Legal battle could threaten labor-reform measure

Palo Alto officials, firefighters union clash in court over Measure D

Palo Alto's high-profile fight with its public-safety unions over labor reform will not end on Election Day (Nov. 8), when voters are scheduled to rule on Measure D, but will continue to play out in the courtroom well after the ballots are cast.

Even as City Council members and the city's firefighters are waging public campaigns for and against Measure D, which would repeal the binding-arbitration requirement in the City Charter, attorneys for both sides are clashing over whether the ballot measure is legal in the first place -- a conflict that promises to stretch beyond Nov. 8.

The legal dispute was prompted by an "unfair labor practice" complaint that the union, International Association of Firefighters, Local 1319, filed against the city shortly after the City Council voted 5-4 in July to place the repeal of binding-arbitration measure on the ballot. The union argued that the city violated labor law by not negotiating with the unions in good faith before placing on the ballot a measure that would change the process for resolving disputes.

The city countered that the firefighters had plenty of opportunity to discuss binding arbitration with city officials before July. Binding arbitration empowers a three-member panel of arbitrators to settle labor disputes between the city and its public-safety unions. The firefighters union vehemently opposes the measure.

The city has also argued binding arbitration is not a subject that requires meet-and-confer sessions with the union under state law.

The verdict, which the Public Employment Retirement Board has agreed to postpone until after the election, could have major ramifications on the results of Measure D. If the court were to rule against the city, it would provide the union with a basis to legally challenge the results of the Nov. 8 election, should Measure D pass.

The labor-relations board was planning to issue its verdict this month but Chief Administrative Law Judge Shawn Cloughesy agreed last week to wait until after the election.

Earlier this month, each side submitted post-hearing briefs to the labor-relations court, laying out its case. The firefighters maintained, as they had in previous documents, that the city failed to consult the unions "in good faith" before the council voted to place the repeal on the ballot. They pointed to a Section 3507 in the labor code that requires "good faith" negotiations with unions on a variety of issues, including "additional procedures for the resolution of disputes involving wage, hours and other terms and conditions of employment."

The union's attorney, Duane Reno, wrote in his post-hearing brief that "consultation in good faith" amounts to a "requirement that an employee organization be given the opportunity to meet personally with representatives of a public agency over any such matter, to engage with the public agency in a meaningful exchange of information, to have serious discussion with the public agency of other possible courses of action, and to exchange proposals and counter-proposals."

Reno requested that PERB issue an order that "respondent violated Government Code Section 3507 and that, as a result, the proposed Charter amendment is invalid even if approved by voters."

The city argued that the union had plenty of opportunities to provide feedback on the proposed labor reforms, which have been the subject of nearly two years of public debate. The union "chose to sit on its rights until the public debate over the measure had concluded, more than two-and-one-half months after it first received notice that the City Council would be considering placing repeal or modification of interest arbitration on the November 2011 ballot," Charles Sakai, an attorney representing the city, wrote in his response.

"Despite the significant notice and extensive opportunities to consult with the City and provide input on the structure of the proposed charter amendment, IAFF willfully stayed out of the debate until after the City Council voted," Sakai wrote.

The city also maintains that it's the superior courts, rather than PERB, that have jurisdiction over arbitration matters. He cited a section of the labor code that states that "superior courts shall have exclusive jurisdiction over actions involving interest arbitration" when the action involves a firefighters union. Thus, the union's complaint, Sakai argued, "must be dismissed for lack of jurisdiction."

Sakai also argued that it would be "manifestly inappropriate" for the judge to issue a proposed decision while an election is pending. The effect of a trial decision on the election, he wrote, "may be irrevocable."

"No one knows what the effect of a ruling here would be ... ; it could undercut the measure, it could trigger a backlash, or it could be ignored by the voters," Sakai wrote. "But we know one thing: We should never have to look back on this election and wonder what impact a proposed decision would have."

Cloughesy agreed to postpone the decision until after the election and gave the parties an Oct. 24 deadline to submit reply briefs, if they so desire.

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Posted by Michael
a resident of Crescent Park
on Oct 22, 2011 at 12:46 pm

Whatever the city spends defending itself from desperate nuisance lawsuits from the fire union should come straight out of wages in the next contract.

How much more of this are we supposed to put up with until we rid ourselves of this toxic special interest and outsource the department to the county or privatize it. I'm sick of 150K per year (for two shifts per week) special interest government employees trying to hold the city hostage and play the public for fools. Stand firm, PA, don't let these petulant, spoiled, privileged government workers try to litigate their way to continued special treatment aboard the taxpayer gravy train.

Like this comment
Posted by Walter_E_Wallis
a resident of Midtown
on Oct 22, 2011 at 1:40 pm

Walter_E_Wallis is a registered user.

Contract fire fighters are great - until you have a fire.

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Posted by Michael
a resident of Crescent Park
on Oct 22, 2011 at 3:24 pm

Fear mongering is no excuse to continue flushing taxpayer money down the toilet by overpaying one particular special interest employee unions.

There is nothing a 200K per year (PA) firefighter can do that a 75K per year (Market rate) firefighter cannot. Just ask any $40K per year soldier or marine, for that matter. They do a much more dangerous job for much less and the public is not living in fear of attack.

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Posted by Sam
a resident of another community
on Oct 22, 2011 at 4:33 pm

The IAFF is very well funded (millions of dollars) and would love to set a example in Palo Alto about fair labor practices. This could be a long fight costing both sides big dollars. Stay tune.

Like this comment
Posted by Don
a resident of Downtown North
on Oct 22, 2011 at 10:39 pm

Why say "unions" in the article. It's the firefighters' union that is digging their heels in and refusing to share the load.

Walter. Can you cite a reason or example for your statement? Sounds like another one of your "shoot from the hip" remarks.

Like this comment
Posted by George
a resident of Leland Manor/Garland Drive
on Oct 24, 2011 at 6:13 am

YES on Measure D is the message you must send loud and clear to the selfish and greedy fire union.

Recognize that even if the fire union later prevails in its legal fishing expedition (quite unlikely given the facts), the city need only concur with the court's guidelines and put it back on the ballot with the overwhelming passage of Measure D as the backdrop.

One way or the other, binding arbitration will be repealed with YES on Measure D.

Like this comment
Posted by Sylvia
a resident of Another Palo Alto neighborhood
on Oct 24, 2011 at 10:23 am

MORE police officers and LESS firefighters. Let's not become a San Jose.

Like this comment
Posted by Marcie
a resident of Barron Park
on Oct 24, 2011 at 5:15 pm

The fire fighter union president has always been very disagreeable. I don't know why he keeps getting re-elected. Could Palo Alto fire all their fire fighters and start over? This problem has been going on for years.

Like this comment
Posted by A Noun Ea Mus
a resident of Professorville
on Oct 24, 2011 at 7:11 pm

OMG we're falling behind in the national race to the bottom.

I find it inherently unfair and disingenuous that people expect the fire fighters to be banned from striking and also not have any negotiable recourse. Basically Measure D would make the fire fighters union irrelevant. I guess for Palo Alto this is "Wiscoin Lite". Take a liberal and scratch 'em so they might have to pay a bit more for fair wages and benefits and you enter Tea Part territory.

Madame Guillotine
The One Per Cent Solution!

Like this comment
Posted by Karen
a resident of Green Acres
on Oct 24, 2011 at 9:55 pm

What is inherently unfair is to expect the taxpaying public to support 200K per year firefighters whose union has bullied/bribed/bought its way to rights that the taxpaying public could only dream of. I wish my employer were forced to overstaff my position and pay me to idle, forced to overpay me multiples above my value on the open market, and let me retire at age 50 with a six figure pension and healthcare for life after 30 years of working 2 shifts per week of work that stopped being dangerous over a generation ago (IE, statistically safer than gardening).

It's an insult to insinuate that fed up liberals such as myself, who have been continually played for fools by public unions, are upset with the notion of paying "fair wages." The threshold of "Fair wages" is in the rear view mirror by about 100K per year thanks in part to binding arbitration. Yes on D!

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Posted by Joseph E. Davis
a resident of Woodside
on Oct 24, 2011 at 10:04 pm

At some point, voters will have had enough of the greed and corruption that public sector unions foster at the expense of the common man. I hope that point is fast approaching.

Like this comment
Posted by danos
a resident of another community
on Oct 25, 2011 at 9:56 am

"Contract fire fighters are great - until you have a fire."

- meaning what exactly? That contract firefighters are not as well trained as their union counterparts? Do you have any proof to back up this assertion?

This comment makes no sense...

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Posted by informed voter
a resident of Old Palo Alto
on Oct 25, 2011 at 10:55 am

Please read your voter information. 95% of California communities have NO binding arbitration, and their public service unions manage to negotiate and come to terms with their municipalities.

Binding arbitration means that the arbitrator picks one side or the other -- there's no middle ground. That forces the city to make it's "last best offer" one that the union will accept, for fear that the arbitrator will choose the more expensive, less budget friendly offer by the union. The union can afford to make this gamble, the city cannot!

Vote Yes on D.

Like this comment
Posted by what to do what to do
a resident of Community Center
on Oct 25, 2011 at 5:22 pm

I went to vote by mail today. Thought it would be quick and easy after all there is only two measures and I thought I knew which way I would vote on Measure D.

Started off reading the text from Article V that will be removed if Measure D passes. Well that sounded benign. It came across as a good way to settle a dispute to me. Using three member neutral parties to decide whenever there was a stale-mate between the firefighters/police department's unions and the city officials. It had nothing to do with collective bargaining, either eliminating it or giving it more power. And it even gave the city and union 10 more days to compromise on the final decision before it became binding. What a nice fair way to settle something.

So what was all the hype about. I thought Measure D was going to be something about outrageous wages and in-our-wildest-dreams pensions that anyone would want. So I couldn't vote yet. I didn't know enough. I came away with two questions:

1. Did the binding arbitration lead to the outrageous salaries/pensions I've heard about?

2. Why was the firefighter's union so adamant in this measure and pushing so hard for it? And why wasn't the police union as vocal as the firefighter's union?

Darn more research was needed. So after reading more, it seems like this binding arbitration has been around for 33 years and has been used only six times, last time in 1980. Well that's a long time ago. What happened in those six times so long ago? Sounds like it has caused fear by the City of Palo Alto such that they have 'given' in on some negotiations just to avoid it at all costs. My first thought was then where is the city's backbone? Why fear it? You win some and you lose some but that would be better than fearing it and giving in for 33 years of negotiating. And did those six times have anything to do with the firefighter's salaries and really-great pensions? What a big to-do over something that has been around for 33 years but rarely used.

Led me to start thinking about the firefighter's union. Must be a pretty powerful union. Definitely has a done a good job for the firefighters. Must be great at negotiating. Well that makes sense since that IS their job; what they do constantly and is measured by it. Whereas the city has many other things on their plate. Rarely would city officials be able to out-negotiate any union. It's like trying to get a great deal from a car salesman.

So now how do I vote? I don't think taking out the fair approach of arbitration is going to reduce firefighter's salaries or change their pension. So binding arbitration doesn't really seem to have anything to do with the problem. And unfortunately so much hype has been about this issue, it paints the picture that we don't care much for our Palo Alto firefighters when I think it's just that we don't care much for the firefighter's union and we're jealous that they get a pretty decent pay and pension. Wonder what our Palo Alto firefighters will think as they are trying to save our homes and working on jump starting our hearts. Might not have to worry, sounds like many firefighters will be trying to move over to San Carlos.

Conclusion: We are still stuck with a very strong firefighter's union whether Measure D passes or not.

Like this comment
Posted by Jake
a resident of another community
on Oct 26, 2011 at 2:04 pm

"what to do what to do"

I read your post and all I can say is, great post!!

Too many people are jumping to conclusions about binding arbitration and what it is, what it does or does not do.

If there are so few public safety depts in CA that have it and in Santa Clara County one would think PA cops and firefighters would be the highest paid as some people would have others believe.

Some members of the City Council keep attempting to name binding arbitration as culprit in city finances. When in fact arbitration has rarely been used in over 33 years. The fact is the City Council and City Manager have chosen to staff ABOVE AND BEYOND minimum staffing agreement of 29 FOR OVER 20 YEARS. But, the City Manager and most of the City Council keeps saying union contract agreement of 29 is hurting their ability "to manage city finances". What a joke, I'd like to see ONE newspaper ask the City Council why they have decided to staff above and beyond the 29 minimum for years??? on top of that they staff those extra positions above 29 with overtime instead of regular employees? Then of course FD employees have to work OT to cover the number above 29 which of course is reflected in the overtime budget of the FD. The OT is extra hours above the 56 the FD members already work each week, then the City releases names and pay of workers to paper which of course, have overtime money included in the figure. I notice the City of Palo Alto does not release number of hours worked in addition to pay figures. You don't see the news paper printing or asking for number of hours worked either. OH NO, that might shed a little more light on the FACTS instead of trying to have readers believe all FD members are making 200K a year. News flash, overtime is not a solely volunteer option. FD employees get mandatory OT often, ie they get ordered to stay at work to of course staff City Council mandated (but not staffed) Units ABOVE AND BEYOND the minimum staffing agreed upon number of 29!!!! If the City had an agreement of 29 with the FF union, then why has nobody asked the CITY why they chose to pay overtime every day for over 20 years to staff above that number?? It does not take a CPA to figure out that those added overtime hours will be reflected in OT budget. City cites overtime cots but fails to tell public and press that the CITY was the one MANDATING staffing above 29 agreement with union, and then trying to blame union for staffing concerns!!!

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Posted by Jake
a resident of another community
on Oct 26, 2011 at 4:24 pm

Today in fact there are 34 FD on duty as I write this as has been the case for many many years, above the number of 29 that was contained in minimum staffing agreement of 29 the City Council and City Manager have been claiming has bound their authority. Why has no local press asked the hard questions and facts from City Hall? instead of printing headlines designed solely to cast a negative light on emergency workers. I would also ask the local press why they don't list hours worked along with gross pay figures? If the press was really concerned about publics right to know details they would list details like hours worked!

Like this comment
Posted by Voter
a resident of Barron Park
on Oct 26, 2011 at 4:29 pm

The minimum staffing that the union fought so hard to keep contributed greatly to the overuse of overtime, creating a structural "overtime abuse" expense born by PA taxpayers. Just as the city wanted more than 29 FF on duty at some times, they also wanted less than 29 during non-busy hours. The union takes the former as overtime, and fights tooth and nail to prevent the latter from happening. Compound that with an already bloated pay scale and a job that is much safer and less demanding than other public safety (police don't get paid to sleep on the clock between calls...), and you're left with our current situation: an overpaid, inefficient fire department that drains city resources from the taxpayers and from more deserving public services such as schools, parks, police, and roads, which all suffer while we overpay our firefighters. We ought to outsource the department or replace the whole lot with returning vets.

Yes on D!

Like this comment
Posted by Question
a resident of Midtown
on Oct 26, 2011 at 6:02 pm

Why is it there is no historical mention in the newspaper about Palo Alto City Managmetn IMPOSING a contract on SEIU employees and the managemnt and professional groups in 2009?

Is it that hard to making theconnection between removing arbitration and the city imposing contraxcts two years ago?

D is about removing labor rights.

D is about unfair labor proactice.

Palo Alto wants to be progressive?
Vote no on D.

Like this comment
Posted by More than one way
a resident of College Terrace
on Oct 26, 2011 at 7:53 pm

Why don't the on-call firemen spend their down time inspecting public lands for fire hazards and reducing or eliminating them?

Then we can get our money's worth, firemen can keep good compensation, and we can all be safer and happy.

Like this comment
Posted by Riley
a resident of Fairmeadow
on Oct 26, 2011 at 10:47 pm

I like the above suggestion. With firefighters having to be productive, awake, and working for their full shift, the precious 24 hour shift (and its inevitable down time) would have to go, and the two day work week would be five instead (with day, night, or swing shifts, like many 24 hour operations).

The union, however, would fight this to the end since the current setup allows its members to have almost full time jobs on the side. If their past behavior is any indication, this is more important to them than delivering additional value to the city. I'm voting for D to take away some of the unfair leverage the fire union currently has to the detriment of the city and the public.

Like this comment
Posted by Laberta
a resident of Ventura
on Oct 26, 2011 at 11:11 pm

I remember the city imposing a contract on the SEIU workers in 2009. It was a great move. The city workers are already overpaid and enjoy time off, job security (they are rarely fired even if they produce little or poor work output), to say nothing of pensions that me and my kids will be paying off for generations.

Our government has turned into a trough for public unions that we pay to keep full. Our elected officials should be free to make the best decision for the public. Further overpaying SEIU bureaucrats wad not the right choice in 2009, nor is doing the fire unions bidding now. Voted YES today.

Like this comment
Posted by Leslie
a resident of Monroe Park
on Oct 27, 2011 at 6:46 pm

After Nov 8th:

Require current and new employees to contribute at least 50 percent of their retirement costs.

Form a mandatory "hybrid" risk-sharing pension plan for new employees. It would include a smaller guaranteed benefit, a 401(k)-style plan and Social Security.

Raise the retirement age from 55 to 67 for new, non-public-safety employees.

Calculate pension benefits for new employees based on the highest average annual compensation for three years, rather than the last year of employment, as it done now. Benefits would be calculated based on regular, recurring pay and would not include special bonuses, unused vacation time or overtime.

Bar all employees from buying service credits to beef up their pensions.

Add two independent "public members" with financial expertise to the board of the California Public Employee Retirement System.

Require new state employees to work for 15 years to become eligible for any state-funded health care premiums and 25 years to qualify for the maximum state contribution to those premiums.

Like this comment
Posted by Yes on D is not enough
a resident of Esther Clark Park
on Oct 28, 2011 at 11:53 am

Keep binding arbitration.

Eliminate FF union.

City of Palo Alto fight back during negotiations and don't let the FF union strong arm you.

@Leslie - thanks for posting those recent changes. All good progress towards a better solution.

Like this comment
Posted by truthseeker
a resident of Midtown
on Oct 30, 2011 at 3:35 pm

[Post removed due to same poster using multiple names]

Like this comment
Posted by City Booster
a resident of Ventura
on Nov 4, 2011 at 10:12 pm

Measure D would repeal a binding arbitration ordinance that requires the arbitrator to choose between the City's last best offer & the Unions' final demands. it does not allow for mediation or compromise. Last year the Firefighters Union asked us to freeze compensation & staffing at current levels, leaving no room for improvement or budget balancing. In the year since their proposal lost badly, they've had two years to propose changes to binding arbitration. Now they are stalling for more time, but there is no more time--Palo Alto is required by state law to balance its budget. Please vote YES on D.

Sorry, but further commenting on this topic has been closed.

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