Skip to content

Archives for unfair-labor-practice

See all posts in the network tagged with unfair-labor-practice

San Diego Firefighters Score Victory In Pension Battle

‘The City breached its duty to meet and confer in good faith with the … San Diego City Firefighters Association, Local 145… when it failed and refused to meet and confer over the Mayor’s proposal for pension reform. By this conduct, the City also interfered with the right of City employees to participate in the activities of an employee organization of their own choosing and denied the [union] their right to represent employees in their employment relations with a public agency…’

With those words, a hearing officer for the California Public Employment Relations Board (PERB) found that the City of San Diego committed unfair labor practices by blatantly orchestrating a voter initiative that purported to implement major changes to the employees pension benefits without negotiations. Administrative Law Judge Donn Ginoza issued the ruling last Monday.

The action was the result of unfair labor practices filed by four San Diego public employee unions: San Diego Municipal Employees Association; Deputy City Attorneys Association of San Diego, American Federation of State, County and Municipal Employees AFL-CIO, Local 127; and San Diego City Firefighters Local 145 seeking to block the passage of so-called Proposition B. That law was adopted by the voters in June 2012.

The 58 page decision is a difficult read for anyone interested, but one of the key questions in the case is whether a mayor, who serves as the “lead negotiator” for the city with labor unions, can aggressively pursue a pension reform voter referendum as a “private individual” and still bargain in good faith?

Here are some of the highlights from the ruling:

The Mayor’s statements to the press that he was pursuing pension reform as a private citizen are insufficient to overcome the reasonable conclusion … drawn from his actions undertaken for the benefit of the City. …

PERB has explained that the duty to bargain includes the “concomitant obligation to meet and negotiate with no others, including the employees themselves [and) actions of a[n] employer which are in derogation of the authority of the exclusive representative are evidence of a refusal to negotiate in good faith.” …

Bypassing occurs when the offending party’s intent is to achieve bargaining objectives while circumventing the negotiations process. It takes the form of conduct seeking to influence a party not involved in the negotiations, typically either the governing board of the employer or rank-and-file employees in the exclusive representative’s bargaining unit. …

The Mayor’s choice of a citizens’ initiative as a vehicle to implement his policy determination is not privileged because it amounts to bypassing of the unions. The absence of case precedent holding that a duty to meet and confer attaches to a citizens’ initiative does not constitute an affirmative license for the Mayor to deprive a union of its right to meet and confer. Though he characterized his initiative campaign as the activity of a private citizen, the Mayor pursued pension reform in his capacity as an elected official, and could not disown his statutory obligation to comply with the MMBA. …

Conclusion

The Mayor under the color of his elected office, supported by two City Councilmembers and the City Attorney, undertook to launch a pension reform initiative campaign, raised money in support of the campaign, helped craft the language and content of the initiative, and gave his weighty endorsement to it, all while denying the unions an opportunity to meet and confer over his policy determination in the form of a ballot proposal. By this conduct the Mayor took concrete actions toward implementation of the reform initiative, the consequence of which was a unilateral change in terms and conditions of employment for represented employees to the City’s considerable financial benefit. Seal Beach requires negotiations when a public agency, acting through its governing body, makes a policy determination that it proposes for adoption by the electorate. By virtue of the Mayor’s status as a statutorily defined agent of the public agency and common law principles of agency, the same obligation to meet and confer applies to the City because it has ratified the policy decision resu1ting in the unilateral change, and because the Mayor was not legally privileged to pursue implementation of that change as a private citizen. These conclusions make it unnecessary to address any other contentions urged by the unions. …

The City will be ordered to cease and desist from its unilateral action, restore the status quo that existed at the time of the unlawful conduct, and make employees whole for any losses suffered as a result of the unlawful conduct… [including an] order that the City rescind the provisions of Proposition B now adopted…

The ruling must be adopted by the full PERB. Parties have twenty days to file objections from February 11, 2013. If no objections are filed, the ruling will become effective automatically.

Here is the full case… happy reading…. San Diego Pension Ruling PERB

Post to Twitter Tweet This Post

Posted in Labor Law, Pensions, Politics

Tagged , , ,

2 comments Posted by on February 14, 2013

Sanity Finally Prevails in Chambersburg

Its been a long year for Greater Chambersburg Area Paid Fire Fighters IAFF Local 1813, but a hearing officer for the Pennsylvania Labor Relations Board has finally added some sanity to what had been a series of labor setbacks.

Stating “it is hard to reach any other conclusion”, hearing officer Thomas P. Leonard, found the Borough of Chambersburg committed an unfair labor practice by disciplining the union president and vice president for asking IAFF members in other fire departments to not volunteer in Chambersburg.

Apparently the legal principles Leonard relied upon were not as obvious to borough officials and even a Count of Common Pleas judge who concluded that union president Patrick R. Martin and vice president Scott McNew acted illegally in sending letters to other IAFF members. President Martin received a suspension and VP McNew was terminated.

The point of contention between the parties was whether the act of asking union members not to volunteer constitutes encouraging a “secondary boycott”, something that is clearly illegal under most labor relations laws. As a student of labor law… in fact as a college instructor who teaches classes on collective bargaining, I am struggling to understand how a “secondary boycott” would apply in this situation… if anything it is a primary boycott… but it is not really even a boycott per se – it is one union member engaging in concerted activities with another union member. Same union, different local. If anyone out there see’s it as a secondary boycott – then by all means help us out and post an explanation below. I cannot help but see the previous decisions in this case (prior to the Leonard decision) as part of a long line of anti-employee anti-labor decisions that seem all too common these days. If someone is anti-labor to begin with then it is easy for them to say sure… yeah… secondary boycott. I like it. Close enough!!!! But when you get into the details, its not really there on the facts.

As part of Leonard’s proposed order, which will become effective in 20 days absent a reversal by the full PLRB, the borough has been ordered to “cease and desist” from “interfering with, restraining or coercing employees in the exercise of the rights guaranteed in the PLRA” as well as “discriminat[ing] against employees in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”

The borough has been ordered to rescind President Martin’s suspension and reimburse him for back pay. No word on whether VP McNew will be reinstated.

More on the story.

Here is an earlier posting on the case, before the secondary boycott argument became the prominent issue.

February 4, 2013 UPDATE: Here are the hearing officer’s decisions. The secondary boycott decision does help clear up the issue somewhat – and explains that basis for the conclusion it is not a secondary boycott.

123806398-Hearing-Examiner-Decision-Interference-Charge

123806426-Hearing-Examiner-Decision-Secondary-Boycott

 

Post to Twitter Tweet This Post

Posted in Disciplinary Action, Labor Law, Politics, Volunteers

Tagged , , , ,

No comments Posted by on February 3, 2013

Union Free Speech and Insubordination

Today’s burning question involves the right of an IAFF firefighter to speak his mind at a union meeting… and whether he can later be bullied by a ranking officer over what he said.

Today’s Burning Question: At a union meeting, two members (a captain and a lieutenant) have a disagreement regarding an issue being debated.  Some words are exchanged but it is nothing out of the ordinary for a union meeting.  A few weeks later while at work the captain asks the lieutenant to step outside the fire station to talk.  Once outside, the captain tells the lieutenant he didn’t appreciate being “called out” at the union meeting and told the lieutenant not to do that again. The two begin to argue, but the lieutenant decides to end it by saying  “$@k off”, and goes back inside the firehouse. The captain brings departmental charges against the lieutenant for insubordination.  The fire chief backs the captain and issues the lieutenant a written reprimand.

In your opinion, does the lieutenant have any recourse?

Answer: That is a great question and one that goes beyond just a dispute between a captain and a lieutenant. It shows the kinds of tension that can exist when supervisors are in the same bargaining unit as subordinates – something that is very common in the fire service. Keep in mind this is only an issue in the public sector because in the private sector supervisory personnel are excluded from the bargaining unit by the National Labor Relations Act.

There are several issues within the fact pattern that we need to elaborate on:

  1. The fact that the captain even brought the union meeting discussion up in a workplace context where he is in a supervisory role may be unfair labor practice and possibly a 1st Amendment violation. There might be a question about whether he deliberately stepped outside of his role as a supervisor by asking the lieutenant to step outside the fire station – something I would have argued in defense of the insubordination charges. However, the fact that the captain then preferred charges and that the fire chief supported him would indicate that despite the request to “step outside” the fire station,  the captain was acting in his supervisory role…  as an agent of management. That means he (and the department) were infringing on a concerted activity and infringing on an exercise of the lieutenant’s 1st Amendment rights. The lieutenant has every right to engage in union discussions at union meetings without being subject to retribution by his employer and/or supervisors.
  2. The Lieutenant may have been insubordinate to the captain but the issue was over a protected activity – which the captain was illegally bringing up. It was the captain who instigated the discussion and in some ways provoked the response. In addition, the punishment is essentially management punishing a member over a concerted/protected activity – which is an unfair labor practice. An appropriate remedy for the unfair labor practice would be to remove the discipline imposed on the lieutenant.
  3. The IAFF Constitution and most, if not all, IAFF Local By-Laws or Constitutions contain a mechanism for members to charge other members with misconduct, including conduct unbecoming an IAFF member.  Abuse of supervisory status to retaliate against a fellow union member for purely internal union free speech will likely be deemed misconduct, and could lead to disciplinary penalties against the Captain, up to and including expulsion.

Many states prohibit supervisory personnel from being in the same bargaining unit as subordinates, and at its surface a case like this certainly seems to highlight the kind of tension that can occur. However, states that draw a line between supervisors and subordinates allow officers of differing ranks to be in the same bargaining unit, and this case involves two officers of differing ranks. It would seem, therefore, that simply grouping members into two groups, firefighters and officers, would not have solved the problem.

There is a long historical tradition in the IAFF and fire departments of officers and firefighters standing together in fraternal support. This is long recognized by state laws that permit these traditional allegiances in the organization of fire service bargaining units.  To the extent that there are individual instances of conflict between union members like the one identified here, that would seem to be best addressed through the normal grievance procedure (to the extent discipline is grievable) and, just as importantly, by internal union disciplinary intervention.

So to answer your question, the possible avenues of recourse are (a) grievance (b) unfair labor practice charge (c) union charges and (d) Federal court suit for 1st Amendment violation, with (a) and (c) being my recommended course of action.

Post to Twitter Tweet This Post

Posted in Burning Question, Constitutional Rights, Disciplinary Action, First Amendment, Labor Law

Tagged , , ,

9 comments Posted by on February 13, 2012

Omaha Firefighters Lose Bad Faith Bargaining Claim

The Nebraska Commission of Industrial Relations has ruled that the city of Omaha did not commit an unfair labor practice in bargaining with its firefighters. IAFF Local 385 filed a complaint with the Commission last August accusing the city of bargaining in bad faith.

The case arose when the Omaha city council refused to ratify a negotiated agreement between Mayor Jim Suttle and Local 385, and sought additional concessions including a shorter term and changes in health care. The firefighters alleged that the city engaged merely in “surface bargaining”, as opposed to bargaining in good faith.

While admitting the facts presented a “close case”, the Commission concluded on Tuesday that the firefighters did not present “sufficient evidence to establish that the City Council acted to hinder, delay or string out the process or to frustrate or bypass the union.”

In a statement that goes to the general state of collective bargaining in the US fire service, the commission wrote: “the most telling aspect of the case before us is the amount of acrimony between the parties. Rather than engage in meaningful negotiations with an eye toward reaching an agreement, the parties are interacting in an atmosphere of distrust, frustration, acrimony and almost constant litigation.”

Here is a copy of the Commission’s ruling.

More on the story.

Post to Twitter Tweet This Post

Posted in Labor Law

Tagged , , ,

No comments Posted by on January 5, 2012

Everett Firefighters Prevail in Staffing Related Unfair Labor Practice

The Washington State Public Employment Relations Commission has ruled in favor of Everett Firefighters IAFF Local 46 on an unfair labor practice claim against the City of Everett. The December 2, 2011 ruling concluded that it was improper for the city to refuse to bargain with the firefighters over staffing reductions, brownouts, and assigning mutual aid companies to replace Everett Fire Department units.

In 2010, the city made a financially driven unilateral decision to brownout companies, reduce staffing, and utilize mutual aid departments to respond directly to incidents in Everett. The city alleged they were forced to resort to these measures to reduce spending on overtime.

The PERC concluded that the issues were mandatory subjects for bargaining, and that “the employer’s behavior was inconsistent with a willingness to bargain.” Among the notable quotes from the decision:

  • “State law requires that employers of union-represented workers give notice and provide an opportunity for collective bargaining when they want to change wages, hours or working conditions.”
  • “The employer was emphatic that it would only look at the staffing approach that it had predetermined to use. The attitude of the Mayor and the CAO/CFO clearly demonstrated to the union that bargaining was futile.”
  • “Overtime is a mandatory subject of bargaining since it involves both wages and hours.”
  • “The number of fire fighters assigned to equipment that can be deployed to an incident can directly impact fire fighter safety.”

The PERC ruled in the city’s favor on two of the union’s charges, namely the city’s continued use of private ambulances and whether emails sent by the city directly to employees was an attempt to circumvent the union.

On the ambulance issue, the commission concluded that the city’s use of private ambulances was not an unfair labor practice. The parties had engaged in some bargaining over the implementation of fire department ambulances, and while the PERC referred to it as a “close case”, the city’s continued use of private ambulance was ruled not to be an unfair labor practice.

As for the city’s decision to email employees directly with information about the brownouts and staffing reductions, the board concluded that the emails were not attempts to bargain with the employees. Rather the emails were merely intended to inform the members of decisions that had already been made, and as such did not constitute an unfair labor practice.

In making the ruling, the PERC ordered the city to reinstate the previous staffing levels and reimburse members for lost overtime. The city has until December 22, 2011 to appeal.

Here is a copy of the decision:  EverettWAUnfairLP

Post to Twitter Tweet This Post

Posted in Labor Law, Municipal Liability, Staffing

Tagged , , ,

No comments Posted by on December 21, 2011

Omaha Firefighters Claim City Council Interference Constitutes Bargaining in Bad Faith

Omaha firefighters have accused the city council of bargaining in bad faith, and have filed a complaint with the Nebraska Commission on Industrial Relations.

The Professional Firefighters of Omaha, IAFF Local 385, reached a tentative pact with the city last May that would have run through 2013. However, the city council delayed consideration of the matter, and instead sought to secure additional concessions. When that failed, the council voted down the measure.

The union filed the unfair labor practice complaint last Friday. In a letter to Omaha mayor Jim Suttle,  Local 385 President Steve LeClair accused the council of  the “hijacking of the negotiation process.”

More on the story.

Post to Twitter Tweet This Post

Posted in Labor Law

Tagged , , ,

No comments Posted by on August 22, 2011