The State Worker

The first contends that furloughing 255 scientists and engineers at the Department of Toxic Substance Control and the State Water Control Resources Board violated state law. Those employees handle hazardous substance management and remediation at military bases.

The furloughing of certain employees represented by Petitioners working in positions relating to the oversight and support of hazardous substance management and remediation work at military bases is prohibited by Water Code §13177.7 and Health & Safety Code §25353.5. Both prohibit the Controller and the Department of Finance from imposing "any . . . personal services limitations" on those positions. Water Code §13177.77(b); Health & Safety Code §25353.3(b). These Code sections are designed to protect positions that receive funding through federal grants or from parties responsible for paying the costs of the Department of Toxic Substance Control ("DTSC") or the State Water Resources Control Board ("SWRCB"), the agencies charged with doing the work at the military bases. Health & Safety Code §25353.3(b); Water Code §13177.77(b).

The unions' brief also argues that all their rank-and-file members -- regardless of where they worked -- suffered two illegal furlough days at in March 2011. The reason:

The annual budget legislation authorized only reductions in represented employees' compensation that would be proportionate to the reductions made to non-represented employees' compensation. It did not authorize furloughs that would result in cuts to represented employees' wages of a greater percentage than those made to non-represented employees. After the first furlough day in March 2011, the cuts exacted from PECG- and CAPS-represented rank-and-file employees were greater than those made to non-represented employees' compensation. As such, the second and third furlough days in March 2011 were beyond the scope of the Legislature's authorization.

PECG represents about 13,000 state employees and CAPS represents about 3,000.

The unions are also making the "off-budget" argument found in lawsuits that SEIU Local 1000 and California Attorneys, Administrative Law Judges and Hearing Officers in State Employment have recently settled with Gov. Jerry Brown's administration.

PECG has eight members at the California Housing Finance Agency and CAPS has one employee at the California Earthquake Authority. PECG also has two members at the Prison Industry Authority and CAPS has five members. None of those organizations receive appropriations from the Legislature and so, the unions say, the Legislature's furloughs shouldn't have applied to their members at those agencies.

The state will now file a rebuttal, then the unions will have an opportunity to reply. The case is scheduled for oral argument on April 13 in Judge Steven A. Brick's courtroom.

Might the unions settle before then, a la SEIU and CASE?

PECG and CAPS have "been in settlement discussions and they are ongoing," Burcar said. "This is common for cases of this nature."

Our take: A settlement isn't impossible, but it's a long shot. PECG and CAPS are two of the most aggressive unions when it comes to fighting furloughs in the courts.

By making a new argument potentially impacting all 16,000 of their members, the unions are now under more pressure to test the legal waters. Meanwhile, the new legal angle would have to be figured into any deal with Brown, significantly upping the cost of the back wages that would have to be paid as part of any settlement.
PECG v. Brown, opening brief