Layoffs and Collective Bargaining - Not Whether, But How Many, Who and When Must Be Bargained
As cities, counties, and other local public agencies suffer from lack of revenues and face yet undefined possible realignment of responsibilities between them and the financially strapped state government, on January 24 the California Supreme Court reaffirmed that government agencies need not bargain with employee unions as to whether to layoff employees. However, the effect of the layoff decision, including how many, which ones, and when, is subject to requirements of meeting and conferring with union representatives.
In 2003, the City of Richmond, facing a budget shortfall, decided to layoff 20 percent of its 90 firefighters. The City met three times with the authorized union representative to discuss the effects of the decision on the remaining firemen. However, the City rejected the union's arguments that the layoffs would not be necessary if other cost-saving solutions could be found.
The union filed an unfair labor charge with the Public Employment Relations Board (PERB), contending the City was violating state law by failing to meet and confer over the decision to layoff firemen. PERB's agent declined to issue a complaint, explaining in a letter to the union that the decision to layoff the firemen was not subject to collective bargaining, and, although the effects of the layoffs would have been subject to collective bargaining, the City had met with the representative but the union had failed to offer proposals concerning the effects of the layoffs. Thus, the City had not refused to bargain.
After the union filed an amended unfair practice claim, attempting to base its position on safety for employees, the PERB representative again declined to issue a complaint, a decision upheld by a three member PERB panel.
The union then filed a petition for a writ of mandate in the Court of Appeal, which denied the petition without prejudice if it were to be refiled in the Superior Court. The union then filed in Superior Court, where the petition was denied, and the Court of Appeal affirmed the denial.
Acting Chief Justice Kennard, writing for the Supreme Court, as did the Court of Appeal, relied on a 37 year old case, Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 (Vallejo). Under the MMBA the decision whether to layoff employees is not subject to collective bargaining, but the effects of the implementation – wages, hours, and other terms and conditions of employment – are properly subject to such negotiation.
Following its own precedent in Vallejo, all that was left was the issue of whether PERB's decision not to issue a complaint in response to an unfair labor practice charge was subject to judicial review.
In analyzing state and federal labor statutes and court decisions, Justice Kennard noted that the general rule is that PERB's decisions not to issue a complaint are not subject to judicial review. Three exceptions to this general rule were set forth: where PERB's decision not to issue a complaint "(1) violates a constitutional right, (2) exceeds a specific grant of authority, or (3) is based on an erroneous statutory construction."
Justice Kennard stressed that judicial review is not available for "ordinary error, including insufficiency of the evidence to support the agency's factual findings and misapplication of the law to the facts, or for abuse of discretion."
Justice Kennard expressed approval of filing such claims in Superior Court because the Legislature has not expressly prohibited such filings, despite the precise language of the MMBA. On this point, Justice Baxter, who agreed with the majority on the issue of management authority to decide to order layoffs, stated in his opinion that the traditional mandamus jurisdiction of the Superior Courts should be exercised only where the PERB official fails to exercise discretion regarding the issuance of a complaint.
International Association of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Board (City of Richmond) ___Cal.4th ______teaches the following:
- whether or not the fiscal situation requires employee layoffs is a management decision for which no meet and confer sessions are required;
- wages, hours, and other terms and conditions of employment are subject to the meet and confer requirements;
- PERB's failure to issue a complaint in response to a properly framed unfair labor charge will not be subject to judicial review except: 1) to safeguard a constitutional right, 2) to correct PERB's action in excess of its authority; or 3) when PERB's action is based on an erroneous statutory construction.