In a stunning victory for Palo Alto's firefighters union, the state Public Employment Relations Board has determined that the city violated state labor laws in 2011 when it put on that November's election ballot a repeal of the binding-arbitration provision in its contract with public-safety workers -- without first consulting with the union.
Responding to a 2011 complaint filed by the International Association of Firefighters, Local 1319, and AFL-CIO, the labor board issued a 53-page ruling last week in which it found the city breached its duty to negotiate in good faith, in violation of a state law called the Meyers-Mills-Brown Act. Though the Aug. 6 ruling doesn't restore binding arbitration as a means to resolve impasses between the union and city management, it opens the door for the union to challenge its repeal in court and potentially overturn voters' November 2011 decision.
The firefighters' complaint centered on the City Council's vote, which was 5-4, to place on the ballot the measure to repeal binding arbitration, a long-standing and deeply controversial provision that critics said hampered the city's ability to make meaningful reforms to employee benefits. Adopted in 1978, the provision empowered a three-member arbitration panel to settle labor disputes between the city and its public-safety unions.
The union alleged in its complaint that the city according to its contract was required to "meet and confer" with the union about the potential repeal, which the city declined to do.
In its ruling, the board concluded that "the city was obliged to meet with the representatives of Local 1319 either to discuss and exchange proposals regarding the city's proposed changes to the (binding) interest arbitration procedures or to clarify the city's position that the proposed changes to its interest arbitration procedures were a permissive subject of meeting and conferring."
Measure D, as it was known, easily passed that November, with about two thirds of the voters approving.
The new ruling represents a reversal of fortunes for the firefighters union, which had seen its prior challenges to the binding-arbitration repeal rebuffed by the labor board.
In arguing for the repeal in 2011, council members Pat Burt, Karen Holman, Greg Schmid and Greg Scharff all argued that the clause is inequitable because it prevents the city from making the types of meaningful reforms to employee compensation that other labor groups have been forced to adopt during the financial downturn (then-Vice Mayor Yiaway Yeh added the fifth vote that sent the repeal to the ballot). Opponents of the measure emphasized that unlike other employees, public-safety workers cannot legally strike and argued that the binding arbitration provision is a way to protect their interests.
The labor board last week stopped short of restoring binding arbitration in Palo Alto, noting that its authority does not extend to ordering election results to be overturned. But its determination that Palo Alto officials violated the law could pave the way for a fresh legal challenge from the union.
The labor board noted that the only way to overturn an adopted charter amendment is through a "quo warranto writ," a notice that challenges governmental authority for the action. Based on the board's ruling against the city and its direction that the council rescind its vote to place the item on the ballot, "other persons, including the charging party here, may choose to seek such quo warranto relief."
So far, it's far from certain that the union will go that route. Fire Captain Kevin McNally, president of the firefighters union, said he hopes to avoid a lengthy court battle with the city. The main purpose behind the union's complaint, McNally said, is the firefighters' desire to have an opportunity to talk with city leaders about arbitration, with the full understanding of the city's concerns about the provision.
"Hopefully, this will bring people back to the table so that we can find a good solution," McNally told the Weekly. "No one wants to be tied up in legal battles for years and years."
Even if the union tried to overturn the Measure D result, the restoration of binding arbitration "may just put us in the same boat a few years down the road."
"More than anything, we want to find some kind of an arbitration package that can work for both sides," McNally said. "Hopefully, we can."
The labor board has also ordered the city to publicly post notices alerting employees of the violation. The city's conduct, the notice states, "interfered with the right of the unit employees to participate in the activities of an employee organization of their own choosing and denied Local 1319 the right to represent employees in their employment relations with a public agency."
City Attorney Molly Stump disputed the labor board's finding and told the Weekly that her office believes it is "wrong." The council will consider on Monday night her request that the city appeal the labor boards decision.
"It's unfortunate that a procedural issue is being used to try to block the overwhelming will of the voters to repeal interest arbitration," Stump said in an email.
The new ruling from the board runs counter to that of the board's Chief Administrative Law Judge Shawn P. Cloughesy, who just after the November 2011 vote, dismissed the firefighters' "unfair labor practices" charge against the city, finding that the firefighters union waited too long before requesting a consultation with the city.
Cloughesy argued in his 2011 finding that the demand by former union President Tony Spitaleri at a July public hearing that the council "adhere to government codes" in pursuing the repeal did not constitute an actual "meet and confer" request. Even if it did, the demand was "untimely," Cloughesy wrote. He also concluded that the city provided the union with reasonable notice of its intention to alter the rules.
After years of deliberations, the labor board reached a different conclusion. While Palo Alto officials had consistently maintained that binding arbitration is not a subject that by law requires its negotiators to meet and confer with unions, the board flatly rejected this argument. In its ruling, the board asserted that "by refusing to meet with Local 1319's representatives, the city failed and refused to consult in good faith."
While Cloughesy had determined that the firefighters' failure to request a consultation with the city earlier in the process constituted "a waiver by inaction to consult in good faith," the board disagreed with this assessment. Board member A. Eugene Huguenin wrote in the opinion that the city was "aware that Local 1319 still wished to discuss with city representatives the changes proposed by the city to the interest arbitration procedures." Nevertheless, the city has "consistently refused to meet with Local 1319, either for clarification or to discuss the subject of the interest arbitration procedures."
Two other members of the four-member board, Priscilla Winslow and Eric Banks, joined in the decision.