UPEC FIGHTS CITY HALL!

Thursday, July 03, 2008

Pacific Grove City Council Votes to Cut Employee Rights

Pacific Grove - UPEC Representative Rick Burruss attended a meeting of the Pacific Grove City Council July 2nd to argue to the Council that it should not approve an Ordinance Change that would make all City employees “at will” subject to the City Manager’s discretion. Burruss explained to the Council that their action would violate the State Constitution and case law whereby California public employees have a “property interest” in their positions once they pass initial probation. The property interest that employees enjoy requires a due process procedure for any discipline to be legal. Despite UPEC’s presentation, and presentations from other City bargaining units including police and fire associations, the City Council voted 4-3 to approve the proposed ordinance.

At issue is the City Charter which indeed does include an “at will” statement.

In light of the City Council’s vote, UPEC Business Manager Chris Darker directed staff and legal counsel Goyette and Associates to take all appropriate legal and political action to protect and reinstate our member’s permanent status job protections. For starters, Senior Labor Representative Steve Allen will use the Public Employment Relations Board (PERB) on line form to file an Unfair Practice Charge against the City for unilaterally changing a negotiable condition of employment without completing the bargaining process.

On another matter, the City Council also considered placing an advisory measure on the November ballot to ask citizens to vote on whether or not the City should drop out of PERS and instead enroll employees in a 457 deferred compensation plan. This was seen by UPEC as a back door approach to eliminating PERS over the next several years. Rick Burruss and other association representatives also addressed the Council on this topic and thankfully persuaded the Council to drop the ballot attempt, this time on a 4-3 vote in our favor,

Good job, Rick! We will stay on top of this important issue of job security for our members.

Shasta Regional Medical Center RN’s Overwhelmingly Reject Managements Offer

Friday, June 27, 2008

Over 70% of the Registered Nurses at Shasta Regional Medical Center overwhelmingly rejected management’s last, best and final offer. During the three day’s of voting over 89% of the nurses voted to reject managements offer. This offer was not endorsed by the bargaining team and the bargaining team recommended a “No” vote on the proposal. During the mediation session the bargaining team reminded managements bargaining team, through the Mediator , that two years ago when SRMC pleaded that they were in a poor financial situation the RN’s received a 10.5% raise over two years. The bargaining team recommended a 13.5% salary increase, for all employees, over a two year period or a counter offer from management of one or two years. Management responded with their last, best, and final offer that consisted of a 13.5% salary increase over four years. They also stipulated that any RN, who is currently being paid outside of the current wage scale, would be frozen and in lieu of a raise each of these ninety plus (approx 35% ) nurses would receive a $1,000 stipend each year until they returned to the wage schedule.

Management also agreed to picking up 80% of any insurance increase, however, their offer was only good for the first two of the four years. This would leave the nurses bargaining over any increase in years three and four with management not having any obligation to pay any of the increases in these two years.

Because of the salary and insurance issues we told the Mediator that we would not be endorsing this proposal, however, we would take it to the members for a vote.

The Union has forwarded the results to management with a request that they return to the bargaining table. We are awaiting their reply.

SRMC RN Unit Update

Friday, June 20, 2008

We have a comprehensive update for SRMC RN’s for all employees available for download from the site.

For more information, and two files including a description of the last best final offer from SRMC to the Union, visit our downloads section.

(You must have a member account to access the downloads section of the site).

Use of Compensatory Time Off for Public Employees

Wednesday, June 04, 2008

by Gary Goyette

Next time you get a public employee who believes their request for use of compensatory time off (CTO) must be granted by the employer for specific dates requested, PLEASE REMEMBER that our friends at Mastagni litigated this exact issue up to the Ninth Circuit Court of Appeal and lost (to Terence Cassidy at Porter Scott).  Along with the prevailing case law, what matters most here is the actual agreement between the employer and the employee union and/or the polices & practices of the employer which have been issued/adopted/used:

Here are the basics for the FLSA law applicable to the use of CTO:

1) The specific part of the FLSA statute which addresses the use of CTO is at 29 U.S.C. section 207(o)(5), and this statute states: “An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency-- (A) who has accrued compensatory time off authorized to be provided under paragraph (1), and (B) who has requested the use of such compensatory time, shall be permitted by the employee’s employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency.” (emphasis added).  THIS IS WHAT gives employees the idea the employer must grant their CTO requests for specific dates, as long as use of CTO on requested dates does not “unduly disrupt” the operations of the employer.
2) Despite the “if the use of the compensatory time does not unduly disrupt the operations of the public agency” language in the statute, however, case law interpreting the FLSA does not hold that specific dates requested must be granted.  Rather, case law and specific FLSA regulations allow and encourage unions and public employers to collectively bargain to reach agreements on what is reasonable regarding requests for use of CTO and the grant or denial of such requests.  Specifically in the Ninth Circuit, the controlling case is Collins v. Lobdell (1999) 188 F.3d 1124, 1130 which states “Although employees have a right to use comp time when it would not unduly disrupt the public employers business, the FLSA does not give employees the right of absolute control over the use of comp time. Rather, the legislative history suggests that employers and employees are required to negotiate and reach agreements over the use and preservation of comp time”.
3) More recently a Ninth Circuit case in which our competitor Mastagni lost at the Ninth Circuit Court of Appeal is Mortensen v. County of Sacramento (2004 C.A. 9) 368 F.3d 1082, 1090-1091 In this case the Court held that a public employer has a ‘reasonable period of time’ from when an employee requests use of CTO to when the requested use is granted by the employer, and held in this particular case that the FLSA does not require the employer to grant use of CTO on the exact date requested by the employee “We conclude that the text of § 207(o)(5) unambiguously states that once an employee requests the use of CTO, the employer has a reasonable period of time to allow the employee to use accrued time. Because the statutory language is unambiguous, we need not defer to the regulations and opinion letter.” THEN the Court also interpreted what constitutes a ‘reasonable period of time’ by looking at the regulation at 29 C.F.R. § 553.25 and found that “the county is not in violation of the FLSA unless it fails to follow its leave book policy or refuses to grant the use of CTO within one year of a request.” THEREFORE, an employer must follow their own agreed upon or adopted policies & practices, but once that is done, use of CTO simply must be granted within one year of the request.  Mr. Mortensen and Mastagni were trying to have the Ninth Circuit hold that an employee’s request for use of CTO on a specific date must be honored unless use of the CTO on such date would unduly disrupt the operations of the employer - - but the 9th Circuit said “no,” unless the employer has agreed to this with the employee union, the employer simply must grant the use of requested CTO within one year of the date of the request.
4) For reference, the regulations interpreting the CTO section of the FLSA statute are at 29 C.F.R. section 553.25 (interpreting ‘reasonable period of time’ and ‘unduly disrupt’).  A different regulation emphasizes that the public employer and the employee union should agree to the terms under which CTO is used; that regulation is at 29 C.F.R. section 553.23.
5) Recently one of the Labor Relations publications summarizes a Chicago case, Heitmann v. Chicago, which implied a victory for employees regarding the request and use of CTO. Some of our clients saw this that thought, ‘see, use of CTO on specific dates must be allowed by the employer.’ First, this case is from a federal District Court in Illinois, so it does not have controlling effect in the Ninth Circuit or in California, but is rather a point of reference.  Also it is not a formally published decision, so it is not case law which can be cited in Court.  As a non-citable point of reference, the case held that the Chicago police department must grant police officers’ requests for compensatory time off on a specific date, even if granting the leave requires it to pay overtime to replacement personnel, unless the department’s operations would be unduly disrupted. But the facts of that case and the agreement between the police Department and the employee union is what led to that decision. 

In sum, you have to look at provisions regarding requests for use of CTO in the MOU between the employer and employee union, as well as the policies & practices of the employer regarding granting use of CTO, and after that consider the ‘reasonable period’ and ‘unduly disrupt’ factors.  IF SUCH MOU PROVISIONS and/or employer POLICIES or PRACTICES do not establish a right to use CTO on specific dates (provided enough notice is given for the request to use CTO on such dates), THEN THE FLSA law itself merely requires that an employer grant use of CTO within one year of the request.  Yes, believe it or not, this is the case.  Ask David Mastagni.

Lastly, the only ‘black and white’ issues regarding CTO under the FLSA is that CTO must be accrued at 1.5 times the hours worked (which qualify as overtime hours under the FLSA) - - not on an hour-for-hour basis - - and that there are limits as to how much CTO can be accrued before overtime pay must be issued.  ‘Overtime hours’ under the FLSA are hours above 40.0 per week, OR for peace officer and fire employers which have adopted the 7k exemption, are hours above 171 actual hours worked (do not count sick time, vacation, CTO used, holidays, etc.) in a 28 day period for peace officers and above 212 hours in a 28 day period for fire personnel.  CTO never used to be allowed at all under the FLSA, but evolved as allowable over time.

(Gary Goyette is an Attorney with Goyette and Associates)

Shasta County General Unit Declares Impasse

Tuesday, June 03, 2008

Largest UPEC Unit at Odds

The Shasta County General Unit Bargaining Team met with the County on May 28th and asked if the County would improve upon its last offer for a 26 month contract with a non-retroactive 1.5% increase the first year and 1% increase the second year.  This offer had previously been rejected by a membership vote.

The County representative stated that the County was absolutely not going to improve its offer, despite our previous rejection.

Therefore, the UPEC Bargaining Team declared that we have reached an impasse in negotiations.  Note:  Impasse is defined as a point in negotiations where additional meetings would be pointless as one side or the other has dug in their heels and will not budge.  The County is not budging from its 1.5%, 1.0% proposal so we are by definition at an impasse.

In conformance with County Impasse Rules (Resolution No. 97-154 on the Personnel Department web page) we are required to submit a written request for an impasse meeting along with a statement of our position on all issues that remain in dispute (Impasse Position). 

We have scheduled a membership meeting for Monday, June 9th at 5:30 pm in order to vote to confirm an Impasse Position.  A discussion of all open items wil be held before a final vote is taken.  In addition to voting on an impasse position, we will accept volunteers to form an Impasse Committee.  The Impasse Committee will be responsible for developing tactics to convince the County to increase its offer so that we can settle a reasonable contract.

Chief Negotiator Steve Allen has scheduled an Impasse Meeting with the County for June 12th at 9:30 am.  The purpose of the Impasse Meeting is to make one last effort to settle an agreement and, failing that, to agree to an impasse procedure.  The procedure typically used is mediation, which requires the State of California to appoint a mediator to come to Redding to meet with both sides to attempt to “mediate” by persuasion a settlement.  The schedule of mediation meetings is set by the mediator.  During mediation the Union can engage in pressure tactics developed by the Impasse Committee.

Stay tuned for updates as this dispute develops.

Coleman Fish Hatchery Employees to get AWS Schedule

Recently, Chief Steward Ralph Winstead was able to win the establishment of Alternate Work Schedules for Fish Culturalists at CNFH between Memorial Day and Labor Day.  The new schedule, allowing employees to get one additional day off every other week by adding an extra half hour to the regular workday during those summer months, will be a very welcome change for employees who have long asked for some form of alternate work schedule only to have those requests rebuffed as impractical.  We want to congratulate Mr. Winstead on his efforts to improve the working conditions at CNFH and on his success in establishing 9/80 schedules for the first time for the affected employees.