Preparing For Impasse, Factfinding, And Concerted Activities

Transcription

1 ACSA 2016 Negotiators Planning Retreat Preparing For Impasse, Factfinding, And Concerted Activities Janae Novotny and Janet Cory Sommer Burke, Williams & Sorensen, LLP 1503 Grant Road, Suite 200 Mountain View, CA Phone:

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3 PREPARING FOR IMPASSE, FACTFINDING, AND CONCERTED ACTIVITIES ACSA Negotiators Retreat June 22, 2016 Janae H. Novotny Janet Cory Sommer Burke, Williams & Sorensen, LLP What We ll Cover Overview Impasse/factfinding overview, Effective communication, Protected vs. unprotected activities, Legal vs. illegal strikes, Other concerted activities: Work to rule, Sick out, Informational picketing, Buttons & union insignia at work, Communicating with & through the kids. 1

4 Overview Avoiding/stopping a strike, Preparing for & handling strike & related activities, Educating administrators and supervisors, Preparing Board and community. IMPASSE & FACTFINDING Impasse Procedures PERB certifies impasse. Mediation. Factfinding. Use the time wisely! 2

5 Factfinding Plan timing to meet your District s needs. Consider: Need for unilateral implementation, Timing of possible strike, Impact of work to rule & related activities on testing window, District and community events, etc., Preparation time & competing work needs. Factfinding Consider & Plan for Impasse declaration timing; Selection of neutral panel member; Waiver of timelines (both parties must agree). If the dispute is not settled within 30 days after the appointment of the panel, or upon agreement by both parties, within a longer period, the panel shall make findings of fact and recommend terms of settlement, which... shall be advisory only. Gov. Code (a) 3

6 Prepare for report release. Panel s written recommendation submitted to the parties privately. Within 10 days, district must make them public. Gov. Code (a) District may (but is not required to) unilaterally impose its LBFO. Union may strike. Good faith bargaining obligation may be revived by changed circumstances, e.g. an offer by either side to make concessions sufficient to break the impasse. District s unilateral implementation of terms & conditions of employment does not end the bargaining obligation; It does reset the status quo. 4

7 Especially as you approach impasse. Start early. Be consistent. Be the trusted source of information. When Are Concerted Activities Legal And Protected? Legal And Protected Understand whether a concerted activity is legal or illegal and whether it is protected or unprotected. 5

8 Legal/Protected vs Illegal/Unprotected Strike after impasse procedures complete is generally legal & protected. Pre-impasse strike is presumptively illegal unless provoked by employer s ULP. Legal And Protected Educate administrators to avoid committing unfair labor practices and provoking potentially protected concerted activities to protest the district s unfair practices. Legal/Protected vs Illegal/Unprotected Can secure injunction to stop Illegal activities. Can discipline for unprotected activities. Unfair practice to impose discipline for legal protected activities. Know the difference! 6

9 Legal/Protected Activities Post-impasse strike. Employer-caused/unfair practice strike before impasse. Pre-impasse strike preparations. Wearing union buttons. Leafleting. Informational picketing. Board meeting demonstrations. Working to rule. Illegal Activities Surprise strikes. Intermittent strikes. Wildcat strikes. Work slowdowns. Sick-outs. Illegal Activities Pre-impasse strike (unless provoked by unfair practice). Strike creating substantial & imminent threat to public health or safety. 7

10 No Strike Clauses Negotiated collective bargaining agreement prohibition on strikes. Sympathy strikes must be explicitly included in a no-strike clause to be covered by the contractual prohibition. Responding to Illegal & Unprotected Activities Identify the activities as illegal. Warn employees and union. File unfair practice charge. Ask PERB to seek injunction in superior court. Can discipline employees for unprotected & illegal activities. Strike Threats/Preparation 8

11 Strike Preparations Strike authorization vote (i.e. strike threat) and informational picketing before completion of impasse procedures is not an unfair practice when: No pre-impasse strike contemplated, No date set for strike, Union continues to engage in good faith bargaining/impasse procedures. Sweetwater High Sch. Dist. (2014) PERB Dec. No. IR-58 Strike Preparations PERB explained in Sweetwater HSD: CTA s pre-impasse strike preparation is protected activity. Preparing for lawful, post-impasse strike. No violation of good faith duty to participate in impasse process. Strike Preparations It is the nature of collective bargaining that each side carries in its tool box elements that have varying degrees of persuasiveness... includ[ing] logical argument and reasoned discourse, publicizing the dispute with the intent of persuading third parties to put pressure on one side or the other, organizing members of the employee organization to picket, demonstrate or otherwise attempt to persuade the public employer or the union to alter their bargaining positions. Sweetwater High Sch. Dist. (2014) PERB Dec. No. IR-58 9

12 Concerted Activities (Other Than Strikes) Union Buttons/Insignia Wearing Union Buttons/Insignia PERB s Rule: Employees have right to wear union buttons. District may prohibit only if special circumstances exist threat to safety, discipline or other adverse action. East Whittier Sch. Dist. (2004) PERB Dec. No

13 Wearing Union Buttons/Insignia Can always prohibit if: Contains profanity, Incites violence, or Disparages specific individuals. East Whittier Sch. Dist. (2004) PERB Dec. No Union Buttons/Insignia Otherwise, examine button in context to determine: Would objectively reasonable person find it unduly distracting from or disruptive of instruction? Compare button to other distractions prohibited or allowed by district e.g. clothing, jewelry, buttons, etc. East Whittier Sch. Dist. In East Whittier Sch. Dist., PERB found: Elementary school teachers could not be prohibited from wearing buttons in the classroom stating, It s double digit time. No showing of undue distraction. District permitted other more distracting clothing. 11

14 East Whittier Sch. Dist. (cont.): PERB concluded wearing union buttons is not political activity subject to restrictions of Education Code But California Court of Appeal has disagreed with PERB in de-published decision, Turlock Joint Elem. Dist. v. PERB (2003) 112 Cal.App.4 th 522. Leafleting/Informational Picketing Informational picketing and leafleting is protected if: Not on work time, Not disruptive, Not interfering with assigned duties. 12

15 Can picket on public streets and sidewalks outside Board members homes and businesses, but must: Comply with applicable local ordinances, Avoid unduly disruptive conduct (e.g. excessive noise, blocking streets & sidewalks). Action possible against: Defamation, Illegal threats, Unlawful harassment. Broad protections. Public forum. Prepare the Board in advance. Prepare Board President for crowd/meeting control. Rely on existing Board meeting protocols. 13

16 Working To Rule Employees may not refuse to perform normally required assigned and adjunct duties on paid time. PERB explained: Employees may not pick and choose the work they wish to do even though their action is in support of legitimate negotiating interests. Accepting full pay for their services implies a willingness to provide full service. Palos Verdes Peninsula Unified Sch. Dist. (1982) PERB Dec. No But, employees may refuse to perform voluntary work to express opinions on status of negotiations. Determine voluntary nature of work based on: CBA, Policies, Past practice. LAUSD (1990) PERB Dec. No

17 Can employee freely decide whether or not to engage in the activity without limitation? Is the work: After defined workday? Beyond duties defined in CBA? Beyond expectations for all? Sick Out Claiming sick leave when not sick: Violates sick leave requirements of CBA/policy, Is dishonest, Constitutes cause for discipline. 15

18 Responding to sick out: Warn employees in writing, Treat like other sick leave abuse, Pay dock or discipline, Avoid over-reaching. Communicating With/Through Students Communicating With/Through Students Rules depend upon: Student age, Course curriculum, District policies, Past practice. 16

19 Apply the same rule for concerted activity message as for other speech contents. Are teachers allowed carte blanche in sending information home with students? Reasonable school-related limits. Preparing For A Strike Strategic Planning Prepare your strategy: Consider filing unfair practice charge. Injunctive relief. Public relations. Substitutes. Administrators. Maintain order. 17

20 Communications with Employees Anticipate employees (and administrators/supervisors ) questions. Prepare FAQ s. Do I have a right to participate in a strike? Will a [union] strike on [date] be lawful and protected? Can I be disciplined if I participate in a strike? Communications with Employees FAQ s continued: Will I be paid if I participate in a strike? May I take vacation? Sick leave? Personal necessity leave? Do I have the right to report to work if the union calls a strike? Communications with Employees FAQ s continued: How should I handle confrontations with picketers if I decide to report for work? How can I enter my work site and avoid a picket line? 18

21 Prepare Administrators/Supervisors Train and advise administrators to avoid unfair practices while applying reasonable rules. Remind them that they might be in a classroom, in a kitchen, in the driver s seat of a bus.... Prepare Administrators/Supervisors Centralize all communications to avoid incorrect or inconsistent messages and potential unfair practice charges generated by administrators and supervisors communicating with employees. Prepare the Board Prepare your Board: Picketing homes & businesses; Public relations; Impact on employer-employee relationships; Costs; Be realistic. 19

22 Prepare the Board Prepare and frequently update talking points for Board members. Keep Board in the loop with all communications to employees and the media. Prepare the Public Prepare the public: Strike plan. Communications plan begin long before strike threats. Information is key. Questions? Share your experiences! 20

23 PREPARING FOR STRIKES AND OTHER CONCERTED ACTIVITIES Thank You! Janae H. Novotny Janet Cory Sommer Burke, Williams & Sorensen, LLP 21

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25 Janae H. Novotny Partner State Bar No Silicon Valley Office 1503 Grant Road Suite 200 Mountain View, California voice: fax: PRACTICE GROUPS Education Law Labor & Employment Law Public Law EDUCATION J.D., Georgetown University Law Center California State University, Fresno Janae Novotny is a partner in the law firm of Burke, Williams & Sorensen, LLP. She was previously a partner at Kay & Stevens. She has 30 years of experience representing cities, special districts, and school districts in labor relations, employment law, public agency access law, and education law. She advises public agencies regarding all matters within the scope of bargaining, including pension and retiree benefits issues, including CalSTRS, CalPERS, and local retirement systems. She represents public agency employers through the negotiations spectrum, from planning and developing negotiations parameters based on statutory fact-finding criteria through negotiations, impasse, mediation and fact-finding hearings. She advises MMBA employers regarding both safety and miscellaneous employee groups. She utilizes both traditional and interest-based bargaining approaches and also serves as a facilitator with employers and unions who have elected the interest-based bargaining approach. She has handled numerous sexual harassment and other employee investigations, grievance arbitrations, unfair labor practice hearings, and fact-finding hearings. In addition to bargaining with all employee groups under the education employer collective bargaining statues, for school district clients she also handles certificated and classified discipline, dismissal, and layoff, and administrator reassignment and release issues. She advises school districts regarding all Education Code personnel issues, including employee classification and leave issues, as well as discrimination complaints and personnel investigations. Ms. Novotny also advises school districts regarding board governance issues, the Brown Act and Public Records Act, student issues, school district reorganization, federal and state constitutional issues. Ms. Novotny is a presenter at various conferences, including the CALPELRA Annual Conference, California State Association of Counties, the Association of California School Administrators, the California Association of School Business Officials, and the California School Boards Association trainings and conferences. She contributed to the development of CALPELRA ACADEMY 9, The Impasse Process From Declaration Through Post Factfinding. Ms. Novotny also conducts trainings in labor relations, interest-based bargaining, employee evaluation and discipline, sexual harassment, disability accommodation, FMLA/CFRA, and other public sector employment issues. She is a contributing author of California Public Sector Labor Relations, Labor and Employment Law Section, State Bar of California, Matthew Bender and a contributing author of Burke s annual Legal Trends publication. She is an author of CPER s Pocket Guide To Factfinding. Ms. Novotny earned her Juris Doctor at Georgetown University Law Center. MP # v3

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27 Janet Cory Sommer Partner Silicon Valley Office 1503 Grant Road Suite 200 Mountain View, California voice: fax: PRACTICE GROUPS Education Law Labor & Employment Law Public Law EDUCATION J.D., Stanford Law School B.A., University of California, Berkeley Janet Sommer is a partner in the law firm of Burke, Williams & Sorensen. She was previously a partner at Kay & Stevens. Ms. Sommer focuses on labor relations, employment, education, and other public law matters. She has worked in California public sector law and policy since Ms. Sommer worked with the California Legislature as Chief Consultant to the Assembly Education Committee. Before turning her focus to labor, employment, and education, Ms. Sommer represented public sector and political clients in education, election, and political matters. Ms. Sommer acts as a negotiator and represents school districts and other local agencies on a variety of employment, labor relations, education, and other public law issues. Ms. Sommer provides labor and employment services to public agencies, and has extensive bargaining experience in complex matters including pension and retiree medical benefits. She represents public agencies in all facets of negotiations, including planning and developing negotiations parameters, drafting bargaining proposals, leading negotiations at the table, and handling impasse procedures, including mediation and fact-finding. She advises public agencies in responding to grievance and unfair labor practice charges, and represents them in related hearings and arbitrations. Ms. Sommer also has substantial litigation experience on matters involving public agencies in state and federal court, and administrative proceedings. Ms. Sommer also conducts trainings in labor relations, employee evaluation and discipline, sexual harassment, and other public sector employment issues. She has presented trainings for the Association of California School Administrators (ACSA), the California School Boards Association (CSBA), the School Employers Association (SEA), the California Association of School Business Officials (CASBO), the Center for Collaborative Solutions (CCS), the National Public Employers Labor Relations Association (NPELRA), the California Public Employers Labor Relations Association (CALPELRA), the Labor and Employment Law Section of the State Bar of California, the California State Association of Counties (CSAC), the League of California Cities, and for many public agency clients. Ms. Sommer is a co-author of the California Public Employee Relations (CPER) Pocket Guide to Factfinding, and a contributing author of Legal Trends.