The Davis firefighters are taking a two-pronged approach to combating the proposed Joint Powers Agreement for joint management of the fire department with the UC Davis Fire Department under a single chief. In addition to the reported distorted public signature campaign, the union is attempting to leverage the process through legal means by filing a complaint of violation of the Meyers-Milias-Brown Act (MMBA) with regard to a failure to meet and confer.
While city officials would not comment on the content, they did indicate that they believe that this is another fruitless attempt by the union to prevent the council from implementing the JPA that was agreed to in principle back in October and would be ratified in December.
In a letter dated November 15, 2013, from Gary Messing, of the firm Carroll, Burdick and McDonough in Sacramento, they write the council, “While there may be questions regarding the legality of a Joint Powers Agreement (JPA) between the UC system and the City of Davis, we do not address that in this correspondence. However, it is apparent that the City has not provided notice to the Davis Firefighters of the proposed changes and the opportunity to negotiate over the impacts of those changes pursuant to the Meyers-Milias-Brown Act (“MMBA”), Gov’t. Code § 3504.5.”
Mr. Messing believes that, under the MMBA, “notice to the union is required before action is taken by the employer, even if such action involves a management right, if there are impacts on areas within the scope of bargaining of the affected employees.”
In this case, the city will clearly argue that having a joint fire chief will not impact areas within the scope of the collective bargaining process, which remain ongoing. Contracts would still run through the city and anything the union achieves during its collective bargaining process would be binding on how the new chief interacts with the union.
However, Mr. Messing argues, “The requirement for notice to the union is elaborated in the recent Public Employment Relations Board decision, County of Santa Clara (2013) No. 2321-M (issued on July 25,2013).”
In that case, he outlines, “The PERB Board ruled that the employer has a duty to provide reasonable notice and an opportunity to bargain before it implements a decision, even if the decision is considered to be a management right, if it may have ‘impacts’ on negotiable terms and conditions of employment of members of the bargaining unit.”
“PERB ruled that the union was not required to allege that it made a demand to bargain prior to the implementation and if the employer implements changes, it does so at its own peril,” he continues. “Davis Firefighters Local 3494 have never received formal notice of changes and an opportunity to negotiate over the impacts.”
Another case he cites: “PERB held that a reorganization that resulted in changes in supervision was negotiable even if the changes in supervision occurred in classifications above the bargaining unit. That decision described various impacts on bargaining unit members, including ones that are shared in this situation.”
The crux of the argument that Mr. Messing makes is that “the Davis Fire Department traditionally has a Fire Chief and 3 Division Chiefs who supervise the Davis Firefighters’-represented Captains. That results in a total of 4 Chiefs to supervise the bargaining unit which consists of 9 Fire Captains and 27 Firefighters.”
Under the JPA, there would be an additional Division Chief, “but the Davis Fire Chief will not be replaced. So there is no net gain of personnel as a result of the JPA.”
He argues, “The JPA will result in an increase in the number of personnel supervised by Division Chiefs from 26 to 67. This raises an immediate concern regarding an increase in the duties of the Division Chiefs causing an inevitable increase of work trickled down to the Fire Captains at the Davis Fire Department.” He adds, “These are precisely the type of impacts that are negotiable pursuant to the CCPOA case cited above.”
According to him, “The UC Davis Fire Department has 6 Fire Captains, 15 Firefighters and 20 Resident Firefighters.”
Mr. Messing concludes his letter with a series of questions: “Will there be diminished routine supervision, or diminished supervision in emergency situations arising from a fire chief and command staff serving two departments where previously they served one?
“What are the potential issues arising from a new chain of command? How do firefighters respond to conflicts between the directives from Captains in the UC Fire Department and Davis Fire Department?
“For that matter, how does the Fire Chief resolve conflicting demands from the UC and City of Davis?
“What impacts will shared management have on promotional opportunities for bargaining unit employees to promote to Division Chief positions? And as mentioned above, if there is a diminution in management, what impacts will that have on the workload of current firefighters in terms of a trickle down of responsibilities?”
Vanguard Analysis: Gary Messing Fails To Understand Proposed Model
However, based on our reading of the proposed JPA Model, which has not been finalized yet in anyway, it is not clear that Mr. Messing understands the proposal.
For instance, he noted that the fire department “traditionally” has a Fire Chief and 3 Division chiefs (traditionally is an odd word, used about a structure that is only a few years old), but argues that the Davis Fire Chief will not be replaced and there will be “no net gain of personnel.”
His questions also suggest that there will be potential conflicts arising from a new chain of command. However, both the firefighters and now Mr. Messing missed the fact that “both parties retain a significant amount of local control.”
The recommended structure by Davis City Staff, which again, has not been implemented, is as follows:
There will be a joint fire chief who “will have executive management responsibilities for setting the organizational values and vision; representing both the City and UC in interactions with external influences and the business community; and, providing guidance and recommendations to the City Council and UC Chancellor’s Office relative to the delivery of fire and life safety services.”
Mr. Messing fails to recognize that the structure calls for two deputy fire chiefs who “will report directly to the fire chief; one having managerial responsibilities for the day-to-day operations of the fire department, and the other will serve as the West Valley Regional Fire Training Consortium Coordinator.”
That would seem to alleviate the concern that the fire chief would not be replaced within this model. There would also be the three division chiefs who will “provide duty coverage for both Davis and UC Fire.”
Currently, UC Davis has one fire chief and one deputy fire chief, who oversees the operations of the West Valley Regional Fire Training Consortium, in addition to his managerial duties within the UC Fire organization.
This proposal would essentially keep that position intact and add an additional deputy fire chief.
As Steve Pinkerton wrote on October 9 to the mayor and councilmembers, “The proposed organizational structure under the JPA reduces the overall cost of the city’s fire management operation while also adding two forty hour deputy chiefs to support the Davis Fire Department. This will provide continuity throughout the organization, give support to the shift division chiefs and allow the Fire Chief to concentrate more fully on executive level issues.”
The bottom line is that not only are the firefighters and Mr. Messing misrepresenting the organizational structure, they are also failing to recognize that the structure has not been finalized and that concerns such as the ones raised could reasonably have taken place in meetings with the city rather than the proposed formal action in the letter.
This has been the modus operando of the firefighters from the start. Instead of attempting to work with the city to iron out the details, they have been working to kill the plan. Their latest actions – both the signature drive and this letter – show a good amount of either misunderstanding or misinformation intended, it appears, to kill the chances for joint management rather than focusing on perhaps legitimate concerns about the details of how such a JPA would work, in order to avoid future problems.
—David M. Greenwald reporting
Creating busy work. Delay, delay, delay. The longer, the better for the union members.