All Correspondence to Sacramento Office June 27, 2016

Transcription

1 DAVID P. MASTAGNI JOHN R HOLSTEDT MICHAEL D. AMICK CRAIGE. JOHNSEN BRJAN A. DIXON STEVEN W. WELTY STUART C. WOO DAVIDE. MASTAGNI RICHARD J. ROMANSKI PHILLIP R.A. MASTAGNI KATHLEEN N. MASTAGNJ STORM SEAN D. HOWELL WILLIAM P. CREGER SEAN D. CURRIN ISAACS. STEVENS PAUL T DOLBERG JEFFREY R.A. EDWARDS DANIELL. OSIER JUDITH A. ODBERT ANDREW R MILLER ERJN M. DERVIN KYLE A. WENDE EDWARD W. LESTER KENNETH E. BACON Sacramento Office 1912 I Street Sacramento, CA I (916) Fax (916) 'Tax ID # A Professional Corporation All Correspondence to Sacramento Office June 27, 2016 Ontario Office 3400 Inland Empire Blvd STE 101 Ontario, CA (909) Chico: (530) San Jose: ( 408) Stockton: (209) KEVIN A. FLAUTT GREGORY G. GOMEZ ACETTATE JOHN H. BAKHIT GRANT A. WJNTER ERICH A. KNORR IAN B. SANGSTER JOSHUA A. OLANDER SHANE P. BRADLEY CHARLES H. GLAUBERMAN GERALD D. LATASA CAMERON S. HUEY DUSTIN C. INGRAHAM LAURIE E. DANIELS WJNSTON W. MOODY CAROLYN M. ORR SHAWN B. COLLINS DANIEL G. WOOD TASHAYLA D. BILLINGTON DAVID L. KRUCKENBERG MATTHEWS. KANE ANDREW J. COLLINS HOWARD A. LIBERMAN Via U.S. Mail and Bruce Goldstein, County Counsel Sonoma County 575 Administration Dr. Santa Rosa, CA Dear Mr. Goldstein: This letter brief is submitted pursuant to your June 1, 2016 request. The Board of Supervisors (BOS) must make a lawful unit determination pursuant to a valid petition before any vote can take place. The BOS's direction that the Teamsters, County and SCLEA agree to a voting process, without a valid unit modification and recognition petition or a determination that the correctional deputies and juvenile correctional counselors are an appropriate unit constitutes unlawful interference and dominance in violation of the Meyers-Milias Brown Act (MMBA). By encouraging the parties to agree to voting procedures, the BOS in effect requested a vote of confidence in SCLEA, not a representational election, as there has not been a determination the proposed unit is appropriate. This conduct is unlawful and exposes the County to significant liability. There is no lawful petition before the BOS. The only petition filed in the applicable window period was the March 18, 2015 petition proposing a correctional deputy only unit. However, it was denied and the Teamsters failed to appeal the denial through the applicable appeal 1

2 and impasse procedures. Thus, there is no procedurally compliant petition before the BOS, nor is there a finding that the proposed unit is appropriate. I. SCLEA'S HISTORY OF REPRESENTING THE CORRECTIONAL DEPUTIES SCLEA has represented the correctional deputies since During this time, SC LEA has had five presidents, three of whom have been correctional sergeants, working daily with correctional deputies and concerned with their wages, hours and working conditions. SCLEA' s current board ofdirectors consists of 13 members, four ofwhom are from the correctional division. SCLEA's last negotiation team had six members, including a correctional deputy and a correctional sergeant. SCLEA's by-laws allow for any represented classification to run for, and serve as president. SCLEA has always advocated for its correctional deputy members and given them a voice in the Association. SCLEA has never "dropped... the issues of most importance to deputies" as the Teamsters claim. (Factfinder's report, pg.12.) Rather, SCLEA refuses to guarantee it will make overtime pay pensionable and attain a 10% raise. Most importantly, SCLEA refuses to make false promises it will strike the correctional deputies and "bring the County to its knees" or engage in any other unlawful work stoppage or slow down to "get what it wants from the County," like the Teamsters. Instead, SCLEA has maintained its stalwart support of correctional deputies, working tirelessly to address the staffing and overtime issues the County created through appropriate and legal means. Ill Ill Ill 2

3 II. SONOMA COUNTY'S LOCAL RULES The MMBA authorizes local agencies to adopt reasonable rules and regulations for the administration of employer-employee relations. (Government Code sections 3507, ) On June 14, 1983, Sonoma County adopted local rules which established the procedures governing its employer-employee relations, including the recognition of employee organizations and the modification of established appropriate units. (Sonoma County Employee Relations Policy, Art. II, 3, 4, 6, 8 and 9.) The County is bound to follow the rules. It is an unlawful practice for a public agency to violate its own local rules, or to adopt and enforce local rules not in conformance with the provisions or purposes of the MMBA. (City of Fremont (2013) PERB Dec. IR57-M) see also; (El Dorado County Deputy Sheriff's Association v. County of El Dorado (2016) 244 Cal.App.4th 950, 962); (Public Defenders' Org v. County of Riverside (2003) 106 Cal.App.4th 1403.) In El Dorado County Deputy Sheriff's Association v. County ofel Dorado (2016) 244 Cal. App. 4th 950 a county board of supervisors violated their local rules when they passed a resolution that deleted several vacant positions from a law enforcement bargaining unit without giving notice to, or consulting, the exclusive representative of the law enforcement bargaining unit. (Id. at ) The court held that because the County violated the plain meaning of its local rules it also violated Government Code section 3507.l(a) which requires a local public agency to follow its own rules. (Id. at 961.) The County attempted to argue that because the MMBA did not require it to meet and confer over the deleted positions there was no violation. (Id. at 961.) The court held the County violated its own rule which in and ofitself is a violation of the MMBA. (Id.) The court reasoned that although the County had the right to take the action it did, it was still subject to any limitations in the County's local rules. (Id. at 964.) 3

4 Finally, the court held that "since the MMBA requires compliance with local rules, the commonsense, legally supportable remedy is to invalidate the action that violated the local rule and direct the county to proceed according to law." (Id at 963.) Thus, Sonoma County is bound to follow its local rules. A. RECOGNITION/UNIT MODIFICATION PROCEDURES Under Employee Relations Policy (ERP) Article II, section 3, an employee organization must file a valid recognition petition with the Employee Relations Officer (ERO). The employee organization must propose a representation unit that is appropriate, which the ERO shall determine in accordance with Article II, section 8. (Emphasis added.) The ERO must receive the petition in the 30-day window period commencing 270 days prior to the termination ofthe Memorandum of Understanding. (Article II, section 7.) The ERO must determine if the recognition petition complies with the requirements in Article II, section 3 and if the proposed unit is appropriate. (Article II, section 4.) If both conditions of Article II, section 4 are met the ERO must then provide notice to the employee unit and allow for a period of time for the petition to be challenged. The ERO then arranges for an election in accordance with the requirements of Article II, section 6. If one of the conditions of Article II, section 4 is not met the petitioning employee organization may appeal pursuant to Article II, section 10. The ERO and petitioning employee organization will then follow the ERP impasse procedures laid out in Article IV, which provide for an independent fact finder to make written findings of fact and recommendations for the resolution of the issues in dispute. Ifthe impasse has not been resolved through fact finding the impasse shall be submitted to the BOS for resolution. (Art. IV, section 16 (e).) These rules are in full force and effect. 4

5 III. THE ERO MUST DETERMINE IF A PETITION IS PROCEDURALY COMPLIANT AND THE APPROPRIATENESS OF A UNIT The ERO, Carol Allen, plays a critical role in processing a petition to modify an existing bargaining unit. First, the ERO must determine if the recognition petition has met the necessary requirements under Article II, section 3, including being timely filed and verifying proof of support. Second, the ERO must determine if the proposed bargaining unit is appropriate pursuant to ERP Article II, section 8. (Article II, section 4.) During the May 3, 2016 BOS meeting, the Teamsters requested the BOS approve an untimely February 17, 2016 petition and move to an election. This action would bypass the ERO's authority in Article II, section 4 ofthe ERP and constitutes an unfair labor practice. The BOS does not have authority to approve the February 17, 2016 petition and direct an election because the ERO has not accepted the petition as lawfully filed and no unit determination has been made as required by Article II, section 4. Moreover, the BOS does not have authority to approve the May 29, 2015 petition and direct an election because the petition was untimely and the ERO and independent fact finder determined the proposed unit (correctional deputies and juvenile correctional counselors) was not appropriate. The March 18, 2015 and February 17, 2016 petitions proposed a correctional deputy only unit. However, neither of these petitions are before the BOS. Approving a petition, or ordering a representation election, that includes this proposed bargaining unit bypasses the ERO, violates Article II, sections 3, 4, 7, 8 and 9 of the ERP and constitutes an unfair labor practice pursuant to Government Code section subdivision (a). 5

6 A. THE ERO FAILED TO VERIFY THE TEAMSTERS' PROOF OF SUPPORT The ERO failed to verify the proof of support filed with the March 18, 2015 petition in violation oferp Art. II, section 3(j). The ERO had a ministerial duty to confirm the proof of support prior to making a determination regarding the appropriateness of the unit. Article II, section 3(j) specifically requires that recognition petitions include "a petition signed by 30% of the employees in unit claimed to be appropriate thereby designating the employee organization to represent them in their employment relations with the County. Such written proof shall be submitted for confirmation to Employee Relations Officer." (Emphasis added) The Teamsters only filed proof of support with its March 18, 2015 petition and the ERO failed to confirm it. 1 The ERO placed the alleged proof of support in an envelope, sealed it and proceeded with the appropriateness of the unit determination in violation of the local rules. (Art. II, section 4.) Had the ERO complied with the ERP, she would have first determined compliance with the requirements of the recognition petition as enumerated in Art. II, section 3(a)-(k). Part of determining procedural compliance was confirming the Teamsters truly had proof of support from 30% of the employees in the unit claimed to be appropriate. (Art. II, section 3 (j).) Ifthere was not 30% proof of support, or any other procedural defect, the question of appropriateness of the unit would not be reached. By neglecting to confirm proof of support and processing the untimely petition through impasse, the County violated the ERP and committed an unfair labor practice. (City offremont (2013) PERB Dec. IR57-M.) 1 The untimely May 29, 2015 and February 17, 2016 petitions were not filed with any proof of support and did not comply with the requirements listed in Art. II, section 3(a)-(k). 6

7 B. THERE IS NO TIMELY PETITION BEFORE THE BOARD OF SUPERVISORS The only window for filing a petition was from March 4, 2015 to April 2, (Art. II, 7 and 9.) On March 18, 2015, the Teamsters filed a petition to modify Bargaining Unit 30 to create a new bargaining unit consisting of correctional deputies only. This petition is not before the BOS because the ERO denied the petition on May 6, 2015 on the basis the proposed bargaining unit did not represent the broadest feasible grouping ofpositions that share a community ofinterest as required by ERP Article II, section 8. The Teamsters failed to appeal the denial. On May 29, 2015, 57 days beyond the applicable window period, the Teamsters filed a new petition in the form of an . It proposed a new bargaining unit that included juvenile correctional counselors and correctional deputies. This petition is untimely and does not satisfy the requirements in Article II, section 3(a)-(k). 2 The ERO's acceptance and consideration ofthe May 29, 2015 petition was a violation of the ERP and therefore, an unfair labor practice. The did not comport with the requirements in Article II, section 3 (a)-(k). The ERO unlawfully excused the procedural defectiveness and processed the petition, determining the proposed unit was not appropriate. The fact finder made the same determination. The BOS refused to overturn the ERO and fact finder's determinations and find the proposed unit appropriate. Thus, even ignoring the procedural flaws, there is no appropriate unit or eligible employees entitled to vote. (Art. II, 4, 6, and 8.) On February 17, 2016, almost a full year after the applicable window period, the Teamsters filed a third petition proposing a correctional deputies only bargaining unit. This petition should not be considered. Taking any action on it violates the ERP because it was not 2 During the May 3, 2016 BOS meeting the Teamsters acknowledged its May 28, 2015 petition was untimely. 7

8 filed within the window period, fails to comply with Article II, section 3 and cannot be directly received or processed by the BOS as the Teamsters requested on May 3, Thus, ordering an election based on this petition is violates the ERP and is an unfair labor practice. Ignoring the recognition, unit modification and impasse procedures violates the local rules. Allowing the BOS to pass a resolution on a matter not properly before it constitutes an unfair labor practice. The March 18, 2015 petition was denied. The May 29, 2015 and February 17, 2016 petitions were fil.ed outside the window period. Accordingly, directing a vote under any petition violates the ERP and constitutes an unfair labor practice. IV. THE BOARD OF SUPERVISOR'S AUTHORITY IS LIMITED TO RESOLVING A DEFINED IMPASSE The BOS only has authority to resolve a defined impasse. ERP Article IV, section 16( e) states that if the impasse is not resolved through fact finding, "the impasse shall be submitted to the Board who shall take such action regarding the impasse as it in its discretion deems appropriate as in the public interest." (Emphasis added.) In this case, the impasse is over the appropriateness of a correctional deputy and juvenile correctional counselor bargaining unit. Assuming there was a valid petition, the BOS is limited to determining whether a correctional deputy and juvenile correctional counselor bargaining unit is appropriate. However, the BOS refused to resolve the impasse and chose to undertake election discussions. Contrary to the Teamsters assertion, the BOS cannot modify an established bargaining unit sua sponte or order a representational election. Only an employee organization or the ERO can 8

9 propose modifying an established bargaining unit during the defined window period. (Article II, 3, 6 and 9.) The BOS is only authorized to take action on "the impasse." (Art. IV, section 16(e).) The Teamsters and County are still at impasse. Thus, there is not a unit to allow to vote and any action to allow or order a representation election is unlawful and in violation ofthe local rules. A. THE BOS FAILED TO MAKE A UNIT DETERMINATION AND THUS, CANNOT ORDER A REPRESENTATION ELECTION There has not been a determination that the proposed bargaining unit is appropriate. On May 3, 2016, the BOS was asked to resolve the impasse by accepting the fact finder's recommendation to reject the petition. (County of Sonoma Agenda Item Summary Report, Item 28 (May 3, 2016).) The BOS failed to take action and the impasse remains. Absent a determination there is a valid petition and appropriate unit, the BOS cannot call for, or establish procedures for, a representation election. The March 18, 2015 petition was denied. The May 29, 2015 petition was procedurally defective and the proposed unit was deemed not appropriate. The February 17, 2016 petition was procedurally defective and there was no finding regarding the appropriateness ofthe proposed unit. Article II, section 6 ofthe ERP lays out specific procedures for calling elections and section 9 applies those procedures to petitions to modify established appropriate units. To reach an election, the ERO must determine the petition met the requirements outlined in Art. II, section 3 AND that the proposed bargaining unit is appropriate. (Art. II, section 4.) Then, the employees entitled to vote are "... those persons employed in regular allocated positions within the designated appropriate unit who were employed during the pay period immediately prior to the date which ended at least fifteen (15) days before the election commences..." (Art. II, section 6.) 9

10 As there is no determination a proposed bargaining unit is appropriate, there are no employees eligible to vote and a valid election cannot take place. Ignoring the lack of a lawful petition and designated appropriate unit, the BOS strongly encouraged SCLEA, the County, and the Teamsters to negotiate a voting process. The election, if held, would seek to remove correctional deputies from Bargaining Unit 30 and thus, from SCLEA. This request alone, without a proper underlying petition, violates the local rules and shows favoritism towards the Teamsters. v. THE COUNTY VIOLATED ITS DUTY TO REMAIN NEUTRAL BY PROCESSING A PROCEDURALLY DEFECTIVE PETITION Under the MMBA, where two employee organizations are competing for the right to represent the same employees, the employer must remain neutral. (County ofmonterey (2004) PERB Decision No M.) Ifan employer does not maintain neutrality, the employer is deemed to encourage employees to prefer one organization over another, which violates the employees' right to choose an organization free of employer interference. (Gov. Code subd. (d); PERB Reg (d).) In assessing such conduct, the Board asks whether the employer's conduct tends to influence employee free choice oforganization. (City offremont (2013) PERB Dec. IR57 M.) PERB has held that a local agency violated the MMBA by failing to remain neutral when the local rules required that a decertification petition be filed during a month long window and the local agency accepted an untimely petition. (City of Fremont (2013) PERB Dec. IR57-M) California case law has also held that when a group of employees wanted a new exclusive representative the existing employee organization needed to be decertified in accordance with the 10

11 adopted local rules, one of which was a 30-day filing window, before a competing employee organization may be elected. (Public Defenders' Organization v. County ofriverside (2003) 106 Cal. App. 4th 1403.) The MMBA accords recognized employee organizations the right to represent the members in their employment relations with public agencies, and it is unlawful for a public agency to deny these organizations the rights guaranteed to them under the MMBA. (City offremont (2013) PERB Dec. IR57-M.) The MMBA prohibits public agencies from interfering with the formation and administration of any employee organization, or to encourage employees to join any employee organization in preference to another. (Id.) An employee would interpret the ERO's and BOS' actions as indicating favoritism for the Teamsters over SCLEA. By allowing the Teamsters to bypass procedural requirements under the adopted local rules the County breached its duty of neutrality in violation of Government Code sections subdivision (d) and 3507.l subdivision (a) and PERB regulation subdivision (d). Government Code section subdivision (c) requires that recognition ofan employee organization be based on a signed petition, authorization cards, or union membership cards showing that a majority of the employees in an appropriate bargaining unit desire the representation. A neutral third party selected by the public agency and the employee organization must review the signed petition, authorization cards, or union membership cards to verify the exclusive or majority status ofthe employee organization. The proof of support for the March 18, 2015 petition was never verified and proof ofsupport was not provided for any subsequent petition. Allowing a vote based on any of the petitions submitted by the Teamsters would violate Government Code section subdivision (c). It would interfere with the rights of employees 11

12 to choose their representative because it would allow an outside employee organization with no proof of support to threaten the employee organization that the employees properly elected. Thus, the County and BOS cannot continue to process the untimely petitions or order a representation election when no valid petition or appropriate unit determination exits. To do so, would violate the local rules and Government Code section subdivision (d), 3507.l subdivision (a) and (c) and PERB regulation subdivision ( d). VI. CONCLUSION The County established local rules and is bound to follow them. Ifthe BOS fails to make a unit determination and directs the ERO to hold an election, SCLEA will be forced to seek a determination from PERB that the County has violated its local rules and unlawfully encouraged the employees to prefer the Teamsters. Sincerely, KNMS/bea cc: Rick Walker, SCLEA Sarah Sandford-Smith Richard Bolanos 12