In a tentative ruling handed down by the Public Employment Relations Board, they 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.
According to the city’s finance director, Paul Navazio, this is a tentative ruling. “The City is reviewing this ruling and will be discussing appropriate course of action with the City Council,” Mr. Navazio said on Thursday. “I believe the City has up to 20 days to file a ‘statement of exception’ to the ruling, if deemed appropriate,” he added.
On May 25, 2010, staff recommended that Council approve a resolution imposing “the City’s last, best and final offer to Davis City Employees’ Association (DCEA) pursuant to Government Code Section 3505.4.”
PERB is also ordering the city to make the employees whole for their “losses.”
They write: “It is also appropriate, that the City be ordered to make bargaining unit employees whole for any losses they may have suffered due to the City’s unlawful unilateral action, along with interest at the rate of 7 percent per annum until such time as they are restored to their former position prior to May 25, 2010.”
“The City has also interfered with the rights of employees to be represented by DCEA,” PERB ruled. “It is also appropriate that the City be ordered to post a notice incorporating the terms of the order at all locations in the City where notices to public employees are customarily posted for employees represented by DCEA. Posting such a notice, signed by the authorized agent of the City, will provide employees with notice that the City has acted in an unlawful manner, is being required to cease and desist from such activity, and will comply with the order.”
The council approved this action unanimously.
According to the City staff report, “The provisions of the City’s ‘last, best, final’ contract proposal would yield budgetary all-funds savings of $507,000 and General Fund savings of $203,000 in the current fiscal year. This represents a savings of 4.52% compared to the FY2009/10 cost of the existing DCEA Memorandum of Understanding, and a savings of 3.34% in comparison to the prior year cost for this contract.”
The staff report argued, “Since the beginning of these negotiations, the City communicated its need for long-term structural budget changes in compensation costs, particularly pension and medical costs. The City’s negotiation team conveyed the expected increases in CalPERS retirement contributions and in the City’s retiree medical liability. In addition, the City’s budget deficits have been communicated to DCEA at the bargaining table and through numerous public meetings, reports, and budget documents.”
The city concluded that it has made good faith efforts to comply with the final step of impasse, “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.”
Ken Aikens, a lawyer representing the Davis City Employees Association, told the council at the time, “The issue really revolves around whether or not the city has an obligation to follow its own resolution.” He continued, “The rule as adopted calls for fact-finding as the final resolution to the process. Now there is also an accusation that we have been an obstructionist to the process.”
DCEA alleged that the City of Davis implemented its “last, best, and final offer (LBFO))” without exhausting fact-finding as required by local rules. On June 2, 2010, DCEA filed an unfair practice charge against the City of Davis.
On January 20, 2011, DCEA alleged that the city failed to participate in impasse procedures by unilaterally selecting an arbitrator, scheduling dates and setting the rules for fact-finding.
The city denied these charges and argued “defenses of business necessity and that DCEA was non-responsive and dilatory in its obligation to proceed toward fact-finding.”
A formal hearing occurred back in August, and “it moved to amend the complaint to include an allegation that on May 25, 2010, when the City implemented its terms and conditions of employment, it unilaterally changed the terms set forth in the December 4, 2009 LBFO regarding the furlough plan so that the furloughs were to be taken by November 1, 2010 instead of June 30, 2010, and therefore violated MMBA sections 3505 and 3509(b).”
According to PERB, the city failed to declare a fiscal emergency and the “City had reserves sufficient to face its projected shortfall with DCEA. These facts do not rise to the level of an actual emergency, especially in light of PERB decisions.”
Furthermore, “The City had readily available alternatives to the unilateral action at the point the parties disagreed as to the manner of presentation to the arbitrator.”
“The City’s canceling of the fact-finding dates and implementing of its LBFO on May 25, 2010 therefore constituted an unlawful implementation of its LBFO before exhausting impasse procedures in violation ofMMBA section 3503,3505,3506 and 3509(b), PERB Regulations 32603(a), (b), (c), and (g), and EERR Article XVII,” PERB ruled.
The remaining question is whether the City’s implementation of the furlough plan was “reasonably comprehended” within its pre-impasse proposals.
Writes PERB: “The difference between the plans was the span of time in which the furloughs were to be completed: the LBFO gave almost seven months and the resolution provided slightly over five months. The span of time in the resolution is not a ‘significant departure’ from the span of time in the LBFO.”
On this point they rule against DCEA, “Accordingly, DCEA failed to establish a violation of MMBA or PERB Regulation as to the change in proposals.”
At the May 25, 2010 meeting, the Mayor Pro Tem Don Saylor said, “This is not happy for anybody. This is certainly not something that I have been interested in doing. This is not a good thing. I don’t like taking an action that is imposing something on the employees.”
He pointed out that there are 100 people in the room and the Council does not see these faces during their normal course of business. “It’s sad to look into the faces of the people in the room and understand that they are facing great uncertainty, some fear, they don’t know what’s happening, they don’t like it. We don’t like it either, this is not something that any of should try to get, but we are here. There are differences of opinion about how we got here. I hope that in the next year as we enter into the next round of negotiations that the many good solid ideas that the people in this room have about how to address the city’s fiscal affairs come to the table.”
He said he hopes that ideas about how to address the city’s compensation issues can come forward, but he also said that the last best and final offer “is what we have to do. It is consistent with what we have done with other employee groups. We’re not asking for anything in excess.”
Then Councilmember Lamar Heystek said , “We are faced with the unique situation tonight because as Councilmember Greenwald had stated previously, we haven’t faced members of the negotiating team or members of the bargaining unit itself.” He continued, “The information that we have received about this bargaining process has been exclusively from our negotiating team.”
He expressed frustration that information has come out that he had not heard previously from the bargaining group. He attempted to ask some questions, but it appeared that this was not the time and place for such questions.
“I think it does point to the point that our negotiations processes are not as I believe as open and transparent as I think they should be in the future and I hope that future councils can consider more open and transparent processes with more engagement of our community.”
That being said, he agreed with Mayor Pro Tem Saylor. “Other contracts that have been approved, that I have opposed because they have not gone deep enough, mirror the last, best, final offer that is being presented to us by our negotiating team for our approval. I believe in keeping with our desire to minimize costs in the Enterprise funded divisions as well as to those funded by the general fund that adoption of a package that mirrors the last, best, and final offer is consistent. My hope is that we would have reached even greater savings across all groups.”
Councilmember Stephen Souza added, “We’re in a different world, we’re in a different climate economically. We’re in a different time as far as municipals governments are concerned when it comes to how we compensate our employees. We have to figure out a way that you’re going to get that compensation at the end of the day and we’re going to be able to pay that compensation.”
He then stated, “Every city is struggling with that across this nation. Every city in this state is struggling with it. We [have] got to find a better path because the path that we’re on now is not sustainable. It’s just not. That’s the fact of the matter and we have all realized that.”
Unfortunately unless something changes, not only is the city back to square one, they have likely damaged their ability to impose future impasse, and the errors that they made will end up costing the city considerably in back pay.
The city needs to find out what went wrong here, find out who is responsible, and take steps to insure that the collective bargaining process is not compromised as we move forward toward additional rounds of negotiations.
—David M. Greenwald reporting
Congratulations City of Davis Employees !
The city has to have some means to get its budget under control,
will this ultimately lead to more layoffs?
[quote]The city needs to find out what went wrong here, find out who is responsible, and take steps to insure that the collective bargaining process is not compromised as we move forward toward additional rounds of negotiations.[/quote]
AMEN! It would seem to me if the city is going to declare impasse after tendering a LBFO, they had better get it right. Unfortunately, probably part of the problem has left town for another job (former city manager Bill Emlen)…
Actually, let me correct my last statement to read: FORTUNATELY, probably part of the problem has left town for another job (former city manager Bill Emlen)…
At the risk of having my comments removed without explanation, see [Don Shor], here are the relevant words from Ordinance 1303 (aka Resolution 1303) of 1973:
[u]ARTICLE XVII – IMPASSE PROCEDURES[/u]
[b]2.[/b] Impasse Procedures – Impasse procedures are as follows:
[b](c)[/b] If the parties have failed to resolve all their disputes through mediation within fifteen (15) days after the mediator commenced meeting with the parties, the parties may agree to submit the unresolved issues on which they have not expressly reached unconditional final agreement directly to the City Council; In that event the City Council shall finally determine the issues after conducting a public hearing thereon and after such further investigation of the relevant facts as it may deem appropriate.
[b](d)[/b] If the parties fail to agree to submit the dispute directly to the City Council, the said unresolved issues shall be submitted to fact-finding. The parties may agree on the appointment of one or more fact-finders. If they fail to so agree, a fact-finding panel of three (3) shall be appointed in the following manner: One member of the panel shall be appointed by the Employee Relations Officer, one member shall be appointed by the recognized employee organization, and those two shall name a third, who shall be the chairman. If they are unable to agree upon a third, they shall select the third member from a list of five names to be provided by the American Arbitration Association, the one to serve to be determined by the alternate striking of names, with the party who is to strike the first name to be determined by chance method.
The following constitute the jurisdictional and procedural requirements for fact-finding:
[b](1)[/b] Fact-finders shall not have served as mediator in the same impasse under subparagraph (b), and shall not be employees or officers of the City or members of one of the City’s employee organizations.
[b](2)[/b] Fact-finding is authorized hereunder in connection with all unresolved. issues; i.e., issues on which’ they have not expressly reached unconditional final agreement, that are within the scope of representation.
[b](3)[/b] The fact-finder(s) shall, to the extent they are applicable, determine and apply the following standards to the unresolved issues in making recommendations:
[b](i)[/b] City job classifications shall be compared to comparable job classifications in private employment in the Davis labor market, and in public employment in the jurisdictions listed in Exhibit “B” attached hereto and made a part hereof.
[b](ii)[/b] In determining job comparability, the following factors will be considered: The nature and complexity of the duties involved; the degree of supervision received and exercised; the educational, experience and physical qualifications; and the special skills required; the physical working conditions; and the hazards inherent in the job.
[b](iii)[/b] Comparisons shall be in terms of total compensation and benefits of employment, and, to the extent feasible, shall be measured in monetary terms.
[b](iv)[/b] The comparison data as herinabove provided for shall, to the extent feasible, be adjusted as appropriate for the benefit of job stability and continuity of employment; difficulty of recruiting qualified applicants and equitable employment benefit relationships between job classifications in City employment.
[b](v)[/b] The financial resources and the expenditures of City government shall be considered.
[b](4)[/b] The fact-finder(s) shall make written findings of fact and recomendations for the resolution of the unresolved issues, which shall be presented in terms of the standards specified in (3) above. The fact-finder or chairman of the fact-finding panel shall serve such findings and recommendations on the Employee Relations Officer and the designated representative of the recogntzed employee organization. If these parties have not resolved the impasse within ten (10) days after service of the findings and recommendations upon them, and i n no event later than ten (10) days prior to the final date set by law for fixing of the tax rate, the fact-finder or the chairman of the factfinding panel shall make them public by submitting them to the City Clerk for consideration by the City Council i n connection with the council’s legislative determination of the issues.
[b](5)[/b] Costs of mediation and fact-finding shall be divided one-half (1/2) to the City and one-half (1/2) to the recognized employee organization.
Ord. 1303 was approved on a 4-0-1 vote.
Ayes: Holdstock, Poulos, Weinstock and Mayor Skinner.
No:
Abstain: Black
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I think the current City Council needs to amend Ord. 1303 immediately. There is nothing stopping them from doing so.
Here is the change I suggest they make:
[b]2.[/b] Impasse Procedures – Impasse procedures are as follows:
[b](c)[/b] If the parties have failed to resolve all their disputes through mediation within fifteen (15) days after the mediator commenced meeting with the parties, the parties may agree to submit the unresolved issues on which they have not expressly reached unconditional final agreement directly to the City Council; In that event the City Council shall [s]finally determine the issues after conducting a public hearing thereon and after such further investigation of the relevant facts as it may deem appropriate.[/s] impose its own terms on a last, final, and best offer basis.
I would strike out all of the fact-finding business which now follows. That is a huge waste of time and money. In this case with DCEA, it looks like it will cost around $500,000. If that is not a big enough waste of money for this council to act, I don’t know what would be.
FWIW, if my comments are removed and I am not given advanced notice that the [Don Shor] is removing my comments, I will never post on this website again. Perhaps that is what the [Don Shor] wants. Perhaps most readers of this site would rather not read my comments. So be it. I am still very pissed off that my comments on bringing an electric car company to Davis were removed, when the topic was how to increase sales tax revenues and I thought a Tesla dealership might be more of a winner than a VW dealership for that purpose. But [Don Shor] disagreed with me and removed my well thought out post. So, yes, I am pissed off.
Please identify me by name, not my business by name. I will edit any such references and will remove any further discussion of blog moderation. If you have a complaint about me, take it up with David.
[i]”Please identify me by name, not my business by name. I will edit any such references and will remove any further discussion of blog moderation. If you have a complaint about me, take it up with David.”[/i]
If you want me to treat you with fairness, then treat me the same, Don. Please don’t remove my posts that I have put work into without giving me a call and discussing the matter. I worked to find Ordinance 1303, for example. (It’s not available on the city’s website.) I don’t know if members of the current City Council have read it in full. It is 15 pages.
If you were to just decide on your own that my posting that information was inappropriate in your opinion, and you did not tell me in advance why and ask for my view on the topic, I would have wasted a hell of a lot of time. I should note that I am not a fast typist and I had to type up all that verbiage. But you might just decide to take it down.
So again, I think you should have the courtesy to call me first before you remove my posts. If you don’t, then this website will never see my contributions again. I should note that I have been told by a half dozen people in the last few days that they won’t contribute because you have taken down their posts after they worked hard on them. That is disheartening. You are hurting the free flow of information.
Rich: Let’s drop this. If you have a problem with Don’s decisions, you can email me. Now that our event is over, I have more time.
“So again, I think you should have the courtesy to call me first before you remove my posts.”-This is not a reasonable request.
As for your point, it appears that AB 646 which Governor Brown signed this year, would require fact-finding anyway.
I will also add that we are going to have a much cleaner way to deal with off-topic posts hopefully within a month.
[i] it appears that AB 646 which Governor Brown signed this year, would require fact-finding anyway.”[/i]
Wow. I just read AB 646 ([url]http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0601-0650/ab_646_bill_20111009_chaptered.pdf[/url]). It’s horrible. The unions are determined to destroy our state. To Mariko Yamada’s credit, she did not show up for the vote on this terrible law. One other Dem was absent. All Dems otherwise voted yes; all GOP voted no. Wolk voted with the Dems in the Senate. 14 Republicans voted no. I am not sure if the four absent Senators includes one GOPer.
[i]”you should have the courtesy to call me first before you remove my posts.”[/i]
[b]-This is not a reasonable request.[/b]
Those are my terms. I think they are reasonable. You can do whatever you like. I won’t play the game any longer if my posts are taken down without notice and explanation.
Rich:
We’re working on a bulletin board where we can roll off topic posts onto other comment threads. I think that will solve most of your concerns and my concerns that topics have at times gone almost immediately on side obscure tangent.
That will require an investment of capital, that we don’t have a lot of, but I’m hoping it will be enough of a compromise that it allows us all to move forward.
[quote]That will require an investment of capital, that we don’t have a lot of, but I’m hoping it will be enough of a compromise that it allows us all to move forward.[/quote]
I look forward to this new development.
[quote]I think the current City Council needs to amend Ord. 1303 immediately. There is nothing stopping them from doing so. [/quote]
Whether you like Ord 1303 or not, it is what it is, and the city needed to follow it. The question is why didn’t they?
[quote][i]”I will also add that we are going to have a much cleaner way to deal with off-topic posts hopefully within a month….We’re working on a bulletin board where we can roll off topic posts onto other comment threads. “[/i][/quote]WTF! This is a serious mistake. You are chasing the wrong villain. You don’t need a “clean way” to deal with “off-topic” comments; you can’t handle “off-topic” comments.
Actually, the “cleanest” way is the way you’ve got it set up now. Things just disappear. Before most people even know they existed. No one knows how, and no one knows why. And that’s the end of it. Nobody knows and nobody cares. Well, most of the time.[quote][i]”That will require an investment of capital, that we don’t have a lot of, but I’m hoping it will be enough of a compromise that it allows us all to move forward.”[/i][/quote]You don’t need to waste money on this. The real fixes are free:
1. Give Don new guidelines, ones that don’t include the impossible job of identifying “off-topic” comments, and
2. Focus your own reports so they don’t drag in unrelated information trying to make a point that cannot be made by you or understood by the rest of us.
What possible use can a “rollover bulletin board” serve? A trash can of unrelated, boring items? Will they be more interesting in such a list than they were back where the commenter felt they were on-topic? A place to check monthly to find out who is on the [u]VanguardSh*tList[/u] now, and who takes the off-topic record for December?
A place to argue the designation? To vote on whether Don was correct in any given instance? Will Don be required to justify each entry? Or to establish some kind of “flag” in the original that summarizes what got yanked and a link to the bulletin board entry?[i][quote]”I think that will solve most of your concerns and my concerns that topics have at times gone almost immediately on side obscure tangent.”[/quote][/i]I’d suggest that you review some of the topic write-ups you feel have “gone almost immediately on side obscure tangent” to see how much of the responsibility might lie with you and your original report. You may have been a little obscure, or you may have stimulated some unintended responses.
Then consider whether any damage was done by the off-topic comment. It may have reinvigorated a dying topic, triggered thought about something else worthwhile, given your readers a laugh or maybe (just maybe) wasn’t really wasn’t off-topic after all.
Since it costs you nothing to leave supposed off-topic comments where they’ve been deposited, why pay to make them disappear to some other spot? Since it doesn’t hurt the rest of us (we can scroll quickly if we want), why generate unnecessary work and bad feelings to stamp out our opinions? And, one’s person’s “off-topic” is another’s “spot on.”
Free the Don Shor One!
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Okay, David, I just looked back to see whether Don has pulled off your off-topic comments about the off-topic matter and/or his own off-topic comments as well from this report about PERB’s finding and the DCEA impasse designation. Even though both of you obviously are violating the off-topic rules, apparently you get to do it without being penalized. So, I’ll press the “Add Comment” button and see whether some people have to follow the rules and some don’t.
[quote]Okay, David, I just looked back to see whether Don has pulled off your off-topic comments about the off-topic matter and/or his own off-topic comments as well from this report about PERB’s finding and the DCEA impasse designation. Even though both of you obviously are violating the off-topic rules, apparently you get to do it without being penalized. So, I’ll press the “Add Comment” button and see whether some people have to follow the rules and some don’t.[/quote]
LOL You do make a good point!