Collective Bargaining: “Be Careful What You Ask For”

California Attorneys v. Schwarzenegger, Court of Appeal Case No. C058415 (Issued on 5/28/09)

With the support of Attorney General Jerry Brown, the union representing state attorneys—the California Attorneys, Administrative Law Judges, and Hearing Officers in State Employment (CASE)—brought a lawsuit seeking to force the State to pay higher salaries. For years, CASE has asserted that state attorneys are paid substantially less than comparable public sector attorneys. Through collective bargaining, CASE has been arguing for “pay parity” but has never achieved its goal. According to CASE, the pay situation is so bad that the State has become “the employer of last resort” for attorneys.

In a published decision, the panel of judges had little trouble rejecting the lawsuit. The court held that even if the pay situation was as CASE said, it was not the court’s role to correct it. Instead, the court—properly, in my opinion—said the correct forum for addressing the pay issue was in collective bargaining or through the Legislature. In a concurring opinion, Justice Scotland noted that Jerry Brown, as Governor, signed the Dills Act which created the system of collective bargaining for state employees. Now, as Attorney General, Jerry Brown is facing the results of that system. Justice Scotland concludes, “To the extent that [the Dills Act] has proved to be unwise or flawed, it is up to the Legislature or the people through the initiative process, not the courts, to correct it.”

Comments:

First, let me disclose that I used to be an attorney for the state and am very familiar with the issues raised in the CASE lawsuit. In fact, I used to be an attorney for the Department of Personnel Administration—which represents the Governor in collective bargaining and defended this case. I also was a Deputy Attorney General and member of CASE, in addition to being an attorney at PERB. So I know all the players in this saga. That said this was a very odd lawsuit; one that had little hope of success from the beginning.

In terms of pay, I fully agree that some state attorneys are underpaid compared to attorneys in other public agencies. The salary disparity is most pronounced in the San Francisco and Los Angeles areas. One way to address the situation would be to provide some sort of geographical differential so that attorneys in higher-cost areas got more compensation. The federal government does this. However, CASE has always steadfastly opposed such a system.

In addition, CASE has made some bone-headed moves in the past. For example, the State has offered CASE salary increases, not enough to achieve full pay parity, but enough to at least start closing the gap. Yet CASE has refused the offers. Also, years ago after a change in leadership CASE got rid of its longtime negotiators—Blanning & Baker. Just a short time later Blanning & Baker was able to negotiate a pay parity provision for state engineers, which probably was one of the greatest achievements of any state union during the Davis Administration. In my mind, there is absolutely no public policy reason why engineers should be entitled to a pay parity provision any more than attorneys. Which only leaves one to wonder what if CASE had stuck with Blanning & Baker. (Disclosure: I used to work for Dick Baker and still think the world of him).

Anyway, in my opinion all these facts just illustrate that CASE can’t blame the collective bargaining system for its woes. After all, other unions have been able to achieve results for its members that the employees could not have obtained individually without collective bargaining. So what does that mean? Maybe CASE should look inward at its own actions. The fact is, there are effective unions and ineffective ones. That’s why the Dills Act, like every other collective bargaining statute, has a system that allows employees to change their exclusive representative.

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