.It did not have just cause for the disci-pline it delivered and it failed to ac-commodate her.

(2) The record does not show anyspecific performance problems. In fact,the grievant’s December 1999 evalua-tion noted her performance as morethan satisfactory. Subsequent perfor-mance issues were not ongoing prob-lems, but isolated events that arose asthe grievant adjusted to new work.Group emails were complimentary andthe warning letter did not address per-formance issues. Prior to October2002, the grievant received no evalua-tion notifying her of performance prob-lems; instead, she received a merit in-crease, indicating that her performancemet expectations.

(3) The grievant’s tardiness andabsences reflected her deterioratinghealth and the university’s refusal toaccommodate her medical condition asrequested. Permitting the grievant toselect between an 8 a.m. or 8:30 a.m.start time was discriminatory becausethe university allowed other employeesto have more-flexible schedules. Theuniversity failed to participate in an in-teractive process with the grievant tofind a reasonable accommodation.

(4) The grievant always informedher supervisor when she was going tobe tardy or absent. She also called a co-worker. The grievant stated that anyfailure to inform her supervisor of hertardiness was because of her medicalcondition about which her supervisorwas aware.


(5) The grievant is a conscientious,hard-working employee who was af-flicted with a debilitating illness. Whenshe returned from her medical leave inlate 2000, she had to contend with newjob responsibilities, which she did. Hersupervisor was unsupportive and hos-tile towards her, making a challengingsituation even more difficult.

(6) The university lacked just causefor the suspension and for the termina-tion. The law clearly requires the uni-versity to engage in the interactive pro-cess to determine if an accommodationis possible. The university failed to doso despite evidence that it should havebeen able to accommodate her.

Arbitrator’s decision: The grievancewas upheld.

Arbitrator’s reasoning: (1) The uni-versity bears the burden of proof that ithad just cause to suspend and dismissthe grievant. Both analyses are affectedby the possible discrimination for thegrievant’s disability.

(2) The collective bargainingagreement, as well as federal and statelaw, prohibits discrimination based onan employer’s physical disability. Theunion has shown the necessary nexusexisted between the disciplinary actionsand the grievant’s protected status. Theevidence demonstrates that thegrievant’s attendance issues were causedprimarily, if not exclusively, by the ef-fects of her disability; her supervisor wasaware of this.

(3) The university was required bylaw to provide reasonable accommo-dation. It offered a temporary accom-modation through January 2003, and

there was no evidence the grievant orher representative made an accommo-dation request after she returned towork; instead the evidence shows thatthe grievant developed her own systemof flexible hours. Therefore the recorddoes not support a finding that the uni-versity unlawfully discriminatedagainst the grievant. Disability, how-ever, is still a mitigating circumstancein the discipline.

(4) The university based the sus-pension on overall poor performance,continuing attendance and tardinessproblems, and inappropriate behavior.Although the university had made thegrievant aware of her performance de-ficiencies, the evidence did not supportdisciplinary action for poor perfor-mance alone. As for her attendance, theuniversity clearly showed the grievantwas aware of the work rule requiringregular attendance and how it relatedto the university’s operational needs. Itprovided the grievant ample notice thatshe was not meeting those expectations.This was sufficient cause for the sus-pension, assuming there was no dis-crimination.

(5) The university based the deci-sion to terminate on the grievant’s per-formance in the month following herreturn from the suspension. While theuniversity showed that the grievant’sattendance did not improve upon herreturn to work, it did not demonstratethere were any general work perfor-mance deficiencies or misconduct dur-ing that period.

(6) While the university has borneits burden of proving it had just and non-

discriminatory reasons for discipliningthe grievant, the grievant’s medical con-dition is a mitigating circumstance thatmust be taken into consideration, as theuniversity was aware of it when it madethe decision to terminate.

(6) The five-day suspension wasfor just cause and was an appropriatestep in the discipline process. How-ever, mitigating circumstances requiresomething less than termination for thegrievant’s conduct during the brief pe-riod after the suspension. Therefore thetermination is overturned.


• Contract — Discrimination forUnion ActivityEnterprise Elementary Teach-

ers Assn., CTA/NEA, and Enter-prise Elementary School Dist. (7-8-05; 14 pp.) Representatives: TammyCole (CTA Chapter Services Consult-ant), for the union; Ralph D. Stern, Esq.(School and Colleges Legal Services),for the district. Arbitrator: Paul D.Staudohar.

Issue: Did the district violate Ar-ticles 21, 26, and 28 of the agreementby attempting to investigate the issuesraised in the grievant’s letter to unionmembership, which was published inthe union newsletter, and by retainingthe documentation in his personnel file?

Pertinent contract provisions: Article21 – Section 1. Complaints AffectingEvaluation: 1.1 – The district shall notutilize any complaint by a citizen whichmight affect the evaluation of a unitmember or which is entered into the

72 c p e r j o u r n a l N o . 175

permanent personnel record withoutfirst providing the following rights....

Article 26 – Organizational Secu-rity – Section 1. Employees Rights: 1.1– The District and the Association rec-ognize the right of employees to form,join, and participate in the employeeorganization and the equal, alternativeright to not form, join, or participate inthe employee organization. Neitherparty shall discriminate against an em-ployee in the exercise of those rights.

Association’s position: (1) The griev-ant, a teacher with the district, is theeditor of the association’s newsletter.The grievant wrote a letter to unionmembers stating specific concernsabout the district administration andpublished it in the newsletter. Thedistrict initiated an investigation andnotified the grievant that he would berequired to provide the factual basesfor the allegations contained in the let-ter. The district then required thegrievant to attend a tape-recorded in-terview with an independent investiga-tor. When the union representative de-termined that the grievant would notbe provided with a copy of the tape, shesuspended the meeting. The districtmade two more attempts to schedule ameeting with the grievant, until theunion filed a grievance demanding thatthe district cease its efforts to interro-gate the grievant and that it remove theletters from his personnel file. The dis-trict terminated its investigation, but itdid not remove the letters.

(2) Contract language clearly andunambiguously states that the districtshall not discriminate against an em-

ployee for exercising his rights to par-ticipate in union activities. The district’sactions were an ongoing and purposefulinterference with the association’s rightto communicate with its members andthe right to participate in activities ofthe employee organization. Because thehuman resources director never in-tended to take disciplinary actionagainst the grievant, the only reason-able explanation for the district’s actionswas that it was trying to discriminateand intimidate the grievant so he wouldnot criticize the district in the future.The district clearly retaliated againstthe grievant for making critical com-ments in the newsletter.

(3) Despite insistence that the in-vestigation has been closed, the districtretained in its file documents relatingto the investigation.

(4) The district treated the situa-tion as if a complaint had been filed,but it failed to follow the complaintprocedures in the agreement.

District’s position: (1) The grievantpublished 12 unsubstantiated accusa-tions about the district’s administration.Of particular concern were the allega-tions of illegal conduct, the statementthat the district kept secret files onteachers, and that it was disingenuousin its dealings with the union at the bar-gaining table. The district felt it had aduty to investigate, but it ceased its in-vestigation once the grievance was filed.There has been no disciplinary actionor other adverse action taken againstthe grievant.

(2) This is not the correct forumfor this issue. PERB has jurisdiction

over employer conduct that arguablyconstitutes an unfair practice. There-fore, the arbitrator lacks jurisdiction todecide this issue.

(3) The grievant failed to use theappropriate administrative remedy.Under Ed. Code Sec. 44031(b)(i), anemployee is allowed to respond to aderogatory statement in his personnelfile in writing, which the grievant chosenot to do.

(4) Article 26 refers to agency shopfees and should not be applied to thissituation.

Arbitrator’s decision: The grievancewas upheld.

Arbitrator’s reasoning: (1) It was ap-propriate for the district to investigatethe grievant’s allegations of improperdistrict actions. The use of a neutralinvestigator was acceptable as well, al-though the discussion of the issues couldhave been conducted in a less formaland intimidating situation. However, itwas not fair for the district to acquirecopies of the recording or transcript,without providing them to the griev-ant.

(2) There is no apparent violationof Article 21. It is questionable as towhether the district administratorwould qualify as “a citizen” coveredunder this section; however, even if so,the grievant was provided with the op-portunity to confront the complainantat the meeting and there is no evidencethat the complaint was included in anyevaluation.

(4) Although PERB has jurisdic-tion over unfair practices, there hasbeen no unfair practice allegation madein this case. Instead, the association is


relying on the language of the agree-ment. The arbitrator is not precludedby case law or statute from applying con-tract language to resolve this grievance.

(5) Contrary to the district’s con-tentions, Article 26 unambiguouslyprovides that the district and associa-tion shall not discriminate against anemployee for exercising the right toparticipate in the employee organiza-tion.

(6) Employees have the right toshare their opinions with fellow unionmembers, which the grievant was do-ing when he wrote that letter. The griev-ant testified that he felt the district de-cision to have him interrogated was animpediment to his participation. In-deed, to allow a transcript of the inter-rogation to be used for the benefit ofthe district but not for the grievant dis-criminates against him for exercisinghis rights to engage in association ac-tivities. Although the district claimedto be unaware that the investigator wasnot going to provide the grievant witha copy of the interrogation, the investi-gator was acting as an agent of the dis-trict. His actions are imputed to the dis-trict.

(7) The grievant was discriminatedagainst for exercising his rights to en-gage in association activities, and thedocuments related to the investigationmust be removed from his file. The dis-trict may retain copies of the docu-ments for its records, but they may notbe used against the grievant in any way.


• Discipline — WorkplaceViolenceStationary Engineers, Loc. 39,

and City of Fresno (7-25-05; 22 pp.)Representatives: W. Daniel Boone, Esq.(Weinberg, Roger & Rosenfeld), for theunion; Victoria Parks Tuttle (deputycity attorney), for the city. Hearing Of-ficer: Carol A. Vendrillo (CSMCS CaseNo. ARB-04-2877).

Issue: Was the appellant terminatedfor just cause?

City’s position: (1) The appellant, aheavy-equipment operator, told a co-worker, Wayne Wulf, that Mark Fox,another coworker, had called him forinstructions on how to operate a ma-chine used for street repair work. Foxdenied making the calls.

(2) On September 29, 2004, RayTackett, another coworker, mentionedthe alleged phone calls in the presenceof the appellant, Fox, and approximately70 other workers while they were in the“doghouse” completing their paper-work at the end of the day. When Foxdenied calling the appellant, the appel-lant called him a liar and the two had aheated verbal exchange. Their super-visor interrupted the exchange andasked the two men to step outside. Foxagreed, but the appellant refused

(3) After Fox clocked out and waswalking to his car, he was accosted bythe appellant. The appellant shovedFox against the wall, holding his fore-arm against Fox’s neck. Fox said he sawa knife in the appellant’s other hand andthat the appellant said he was going tostab him.

(4) Another coworker, John Lowe,who came on the scene, testified he didnot see a knife, but said the appellantremarked, “You didn’t see nothing.”Later the appellant called Lowe athome, to discourage him from provid-ing any information about the incident.

(5) Following a thorough investi-gation, the city determined theappellant’s actions were a clear viola-tion of the city’s policy. Regardless ofwho started the conversation in thedoghouse, the appellant clearly was theaggressor in the interaction at the lock-ers, whether or not he had a knife.

(6) The appellant was terminatedfor behavior that violated the city’spolicy prohibiting workplace violenceand for insubordination. The work-place violence policy prohibits any kindof bodily harm at the worksite. In addi-tion, the appellant was insubordinatefor refusing his supervisor’s directiveto step outside to discuss the verbal con-flict in the doghouse.

Union’s position: (1) The city failedto prove by clear and convincing evi-dence that the appellant made threatsor was insubordinate.

(2) The discipline rests on the con-flicting testimony of Fox and the ap-pellant, as Lowe testified he saw nophysical contact. Fox’s description ofthe incident is not reliable because, aswas demonstrated by the occurrence inthe doghouse, he overreacts and exag-gerates.

(3) There is no evidence the appel-lant coerced Lowe. The appellant calledLowe at home because Lowe asked him

74 c p e r j o u r n a l N o . 175

to at the time of the incident. The appel-lant had no ulterior motive for the call.

(4) The workplace violence policywas not violated because it specificallyrefers to behavior during work hours.The incident with Fox occurred afterhe and the appellant had clocked out.

(5) The appellant’s supervisor tes-tified he did not believe the appellanthad been insubordinate. Thus, therewas no support for that allegation.

Hearing officer recommendation: Theappeal was denied.

Hearing officer’s reasoning: (1) Thiscase turns on the credibility of the wit-nesses, and based on the evidentiaryrecord, Fox’s version of the events ismore credible.

(2) One basis for discrediting theappellant’s testimony concerns his in-teraction with Lowe. Contrary to theappellant’s contention, Lowe testifiedhe did not ask the appellant to call himor tell the appellant he was expectinghis call. Lowe had no reason to lie aboutthis issue. The appellant, in contrast,knew the city was aware of the incidentat the time of his call and had reason toask Lowe not to provide information.

(3) The appellant’s denial of evertelling Wulf that Fox had called himwas contradicted by Wulf’s testimonyand the appellant’s statement about thecalls in the doghouse. The appellant’scredibility was further eroded by the factthat he told police he had not arguedwith Fox outside the building; duringthe hearing, he testified that he and Foxcontinued their argument into the park-ing lot. Furthermore, the appellant tes-

tified that he did not own a pocketknife,but he told police that he did not have aknife on him the day of the encounter.

(4) Fox’s testimony is supported byhis supervisor’s observation that he ap-peared agitated and fearful immediatelyafter the exchange with the appellant.Although the presence of a knife wasnot corroborated by other evidence,from the outset Fox consistently re-ported having seen it. However, the useof a knife was not necessary to supporttermination under the city’s workplaceviolence policy.

(5) The purpose of the city’s policyis to provide a safe work environmentfree of violence and the threat of vio-lence. The policy refers to the city’s pri-ority of ensuring effective handling ofcritical workplace situations and statesthat any threat of violence is unaccept-able. One does not need to inflict vio-lence to fall within the policy. Whenthe appellant pushed Fox against thewall, his conduct could reasonably havebeen perceived as a threat.

(6) Based on Fox’s version ofevents, it is concluded that the appel-lant physically assaulted Fox andthereby violated the city’s workplaceviolence policy. On that basis alone, itis recommended that the terminationbe upheld. While there is no support inthe record for the insubordinationcharge, that does not defeat the deci-sion to terminate the appellant.

(City Appeal Procedure)


Public Employment Relations BoardO r d e r s & D e c i s i o n s

Summarized below are all decisions issued by PERB in cases

appealed from proposed decisions of administrative law judges

and other board agents. ALJ decisions that become final because

no exceptions are filed are not included, as they have no

precedent value. Cases are arranged by statute – the Dills Act,

EERA, HEERA, and MMBA – and subdivided by type of case.

In-depth reports on significant board rulings and ALJ decisions

appear in news sections above.

R e p r i n t S e r v i c eCopies of PERB decisions and orders are available from CPER

at $.30 a page. When ordering, identify the decision by the casetitle and decision number given at the beginning of each abstract.Send your prepaid order to CPER, Institute of Industrial Rela-tions, 2521 Channing Way, University of California, Berkeley, CA94720-5555. Make checks payable to Regents, U.C. (The numberof pages in each decision is indicated at the beginning of thesynopsis.) All orders will be filled promptly and mailed first class.

(Note: PERB headquarters in Sacramento will provide cop-ies of decisions, currently at $5 a case, plus $3 shipping and han-dling. Also, PERB decisions are collected in the governmentdocuments section of all state depository libraries, including thelibraries of major universities. Most county law libraries andmajor law school libraries also receive copies. The decisions alsoare available on PERB’s website at http://www.perb.ca.gov.)

EEEEE EEEEERRRRRA CasesA CasesA CasesA CasesA Cases

Unfair Practice Rulings

District did not follow agreement when it calculatedteachers’ salaries: King City JUHSD.

(King City High School Teachers Assn., CTA/NEA v. KingCity Joint Union High School Dist., No. 1777, 9-14-05; 13 pp.+ 35 pp. ALJ dec. By Member Whitehead, with ChairpersonDuncan and Member Shek.)

Holding: The district violated the collective bargain-ing agreement by failing to follow the provisions for salarycalculations. However, there was no violation for failure toprovide information.

Case summary: In 2000, the district and associationnegotiated a new three-year agreement in which they re-adopted a formula for salary increases. For the past decade,the parties had been negotiating salaries on an annual basis.The new salary formula involved apportioning a percentageof the district’s designated revenue sources to bargainingunit employees. The percentage was to be determined bythe number of teachers currently on staff. During imple-mentation of this provision, the parties arrived at differentincrease amounts and continued to meet in an attempt toresolve those differences. In January 2002, the district an-nounced it would make no more adjustments to its calcula-tions, even though the parties had not reached agreement.The association continued to disagree with the bargaining

unit members used in the district’s calculations and the de-termination of restricted versus unrestricted revenue.

The association filed an unfair practice charge alleg-ing the district had unilaterally changed the policy relatedto the calculation of salary increases based on a revenue-sharing formula established in the agreement. The associa-tion also alleged that the district failed to provide it withrequested information pertinent to the salary increase calcu-lations.

The ALJ determined the evidence and testimony pre-sented by the association on revenue calculation to be per-suasive and supported its interpretation of the agreement.Therefore, he found that the district’s failure to include thoserevenues in its calculations was a unilateral change in viola-tion of EERA. The ALJ determined the record did not sup-port the association’s allegation that the district failed toprovide the requested information. The ALJ found that thedistrict had responded to the association’s requests and thatany failure to do so was attributable to miscommunicationbetween the parties. The ALJ noted that the burden to dem-onstrate an unreasonable delay in the provision of informa-tion rests on the association. Here, the association failed toshow that the district did not provide the information in atimely manner.

76 c p e r j o u r n a l N o . 175

The district filed exceptions to the ALJ’s proposed de-cision and requested the opportunity for oral argument. InArvin Union School Dist. (1983) No. 300, 57 CPER 67, theboard denied an oral argument request where there had beena full and fair hearing, the parties had extensive opportunityto present briefs, and they availed themselves of those op-portunities. Here, as in Arvin, the board found that there wasa voluminous record, extensive documentary evidence, theopportunity for the parties to brief their positions, and com-prehensive briefs. Therefore, it denied the request for oralargument.

The board also reviewed the association’s allegationsthat the district improperly included the salaries of non-unitteachers as part of its calculation of total teacher compensa-tion and that the district improperly excluded non-restrictedrevenues in its computation of the formula. Based on anextensive review of the language of the parties’ agreement,testimony of those involved in negotiations, and relevant pastpractice, the board upheld the ALJ’s assessment of thesecharges as evidence of a unilateral change.

No violation for eliminating position or transferringduties: Klamath-Trinity JUSD.

(California School Employees Assn. and Its Chap. 347 v.Klamath-Trinity Joint Unified School Dist., No. 1778, 10-6-05; 6 pp. + 7 pp. B.A. dec. By Member Whitehead, with Chair-person Duncan and Member Shek.)

Holding: The unfair practice charge was dismissedbecause the district demonstrated that the bargaining unitposition was eliminated for lack of funds, a non-discriminatoryreason, and the association failed to provide enough informa-tion to demonstrate that the transfer of duties from theeliminated position to other classifications was a violation.

Case summary: In 2002, the Klamath-Trinity JointUnified School District received a funding increase and cre-ated four new positions, including that of database analyst.Terry Tyner, then the high school secretary, was hired intothe analyst position. Tyner served as the association’s chap-ter president, chairperson of the negotiating team, and jobsteward. In 2004, the district’s funding was reduced and, as a

result, it eliminated three of the new positions, includingTyner’s. After the database analyst position was officiallyeliminated, Tyner returned to her previous position and sev-eral of the database analyst duties were transferred to otherpositions.

In March 2004, the district required that Tyner attenda meeting, but it declined to inform her of the purpose of themeeting in advance. At the beginning of the meeting, thedistrict informed Tyner and her representative that the pur-pose was to review the accounting practices for one of thehigh schools when Tyner was a secretary.

The association filed an unfair practice charge alleg-ing that the district had discriminated against Tyner for herunion activities by eliminating her position, unilaterallytransferring her duties to another classification, and failingto provide requested information.

The board agent found that the association did notprovide evidence of recent protected activities or adverseaction and therefore failed to state a prima facie case of dis-crimination. The B.A. noted that Tyner had not been disci-plined as a result of the investigatory meeting. While theassociation provided several examples of the district’s alleg-edly prejudicial treatment of Tyner up through early 2003,the B.A. viewed those events as being so remote in time as tobe immaterial to the charge. Furthermore, the B.A. did notfind a discriminatory reason for the elimination of the posi-tion. Therefore, the B.A. dismissed the unfair practice charge.

While the board concluded that the association haddemonstrated that Tyner participated in protected activity, itfound no proof that the district eliminated the position for adiscriminatory reason or deviated from established proce-dures or policies. The board also found that the associationfailed to provide enough information to determine whetheror not the transferred work was directed to newly createdclassifications, within or outside the bargaining unit. Ab-sent this factual record, the board was unable to make a de-termination regarding the transferred work. The boardadopted the B.A.’s decision as its own and dismissed thecharge without leave to amend.


Duty of Fair Representation Rulings

DFR claim remanded for further investigation: SantaAna Educators Assn.

(O’Neil, Salgado, Barham v. Santa Ana Educators Assn.,No. 1776, 9-1-05; 2 pp. By Member Neuwald, with Mem-bers Whitehead and Shek.)

Holding: The dismissed duty of fair representationcharge was remanded to the general counsel for further in-vestigation.

Case summary: The charging parties appealed theboard agent’s dismissal of their charge against Santa AnaEducators Association alleging that the union had deniedthem an opportunity to participate in union activity and hadfailed to satisfy its duty of fair representation. The partiesclaimed that they did not receive the B.A.’s warning letterprior to the case being dismissed.

The board has adopted a procedure in which the gen-eral counsel reviews cases dismissed by board agents. As theboard explained in CSEA (Morrow) (1986) No. 568-S, 69CPER 71, and CSEA and its Chap. 302 (Lauer) (1990) No.809, 86 CPER 64, the reason for the review is to minimizeand reduce appellate litigation prompted by inadequatelyprocessed unfair practice charges.

The general counsel reviewed the dismissal and re-quested that the case be remanded for further investigation.The board found that the general counsel’s request met theboard’s purpose, and it granted the request.

Decision not to arbitrate substitute teacher’s griev-ances not a violation of DFR: UTLA.

(Chambers v. United Teachers of Los Angeles, No. 1781,10-27-05; 2 pp. + 8 pp. R.A. dec. By Member Neuwald, withChairperson Duncan and Member McKeag.)

Holding: The unfair practice charge alleging a breachof the duty of fair representation was dismissed because thecharging party failed to demonstrate that the union acted inan arbitrary, discriminatory, or bad faith manner.

Case summary: Joseph Chambers, an adult educa-tion substitute teacher for the Los Angeles Unified School

District, appealed the regional attorney’s dismissal of hisunfair practice charge against United Teachers of LosAngeles alleging that UTLA failed to satisfy its duty of fairrepresentation by not pursuing his grievances.

In October 2002, Chambers filed a grievance regard-ing the district’s decision to assign his class to another teacher.In June 2004, that grievance was settled by the union and thedistrict.

Chambers was issued an unsatisfactory report fromthe principal in October 2003 for falsifying his resume andtelling the principal, “screw you, screw you.” The union fileda grievance on Chambers’ behalf, and it was heard at the firststep of the process. The union requested a second-step meet-ing, but it ultimately decided not to pursue the grievancebased on Chambers’ acknowledgment of his actions. Cham-bers appealed the union’s decision, but on January 19, 2005,he was informed that the grievance would not proceed toarbitration.

In October 2004, Chambers was issued another unsat-isfactory report, this time for inadequate service. Chambersfiled a grievance, which the district denied because it be-lieved Chambers was not a member of the bargaining unitsince he had not worked enough days during the precedingschool year to qualify. The union did not pursue that griev-ance.

In March 2005, Chambers filed an unfair practicecharge alleging that the union had failed in its duty of fairrepresentation by not pursuing his grievances to arbitrationand by refusing a request he made in November 2004, tohave another representative assigned to his grievances.

In order to state a prima facie violation of the duty offair representation, the R.A. noted, the charging party mustshow that the union’s conduct was arbitrary, discriminatory,or in bad faith. The R.A. observed that the union successfullysettled the 2002 grievance and found no violation. The R.A.did not comment on the untimeliness of the claim. Regard-ing the 2003 grievance, the R.A. found that, even creditingChambers’ assertion that he did not admit to the actionscited, he failed to demonstrate the union acted in a discrimi-natory manner when it decided not to pursue the grievance

78 c p e r j o u r n a l N o . 175

to arbitration. The R.A. found the union merely exercised itsdiscretion in determining how far to pursue the grievance.Furthermore, Chambers was permitted to appeal the union’sinitial decision not to move forward. The R.A. discountedChambers’ contention that the grievance was deliberatelydelayed in retaliation for his request for a new representa-tive, noting that the union reached agreement with the dis-trict to toll the statute of limitations period. As to the 2004grievance, the specific language of the agreement excludedChambers from the unit and thereby prevented him fromfiling a grievance. The R.A. could find no rational argumentfor pursuing the grievance.

Lastly, the R.A. concluded that even though the unionfailed to provide Chambers with another representative, therewas no evidence that his representative acted in an arbitrary,discriminatory, or bad faith manner. Therefore, the R.A. dis-missed the unfair practice charge.

Chambers appealed the R.A.’s dismissal to the board,presenting new allegations and new supporting evidence.The board refused to consider this information because itwas known to Chambers at the time the initial charge wasfiled and he failed to show good cause why it had not beenraised before the R.A. The board adopted the R.A.’s decisionas its own.

MMMMM MMMMM BBBBBA CasesA CasesA CasesA CasesA Cases

Unfair Practice Rulings

General counsel’s request to remand charge for fur-ther processing granted: City and County of SanFrancisco.

(San Francisco Institutional Police Officers Assn. v. Cityand County of San Francisco, No. 1779-M, 10-7-05; 2 pp. ByChairperson Duncan, with Members Whitehead and Shek.)

Holding: The board remanded the unfair practicecharge to the general counsel for further processing.

Case summary: The San Francisco InstitutionalPolice Officers Association appealed the board agent’s dis-missal of its charge alleging that the City and County of San

Francisco violated the MMBA by unilaterally changing pastpractice. The association filed a timely amended charge inresponse to the B.A.’s warning letter, but it was not forwardedto the B.A. until after the dismissal letter had been issued.

The board has adopted a procedure in which the gen-eral counsel reviews cases dismissed by board agents. As theboard explained in CSEA (Morrow) (1986) No. 568-S, 69CPER 71, and CSEA and its Chap. 302 (Lauer) (1990) No.809, 86 CPER 64, the reason for the review is to minimizeand reduce appellate litigation prompted by inadequatelyprocessed unfair practice charges.

The general counsel reviewed the B.A.’s dismissal andconcluded that further investigation would serve the board’sexpress purpose and would provide the most efficient methodfor review of this case. He also noted that in Hartnell CCD(2000) No. 1405, 145 CPER 59, where the B.A. had notreceived the timely filed, amended complaint, the board re-manded the charge for further processing. Taking into ac-count the general counsel’s careful review, the board re-manded the charge.

Duty of Fair Representation Rulings

No DFR violation when union settles grievancerather than pursuing arbitration: Public EmployeesUnion, Loc. 1.

(Coleman v. Public Employees Union, Loc. 1, No. 1780-M, 10-11-05; 3 pp. & 9 pp. B.A. By Chairperson Duncan,with Members Whitehead and Neuwald.)

Holding: The duty of fair representation charge wasdismissed.

Case summary: The charging parties alleged thatthe union violated the MMBA by failing to follow the pro-motion and bidding provisions in the collective bargainingagreement. In an amended charge filed in May 2005, it wasalleged that in 2001, several employees informed the unionthat the county had filled institutional service worker posi-tions without posting. The union contacted the county anddetermined that there had not been a violation. In October2003, the charging parties complained to the union that,


again, these positions had not been posted. This time, whenthe union contacted the county, it received information thatcontradicted the previously provided response. The unionthen filed a class-action grievance on behalf of all ISWs.The county denied the grievance as untimely, but the unioncontinued to pursue it. In late 2004, the county and unionreached agreement on the matter. The union notified thecharging parties of the settlement, the reason for it, thecounty’s position, and an explanation as to why certain con-tract provisions did not apply.

Although the board agent found that the amendedcharge had not been served on the union, she reviewed it onthe merits. The B.A. found that the facts demonstrated theunion pursued the issue for more than two years and resolvedit in a manner that benefited the classification as a whole. Assuch, there was no indication that the union acted arbitrarily,capriciously, or in bad faith. Accordingly, the B.A. dismissedthe charge, and the charging parties appealed.

The board reviewed the B.A.’s findings and adoptedthem as a decision of the board itself, noting that the charg-ing parties failed to introduce any new issues on appeal.

The union sought to have its untimely response to theappeal excused because the individual who had prepared itdid not regularly practice before the board and had assumedthe board would send a notice regarding timeliness. Notingthat ignorance of the law does not demonstrate good cause,the board did not excuse the late filing.


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ALJ Proposed Decis ions (By Region), July 1-October 31,ALJ Proposed Decis ions (By Region), July 1-October 31,ALJ Proposed Decis ions (By Region), July 1-October 31,ALJ Proposed Decis ions (By Region), July 1-October 31,ALJ Proposed Decis ions (By Region), July 1-October 31,20052005200520052005

Sacramento Regional Office — Final Decisions

SEIU Loc. 1000, CSEA v. State of California (CaliforniaConservation Corps), Case SA-CE-1443-S. ALJ Donn Ginoza.(Issued 9-2-05; final 9-28-05; HO-U-883-S.) During lay-off-effects negotiations, an information request for Depart-ment of Finance salary-savings calculations achieved by thepersonal leave program and credited to the California Con-servation Corps was found to involve relevant and necessaryinformation, notwithstanding that no layoffs occurred. Theinformation was pertinent to potential future grievances andlayoffs. However, no violation was found because the re-quest was for information that did not exist and the unionfailed to clarify its request to ask for available informationthat was necessary and relevant.

San Francisco Regional Office — Final Decisions

California School Employees Assn. v. Evergreen Elemen-tary School Dist., Case SF-CE-2433-E. ALJ Fred D’Orazio.(Issued 9-2-05; final 9-28-05; HO-U-882-E.) The districtunilaterally changed the terms of the collective bargainingagreement when it refused to provide a holiday to classifiedemployees based on presidential proclamation of a NationalDay of Mourning after the death of President Reagan, wherethe agreement provides for an additional holiday for, amongother things, “every day declared by the President or Gover-nor as a day of ‘mourning.’” The district also breached itsduty to bargain when it refused to provide the union with alist of employees who would have been entitled to compen-sation if the holiday had been recognized, despite the factthat the district did not have the list and would have had tocompile it from monthly timecards.

Los Angeles Regional Office — Final Decisions

American Federation of State, County and MunicipalEmployees, Loc. 2076 v. County of Orange, Case LA-CE-197-M. ALJ Ann Weinman. (Issued 8-9-05; final 9-7-05; HO-U-881-M.) The county’s post-impasse implementation of aperformance incentive program was unlawful, where evi-

dence showed it was not reasonably comprehended withinits last, best, and final offer. While the county mentioned theprogram during bargaining, the union did not clearly andunmistakably waive its right to negotiate by the negotiator’sresponse that “you’ve got to be kidding.”

The county unlawfully implemented a one-year ex-tension of the MOU, in violation of MMBA Sec. 3505.4,which permits implementation of a last, best, and final offerbut does not permit implementation of a memorandum ofunderstanding. The one-year extension, moreover, was notreasonably comprehended within the county’s last, best, andfinal offer.

California School Employees Assn. and its Chap. 121 v.Garden Grove School Dist., Case LA-CE-4714-E. ALJ AnnWeinman. (Issued 9-26-05; final 10-25-05; HO-U-884-E.)A bus driver-union activist was not disciplined for protectedconduct, despite the existence of an unlawful motive by cer-tain district representatives and establishment of a primafacie case by the union. Evidence showed that representa-tives who harbored an unlawful motive did not participate inthe decision to discipline and that the district representativewho did participate was unaware of the driver’s protectedconduct. The driver refused to take a required drug test orparticipate in the medical-testing process. She would havebeen disciplined for these reasons alone, even if she had notengaged in protected conduct. No collateral estoppel effectwas given to the district’s personnel commission decision toreduce termination to a five-month suspension, where theissue of retaliation for union activity was not fully consid-ered by the commission.

Sacramento Regional Office — Decisions Not Final

Sarca v. California State Employees Assn., Case SA-CO-23-H. ALJ Ann Weinman. (Issued 7-22-05; exceptions filed8-10-05.) No violation of Hudson procedures was foundwhere the employee lacked standing to challenge the agencyfee calculation because he was not required by the union topay the agency fee.

Wunder v. California Faculty Assn., Case SA-CO-24-H.ALJ Fred D’Orazio. (Issued 8-26-05; exceptions filed 9-13-05.) The union did not breach its duty of fair representation


when it decided not to arbitrate a tenured tax professor’sgrievance challenging his assignment to teach an entry-levelaccounting course. Although the professor was a tax special-ist accustomed to teaching advanced courses and had nottaught an accounting course since 1994, the collective bar-gaining agreement gave the department the discretion tomake teaching assignments after consultation with profes-sors. Evidence showed the assignment was not unreasonableand the department satisfied its duty to consult. The ALJrejected the argument that the union decided not to appealto arbitration because it missed the filing deadline, as well asthe argument that the union breached its duty in the way itprocessed the grievance at lower levels of the grievance pro-cedure. The ALJ found the latter claim was not within thescope of the complaint and was time-barred.

Siskiyou County Employees Assn., Loc. 3899 v. County ofSiskiyou, Case SA-CE-255-M. ALJ Donn Ginoza. (Issued8-26-05; exceptions filed 9-15-05.) The proposal that thecounty lay off all extra-help employees before laying off per-manent employees in targeted job classifications was foundto be within the scope of representation. However, no viola-tion was found because the union failed to establish a prac-tice that lesser-status employees were laid off prior to per-manent employees in the targeted classifications, and nei-ther the collective bargaining agreement nor the county or-dinance describe the policy in accord with the union’s inter-pretation.

California School Employees Assn. and its Chap. 250 v.Clovis Unified School Dist., Case SA-CE-2285-E. ALJ FredD’Orazio. (Issued 10-20-05; exceptions due 11-9-05.) Thedistrict breached its duty to bargain in good faith when itrefused a request for information relating to the district’sreporting requirements regarding CalPERS and Social Se-curity benefits. Retirement benefits are matters within thescope of representation and thus the request was for pre-sumptively relevant and necessary information for futurenegotiations. The request was in the form of a questionnaireand was not burdensome.

San Francisco Regional Office Decisions — Not Final

No proposed decisions for this period.

Los Angeles Regional Office Decisions — Not Final

Academic Professionals of California v. Trustees of theCalifornia State University, Case LA-CE-843-H. ALJ AnnWeinman. (Issued 8-15-05; exceptions filed 9-20-05.) CSUdid not unilaterally change a policy when it refused to add aperformance-pay award by an arbitrator to base salaries,where elements of res judicata applied to extinguish CSUliability, CSU has continued to comply with all contractualobligations regarding salary, and the incident was a one-time event over a contract dispute.

Buck, Jr. v. Amalgamated Transit Union, Loc. 1704, CaseLA-CO-29-M. ALJ Ann Weinman. (Issued 8-31-05; excep-tions filed 9-23-05.) The duty of fair representation wasbreached when the union representative told a bus driver itwould file a grievance challenging his discharge for drink-ing on the job but negligently did not do so, thus extinguish-ing his rights. The ALJ declined to award a remedy ofbackpay because the employee failed the alcohol test, ren-dering it highly unlikely he would have prevailed on themerits; the union would not have taken the case to arbitra-tion because it lacked merit; and the arbitration was advi-sory in nature.

Desert Sands Unified School Dist. and California SchoolEmployees Assn., Cases LA-UM-703-E and LA-UM-730-E.ALJ Thomas Allen. (Issued 10-7-05; exceptions due 10-27-05.) Five employees in the positions of personnel specialist,certificated personnel operations specialist, and classifiedpersonnel operations specialist are neither supervisory norconfidential and should be placed in the bargaining unit,where the parties stipulated that they are not required todevelop or present management positions with respect toemployer-employee relations, and their duties do not nor-mally require access to confidential information used to con-tribute significantly to the development of management po-sitions.

The position of associate personnel analyst-examinerfor the personnel commission is not that of a confidentialemployee, where no evidence shows the incumbent has ac-cess to confidential information that significantly contrib-utes to the development of the district’s positions regardingexaminations she designs. The incumbent in the position of


personnel analyst for the personnel commission who assignswork and directs employees while using independent judg-ment is properly excluded from the bargaining unit as su-pervisory.

The incumbents in the position of confidential officespecialist in the superintendent’s office are excluded fromthe bargaining unit as confidential employees, where evi-dence shows they have access to information and documentsthat concern grievances and negotiations.

The incumbent in the position of credentialing ana-lyst in the personnel services office is excluded from the bar-gaining unit as confidential, where the employee helps de-velop management positions, advises the bargaining team,and drafts responses to grievances. However, thecredentialing technician in the same office is not excludedfrom the unit as confidential, where her role in developingthe district’s positions is limited to instances that occur ev-ery four years and her participation in such matters is theexception rather than the rule.

The incumbent in the position of office specialist inthe business office is excluded from the unit as a confidentialemployee, where her actual duties include regular access tobargaining materials, grievance files, and related confiden-tial information. It is irrelevant that her job could be rede-fined. Budget technicians in the same office are excludedfrom the bargaining unit as confidential employees, wherethey run computer simulations of the budgetary effects ofdistrict proposals regarding salary and benefits. Prematurerelease of such information would compromise the district’sbargaining positions.

The incumbent in the position of executive assistant inthe educational services office is excluded from the bargain-ing unit as confidential, where the employee maintains griev-ance files, is exposed to information relating to the district’sbargaining proposals, and prepares weekly confidential re-ports to the school board.

Academic Professionals of California v. Trustees of the Cali-fornia State University, Case LA-CE-799-H. ALJ DonnGinoza. (Issued 10-18-05; exceptions due 11-07-05.) CSUunilaterally implemented a new family-leave policy at itsEast Bay campus without affording the union notice and the

opportunity to bargain, where the new policy adopted, amongother things, the right to demand verification of an employee’shealth condition and certain aspects of the Family and Medi-cal Leave Act. The applicable MOU did not require verifi-cation. The unilateral changes involved matters within thescope of representation and not otherwise superseded by ei-ther the FMLA or the California Family Rights Act.

Jones v. SEIU Loc. 99, Case LA-CO-1192-E. ALJ Tho-mas Allen. (Issued 10-20-05; exceptions due 11-09-05.) Thecomplaint that the union breached its duty of fair represen-tation for failing to attend a grievance meeting was dismissedwhere the union’s failure was due to mere miscommunica-tion and the employee had the right to represent himself atthe meeting. The union did not breach its duty by placingthe grievance in abeyance pending outcome of two indepen-dent investigations into facts underlying the grievance, wherethe decision was reasonable in light of perceived difficultiesin obtaining the employee’s desired remedy through arbi-tration.

Academic Professionals of California v. California StateUniversity, Case LA-CE-800-H. ALJ Bernard McMonigle.(Issued 10-31-05; exceptions due 11-21-05.) On two occa-sions, CSU unilaterally changed its policy regarding irregu-lar or compressed work schedules without affording the unionnotice and an opportunity to negotiate. The ALJ found themethodology used in making wage adjustments and deter-mining when employee wages are changed in connectionwith the various schedules is a matter within the scope ofrepresentation, and CSU did not establish that the FairLabor Standards Act sets an inflexible standard or containsan immutable provision such that negotiations were pre-cluded.

SEIU Loc. 1000, CSEA v. State of California (Dept. ofMotor Vehicles). Case SA-CE-1473-S. ALJ Fred D’Orazio.(Issued 10-31-05; exceptions due 11-21-05.) The unfair prac-tice charge alleging the denial of access rights was deferredto arbitration, where the MOU provided the employer couldnot unreasonably withhold access. The complaint allegedthat the Department of Motor Vehicles interfered with unionand employee rights when it unilaterally imposed a noticerequirement on union representatives and revoked the ac-


cess badge of a union representative; the union filed a griev-ance under the MOU, challenging the same conduct. TheALJ found the conduct alleged in the complaint was argu-ably prohibited under the MOU; although the theories inthe unfair practice and the grievance arguably are different,they arise out of the same conduct.

Report of the Off ice of the General CounselReport of the Off ice of the General CounselReport of the Off ice of the General CounselReport of the Off ice of the General CounselReport of the Off ice of the General Counsel

Injunctive Relief Cases

There were 15 requests for injunctive relief filed be-tween July 1 and October 31, 2005.

California Nurses Assn. v. Regents of the University ofCalifornia, IR No. 485, Case SF-CE-762-H. Request for in-junctive relief was filed on 7-13-05 and denied on 7-18-05.Issue: Did the employer unlawfully reprimand employeeswho participated in a sympathy strike?

California Department of Veterans Affairs and Dept. ofPersonnel Administration v. SEIU Loc. 1000, IR No. 486, CaseSA-CO-278-S. Request for injunctive relief was filed on 7-08-05. PERB denied the request on 7-18-05. Issue: Did theunion engage in bad faith bargaining and commit a unilat-eral change in policy by staging a sickout?

Regents of the University of California v. California NursesAssn., IR No. 487, Case SF-CO-124-H. Request for injunc-tive relief was filed on 7-14-05. PERB granted the requeston 7-19-05. Issue: Did the union engage in bad faith bar-gaining by calling for a one-day pre-impasse strike?

SEIU Loc. 1000 v. California Department of Transporta-tion, IR No. 488, Case SA-CE-1494-S. Request for injunc-tive relief was filed on 8-05-05 and denied on 8-12-05.Issue: Did the department interfere with the union’s ac-cess rights by banning union representatives from statefacilities?

Trout v. University Professional and Technical Employees,IR No. 489, Case LA-CO-334-H. Request for injunctiverelief was filed on 8-10-05. PERB denied the request on8-22-05. Issue: Did the union improperly collect agency fees?

Aldern v. University Professional and Technical Employees,IR No. 490, Case LA-CO-335-H. Request for injunctiverelief was filed on 8-10-05 and denied on 8-22-05. Issue:Did the union improperly collect agency fees?

Statewide University Police Assn. v. Trustees of the Cali-fornia State University, IR No. 491, Case LA-CE-901-H.Request for injunctive relief was filed on 8-12-05. PERBdenied the request on 8-24-05. Issue: Did the university in-terfere with union and employee rights when it communi-cated with employees regarding the status of bargaining?

California Department of Corrections and Rehabilitationand Department of Personnel Administration v. SEIU Loc. 790,IR No. 492, Case SA-CO-281-S. Request for injunctive re-lief was filed on 8-30-05 and denied on 9-9-05. Issue: Didthe union engage in bad faith bargaining and commit a uni-lateral change in policy by staging a sickout?

San Francisco Unified School Dist. v. SEIU Loc. 790, IRNo. 493, Case SF-CO-663-E. Request for injunctive reliefwas filed on 9-2-05. PERB denied the request on 9-15-05.Issue: Did the union engage in bad faith bargaining by call-ing for a one-day sickout?

Statewide University Police Assn. v. Trustees of the Cali-fornia State University, IR No. 494, Case LA-CE-901-H.Request for injunctive relief was filed on 9-12-05 and with-drawn on 9-14-05. Issue: Did the university interfere withunion and employee rights when it communicated with em-ployees regarding the status of bargaining?

Coalition of University Employees v. Regents of the Uni-versity of California, IR No. 495, Case SF-CE-776-H. Re-quest for injunctive relief was filed on 10-6-05. The requestwas placed in abeyance at the parties’ request. Issue: Did theuniversity unilaterally implement changes to health carebenefits?

University Professional and Technical Employees v. Regentsof the University of California, IR No. 496, Case SF-CE-775-H. Request for injunctive relief was filed on 10-6-05. Therequest was placed in abeyance at the request of the parties.Issue: Did the university unilaterally implement changes tohealth care benefits?

California Nurses Assn. v. Regents of the University ofCalifornia, IR No. 497, Case SF-CE-777-H. Request for in-junctive relief was filed on 10-11-05. The request was placedin abeyance at the parties’ request. Issue: Did the universityunilaterally implement changes to health care benefits?


Hicks et al. v. Compton Unified School Dist., IR No. 498,Case LA-CE-4900-E. Request for injunctive relief was filedon 10-21-05 and denied on 11-1-05. Issue: Did the districtdiscriminate against the charging parties for participatingin protected activity?

Teachers Association of Long Beach v. Long Beach UnifiedSchool Dist., IR No. 499, Case LA-CE-4902-E. Request forinjunctive relief was filed on 10-27-05. Issue: Did the dis-trict interfere with union and employee rights by denyingthe union use of its email system?

Litigation Activity

Four new litigation cases opened between July 1 andOctober 31, 2005.

International Association of Fire Fighters, Loc. 188, AFL-CIO v. Public Employment Relations Board, Superior CourtContra Costa County, Case No. N05-0232 (Case SF-CE-157-M, No. 1720-M). Issue: Did PERB err in dismissingthe unfair practice charge? On 7-19-05, a writ of mandatewas filed. On 8-30-05, PERB filed its opposition to writ.

Public Employment Relations Board v. California NursesAssn., Superior Court Sacramento County, Case No.05AS03167 (Case SF-CO-124-H). Issue: Should CNA beenjoined from engaging in a pre-impasse strike? On 7-20-05, the court issued a TRO. On 9-2-05, the court issued apreliminary injunction.

Oakland Unified School Dist. v. Public Employment Rela-tions Board, Court of Appeal, First Appellate District, CaseNo. A110794 (Case SF-CE-2226-E, No. 1770). Issue: DidPERB err in finding that the district unilaterally subcon-tracted bargaining unit work? On 7-21-05, the district fileda petition for writ of review.

King City Joint Union High School Dist. v. Public Em-ployment Relations Board, California Court of Appeal, SixthAppellate District, Case No. H029420 (Case SF-CE-2272-E, No. 1777). Issue: Did PERB err in finding that the districtunilaterally changed the compensation formula? On 10-13-05, the district filed a petition for writ of review.

Personnel Changes

Eric Cu was hired as legal counsel for the Los AngelesRegional Office on September 6, 2005.

Carolyn Kubish was hired as legal counsel in the Sac-ramento Regional Office on August 22, 2005.

Alicia Clement was hired as legal counsel in the SanFrancisco Regional Office on September 6, 2005.

Christine Bologna has returned to PERB from the StatePersonnel Board as an administrative law judge I and washired on September 15, 2005.

Heather Glick was hired as legal advisor to BoardMember Karen Neuwald on October 7, 2005.

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