Two weeks ago, the Public Employment Relations Board ruled that the city improperly canceled fact-finding and imposed the last, best and final offer on DCEA.
They continued: “It is therefore appropriate to order the City to cease and desist from such activities in the future. Additionally, if the City wants to proceed through its impasse procedures, it must provide adequate time to complete the fact-finding process as set forth in its local rules.”
PERB has ordered the city to rescind its unilateral action and restore the status quo prior to the date of the violation.
Some have estimated that the cost of this will be in excess of $800,000. At the council meeting this week, the Davis City Council announced that they would challenge this ruling.
Yesterday, after the close of business, the City of Davis sent out a release stating that they had filed papers with PERB “asking PERB to reject a proposed decision regarding labor negotiations with Davis City Employees’ Association (DCEA) as contrary to both the hearing evidence and the applicable law.”
DCEA filed an unfair practice charge with PERB in June 2010, claiming that the city improperly imposed its final offer on DCEA employees without completing the advisory “fact-finding” process, after labor negotiations between DCEA and the city reached impasse.
In August 2011, an administrative law judge held a hearing, and on October 31, 2011, he issued a proposed decision, agreeing with DCEA. The city has now filed papers asking PERB to reject the proposed decision.
The city has laid out their timeline of events:
“Following eight months of unsuccessful negotiations with DCEA, the City and DCEA reached impasse in early December 2009. Neither a subsequent impasse meeting, nor a mediation in February 2010, resolved the dispute.
“The City then tried to schedule the next step in the City’s procedure, called fact-finding. The City’s rules provide that fact-finding is conducted by a fact-finder who provides a non-binding recommendation to the City Council. DCEA repeatedly rejected the proposed dates without providing any alternatives as requested.
“The City and the agreed fact-finder were both prepared to move forward on April 27-29, 2010, but DCEA claimed (among other things) that it needed more time for a financial expert to collect information.
“Yet evidence at the PERB hearing showed DCEA never retained such an expert or collected any such information. DCEA then rejected dates in May and June, 2010 because its representatives were busy with other matters. DCEA finally said two July dates would be acceptable, but insisted on 2-3 additional dates sometime after that.
“DCEA also demanded costly, time-consuming formalities such as formal hearing procedures and post-hearing briefing that are not required under the City’s procedures.
“When it became clear to the City that DCEA did not intend to participate in fact-finding in any reasonable time frame, the City determined that it had no reasonable alternative but to give up on fact-finding and to impose the City’s last, best and final offer. It did so on May 25, 2010.”
According to the release, “The City believes that it acted in good faith with DCEA in its attempts to resolve the labor negotiations impasse in a timely manner.”
They add, “DCEA now has 20 days to file responsive papers with PERB. On a parallel path, the parties are set to return to the negotiating table in early 2012.”
City Finance Director Paul Navazio said upon hearing the ruling, “The City believes that it made every effort to go through that process, but it kept being delayed and prolonged and prolonged. The city felt that at some point, we needed to take action and had every right to take action to not have that dragged out indefinitely.”
In a response from DCEA President Dave Owen, he disagreed, arguing, “The city made a similar argument during the hearing and the Administrative Law Judge found those arguments to be spurious. In fact, the record shows that city representative proposed specific dates for a hearing in July 2010 and DCEA representatives accepted those dates.”
Mr. Owen adds, “As soon as we had dates – and the city realized that they were actually going to have to put on a case, to substantiate their position – they withdrew from the process and implemented impasse.”
“What Mr. Navazio failed to state was the fact that the delays were precipitated by their own actions. The City never acted in concert with DCEA’s representatives, but of their own volition had picked dates, and then demanded compliance by the DCEA representatives. A majority of the dates picked by the City produced scheduling conflicts for our representatives and when we finally agreed to the dates, the city withdrew from the process.”
Mr. Owen continued, “It was clear to us, our members and the Administrative Law Judge, at the Public Employment Relations Board (PERB), that the City had no intent to truly go forward with a hearing and has allowed their position and finances to be held up to public scrutiny.”
He added, “We will never know what the City Council would have done on May 25, 2010 had they actually been told that DCEA representatives had agreed to dates for a hearing. There was neither a mention of that fact in the staff report nor was there any discussion of such, by city staff, during the May 25, 2010 City County meeting. That point was clearly highlighted by the ALJ in his decision.”
Despite the city’s efforts here, we believe Mr. Owen is correct.
The city screwed up. They imposed impasse before they had exhausted other remedies. And frankly, they used impasse at the wrong time, with the wrong bargaining group.
They should have used it with the firefighters at the start of the process, rather than the rank and file at the end, to simply bring them up to the inadequate contract that the rest had.
Our biggest concern going forward is just how much this damages the collective bargaining process. There is a great bit of distrust between the two sides.
We believe that the city is facing serious fiscal peril as the result of past policies. I understand that employees believe they have made serious concessions. Unfortunately, these concessions may not be enough.
By 2015, we face a $7 million gap – with rising PERS contribution rates coupled with rising costs for retiree health, the city is going to have to find a way to bridge that gap. 80% of the general fund goes to employee compensation.
The Vanguard has proposed, at least at the start, reducing firefighters to 3 per engine and a 10% across the board cut to upper management and department heads. However, that only gets us a small part of the way there.
The Vanguard would like nothing better than to engage in a conversation with the rank and file on this issue. We believe that the impacts to these employees should be minimized, however, the problems that the city faces are very real.
—David M. Greenwald reporting
” The Vanguard would like nothing better than to engage in a conversation with the rank and file on this issue. ” Really ? You’re unlikely to achieve that with the anti-labor tone of your comments . ” Our biggest concern going forward is just how much this damages the collective bargaining process. ” City management poisoned that well,(No reference to the ill-managed water project intended), not DCEA or any of its members . This challenge will end up costing the city even more .
Ok… the Vanguard wants to “engage” the employee group, when the DV has no power to negotiate? Why would the employee group want to engage with an entity that advocates very deep cuts to salary/benefits/retirement? To establish a new “ceiling” which DV would want more cuts from? Doesn’t sound like a good idea from the employees’ standpoint. This makes about as much sense as the discussion on another thread about “occupy Davis” threatening property values. Both are highly irrational, in my opinion.
I cannot tell from the Vanguard’s version of events who was in the right or wrong here. Both sides seem to have their valid points/viewpoints, so it is not clear to me who was in the right. So now that the city has objected to the PERB ruling, I assume it will be up to a judge to sift through the pleadings and decide which side was in the right here… or the judge may come up with some sort of compromise recognizing both sides were somewhat justified…
Elaine: It bears mentioning that it is not the “vanguard’s” version of events rather the Vanguard simply recounted (mostly verbatim) the view of both parties. It also bears mentioning that the city likely presented this information to the administrative law judge and I believe it will be the same judge that hears the “appeal.”
[quote]Elaine: It bears mentioning that it is not the “vanguard’s” version of events rather the Vanguard simply recounted (mostly verbatim) the view of both parties. It also bears mentioning that the city likely presented this information to the administrative law judge and I believe it will be the same judge that hears the “appeal.”[/quote]
It is the Vanguard’s version in that you as the author picked and chose what to write, so I have no idea if you left anything pertinent out. On your other point, is the administrative law judge who will hear this case the same one who determined the city was wrong? I thought it was PERB that determined that… I am confused on this point…
I really wish the City were right in this case. I really hope that the City wins its appeal. I think it will be awful if the City has to make $800,000 more in service cuts in order to make the members of DCEA “whole.”
But once I read Ordinance 1303, I could not help but conclude that the decision of PERB was correct. Even the record as portrayed by the City does not support (in my opinion) the conclusion that the City had the right to curtail the impasse procedures when it did.
I think this is a case in which the City got bad legal advice from its attorney. I cannot entirely hold from blame the Council of Asmundson, Souza, Saylor, Heysteck and Greenwald* for following Ms. Steiner’s advice. I think they should have read Ord. 1303 and concluded Steiner was mistaken. They seemed to have presumed that Harriet knew what she was talking about. But it is clear to me that Steiner was wrong.
Harriet claimed: “The Council may impose a last, best final offer on a unilateral basis if it believes that further process is unavailing.”
If you read Ordinance 1303 and then read exactly what the DCEA did to follow that Ordinance, I don’t see how any fair-minded person could agree that the City had any right to unilaterally shut down the impasse procedures in this case. I am perplexed how someone who is supposed to not only know the laws, but who is supposed to be protecting the best interests of her client, the City, would reach the baffling conclusion she reached. It comes very close in my mind to legal malpractice**.
*Sue Greenwald is the one member of the council who the DCEA had attacked for acting improperly. Yet if you read the PERB decision, you will see that PERB felt Ms. Greenwald’s actions were correct. The PERB found no fault with what she had said in open session, despite the fact that at least one person from DCEA keeps coming on this blog and spiting Sue as if she did something improper.
**I am not sure where exactly the line is with legal malpractice in this case. But I would think if I hired a lawyer and he told me I should sign on a certain dotted line and it turned out that my signing on that line cost me $800,000 that I would not have had to pay had I not signed where he advised me to sign, that would be cause for malpractice.
[quote]*Sue Greenwald is the one member of the council who the DCEA had attacked for acting improperly. Yet [b]if you read the PERB decision[/b], you will see that [b]PERB felt Ms. Greenwald’s actions were correct[/b]. The [b]PERB found no fault with what she had said in open session[/b], despite the fact that at least one person from DCEA keeps coming on this blog and spiting Sue as if she did something improper.
[/quote]Is this what you meant Mr. Rifkin? On page 2 of the PERB proposed decision, “The Chief Administrative Law Judge… admitted… the audio recording… so that … Greenwald’s comments were preserved.”
Page 7: Greenwald’s comments were primarily focussed on areas of savings that could be achieved and not whether she was specifically aware of the details of the impasse procedures. Her comments are therefore [i]deemed irrelevant[/i] and [i]inadmissible hearsay[/i].” [emphasis mine]Those are the ONLY references to ms Greenwald in the 30+ page document. Given that, not sure that would lead me to the conclusion that “you will see that PERB felt Ms. Greenwald’s actions were correct. The PERB found no fault with what she had said in open session”, but then again, others point out I’m not overly bright.
I have a pdf of the proposed decision, and am willing to share (as far as I know it’s a ‘public document’) but have no clue how to “post” it for anyone to see exactly what the proposed decision is. Moderator? David? Highbeam?
Rich
“”””I am perplexed how someone who is supposed to not only know the laws, but who is supposed to be protecting the best interests of her client, the City, would reach the baffling conclusion she reached. It comes very close in my mind to legal malpractice**.””””
Maybe she is to old too do her job , and should retire .
[i]”Maybe she is to old too do her job, and should retire.”[/i]
Too old? She no longer has a gray hair on her head. She looks younger and younger every day.
HPierce: [i]”The PERB found no fault with what she had said in open session”, but then again, others point out I’m not overly bright.”[/i]
I need to stress this: I have never accused you or any other members of DCEA of being overly bright. Not once.
Since you clipped out the concluding finding, let me take a step back and reproduce all the context for what DCEA had falsely accused Sue Greenwald of. Here is the first part from the body of the PERB text: [quote] The Chief Administrative Law Judge thereby admitted a compact disc (CD) of the audio recording of the hearing as part of the evidentiary hearing so that City Councilmember Sue Greenwald’s (Councilmember Greenwald or Greenwald) comments were preserved. The matter was submitted for proposed decision after receiving post-hearing briefs on September 23, 2011.
…
On June 9, 2009, the City Council held a meeting which included a budget workshop to discuss the plans for the upcoming 2009/2010 proposed budget. During that workshop Councilmember Greenwald commented on the City’s labor costs.4 [/quote] Those words in the quote box are indeed all that was said in the body of the PERB decision about Sue Greenwald. But it was in Footnote 4 that the PERB explained why Sue was not guilty of saying anything improper. And after all, that is a finding of innocence, since HPierce has been commenting on this blog for DCEA, saying that what Sue said in open session had revealed some sort of wrong-headed “state of mind” when in fact she had not.
Here is the entire Footnote 4: [quote] Footnote 4: Specifically, Greenwald isolated specific employee benefits which were excessive when compared to other public sector entities. She believed the City could realize significant budgetary savings from concessions in these areas and that the City could exercise control over the negotiations process by what they “offered.” Greenwald pointed out that the City was not subject to interest arbitration, but did have mediation which could take up to one to one and one-half years*, and, if there was no agreement, the City could adopt its LBFO. Greenwald commented that going through this extended process should not deter the City as it had reserves and controlled the number of employees it employed.
DCEA argued that Greenwald’s comments demonstrated the City Council’s “state of mind” that it was aware that its impasse procedures could take an extended period of time to exhaust. However, Greenwald’s comments do not show such awareness. She believed the mediation process took an extended period of time, but the EERR states to the contrary, in that if the mediator does not resolve the matter withing 15 days, it shall proceed either to the City Council or fact-finding. Greenwald’s comments were primarily focused on areas of savings that could be achieved and not whether she was specifically aware of the details of the impasse procedures. Her comments are therefore deemed irrelevant and inadmissible hearsay. [/quote] By deeming her comments irrelevant, the attack on Sue by DCEA, HPierce, was therefore ruled an incorrect assertion.
*I think it is valuable to point out the factual error Sue made. She said mediation would take a year to a year and one-half, when in fact it could not take more than 15 days (per Ordinance 1303). When she said that, not one of her colleagues on the Council corrected her. What that tells me is that city staff in general and the city attorney in particular were not properly advising members of the Council at that time. I know this: Ordinance 1303 is not even available on the City’s lame website. It should be. It is referred to multiple times in the City Code. How is a member of the Council supposed to know exactly what the ordinances say if they don’t have easy access to them?
In my opinion, if each member of the Council had in hand a print copy (and had available an electronic copy) of Ordinance 1303 before Harriet Steiner advised them to cut off the fact-finding process which is spelled out in Ordinance 1303, the City never would have stopped the process “unilaterally,” as Harriet advised them to do. It is clear in Sue’s remarks she did not have a copy of that 1973 document.
The parties were maybe two weeks away from finishing the process. DCEA, after some foot-dragging, had finally agreed to a date to get fact-finding started. DCEA wanted fact-finding to last 4 days and to be a formal process. That seems to have pissed off Bill Emlen and Don Saylor. What was so bad about that? I don’t understand why they thought DCEA was acting improperly?
I also don’t see why Harriet decided that the City should unilaterally stop the process, when it was so close to being over anyhow?
Mr Rifkin… you are correct when you say “Sue was not guilty of saying anything improper.” I said nothing to the contrary. But to translate that to [quote]Yet if you read the PERB decision, you will see that PERB felt [b]Ms. Greenwald’s actions were correct[/b]. The PERB found no fault with what she had said in open session,[/quote] appears to me to be somewhat of a convenient ‘stretch’… just because I find someone ‘not guilty’, doesn’t mean I find them innocent nor vindicated… the FACT is that the decision did not say she was “correct” as you said… there are varying degrees of lies and deceptions…
BTW, I an NOT a member of DCEA as you said… another lie, or another mistake?
[quote]I also don’t see why Harriet decided that the City should unilaterally stop the process, when it was so close to being over anyhow? [/quote](sorry Don, you may need to edit this) FOOL! The City Attorney gets to “decide” NADA… the Council decides, even if it contradicts the advice of the CA. Once the CC decides, it is the obligation of the CA to cover their respective keisters…
To all: Please avoid personal characterizations of blog participants and others.
hpierce: email me the document at donshor@gmail.com and I can host it on a server and provide a link.
[i]” just because I find someone ‘not guilty’, doesn’t mean I find them innocent nor vindicated.”[/i]
HP, you have said repeatedly in past comments on the Vanguard blog that Sue’s comments in open session demonstrated that she wanted to impose LBFO without completing the impasse procedures. You even said that after the PERB decision was released. But you were wrong then, wrong now, and the words of the PERB — “Greenwald’s comments were primarily focused on areas of savings that could be achieved and not whether she was specifically aware of the details of the impasse procedures” — prove that.
I think your best course of action would be to apologize to Ms. Greenwald. I don’t know if you are gentleman enough to concede you have been wrong.
[i]”I an NOT a member of DCEA as you said… another lie, or another mistake?”[/i]
You appear to be a member of that union, because you have repeatedly voiced the same views that union voices, including its wrong-headed attack on Ms. Greenwald. If you would post under your real name, then I could decide if your story that you are not a DCEA member (or formerly one) is credible. But since you insist on using a fake name, I have no way to know if you are in DCEA or not.
And by the way, HP, one thing I admire about you is that you know the small details of the DCEA contract and perhaps some details about other contracts. For example, you knew about the July 1, 1996 distinction with regard to retirees under 60 years old (even though that provision has never mattered up to this point). By pointing out obscure provisions like that, I came to realize that you are not just a blowhard. You work for the City or you used to. That much is clear to me.
Rifkin… I’ll take that as a compliment, intended or not. I try to differentiate facts from opinion… not always successfully… the reason for my “omissions” is because I am a lousy typist, and attempted to only remove words that were, quite frankly, superfluous to the points.
Again, “I tell you three times”, I am not, nor have I ever been, a member of a union. I differentiate between a “union”, which generally has affiliations outside the immediate organization, requires the payment of dues (or agency fees) whether an employee wants to support the “union” or not, and an “employee organization”, which tends to be ‘grass-roots’ in nature, suggests financial contributions (rather than requiring them), and whose officers and negotiators are not paid for those roles. I formed one such organization, and have participated in two others.
To your other point — c’mon… I saw the exact same footage the PERB did… I have an opinion of what I factually heard, then made judgements on it based on my beliefs, feelings, experience, etc. I can accept that the ALJ came to a different conclusion… that does mean either of us is “right” or either of us is “wrong”?. Can you grasp this concept? My experience of the world is that most of the time we do not have the benefit of everything being ‘black or white’, but must work in the grey areas (or hopefully, a multitude of colorful hues). I called for no ‘action’ against Ms Greenwald. I did not intend to vilify her. I believe her words had consequences to the “tone” of the negotiations that took place. She is as entitled to her opinion, as am I and the ALJ. I therefore feel no harm, no foul, and no reason to apologize to ANYONE for having an opinion that is different. Would you really have it any other way? Or must the whole world be monolithic to your views or those with whom you agree (I guess those two are mutually inclusive).
BTW, am intrigued by your reference to the retiree medical… I’m pretty sure that there have been those who were employed by the city prior to 1996, retired younger than 60, and the City paid for their full basic medical benefit until they were (if they were) eligible for Medicare. I believe there have been at least one or two who were hired after 1996, retired younger than 60, and had to pay half the basic plan until they reached 60. I cannot “prove” this, but I believe it has occurred.
[I]” I believe there have been at least one or two who were hired after 1996, retired younger than 60, and had to pay half the basic plan until they reached 60. I cannot “prove” this, but I believe it has occurred.”[/I]
I submitted a public records request last January on a broad range of “retiree medical” expenses for the City. As of then, there was not one person (on the spreadsheet given to me) who was hired post June 30, 1996 and had retired prior to turning age 60. So if this has happened, it either happened since January, 2011 or the City’s information given to me was incomplete.
[i]”I can accept that the ALJ came to a different conclusion …”[/i]
It was not just the Administrative Law Judge. As far as I understand the process, all he has done is to affirm that the PERB acted properly. It was the PERB which analyzed what went on, what was said, and concluded that — in contraposition to your repeated claim — that “Greenwald’s comments were primarily focused on areas of savings that could be achieved and not whether she was specifically aware of the details of the impasse procedures.”
I concede that I don’t quite understand where this goes from here. I know the City has filed an appeal. It does not make sense to me if the appeal will be heard by that same said ALJ.
Here is the PERB decision which was forwarded to me. Note: pdf document, just over 4 MB.
[url]http://davismerchants.org/vanguard/PERBDecision.pdf[/url]
Based on your PRA request, I guess I stand corrected. Glad I didn’t bet a lunch on that.
BTW, I have no clue what will happen next, or how. I did read the proposed decision, and could find no errors of fact. It would be interesting to see the text of the City’s response.
Tell you what… although I disagree with many of your positions, I believe they are honestly held. Moving forward, in responding to you, I’ll do my level best to stick to correcting your factual errors (if any) and stay away from anything approaching denigration of your views. That being said, I fully intend to get my opinions across. I’ll do my best to try to convince, w/o trying to take shots on others.
Don… the link doesn’t appear to be loading correctly…
[i]”It was not just the Administrative Law Judge. As far as I understand the process, all he has done is to affirm that the PERB acted properly.”[/i]
I think I was wrong in this respect. It looks like the Administrative Law Judge, Shawn P. Cloughesy, wrote the decision? I am unclear on how the process works. But looking at the front page, it seems as if Judge Cloughesy was there acting on behalf of the PERB. I had assumed that the hearing was in front of actual PERB members.
One other thing … The day after the decision came out, I found a digital copy* of the decision on the PERB website. I think I still have the URL for it on my “favorites–history.” But the link does not work any longer. When I now search for this case on the PERB website, it is not there.
I wonder if PERB took it down while the appeals process is ongoing? This case was decided on October 31. If you look at the index of decisions around that time ([url]http://www.perb.ca.gov/decisionbank/SearchResults.aspx[/url]), it does not include this case.
*I got a PDF photocopy of the decision from the city of Davis. So alas it is not searchable and I cannot grab the text from it. Hence, it’s a pain in the tuchus having to re-type by hand any quotes from it.
I had pdf, too… gave copy to Don, but he has apparently had some difficulties uploading it…
I uploaded it and have tested the link ([url]http://davismerchants.org/vanguard/PERBDecision.pdf)[/url]. It is a big (4.2 MB) file, and download took about four minutes at my connection speed.
Rifkin… I think that the PERB only posts its “Decisions”, but not its “Proposed Decisions”… makes sense…