City officials said at the recent budget item during the Davis City Council meeting that they expect the contract situation for the two holdout bargaining units – the firefighters and DCEA – will resolve themselves within four months. As the time ticks down on the city imposing the last, best and final offer, rumors are starting to fly.
On Friday, the Vanguard received an anonymous email: “Members of DCEA are claiming that they have been told by the city that the city is hiring lawyers to help them get out of the ‘Me Too’ clause in several of the other bargaining groups’ contracts. They are saying that that the City has informed them there is a loophole in the clause that the groups are not aware of and that DCEA is going to get a much better deal than the other groups who cooperated.”
The city could neither officially confirm or deny this rumor, but on the surface we think it is both unlikely that the city could find a legal loophole to the me-too clause. Even if they did find a legal loophole to the me-too clause, they would mire themselves both in protracted legal battles and would completely lose any credibility with the other bargaining units who negotiated both in good faith and within a reasonable timeline.
A DCEA official has told the Vanguard the contention is completely untrue. “The city has never said anything about ‘loop holes’ and or discussed this,” they said in an email this morning.
But most importantly, even if those issues did not present themselves, the city would simply be rewarding a bargaining unit that has been intransigent for several years, and that fact alone makes it implausible even if it were legally possible.
The City of Davis declared impasse with DCEA (Davis City Employees Association) back on November 8, 2012. More recently, on April 12, 2013, the city declared impasse with the Davis firefighters’ union, Local 3494.
In a press release from May 31, the city noted, “The City commenced negotiations with both groups in the spring of 2012 regarding the terms and conditions of employment for these represented units, and the parties have spent the last year negotiating for successor agreements.”
“The City’s position is fundamentally different than that of both Local 3494 and DCEA regarding whether the City faces long-term financial problems and their magnitude,” the press release states. “The City believes there are long-term systemic cost issues that a change in the economic cycle and a potential uptick in future revenues will not address.”
“The City and DCEA attempted mediation without success,” the city updates the public. They are currently in the middle of the fact-finding process with DCEA.
“Under state law, the City of Davis cannot unilaterally make changes to working terms and conditions for represented employee groups,” the city wrote. “Although the agreements both with DCEA and Local 3494 have expired, the parties must observe the terms and conditions of the expired agreement until a new agreement is negotiated or until the City may lawfully impose its final offer at the completion of mediation and fact-finding.”
The city notes that they have reached agreements with all the other bargaining groups representing 66% of the city’s employees, including the Davis Police Officer’s Association (DPOA), Individual Management Employees, and the Program, Administrative and Support Employees Association (PASEA).
They conclude, “The city remains hopeful that the mediation and fact-finding process may result in a negotiated agreement with DCEA and Local 3494.”
Of all of the city’s bargaining units, including the firefighters, the city has the least incentive to attempt to opt out of a me-too clause with DCEA.
DCEA, after all, was the only group to go to impasse with the city back in 2010 during the last round of MOUs.
The city ended up imposing the last, best and final offer, in May of 2010, arguing “The City has made three months of good faith efforts to comply with the final step of impasse resolution procedures in the Employee/Employer Relations Ordinance 1303 without success, and staff believes the prerequisites to unilateral implementation set forth in section 3505.4 have been met.”
The Public Employment Relations Board (PERB) disagreed and overturned it in November 2011, ruling, “It has been found that the City violated MMBA sections 3503, 3505, 3506, and 3509(b) and PERB Regulation 32603(a), (b), (c), and (g) when it passed Resolution 10-070 on May 25, 2010, before exhausting the fact-finding process set forth in its local rules.
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.”
The result of that decision led to the layoff of nine positions within DCEA.
“This is in order to offset the revenue hit from DCEA not making concessions three years ago,” the city manager told the Vanguard at the time. “These are DCEA positions only, across all funding sources, because the impact which is $800,000 plus interest if we were to lose on appeal would be spread across that bargaining group across different funding sources.”
“In these tough economic times, with significant reductions in available revenue, Davis is one of a select group of cities that’s been able to sustain a high level of service for its citizens,” Mr. Pinkerton wrote. “As we approach a new budget year, economic and political forces continue to challenge our ability to provide the necessary resources to meet the demands of our citizens. Although revenues remain relatively flat, unfunded mandates from the state continue to mount unabated, our health and pension costs continue their meteoric rise, and the state of California has forced us to dismantle our Redevelopment Agency, a primary tool for economic development.”
Based on this history, it is implausible that the city would bend the rules for DCEA or give them a break that other bargaining units, that have been far more cooperative, have earned.
And why would the city do it?
While it is more difficult and lengthy to impose impasse following the October 9, 2011 action by Governor Brown who signed AB 646, which amends the Meyers-Milias-Brown Act (MMBA) “to require certain public sector employers to submit their differences with a labor organization representing their employees to a ‘fact-finding panel’ for impasse resolution,” the city after getting burned by being too hasty in 2010 will be slow, cautious and meticulous in their imposition this time around.
In the end, both DCEA and fire will either agree to a similar agreement as the other bargaining units or will have the same agreement imposed upon them during the impasse process.
These rumors appear to be completely unfounded.
—David M. Greenwald reporting
Update: added statement from DCEA official
