Palo Alto to appeal ruling from labor board

Council votes to challenge finding that city violated law in 2011 negotiations with firefighters

The City of Palo Alto will appeal a recent ruling by the Public Employment Relations Board, which has said that the city violated state law in failing to confer with the city's firefighters union before placing on the November 2011 ballot a measure to repeal binding arbitration.

During a closed session Monday night, the council voted 7-0, with council members Pat Burt and Gail Price absent, to challenge the labor board's Aug. 6, which overturned an earlier decision in favor of the city by administrative law judge Shawn P. Cloughesy. Both rulings were a response to a complaint filed by the International Association of Firefighters, Local 1319, which charged the city with not negotiating in good faith before placing Measure D on the ballot. The measure overwhelmingly passed, with more than two-thirds of the voters supporting the repeal of binding arbitration.

In voting to challenge the ruling, the council followed the recommendation of City Attorney Molly Stump, who told the Weekly last week that she would recommend doing so. Though the labor board's ruling did not invalidate the Measure D vote, it left the city vulnerable the firefighters union challenging the vote in Superior Court. The labor board also required the city to post public notices disclosing that it has violated the Meyers-Milias-Brown Act "by breaching its duty of consultation in good faith" with the firefighters union.

"This conduct," the notice states, "also interfered with the right of 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."

Fire Capt. Kevin McNally, current president of Local 1319, told the Weekly last week that the union hopes to avoid a lengthy legal battle with the city. He said the union hopes the ruling will bring both sides to the negotiating table to discuss arbitration, a provision of the City Charter that had been in place since 1978.

"Hopefully, this will bring people back to the table so we can find a solution," McNally said.

The arbitration provision empowers a three-member panel to settle disputes between the city and its public-safety union. The union argued during the Measure D campaign that the provision is necessary to protect the employees' interests because, unlike other workers, they are barred by state law from striking. Opponents of binding arbitration, including the council majority, countered that it is an obsolete rule that kept the city from making meaningful reforms to employee benefits.

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Posted by Jennifer
a resident of Fairmeadow
on Aug 20, 2014 at 9:50 am

Good. We should appeal. 75% of the voters supported this initiative, and if the union gets the will of the voters overturned in a pro-union court based on what is effectively a technicality ("But you didn't ask us first"), the fire union deserves to feel the wrath of the voters again.

We should vote next on whether the fire services should be outsourced to Cal Fire or another more efficient service provider.

I was naively pro-firefighter like a lot of good Democrats, but when the fire union started demanding more and more, and subject us to their featherbedding initiative, I dug a little deeper and saw just how much these guys make (200K in total comp in a lot of cases).

Coupled with the statistics about how dangerous the job actually is -- I had always pictured firefighters bravely getting their eyebrows singed off weekly fighting dangerous fires, but it turns out something like 98% of calls are ambulance runs, with the remaining 2% so mild that the job is statistically quite safe. I don't recall the exact injury rate but it was just a little higher than my office job, and a lot safer than being a mechanic for example.

I'm not a "burn down the government" or "starve the beast" type. I'm happy to carry a high tax load if it means things like great parks, schools, rail networks, etc. I hate that unionized government employees like our very own fire union have treated the pool of tax money that people like me have filled with good intentions as a bottomless trough for themselves even if it pushes aside the services the taxes are intended for (like infrastructure in Palo Alto's case!).

I didn't become a Democrat so government workers can retire early on six figure pensions funded by my taxes. Since this state lacks an effective counterbalance: I think Democrats and Republicans alike will agree that Republicans in California are effectively marginalized, Democrats need to stop taking public union money and backing and stand up for government's ability to use our tax dollars wisely. I hope Chuck Reed runs for higher office, for example.

I'm also avoiding local Democrat "establishment" candidates like Cory Wolbach (like I should have avoided Berman last time) in favor of socially liberal but fiscally responsible types. I've been impressed by the residentialists (Kou, Dubois, Filseth), but Mark Weiss scares me with his pro-union bent. Shepherd is a union candidate. Scharff said he would stand up to the unions when he was elected, but I don't think he has. Does anyone here know how Scharff voted on the big SEIU raise that the city just doled out?

Keep appealing this one, Palo Alto Government, and if you need to go back to the voters after "talking it out" with the Union (who will undoubtedly demand big concessions because hey, why not?), we will vote it down again.

Sorry for the long post. This issue has made me a lot more engaged, thats for sure.

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Posted by Peter Carpenter
a resident of Atherton
on Aug 20, 2014 at 9:59 am

Peter Carpenter is a registered user.

The best solution would be to consolidate ALL of the 20+ fire agencies south of San Francisco and north of San Jose. This would do something very rare in government - better quality service at a lower per capita cost. One Chief, one training center, one maintenance center, one dispatch center.

Great examples are SacMetro Fire and Orange County Fire.

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Posted by David Pepperdine
a resident of Another Palo Alto neighborhood
on Aug 20, 2014 at 10:15 am

In absolute support of this appeal. There was nothing to discuss with the union given their demands. If the appeal fails, we should consider abolishing the Public Employment Relations Board.

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Posted by Taxpayer
a resident of Community Center
on Aug 20, 2014 at 11:58 am

Jennifer - I agree with your excellent post. Thanks for taking the time to lay out the issues so clearly. I also hope Reed runs for higher office.

As far as the local politicians go:
- Scharff: Not sure I can support him, especially as he has been overly compliant in meeting the developers request for special treatment. But I did see him represent the City in the debate over binding arbitration. He did a good job of explaining why binding arbitration was not good for PA residents. His opponent in the debate was Gail Price. Poor Gail was working so hard to show the unions she was "their girl" and hoping she could count on them for more campaign contributions.
- Dubois: I like Tom personally and on his "growth" perspectives. I don't think he has taken a public position on the government unions.

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Posted by Citizen
a resident of Another Palo Alto neighborhood
on Aug 20, 2014 at 1:23 pm

@ Jennnifer,
I don't think this is a purely ideological argument, and I would like to see what happens here. When power imbalances play out, it's never healthy, but it's hard to tell on the sidelines what was going on here because our City lacks transparent and honest dialog with the public.

As citizens, we want our fire professionals to feel supported, reasonably compensated, and somewhat autonomous from the usual City shenanigans and politics. They'll do a better job and we benefit in the long run.

I think too little is made of the social contract aspect of many professions. One study in which they tried to figure out what size fee/fine would encourage parents to pick up their kids from daycare on time, they found that having a fine at all actually made for more late pickups than ever, because it changed what had been a social contract between parents and teachers into a purely monetary one.

It turns out that performance is not related to pay after a certain point. But the key is, you have to get beyond that certain point. And if you want to get the best performance, you have to pay attention to other issues like autonomy and job satisfaction, too. You are certainly right that things can go too far if power is balanced too much toward employees, but it's not clear to me that's happening here.

Having some leverage and open communication seems to matter to the union. Why? Is it so they always have some huge advantage over the Council? I doubt it. If we just assume things that aren't true in this situation, we could be pennywise and pound foolish in terms of affecting performance and loyalty, traits we wish for in emergency responders.

Our elections code not allowing for an impartial ballot process, too, is troubling. It's not a sure thing that another vote would have the same result. When the City put the matter to vote, they knew they could manipulate the language of the ballot question and the "impartial analysis", because their own City attorney writes those, and most people are unaware of the real conflict that exists there, they assume the county elections people or some other impartial body writes the ballot.

The more recent Measure D brought that problem into sharp focus. When the City decided to send the matter to a vote (at an additional cost of around $600,000) rather than for free deciding to set aside the ordinance and work with the residents to come up with a mutually agreeable solution (as happened through a working group with some of the same residents 25 years ago), they knew then, too, that they could produce a biased ballot just as they did in the High Street ballot and probably win. Worse, the City was simultaneously acting as a third-party independent verifier of PAHC's application to the state and federal funding agencies, and they had already represented the property as rezoned (it never actually was and wouldn't be unless they won the referendum) and all CEQA appeals expired (there was an active suit), among other serious misrepresentations. If the City lost the referendum, the misrepresentations would be found out by the state and feds at least, and the money PAHC had already received based on those misrepresentations qualifying them for that funding round would have to be given back. Under those circumstances, there's no conceivable way City Council would have been able to consider whether to put the issue to vote or not honestly, and this cost the taxpayers a ton of money.

The bias in the Maybell ballot was documented by an elections lawfirm. The tack was identical to what the City did at High Street. The City Attorney is on record telling the public things about what the law required Council to do in the rezoning when there is an "affordable" component that one could only believe wasn't a manipulative falsehood if one believed the City Attorney couldn't read. So, there is no reason to believe the City didn't go right to the vote in the firefighters' situation, too, relying on their ability to bias the vote in a difficult-to-understand labor relations dispute -- which also cost taxpayers a lot of money, as does this litigation when firefighters felt they weren't dealt with fairly. It was inconceivable the City would have done something else knowing they could bias the ballot anyway. That's bad faith.

I don't think the result in the firefighters vote was 75%, was it? I thought the article said it was 2/3. The more recent Measure D made it clear that City-inserted ballot bias can swing an election by 15 points or more, since an almost identical ballot in SF at the same time (where they have an impartial ballot system) went down by an even greater margin than our (Maybell) Measure D. An impartial ballot might produce a more even split or even a win for the firefighters, depending on what's really going on here.

If the firefighters manage to address the ballot bias issue, they may in fact be able to overturn the vote, and I would not fault them for it. As an engaged citizen, I still feel like I don't have a very good handle on the power dynamic, because our City is just too opaque in its dealings with citizens, and was so stunningly dishonest in its dealings with the public during the Maybell rezoning debates. I would hope if the vote is overturned, that a more honest conversation (with hopefully new Councilmembers) could avoid another vote, and come out with a result satisfactory to everyone.

I'm not saying you're wrong in what you believe, it just seems more motivated from an ideological perspective rather than specifics of that situation and power dynamic. I'd want to know more.

(And by the way, traditional ideological arguments don't seem to hold very well in this state. We finally got a balanced budget, during an economic downturn, from a democrat governor and a democrat supermajority in state government. And although there are always unhappy people, the resulting skinflinty budget has generally been accepted. I'm for outcome measures rather than ideological decisionmaking.)

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Posted by Jim
a resident of Downtown North
on Aug 20, 2014 at 2:37 pm

How could anyone who has followed the sordid history of the negotiations between our elected public officials and the leadership of the firefighter's union have any sympathy with that noon. The leaders act like a spoiled child in a grocery check-out line. It screaming, "I want that, I wan! Want!" Most parents have the caring skill to say, "No." The City Council has said no. The public has voted no. The Union leaders continue to say, with their actions, the "public will be damned."

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Posted by Citizen
a resident of Another Palo Alto neighborhood
on Aug 20, 2014 at 3:10 pm

I'm afraid I don't feel like I have a handle enough to judge, because it's clear the City isn't especially honest with the public when staff wants something, I don't know the firefighters well, and there hasn't been enough impartial and independent info from the 4th estate. How much of what you have based your own opinion on has been controlled by the City, that knew it could bias the ballot? I'm not concluding anything there, I'm asking you to think back yourself. I don't know, I just think the conversation had every indication of being tainted.

Everything about the Maybell situation was just so dishonest, including that supposed summit with residents that was portrayed as a negotiation even as the participants were clear they didn't represent anyone else. Given how much subterfuge the City employed there, I'm just not willing to draw conclusions in the firefighters situation unless I have a lot more impartial information. Anything from the election us just not likely to be honest.

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

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