Public Sector Case Notes


Public Sector Case Notes

By Stewart Weinberg

Stewart Weinberg, a 1960 graduate of Boalt Hall, is a shareholder of Weinberg, Roger & Rosenfeld in Alameda, a union-side labor law firm. Mr. Weinberg specializes in the representation of unions and employees in the public sector.


Evidence Insufficient to Sustain Decision of Civil Service Commission to Terminate Firefighter for Conduct Detrimental to Public Service

Seibert v. City of San Jose, 247 Cal. App. 4th 1027 (2016)

In a complicated 45-page opinion, the court of appeal reversed the judgment of the trial court vs. superior court and remanded the case for further proceedings. The case involved a firefighter who, while on duty, engaged in an exchange of "salacious" emails with a person whom he did not know was a 16-year-old girl. The fire department terminated the firefighter’s employment.

A Civil Service Commission upheld the termination. The firefighter filed a petition for a writ of mandate to set aside the decision. The trial court held that although there was sufficient evidence to establish that there was an email exchange between the firefighter and the 16-year-old girl, there was insufficient evidence to establish that this conduct violated any written policy. There was no evidence on the firefighter’s part of actual or constructive knowledge that he was corresponding with a minor.

Another issue involved the firefighter’s conduct with regard to a co-worker. He was accused of "leering/staring, [at] a female co-worker." The co-worker gave a statement to a department investigator, but later, when testifying before the Civil Service Commission, she stated that she did not recall the incidents described in the statement. (Much of this case involves rulings on the admissibility of evidence, hearsay, past recollection recalled, prior inconsistent statements, and similar matters, none of which will be discussed in this note.)

The court of appeal found that the evidence concerning whether the firefighter knew he was corresponding with a minor was insufficient. The court ordered that the case be remanded. However, a major issue was, to which forum should the case be remanded? The firefighter argued that the remand must be governed by the Firefighter’s Procedural Bill of Rights Act (FPBOR).1 The FPBOR provides that an employing department shall not take punitive action against a non-probationary firefighter without providing the firefighter with an opportunity for an administrative appeal. The firefighter’s appeal in this case was heard and determined by the Civil Service Commission. However, the FPBOR requires that any adjudicatory hearing be conducted by an Administrative Law Judge (ALJ).2 The City of San Jose took the position that it was exempt from the requirements of the FPBOR because it was a charter city.

The court of appeal rejected the City’s assertion. The alleged misconduct in this case arose while the firefighter was performing his duties as a firefighter. Thus, the court concluded that the charges involving misconduct with his co-worker came within the purview of the FPBOR. The court declined to decide whether the firefighter’s email communication with the minor came within the FPBOR’s reach. The court decided that since the charges concerning the firefighter’s relationship to his co-worker fell within the FPBOR, there should not be a bifurcated procedure. Consequently, the FPBOR would control future administrative proceedings. The court specifically rejected arbitration under the parties’ Memorandum of Understanding (MOU). The court stated:

[The firefighter] may be understood to contend that whenever a firefighter’s employment is governed by a MOU containing a provision for binding arbitration, the firefighter is entitled to binding arbitration of any disciplinary charge subject to the FPBOR, regardless whether the agreement itself calls for arbitration under the particular circumstances. Such a reading is untenable. The statute provides that a firefighter may invoke an arbitration provision "if the employing department is subject to a memorandum of understanding that provides for binding arbitration of administrative appeals." [Government Code § 3254.5(b).] The apparent intention of this provision is merely to preserve, not to expand, a firefighter’s right to binding arbitration pursuant to the collective bargaining agreement. It operates as an exception to the rule declared in the preceding subdivision, which is that all administrative appeals must be heard by an ALJ. [Government Code § 3254.5(a).] It follows that if concurrence by the union is a contractual precondition, and such concurrence has not been given—points [the firefighter] does not seem to dispute—the exception would not be triggered, and the rule (adjudication by an ALJ) would govern. If there is any reason to conclude otherwise, [the firefighter] has not presented it to us.

[Page 13]


Employer Unfair Labor Practices Related to Bargaining

Petaluma Fed’n of Teachers, Local 1881 v. Petaluma City Elementary Sch. Dist./Joint Union High Sch. Dist., PERB Dec. No. 2485 (June 30, 2016)

An employee organization representing certificated employees of the Petaluma City Elementary School District/Joint Union High School District filed unfair labor practice charges against the District, alleging seven unfair labor practices related to their collective bargaining negotiations.

The General Counsel of the Public Employment Relations Board (PERB or Board) dismissed the charges for failure to state a prima facie case as to any of the allegations. The Board reversed the General Counsel’s dismissal in part and affirmed in part.

The Board’s opinion relied on PERB Regulation 32635, which provides that in order to obtain Board review of a dismissal or refusal to issue a complaint, the charging party’s appeal must state the specific issues of procedure, fact, or law, and the rationale on which the appeal is based. The appeal must identify the page or part of the dismissal from which each appeal is taken, and state the grounds for each issue.

PERB noted that information pertaining to unit employees’ wages, hours, and working conditions is intrinsic to the employer-employee relationship and is presumptively relevant. Failure to provide such information is a per se violation of the duty to negotiate in good faith. However, a union’s mere suspicion or surmise that it needs information does not by itself oblige the employer to supply the information in the particular manner requested by the union. And, an employer may not merely assert that a request is unduly burdensome and thus be relieved of any responsibility to furnish information. Even if the information is equally available to the requesting party, the employer must nonetheless advise the union of its reasons for nondisclosure and, if known, the location or source of the equally available information. PERB held that the union did not have to show that it was prejudiced by the lack of the information if the information was relevant and necessary to ongoing negotiations.

The union also asserted that because the District excluded a person from observing negotiations, the District had unilaterally established a new policy. The Board rejected that argument, holding that the District was simply following the default rule for negotiations as expressed in the language of the Educational Employment Relations Act. Government Code section 3549.1 provides in part that negotiations between a public school employer and the exclusive representative of its employees are not subject to California’s open meeting laws unless the parties mutually agree otherwise. There is a legislative preference or "default rule" that, in the absence of agreement to the contrary, negotiations will occur solely between the parties’ representatives.

The union argued, however, that because employees were directly affected by the negotiations, they are not simply part of the public, and that the statutory right of employees to form, join, and participate in the activities of employee organizations includes the independent right of employees to attend and observe negotiations affecting their employment.3 Although PERB acknowledged that the statutory language "when read in isolation, is susceptible to this interpretation, we must nonetheless reject recognition of an independent right of employees to attend negotiations as inconsistent with the policies and purposes of the EERA and with longstanding Board precedent."4

The union asserted that the District’s adoption of a rule prohibiting the distribution of leaflets thirty minutes before "bell schedules" constituted both a unilateral adoption of a policy and an interference with organizational rights. The General Counsel had dismissed both allegations. PERB affirmed the dismissal of the allegation that the District had made a unilateral change of an existing policy or established a new policy where none previously existed. The Board cited California Code of Regulations title 5, section 5570, which provides that teachers are required to be present in their rooms not less than thirty minutes before the time prescribed for commencing the instructional school day, even though the General Counsel had failed to cite and rely on that regulation.

On the other hand, PERB held that its precedents were clear that a rule prohibiting the distribution of literature anywhere on the employer’s premises was presumptively unlawful, because it applies even when employees are not on duty or are in non-working areas. Restrictions on solicitation, including the distribution of literature during non-work hours and in non-work areas, are invalid unless the employer shows special circumstances:

[Page 14]

This blanket geographic prohibition is also overly broad in that, like the above temporal restriction, it fails to account for the fact that not all time spent on the employer’s premises is "on duty" or otherwise subject to employer restrictions on union or other concerted activity. . . . Consequently, even if employees are on duty 30 minutes before classes start, the charge nonetheless states a prima facie case of interference by alleging that the District has promulgated, maintained or enforced an unqualified rule that employees "must be off school property when they hand out fliers."

The Board also agreed with the union that the District’s prohibition was content-based: "Once the employer has opened up other parts of the workplace as a forum for some forms of non-work related speech or expressive conduct, it is not free to ban other non-disruptive speech or conduct based solely upon its content, unless otherwise authorized or required by law." Education Code section 7052.


County Employees’ Retirement Law Prohibition Against "Spiking"

Marin Ass’n of Public Employees v. Marin Cnty. Employees Retirement Ass’n, 2 Cal. App. 5th 674 (2016)

The amount of a public employee’s pension is based upon that employee’s final compensation, provided it is "compensation earnable." An employee has an interest in having that income level be as high as possible. The practice of "spiking" is increasing final compensation or including various non-salary items (such as unused vacation pay) in the final compensation figure.

There have been major legislative efforts to prevent "spiking." The California Public Employees’ Pension Reform Act of 2013 (PEPRA)5 made fundamental alterations in the manner in which public pension are calculated. There are twenty California counties operating under the County Employees Retirement Law of 1937 (CERL).6 Each of those county’s retirement plans is administered by a retirement board. The retirement board determines whether or not items of remuneration that are paid to employees qualify as "compensation" under Government Code section 31460. In PEPRA, the Legislature excluded from "compensation earnable" any compensation determined by the board to have been paid to enhance a member’s retirement benefit.

The employee organization representing certain employees of the County of Marin filed a petition for a writ of mandate to prevent the Marin County Employees’ Retirement Association (MCERA) from implementing its policy regarding compensation earnable and pensionable compensation, which would exclude a number of items of compensation from the definition of compensation earnable. At issue was stand-by pay, administrative response pay, call-back pay, and cash payments for waiving health insurance. The MCERA filed a demurrer, which the trial court sustained.

The court of appeal affirmed. It held that MCERA had followed the required procedure for excluding payments from the determination of "compensation earnable." The court also held that the amendment to Government Code section 31461 was not an unconstitutional impairment of plaintiffs’ vested pension rights. The court determined that although public employees have a "vested" right to a pension, that right is only to a "reasonable pension," not an immutable entitlement to the most optimal formula of calculating the pension.


Public School Employees Not Entitled to Unemployment Benefits During Summer Recess If They Receive Reasonable Assurance of Employment in Following School Term

United Educators of San Francisco v. California Unemployment Ins. Appeals Bd., 247 Cal. App. 4th 1235 (2016)

California Unemployment Insurance Code section 1253.3(a)-(b) prohibits public school employees from receiving unemployment insurance benefits during a period of summer recess if those employees have been given "reasonable assurance" of employment in the school term following the summer recess.

The instant action was brought on behalf of twenty-six certificated and classified employees of the San Francisco Unified School District (District). Each of the employees was sent a "reasonable assurance" letter informing him or her that they had reasonable assurance of employment for the 2011-2012 school year. However, during the recess between the 2010-2011 and 2011-2012 school years, the District offered a summer session that began shortly after the spring semester ended and concluded shortly before the fall semester of the following school year began. A labor union representing substitute certificated employees who worked on a year-to-year contract (but had no contract for summer school employment) and classified employees who are only employed while the regular classes of the District are in session filed a petition for writ of mandamus, asserting that the summer school session was an "academic term" under Unemployment Insurance Code section 1253.3. Therefore, because they had not been provided with "reasonable assurance" of employment for the summer session, they were entitled to unemployment insurance benefits if they were not employed during that session. The California Unemployment Insurance Appeals Board (CUIAB) was added as a respondent by the union, because CUIAB had rejected an ALJ’s decision in favor of the school employees.

[Page 15]

The District filed a cross-complaint for declaratory relief against the CUIAB and the teachers’ union. The cross-complaint against the CUIAB asserted that the CUIAB had erroneously determined that a few of the employees who had received reasonable assurance of employment were entitled to summer unemployment benefits because they had worked during the prior summer school session or had an expectation of procuring work during the then-current summer school session. In an earlier matter involving another school district7 (Brady), the CUIAB held that substitute teachers who were qualified and eligible for work during a summer school session were not on recess within the meaning of section 1253.3 and consequently were eligible for unemployment benefits. The District’s complaint for declaratory relief asked the court to nullify the Brady decision. The San Francisco Superior Court denied the union’s petition for writ of mandate and granted the requested relief nullifying the Brady decision. The CUIAB appealed, as did the union. The appeals were consolidated.

In an earlier action involving the CUIAB and the San Francisco Unified School District, a judge for the Superior Court in and for the City and County of San Francisco held that substitute certificated employees were eligible for unemployment insurance benefits during the period of time when summer school was in session in 2003, holding that summer school was an "academic term" for purposes of section 1253.3. In the current case, the union and the CUIAB argued that the principles of res judicata and collateral estoppel made the earlier decision binding upon the District. The court of appeal in the instant case rejected that argument because the issues in the earlier case and the present case were not "precisely identical." The court asserted that in the earlier case, the question was whether the six-week summer session constituted an academic term. In the court’s view, in the present case the eligibility question was broader, in that it included the weeks before and after the summer session, not merely the period while school was taught in summer session.

The court of appeal held that summer school was not an "academic term" within the meaning of section 1253.3’s reference to "academic years or terms." Such an interpretation, according to the court, was contrary to the plain meaning of the statute. Although the union argued that the substitute and temporary employees were not "on vacation" during the summer of 2011, but were simply unemployed, the court dismissed that argument, because such a reading would render the phrase "period between two successive academic years" meaningless: "In sum, we conclude summer sessions are not academic terms and instead, fall between academic years or terms under section 1253.3. The trial court thus correctly ruled that none of the claimants were eligible for benefits."

NOTE: The author of this note represented the union in this case. The California Supreme Court has since granted review of the case. See "Cases Pending Before the California Supreme Court," in this issue.

[Page 16]



1. Cal. Gov’t Code §§ 3250-3262.

2. Cal. Gov’t Code § 11502(a).

3. Cal. Gov’t Code § 3543(a).

4. PERB Dec. No. 2485, at 29.

5. Cal. Gov’t Code §§ 7522-7522.74.

6. 1937 Cal. Stats., ch. 677.

7. Brady v. Ontario Montclair Sch. Dist., CUIAB Precedent Benefit Decision No. P-B-505 (2013).