WATCH WHAT YOU SAY!
- By: David Prentice
Imagine that you are negotiating a labor agreement, and during the negotiations you utter the terrible words “unrepresented” and “represented.” Those two words led one public agency to a one million dollar back pay obligation imposed by the Public Employment Relations Board (PERB). How did this happen? See Contra Costa County Fire Protection District v. Public Employment Relations Board, petition for review pending.
The issue, which began nine years before the final decision by PERB, centered around the issue of longevity pay. The agency’s negotiator informed the union negotiator that longevity pay would be provided only to unrepresented management employees. The union filed an action with PERB, complaining about “discrimination.” The PERB Chief Administrative Law Judge sided with the public agency. However, without any precedence, the Board itself decided that using that language was interfering and discriminatory. Of importance is that PERB did not even analyze the matter as bad faith, just as “inherently destructive” of employee rights.
There was dissent on the Board on the basis that the finding created automatic parity of benefits between represented and unrepresented employees. This has never been the law. More astounding is that PERB ordered the agency to modify the Memorandum of Understanding to provide for longevity and ordered back pay, which amounted to one million dollars.
While there are judicial challenges to this decision pending, two courts have dismissed and one pending challenge remains. What do we take from this? Be very careful in crafting benefits and make sure that your negotiator is cognizant of this decision.