Great News on the Public Sector Front: restrictions on employers’ transfer of work, electronic notice-posting, clearer standards for showing retaliation based on Union-activity and unlawful banning of “sympathy strikes”

In City of Sacramento (12/24/13) PERB Decision No. 2351-M, the Public Employment Relations Board (PERB) found that the City of Sacramento violated the law when it failed to provide a union with sufficient notice of proposed layoffs.  PERB concluded that, before a public employer decides to transfer work from bargaining-unit positions to non-bargaining-unit positions, the employer is required to provide adequate notice to the union and an opportunity to bargain over both the decision to transfer the work and the effects of the decision.  In this case, some of the work performed by the bargaining-unit workers was also performed by non-bargaining-unit workers.  The City argued that this work arrangement justified its failure to provide the union with prior notice of the layoffs.  PERB rejected that argument because the layoffs were not a result of the loss of work, but resulted from the transfer of the work to non-bargaining-unit workers.  This decision will help prevent public employers from transferring bargaining-unit work to non-bargaining-unit employees.

Significantly, PERB also ordered the City to provide notice that it had violated the law to workers electronically.  While requiring electronic notice has been the practice in the private sector for several years, this is a new development for California’s public sector workers.  In the future, when a public sector employer “regularly communicates with public employees by email, intranet, websites, or other electronic means, it shall be required to use those same [means] to post notice” of PERB decisions and orders.  This will insure that public employees are better notified of unfair practices committed by their employers.

In Santa Clara Valley Water District (12/19/13) PERB Decision No. 2349-M, PERB had to decide whether the Water District retaliated against a worker because of his protected union activities.  A worker who believes s/he was retaliated against must prove a number of things: (1) that she exercised rights protected by the law; (2) that the employer had knowledge that the worker exercised her rights; and (3) that the employer harmed them in some way because the worker exercised her rights.  A separate section of the Meyers-Milias-Brown Act protects workers acting as Union leaders from retaliatory actions taken by public employers (MMBA section 3502.1).  In this case, PERB held that the mere fact that a worker holds an “elected, appointed, or recognized” position with the Union proves that the worker exercised rights under the MMBA.  Because of this decision, “elected, appointed, or recognized” Union leaders need only prove that the employer knew that the worker exercised his rights, and took harmful action because the worker exercised his rights.  Where proving anti-Union animus can often be difficult as employers may not make blatantly obvious discriminatory statements, this added protection will be beneficial to Unions and their leaders.

In City and County of San Francisco (Proposed Decision, 12/31/13) UPC No. SF-CE-981-M, a PERB Administrative Law Judge determined that an anti-strike provision in the City and County of San Francisco’s Charter is unlawful.  Under the MMBA, local governments like the City are allowed to enact rules and regulations concerning labor relations.  However, those rules and regulations cannot conflict with the MMBA.  The City’s Charter banned “sympathy strikes,” which are strikes in support of other workers on strike.  The judge concluded that this part of the City’s charter was unlawful because it conflicts with the MMBA, and ordered it stricken.  The judge also ordered the City to provide notice of the decision to all City employees.  The City may appeal the judge’s decision to the full PERB Board. 

We will provide updates on these cases when events warrant.  For more information, please contact your labor counsel.

By Jake White | January 6, 2014

Legal Developments