State Employee Furloughs Challenged

The Professional Engineers in California Government (State Bargaining Unit 9) and the California Association of Professional Scientists (State Bargaining Unit 10) have jointly filed a petition for writ of mandate in Sacramento Superior Court (Case No. 2008-80000126) challenging the Governor’s authority to unilaterally impose furloughs on state employees upon a declaration of an emergency. At the same time, the Service Employees International Union Local 1000 (SEIU) has filed an unfair practice charge with PERB challenging the same action by the Governor.

The unions are challenging the Governor’s executive order S-16-08 issued on December 19, 2008. The executive order declared a state of fiscal emergency based on the state’s finances. In response to the fiscal emergency, the Governor ordered the state to begin the process of furloughing employees, including represented employees, two days a month. According to the executive order, the Governor has authority to impose furloughs in emergency situations pursuant to Government Code section 3516.5. That section states:

“3516.5. Except in cases of emergency as provided in this section, the employer shall give reasonable written notice to each recognized employee organization affected by any law, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the employer, and shall give such recognized employee organizations the opportunity to meet and confer with the administrative officials or their delegated representatives as may be properly designated by law.

In cases of emergency when the employer determines that a law, rule, resolution, or regulation must be adopted immediately without prior notice or meeting with a recognized employee organization, the administrative officials or their delegated representatives as may be properly designated by law shall provide such notice and opportunity to meet and confer in good faith at the earliest practical time following the adoption of such law, rule, resolution, or regulation.”

According to an article in the LA Times, a spokesperson for the Governor’s Department of Personnel Administration stated that section 3516.5 provided, “extra authority to alter working conditions during emergencies.” It’s certainly true that section 3516.5 provides for a unilateral change in working conditions when there is an “emergency.” However, no case has ever considered what constitutes an “emergency” under section 3516.5. It’s also unclear whether PERB would interpret section 3516.5 as any different from existing PERB precedent.

Over the years, PERB has developed a body of law dealing with bargaining obligations during “emergency” situations. Under PERB precedent, an employer raising a business necessity defense must demonstrate that the necessity is the unavoidable result of a sudden change in circumstances beyond the employer’s control in order to justify unilateral action. The timing of the emergency must preclude the opportunity for negotiation, and there must be no alternative course of action available to the employer.” (See Lucia Mar Unified School District (2001) PERB Decision No. 1440, Calexico Unified School District (1983) PERB Decision No. 357, Compton Community College District (1989) PERB Decision No. 720.)

The standard is obviously a difficult one to meet, and few employers have been able to avoid bargaining by asserting an “emergency.” However, the situation here appears to be truly unique. Given the news reports, it seems undisputed that the State is on the verge of a fiscal catastrophe. As long as the state offers to bargain in good faith with the unions on the effects of the furlough proposal, I would be surprised if PERB or the courts are going to second guess the Governor on what constitutes an “emergency.”