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.