Fellow OCAA members,
We are pleased to provide a litigation update — we won! On April 28, 2014, PERB Administrative Law Judge (ALJ) Eric J. Cu issued a 40-page opinion, detailing how the County violated its duty to negotiate with us in good faith. The opinion is attached (and will also be available on our website). This email will provide a summary of the opinion, explain what it means, discuss what we anticipate will happen next, and ask for your input.
As we have explained in prior updates, in November 2012 OCAA filed an unfair practice charge against the County in PERB, alleging the County violated its duty to negotiate in good faith. In April 2013, based upon our charge, PERB filed a complaint against the county. At the end of April 2013, OCAA successfully filed a motion to amend the complaint to allege the County also unlawfully imposed terms and conditions of employment on us. After failing to settle the complaint at a settlement conference in May 2013 (when the county said it would make us a better offer and then failed to do so), the case went to trial In October 2013.
The opinion contains several findings of fact, and we encourage everyone to read the opinion to understand what the County did during these negotiations. The highlights include the following: During negotiations, we asked for the actual costs to the County for our unit, not just the budgeted costs. Bruce Barsook, the lawyer the county paid $300 an hour to negotiate with us, told us the County could not provide that data. But during the trial, the County Chief Financial Officer Frank Kim testified that it was possible for the County to provide that information, and that the County regularly did so. (Pages 12-13.) Additionally, during negotiations we asked for the actual language of a number of changes the County wanted to make to our MOU. Barsook’s response was to send a letter saying he was unaware of any legal requirement to provide the actual language. At trial Barsook testified he provided the contract language. Judge Cu said the following in the opinion: “This testimony is not credited because it is contradicted by [Barsook’s] own September 5, 2012 letter.” (Page 15, fn. 5.)
The opinion details several conclusions of law. Judge Cu concluded the County conducted the negotiations in bad faith. Specifically, the County engaged in “surface bargaining,” which is defined as approaching bargaining obligations without any intent to work towards or achieve agreement. This finding is based upon the County’s regressive bargaining on a number of issues, its “predictably unacceptable offers,” its failure to properly respond to information requests, and its failure to provide the actual text of the County’s proposals. And because the County engaged in bad faith, we were not at a bona fide impasse when the County imposed, making the imposition unlawful. Also of note is that Judge Cu expressly did not make a finding regarding our interpretation of PEPRA. The significance of this aspect of the opinion will be discussed later.
Our remedy for the County’s bad faith is found in the Court’s Order. The County is ordered to cease and desist from bargaining in bad faith with us, and cease and desist from violating our rights. The County is also ordered to rescind its March 5, 2013, imposition, and to “make [OCAA] members whole for financial losses resulting directly from [the imposition]. Those financial losses shall be augmented by interest at a rate of 7 per cent annum.” And finally, the County is ordered to post a notice incorporating the terms of the order where notices are to our members are generally posted.
What This Means
Obviously this is a complete victory for us. We knew all along the County was not engaging in a real negotiation, and this opinion confirms it. This is a victory for all of us, and would not have been possible without everyone one of us standing up for what is right and refusing to allow the County to treat us the way it did.
Now where do we go from here? As noted in the letter at the beginning of the opinion, the County has 20 days to file a “statement of exceptions,” which is PERB-speak for an appeal. According to our lawyer (Marianne Reinhold — who also deserves our gratitude for this win), a party can also receive a 20-30 day extension to file. If the County does this, the appeal goes to the PERB board, which consists of five people, all of who are appointed by the Governor. After briefing, the PERB Board will issue an opinion. And although it is rare, the County could also appeal the PERB Board’s decision to the Court of Appeal.
Because the opinion is largely based on findings of fact, our lawyer is confident this decision will not be reversed on appeal. However, we have no idea whether the county will appeal. Note that if the County does appeal, the money it owes us (discussed in detail later) continues to earn 7% interest while the appeal proceeds. We will let you know what the County decides to do. If the County does not file a statement of exceptions within 20 days, the decision of Judge Cu becomes final.
What Happens Next
Obviously the first thing to determine is whether the County will appeal. If it does not, or if it does and loses, then we get our remedy. The entire imposition is rescinded, which means we go back to all of the terms of our MOU as it existed when the County illegally imposed on us. And the County must make each one of us “whole for financial losses” we suffered from the imposition, and at 7% interest. This means a lot of changes, including but not limited to the following: Compensation for the unlawfully increased employee pension contributions going back to March 5, 2013; our paychecks returning to what they looked like prior to the unlawfully increased employee pension contributions; retroactive step raises (and 7% interest on the retroactive payment) for everyone who was eligible for a two step raise since the imposition and only got a one step raise (note this also includes employees who did not receive a review 6 months after moving up in attorney classification); restoration of binding arbitration for employee grievances and discipline; restoration of seniority as a factor for layoffs; and eliminating the changes in the health care plans. Once the opinion is final we entitled to these remedies. Right now we do not how quickly we will be remedied, but we will update you as soon as we learn more.
As noted earlier, this opinion is expressly not based on our argument regarding the interpretation of PEPRA. (Pages 34-36.) Separate from this PERB action, we have filed a writ in superior court that is exclusively based on our PEPRA argument. In light of the PERB decision, we anticipate continuing and/or dismissing that action, because that action is moot when the imposition is rescinded. We will continue to update you on this issue as we move forward.
Finally, we need your help on a couple of issues related to this opinion.
First, as noted, the County has been ordered to make each one of us “whole for financial losses resulting directly from the County’s [imposition].” Our initial analysis has identified four areas where at least some of us suffered financial losses directly from the imposition: 1) The increased employee pension contribution (applies to all of us); 2) Anyone who was eligible for a two step raise since the imposition but only received a one step raise; 3) Anyone who was promoted to a higher attorney classification (e.g. an Atty I who became an Atty II) and did not get a review and corresponding two step raise six months after the promotion); and 4) Anyone whose health care costs went up as a direct result of the changes in the health care plans.
If you fall into one or more of these categories, you do not need to send us a notification at this time — we believe we will be able to determine everyone who falls under these categories. But if you can think of any other financial loss as a direct result of the imposition, please email us at firstname.lastname@example.org.
Second, the financial remedy will apply to anyone who was an OCAA member between March 5, 2013, and when the order becomes final. Many people have ceased being OCAA members during that time period for various reasons — e.g., retirement, promotion to management, becoming a judge. If you are aware of anyone who was an OCAA member during the relevant time period and who is no longer a member, please email us at email@example.com. If you have any contact information for that person, please also include it.
Thank you for all of your support. We will continue to update you as things progress. If you have any questions or concerns, please email them to us at firstname.lastname@example.org.