The State Worker

Chronicling civil-service life for California state workers

January 21, 2010
PERB dimisses union's unfair practice charge

090204 PERB.gifThe Public Employment Relations Board has dismissed the International Union of Operating Engineers' unfair practice charge that alleged furloughs violate the Dills Act. The charge, filed Jan. 9, 2009, is the first furlough complaint from a union that PERB has decided.

Click the following link for more details about the decision.

Here's PERB's rationale:

As a general rule, an employer cannot change a matter within the scope of representation unless it reaches an agreement or bargains to impasse with the union. (Grant Joint Union High School District (1982 PERB Decision No. 196; Walnut Valley Unified School District (1981) PERB Decision No. 160.) Hours, including a reduction in hours, fall within the scope of representation. (Gov. Code, Sec. 3 5 I 6; San Ysídro School District (1997) PERB Decision No. 1198.) Furloughs are, in essence, a reduction in hours and thus, under the general rule, are negotiable. (Ibid.)

There is, however, an exception to the general rule. Government Code section 3516.5 states that in the case of an "emergency" the State may change a matter within the scope of representation before it bargains with the union. PERB has not yet addressed the Dills Act's "emergency" exception in Government Code section 3516.5. Nevertheless, the Meyers-Milias-Brown Act (MMBA) contains an almost identical "emergency" exception (Gov. Code, 3504.5) and that exception has been addressed by the Court of Appeal.' In Sonoma County Organization Employees v. County of Sonoma (1991) 1 Cal.App.4th267 (Sonoma County),the County Board of Supervisors declared an emergency and then unilaterally changed a matter within the scope of representation. The Court of Appeal held that the invalidity of an emergency declaration is an essential element of the challenging party's claim. (Id. atp.275.) It also held that an emergency declaration is presumed valid and a party challenging the declaration has "the burden of proving its invalidity." (Id. at pp. 215-76.)

It is the charging party's responsibility to provide a "clear and concise statement of the facts and conduct alleged to constitute an unfair practice." (Cal. Code Regs., tit. 8, sec. 32615(a)(5) (emphasis added).) That means the charging party must allege the "who, what, when, where and how" of an unfair practice. (United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944, p. 6 (Ragsdale).) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School District (1991) PERB Decision No. 873.)

Accordingly, absent sufficient proof that the emergency declarations are invalid in this matter (Sonoma County, supra; I Cal.App.4th at pp.275-76), IUOE's charge necessarily fails. (See Ragsdale, supra, PERB Decision No. 944, p. 6.)

Cllick here to read PERB's Jan. 19 dismissal letter and its Dec. 16 warning letter to IUOE.

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About The State Worker

Jon Ortiz The Author

Jon Ortiz launched The State Worker blog and a companion column in 2008 to cover state government from the perspective of California government employees. Every day he filters the news through a single question: "What does this mean for state workers?" Join Ortiz for updates and debate on state pay, benefits, pensions, contracts and jobs. Contact him at (916) 321-1043 and at jortiz@sacbee.com.

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