Labor attorney Tim Yeung says on his California PERB Blog the board's Office of the General Counsel's recent rejection of a union unfair practice charge over furloughs (read about it here) "could be ground-breaking" and may even set the stage for Gov. Arnold Schwarzenegger to impose a pay cut in response to a fiscal "emergency."
This case could be ground-breaking. As it stands, both the Dills Act and the MMBA have language allowing an employer to act unilaterally in an "emergency." That's really nothing new as the NLRA has long recognized that an employer can act unilaterally in an emergency. The same doctrine has been recognized under the other acts administered by PERB, such as EERA. The problem for employers is how "emergency" has traditionally been defined. The unions have always argued that a true emergency does not exist unless the employer can show that it had no other choice but to take the action it did. Here, however, the OGC did not discuss at all whether the Governor had options other than furloughs (e.g. layoffs). Is that not a requirement of an "emergency"? If so, that's a very favorable clarification for public employers.
The counsel's decision says that an emergency declaration is assumed to be valid, Yeung notes, which places the burden of proof on the unions to prove there isn't one.
This decision also does not bode well for state employees in the coming fiscal year. The unions have been publicly complaining that furloughs are bad public policy because they reduce state services to the public ... hoping that the Governor would reduce or eliminate the furloughs. However, state employees should recognize that the Governor could just as well impose a straight salary cut. Under this decision, where there is a bona fide emergency, the Governor could just as well impose salary cuts as impose furloughs. Salary cuts have the benefit of not reducing state services. I'm not saying that salary cuts makes sense--especially in classifications where state employees are already paid less than employees in comparable jurisdictions--but it's certainly an option the Governor must examine given the dire fiscal situation.
Obviously, the unions maintain that pay terms must be bargained with them. SEIU Local 1000 President Yvonne Walker said it again a few days ago on the union's Web site.
You can read Yeung's complete analysis of the PERB decision by clicking here. His opinions are shaped by years as an attorney with the state Department of Justice and with the Department of Personnel Administration and his current job as a labor attorney with Renne Sloan Holtzman Sakai LLP.