Last week the Vanguard reported that the Public Employment Relations Boards (PERB), in a tentative decision, had ruled that the city had violated labor laws in imposing the last, best and final offer to the Davis City Employees’ Association (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 the 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.
In a communication from DCEA president Dave Owen, he writes, “A recent article and blogs concerning the fact that the City of Davis has been found guilty of Unfair Labor Practices would lead one to believe that the Administrative Law Judge’s ruling was tentative.” He argues, “Nothing could be further from the truth.
Mr. Owen added, “The ALJ’s decision is appealable, but there is nothing tentative about the ruling.”
In the absence of the City of Davis appealing, the ALJ decision becomes final and binding, he noted.
A tentative ruling is simply a legal term for a proposed ruling that becomes final unless the losing party makes a showing that presents errors in the court. The use of tentative in this specific context is not is necessarily synonymous with common everyday usage.
Mr. Owen goes on to argue that Assistant City Manager Paul Navazio is quoted in the Enterprise saying, “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.”
Mr. Owen disagrees, 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. 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.”
The Vanguard’s efforts to speak to Mr. Navazio and former Councilmember Lamar Heystek were not returned on Tuesday.
Previous efforts to reach City Attorney Harriet Steiner and HR Director Melissa Chaney have also been unsuccessful.
We ultimately agree with Mr. Owen on this issue, as we believe that the ruling is not going to change when the city files its protest within the twenty-day period. 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
[quote]Mr. Owen added, “The ALJ’s decision is appealable but there is nothing tentative about the ruling.”[/quote]
In so far as I am aware, the ruling stands unless the city can show good reason/cause why the ruling should not remain in place. Since the city has already had ample opportunity to present their side, it does not seem likely that they will be able to add anything new that will change any minds. So at this point, I would suspect the ball is in the City Council’s court, to determine next steps. There is no question the well has been poisoned, so to speak, but the city has only finite resources. DCEA would do well to remember that fact as this process hopefully moves forward in a more positive direction…
However, it does highlight the need for an independent negotiator…
If the city does lose the appeal and the ruling remains unchanged, what then? Is that the end of the story? Because I’ve heard that at that point the city will just begin the negotiation process for the 09/10 contract from the beginning again, this time allowing the time for the fact finding. Also, I believe the 10/11 and 11/12 contracts are still in negotiations, so is it possible that the city may seek to get the same concessions from DCEA out of these contracts that have been made by other bargaining groups in their current 3 year contracts?
I think you are correct, end of story for the last MOU. However, what this does do is make DCEA first in line for the next round of MOUs.
I wonder how the City’s rank and file employees feel about the City’s attempt to take about $250 million out of the wallets of local residents to pay for a surface water project that some say is unneeded, and many others say “not now.” These are funds that residents might otherwise allocate to paying parcel taxes for other city programs.
As ERM said above, the City has finite resources.
In terms of the CC blowing the legal process for this bargaining group, all I can say is it concerned the interpretation of a city ordinance, and the CC has to look for the City Attorney for guidance on that subject. I would put this one at the feet of the City Attorney. How much did she bill for this mess? The CC should retain independent counsel to evaluate what happened.
From the DV article, we learn that the employees did agree to fact finding, yet the CC ingored it. Did the CC even know? If they did not, this is a very serious issue to be brought up with the involved staff members on the management negotiating team, including finance and budger, and the city attorney.
Mayor Joe: one thing after another is turning to disaster in the past year. These are all things that were set up by former City Manager Bill Emlen, the City Attorney, and the Saylor led CC. I think you should start a number of things over, including stopping the surface water project in favor of a ground water study, settling DACHA (yet another mess created by bad legal and process advice), mending fences with this employee group, and focusing your attention on leading a city government facing shrinking resources and growing fiscal distress by its residents. Times have changed, and it’s up to Mayor Joe to lead us away from the old “tax and spend” model that has nearly bankrupted the city. We simply cannot afford expensive programs that are bailed out by more tax payer money.
Moderator… Mr. Harrington’s comments are at, or slightly over, the “off topic” line… the water project is primarily about CAPITAL costs, not operational (which could be ‘on point’). Please monitor, lest this ‘thread’ becomes a water project discussion.
I agree that Mike Harrington’s comments are off topic and an attempt to shift the conversation. I also find it ironic that he criticizes the current Council after he offended City staff groups on a regular basis during his tenure.
I wonder what this will mean to City services – what will be cut, or to other staff – who will be laid off. I believe that City staff units (other than maybe the fire department) are running pretty lean.
Off topic comments and posts edited and removed.
DAVID: [i]”… 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.”[/i]
Let me first stipulate that I do not know what was said behind closed doors when these contracts were negotiated or when our City Council was directing its negotiating team. However, I think the problem you are ignoring, David, is that the City could not impose terms on the firefighters much better than we got–and I should add there was at least one good reform in that contract*–was because the firefighters ultimately accepted the City’s best offer. That is to say, the City’s best offer was the problem. Once the City put forth a deal that the firefighters found acceptable, it would be illegal for the City to then try to impose a different deal that gave the firefighters less.
[i]”… one good reform in that contract* …”[/i]
The good reform in the fire contract is that it caps total comp growth. That is a crucial reform we need in all of our contracts. The total comp cap means that if pension costs or cafeteria costs increase too rapidly, then salary levels will automatically be adjusted downward such that the total compensation levels are affordable for the city.
[quote]Times have changed, and it’s up to Mayor Joe to lead us away from the old “tax and spend” model that has nearly bankrupted the city.–[b]Mike Harrington[/b][/quote]Mike, we do not have a strong mayor form of government. Policy is set by a majority vote of council. All five councilmembers are equally responsible for leadership and for setting the direction of policy. All five councilmembers must shoulder equal share blame and credit.
Sue, I agree. But the Mayor has individual power to agendize topics, and he should do it. And soon. The City will lose the June 2012 parks parcel tax if someone does not take charge of the fiscal mess that Joe inherited from Saylor, and partially has made for himself.
“That is to say, the City’s best offer was the problem.”
Rich: I agree with you, the problem was that the city’s best offer was the problem and the contract they imposed on DCEA was a similar offer to the ones everyone else accepted, which were all insufficient.
[quote]Mike, we do not have a strong mayor form of government. Policy is set by a majority vote of council. All five councilmembers are equally responsible for leadership and for setting the direction of policy. All five councilmembers must shoulder equal share blame and credit.[/quote]
I agree with this assessment. It is up to all five CC members to even set the agenda…