Nearly eight years after Palo Alto voters struck down a long-standing law that required contract disputes between the city and its public-safety unions to be settled via binding arbitration, the city's largest firefighters union is waging a legal battle to bring the requirement back.
The petition by International Association of Fire Fighters, Local 1319 calls for the state attorney general to effectively invalidate the results of the 2011 election on Measure D. The measure amended the city charter to take out the 1978 provision on binding arbitration.
The union has applied for leave to sue in "quo warranto," a type of legal action that challenges the authority of lawmakers to impose a particular law and that requires attorney general approval. If the union succeeds, the state could potentially invalidate the 2011 measure, which was approved by more than two-thirds of the voters.
The union's request is the latest volley in a long legal skirmish that began shortly after the 2011 election. The battle has already involved the state Public Employment Relations Board (PERB) and state court of appeals and has offered limited victories to each side. The firefighters have consistently alleged that the city engaged in an unfair labor practice by failing to meet and consult with the union before placing the measure on the ballot — in violation of the Meyers-Milias-Brown-Act, which governs employee negotiations.
The argument swayed PERB, which ruled in the union's favor in 2014 and ordered the city to rescind the resolution that placed Measure D on the ballot. The city then appealed the decision to the Sixth District Court of Appeal, which concurred with PERB's findings but determined that the labor relations board doesn't have the authority to order that the resolution be rescinded. (PERB subsequently revised its order to comply with the appellate court's decision, though it still maintained that the measure should be repealed.)
While recent court rulings supported the union's claims that the city failed to negotiate in good faith, they did not achieve the firefighters' prime objective: restoring binding arbitration, a policy that the union sees as a useful tool for reaching a compromise, particularly given that state law bars public-safety unions from striking.
Battalion Chief Ryan Stoddard, president of IAFF, Local 1319, told the Weekly that binding arbitration "provides for a fair mechanism to settle disputes, a transparent process that we strongly believe should be a basic right for all labor groups."
Proponents of the appeal, including the majority the 2011 council, argued that the clause has handcuffed the city in its negotiations with the unions and prevented the city from having control over its finances. Since the repeal, the council has scrapped the "minimum staffing" requirement that formerly required at least 29 firefighters to be on duty at one time. And in 2017, the Fire Department adopted a "cross-staffing" model that leans on a three-person crew to operate multiple vehicles. The switch allowed the city to cut 11 positions from the department last year, leaving 104 positions. The IAFF currently represents 88 of those.
At the same time, the council approved last October a new three-year contract with the firefighters union that boosts the firefighters' salaries by 9% over the course of the contract, with a 3% salary increase in each year. The city also granted the union an immediate 2.5% salary increase to bring it in line with what the broader market is paying.
Stoddard pointed to the recent contract negotiations as evidence that the union has been "working hard to build positive relationships with the city." Binding arbitration, he noted in an email, "is a process that both sides hope to never use because not using it would mean that both parties are working together in a collaborative and effective way, which is always our goal."
Even so, the union was dismayed to learn earlier this year that the city does not intend to repeal Measure D. The union had hoped the city would comply with the determinations of PERB and the appellate court, he said.
"When we last approached the city to confirm they would indeed comply, they denied. That left us no choice but to move forward with the process," Stoddard wrote.
The union's most recent legal action isn't entirely surprising. The union's attorney informed the city in 2017 about the union's intention to pursue the quo warranto suit. And in January of this year, the union's attorneys once again demanded that the city comply with the PERB decision and invalidate Measure D. The city responded that it believes it had complied with the labor board's ruling (it had posted notices, for example, notifying employees of the PERB decisions) and that it would not rescind the measure unless the union were to move ahead with the quo warranto action.
In its July 12 filing, the union's attorney, Kathleen Mastagni Storm, argued that the city has "violated the core values" of the Meyers-Milias-Brown-Act, which are to "promote full communication between public employers and employees" and "to improve personnel management and employer-employee relations within the various public agencies." The application requests that the attorney general allow the union to sue "to challenge the city's unlawful charter amendment repealing binding interest arbitration."
The city's attorneys, while conceding the prior courts' determination that the city had ran afoul of the labor law, are urging the attorney general to reject the firefighters' application. In their July 29 filing on behalf of the city, attorneys Charles Sakai and Eric Della Santa argued the firefighters union has failed to take action over the past two years, rendering its claims "stale."
Measure D, the city's attorneys note, passed almost eight years ago. And it's been two years since the last PERB decision, which concluded the litigation.
"Despite IAFF declaring its intention to file the present application for leave to sue in quo warranto as early as June 28, 2017, it has unreasonably and without cause failed to do so until the present time," the city's attorneys wrote.
They also argued that granting the union's request would "run contrary to the public interest." The union, they wrote, refrained from requesting consultation with the city over binding arbitration until the very last meeting, when the council was scheduled to vote on placing Measure D on the ballot. Such a late request, they wrote, is little more than "an attempt to throw a wrench in the democratic process and threatens the integrity of a city's constitutional right to self-determination of matters within its plenary authority."
"Allowing IAFF to intentionally wait until the conclusion of two-and-a-half months of public discussion before demanding that the process move into a private negotiation is exactly the type of gamesmanship that has the potential to subvert the entire public process and therefore cannot be allowed," Sakai and Della Santa wrote.