Mendocino Attorneys Not Entitled To 1% Raise Under Former MOU

[UPDATE (5/20/10): Just received word that MCPAA has filed an appeal of this decision, so it’s not yet final.]

County of Mendocino (2010) PERB Decision No. 2104-M (Issued on 4/21/10)
Facts:

In 2006, the Mendocino County Public Attorneys Association (MCPAA) successfully petitioned to remove several attorney classifications from bargaining units represented by two other unions, the Mendocino County Management Employees Association (MCMEA) and Service Employees International Union (SEIU). Under the MCMEA and SEIU contracts, the attorneys would have gotten a 1% salary increase effective September 2006 if they had remained in those bargaining units. The County’s position was that the attorneys were no longer entitled to the 1% salary increase since they were no longer part of the bargaining units represented by MCMEA and SEIU; and because the MCPAA had not yet negotiated a similar raise for its new unit.

However, in September 2006, all the attorney classifications nevertheless received a 1% salary increase. The County claimed that the increases were given by mistake and stopped them after 3 months. The County also took steps to recoup the mistakenly granted increases but stopped those efforts in response to objections from the MCPAA. MCPAA then brought this unfair practice charge alleging that the County committed an unlawful unilateral change by refusing to give attorneys the 1% salary increase. MCPAA also argued that the County’s efforts to recoup the money constituted a separate unlawful unilateral change.

Decision:

With respect to the denial of the 1% salary increase, PERB affirmed the ALJ’s proposed decision dismissing that charge. PERB held that since the attorneys were no longer in the bargaining units represented by MCMEA or SEIU, they were not entitled to the raises negotiated by MCMEA or SEIU. Specifically, the Board affirmed the ALJ’s finding that:

“Not inconsistent with the same line of authority, the NLRB has found that absent other proof [of] interference with employee free choice an employer is entitled to withhold benefits that employees would have obtained had they remained unorganized so long as the employer engages in good faith bargaining. (Chevron Oil Co. (1970) 182 NLRB 445, 449, citing Shell Oil Co. (1948) 77 NLRB 1306; McGraw-Edison Co. (1968) 172 NLRB 1604, 1609-1610.)”

With respect to the County’s attempted recoupment of the mistakenly given increases, PERB also affirmed the ALJ’s dismissal of that charge. In the proposed decision, the ALJ held that:

“Although the complaint alleges that the recoupment action constituted another aspect of the unilateral change, I find no violation because the County in reasonably short order desisted from collection of the overpaid compensation. The evidence does not demonstrate a change of generalized effect or continuing impact (i.e., a conscious creation of a new policy). [citations omitted]”

Comments:

This case is instructive because it involves an issue that arises fairly often in the public sector, but not too often with any single employer: what happens when there is a change in representation? Here, PERB affirmed that employees must take the bad along with the good when it comes to exercising free choice in representation. In this case, because the attorneys chose to create their own bargaining unit with a new exclusive representative, they weren’t entitled to the salary increases due under their prior contract. That makes sense but its something employees, and employers, often don’t realize.
My only other comment is on the issue of the County’s attempted recoupment of the money. The ALJ dismissed that charge—and the Board affirmed—because the County never actually recouped the money so there wasn’t any “unilateral change.” However, given that PERB had already held that the attorneys were not entitled to the money, and especially since everyone agreed that the raises were given by mistake, why would it have been a unilateral change if the County actually recouped the money? Seems to me the County would have been within its right to recoup the money; and arguably had a duty to the public to do so. So that part of the decision doesn’t make sense to me. However, one can argue that since PERB found no change, it didn’t have to reach the issue of whether the subject matter (ie recoupment of mistakenly given money) was within the scope of representation. That’s true; and that’s how I think that portion of the case should be interpreted.