PERB Defends Its IR Request In City Of Fremont Case

City of Fremont (2013) PERB Decision No. I057-M (Issued on 10/25/13)

Back in May, the Board granted a request for injunctive relief (IR) filed by SEIU Local 1021 (SEIU) against the City of Fremont (City). (Click here for my blog post) The case involved a representational dispute between SEIU and the Fremont City Employees Association (FACE). In essence, the issue was whether and how FACE could disaffiliate with SEIU. Caught in the middle was the City. Until the dispute was resolved, the City decided to place a hold on bargaining and to place union dues in escrow. However, by doing so PERB accused the City of favoring FACE over SEIU. According to PERB, the City improperly gave assistance to FACE in its disaffiliation campaign and ignored the fact that SEIU was the recognized exclusive representative of the bargaining unit at issue.

After granting SEIU’s request for IR, PERB went to court to seek a Temporary Restraining Order (TRO). The superior court granted the TRO on May 7, 2013. The case was then expedited and a hearing was held before a PERB administrative law judge (ALJ). On September 4, 2013, the ALJ issued a proposed decision in favor of the City. The ALJ concluded that FACE was in fact the exclusive representative and that SEIU was merely the bargaining representative of FACE. More than a month later, on October 25, 2013, the Board issued this decision “to explain why we granted the [IR] request.”

Reasonable Cause

In its analysis of the case, the Board examined the two elements necessary for IR: 1) reasonable cause to believe an unfair practice has been committed; and 2) that IR is just and proper. The Board noted that in an IR proceeding, it must rely on the facts developed by the General Counsel but that ultimate determination must await a formal hearing before an ALJ. Here, the Board had little trouble finding reasonable cause to believe an unfair practice had occurred based on the General Counsel’s investigation.

Just and Proper

Next, the Board examined whether IR is just and proper. The Board noted that under the Modesto case, the just and proper standard is met “[w]here there exists a probability that the purposes of the [MMBA] will be frustrated unless temporary relief is granted …” The Board then focused on the City’s withdrawal of recognition from SEIU and its escrow of dues. On that issue, the Board found that:

The City’s alleged conduct precludes SEIU from performing any of its duties as exclusive representative. Thus hobbled, SEIU may neither negotiate for a successor to its current MOU, nor represent bargaining unit employees in grievances, disciplinary proceedings or arbitrations. In these circumstances, the MMBA’s system of collective negotiations is simply inoperable, frustrating the MMBA’ s twin purposes of improving employer-employee relations and increasing communication with employees.

The Board also held that PERB’s final order may be rendered meaningless unless IR is granted. The Board specifically held that, “An employer’s failure or refusal to bargain is likely to irreparably injure union representation… The Board’s traditional make-whole remedies do not match the full range of harms flowing from the violation.” In support the Board gave the following example:

If, after adjudicating the underlying charge, the Board concludes that the City wrongly withdrew recognition from, and should have negotiated with, SEIU, the probable remedial order would specify that the parties return to the status quo preceding the City’s withdrawal of SEIU recognition, to wit, recognizing and negotiating with SEIU. However, the Board would be unable provide the unit employees a remedy which compensates them for the delay in economic or non-economic benefits the employees might have received were the City negotiating now with SEIU for a successor MOU.

Additionally, to the extent the City concludes a successor MOU with FACE instead of SEIU, a remedial order requiring the City to restore the status quo ante would arguably require the parties to “unwind” an MOU negotiated in the interim with FACE. Such a process would be highly problematic, involving a speculative effort to determine whether and how an MOU negotiated by SEIU might have been more or less beneficial to employees than an MOU negotiated by FACE.

The Board explained that base on these reasons it granted IR in this case back in May.

Comments:

This is the second IR decision issued by the Board this year and only the third such decision since 2001. Based on the significant principles outlined in this decision, it’s clear to me that PERB is trying to signal a more aggressive stance when it comes to seeking IR in representional (and potentially bargaining) cases.
The procedural status of this case is also interesting. Specifically, an ALJ decision has already been issued dismissing the unfair practice charge. I do not recall any other instance where PERB issued an IR decision after an ALJ decision had already issued dismissing the unfair practice charge. It does seem odd to me for the Board to be defending its finding of “reasonable cause” when its own ALJ has already found no such cause to exist after a formal hearing.
The differences between the findings of the General Counsel and the ALJ only emphasize to me the power of the General Counsel’s office in IR proceedings. The General Counsel has to make factual determinations based almost entirely on written documents and declarations under extremely tight timelines. Errors are going to occur in such an environment. The practice tip I would give to practitioners in an IR situation is to recognize this environment and provide the General Counsel all the information that you can as soon as possible. You want to make it easy for the General Counsel to find the facts in your favor.
Finally, the most important part of this decision in my opinion is the part discussing the “just and proper” standard. I’m worried that PERB is setting forth too subjective of a standard when it talks about bargaining being frustrated. For example, the Board stated that if it allows the City to refuse to negotiate with SEIU, SEIU will never “get back” what it could have negotiated during the time it takes PERB to issue a final decision. But here’s the problem with that analysis, as highlighted by this case. The exact same thing can be said of FACE. Based on the IR, the City will be forced by PERB to negotiate with SEIU. What happens now that the ALJ has said bargaining should be with FACE? It seems to me the problems highlighted by the Board have the potential to occur no matter what. The Board’s position only makes sense if you believe that the General Counsel will always get it right in assessing the facts. That still may turn out to be true in this case, but it certainly isn’t right now based on the ALJ decision.