Court: Cross-Unit Bumping Is Negotiable; No Pre-Layoff Hearing Required For Economic Layoffs

Alameda County Management Employees Ass’n. v. Superior Court (Case No. A128697) (Issued on 3/7/11)

In response to a budget deficit for the 2009-2010 fiscal year, the Superior Court of Alameda County (Court) laid off 28 members in the bargaining unit represented by the Alameda County Management Employees Association (ACMEA). Under the Court’s personnel rules, an employee who is laid off has the right to “bump” into a position he or she previously held. However, the Court negotiated a MOU with SEIU providing that an employee loses any “seniority” for calculating bumping rights if the employee leaves his or her position for more than six months. The SEIU MOU had the effect of preventing management employees from “bumping” into the SEIU unit because the management employees lost seniority per the SEIU MOU provision.

ACMEA argued that the Court could not apply the SEIU MOU to its members. ACMEA also argued that the laid off employees were entitled to pre-layoff hearings. The trial court rejected both arguments. The court of appeal reversed the trial court on the issue of whether the Court violated the Trial Court Employment Protection and Governance Act (TCEPGA) by applying the SEIU MOU to ACMEA unit members, but affirmed the trial court holding that no pre-layoff hearings were required.

With respect to the SEIU MOU, the court held that under the TCEPGA the Court had the duty to meet and confer with ACMEA over terms and conditions of employment, which include seniority rights. The “status quo” with respect to seniority rights was contained in the Court’s personnel rules. The appellate court held that if the Court wanted to apply the SEIU provision to ACMEA, it should have provided ACMEA notice and an opportunity to bargain over the seniority language. Because it didn’t, the court violated the TCEPGA.

As for the right to pre-layoff hearings, the court cited to Duncan v. Department of Personnel Administration (2000) 77 Cal.App.4th 1166 (“Duncan”) for the holding that pre-layoff hearings are not required when the layoff is due to budgetary constraints. Here, the court held that there is no dispute that the layoffs were due to budgetary constraints. The court also noted that the layoffs involved multiple people and were done according to seniority which is an objective criteria. These factors greatly lessened any chance that the layoffs were “targeted” at particular individuals. Under these facts, the court held that pre-layoff due process hearings are not necessary.

Comments:

Cross-unit bumping is becoming more of an issue now that layoffs are a reality in the public sector. Many unions take the position that members of other unions should not be able to “bump” into their bargaining unit. However, it’s fairly rare to find actual contract language prohibiting employees from “bumping” into a unit. Most public entities allow cross-unit bumping if the employee previously held the position he or she is bumping into. In this case, the SEIU language had the practical effect of protecting existing SEIU unit members from being bumped by employees coming back into the unit. Under this decision, such contract language must be negotiated with not only the union demanding it, but every other union which might be affected. I think trying to implement this decision and actually negotiate such language with multiple unions would be a nightmare. The practical result of this decision is that employers are going to refuse to agree to the SEIU language found in this case.
The more interesting aspect of this case is the issue of pre-layoff due process hearings. This is the first published decision discussing pre-layoff due process hearings since the Levine v. City of Alameda (9th Cir. 2008) 525 F. 3d 903, decision in 2008. That decision created a stir because it suggested that pre-layoff due process hearings are required. However, this decision makes clear that if there is no evidence that employees are being specifically “targeted” for layoff in lieu of discipline or as a form of reprisal, then no pre-layoff due process hearing is required. What’s interesting is that the court does not directly discuss Levine in reaching this holding. However, the court cites to Levine in other portions of the case and also cites to other federal cases on the issue of due process rights. So although I would have liked a more robust discussion of Levine versus Duncan, I think this decision gives public entities some much needed guidance as to when pre-layoff hearings are required.