Death knell dealt POC severance campaign: PERB judge recommends dismissal of petition

2010-03-30

“We told them this wasn’t going to fly at the very beginning,” said CSLEA President Alan Barcelona in response to an administrative law judge’s devastating ruling against the Peace Officers of California’s severance campaign. “But they still went to great expense and lengths — including slander, distortion, fabrication, half-truths, and out-right lies — to the discredit of everyone who signed their cards. And all for nothing.”

POC has 20 days from the judge’s March 26 decision to file a Statement of Exception, but according to attorney Gary Messing, who represented CSLEA at the severance hearings, it is highly unlikely the full Public Employment Relations Board (PERB) would reach a different result than the judge. “The decision is thoughtful and well-reasoned,” said Messing. “It clearly considered and gave weight to all relevant arguments, but in every respect determined that CSLEA’s position was correct. This is obviously a great victory against an attack that threatened to divide and greatly weaken CSLEA.”

The details of Administrative Law Judge Shawn P. Cloughesy’s 45-page decision, however, reveal much more than just a well-reasoned decision. It highlighted for everyone to see:

• That CSLEA actually serves all of its members better for being a unified mix of sworn peace officers and non-sworn state employees
• That CSLEA’s legal team and Legal Defense Fund received rave reviews, even from peace officers in affiliates placed in trusteeship
• How CSLEA’s democratic structure was praised
• How CSLEA has achieved a bargaining stature POC could never match
• How CSLEA’s pay-parity strategy benefited everyone, instead of a few greedy wardens
• That CSLEA is effective in more areas than just salary and benefit negotiations
• How POC threw some of its petition-signing members under the bus
• How weak some of POC’s arguments were.

To the points above, the following are excerpts from Judge Cloughesy’s ruling against severance.

Unity

“One of the ways in which CSLEA represented its members was to convert non-peace officer classes such as the FTB Investigation Specialists into peace officers, as well as support the conversion of Insurance Investigators to DOI Fraud Investigators. If the [CSLEA bargaining] unit was severed, such advocacy could not continue. A non-peace officer unit would have no interest in seeing that its members become peace officers with better salaries and benefits . . .  In this sense, the members are better served having a mixed unit of peace officers and non-peace officers.Additionally, the split classes created by the State in November 2007 have many duties which are similar in nature, and militate toward a mixed unit to avoid any confusion.” [Pages 42, 43]

Legal Representation

“The individual representation provided to CSLEA peace officers overall was satisfactory, if not better. CSLEA also has a LDF, which was primarily of greater interest to peace officers than non-peace officers, and was used more by Unit 7 peace officers. [Page 43] The CSLEA Legal Division represents Unit 7 members in grievances, arbitrations, investigatory interviews, Skelly hearings, SPB disciplinary actions, and DPA statutory appeals. Representation surveys have been sent to those who used the legal services. While there was criticism, the majority of responses indicated that the member was very satisfied about the quality of representation provided. Additionally, witnesses testified about the quality of representation and prompt response from CSLEA staff. Among those witnesses was a SPPOAC member while the affiliate was in trusteeship … The majority of representation is provided to peace officers. Representation surveys were also distributed to those represented by a panel attorney with very positive feedback. The affiliate leadership also received positive comments for the representation provided by the LDF attorney panel.” [Pages 33, 34]

Democratic

On Page 11 of Judge Cloughesy’s decision, he quotes a previous administrative law judge’s opinion in a PERB decision on CSLEA’s transparency and stability. “The bargaining history between CAUSE [now CSLEA] and the DPA [Department of Personnel Administration] supports the dismissal of the severance petition [brought by the California State Police Officers Association]. Almost all large bargaining units have some diversity of interest. Unit 7, when it was created by the Board, was no exception. The record indicates, however, that the exclusive representative took specific organizational steps to accommodate pre-existing differences. It organized special sub-units to insure representation of the individual concerns of all unit employees. Although no one group of employees could expect to achieve all of its bargaining goals, issues of primary concern to the uniformed employees’ sub-unit were addressed in negotiations. There has been no showing that the interests of the petitioned-for-employees have been trampled upon or ignored, or that their representations rights have been abrogated because of the existing structure. What emerges instead is a picture of a stable bargaining relationship. Since the unit was established successful agreements have been negotiated in 1982, 1983, 1984, 1985 and 1987. Such stability is an important factor and should not be disturbed lightly.” [The emphatic underlining was Judge Cloughesy’s to indicate nothing has changed]

Stature

“CSLEA and the State have negotiated MOU’s in 1988, 1992, 1999, 2001, 2005 and 2006.”  In June 2002, Gov. Gray Davis signed Senate Bill No. 183 … which gave peace officers/firefighters in Unit 7 a 3 percent at age 50 formula for those who retired after July 1, 2004. The same bill gave the same retirement benefit to Unit 6 peace officer/firefighters, except that it was not effective until January 1, 2006. [Pages 15, 16] DPA opposes any severance from Unit 7. [DPA Labor Relations Officer Kristine] Rodrigues considers the bargaining relationship between the State and CSLEA to be mature and stable, and opposes the addition of a peace officer only unit … and the possibility of further unit proliferation.” [Page 35]

Pay Parity

“If Unit 6’s [corrections and parole officers] exclusive representative, a predominantly peace officer unit, could not obtain parity with Unit 5 [CHP officers], it is difficult to conclude that Unit 7’s failure to do so translates into a failure to adequately represent its members [Page 41] …The wardens did not achieve the desired pay parity, but other classes (Special Agents and State Park Peace Officers) also received needed increases. CSLEA’s negotiations during the time period did not trample or ignore Unit 7 peace officers, but rather achieved some success in achieving their salary concerns.” [Page 42] The judge also found significant that during the 2006 re-opener, then-CFGWA President Joe Mello was a member of the CSLEA bargaining team and voiced no objection to the compensation structure under the agreement that provided for significant pay increases to all Unit 7 peace officers.

Effective

“CSLEA supported legislation sponsored by DOI (Assembly Bill No. 1401) … which provided more funds to the DOI fraud unit by increasing assessments to insurance companies so DOI could hire more Fraud Investigators. Commissioner Poizner later approved a multi-year transition plan to convert all Insurance Investigators to Fraud Investigators.” [Page 28] “After batons and pepper spray were prohibited from use by Hospital Police Officers, CSLEA invoked the grievance/arbitration process which restored them.” [Page 29]

Thrown Under the Bus

Museum Security Officers who signed a POC card found themselves mentioned as early as Page 5 of Judge Cloughesy’s decision, “On the third day of the hearing, February 26, 2009, POC moved to amend the proposed unit to delete classes of Museum Security Officer and Supervising Museum Security Officer as they were not peace officers classes under the Penal Code.” Ironically, the decision to exclude these officers resulted in the judge finding that the proposed unit was under-inclusive.

Weak POC Arguments

Judge Cloughesy found the weight of evidence failed to support POC’s contention that in 1998, CSLEA (then CAUSE) rejected an offer from the Wilson administration because it failed to provide for the same increase in salary to the sworn and non-sworn members of the bargaining unit. POC based its assertion solely on the testimony of Legislative Advocate Patricia Hunter, who alleged that CSLEA directed her to communicate the rejection of the offer to the administration based on lack of parity. The judge found Hunter’s memory about some of the details of the communication were vague and were contradicted by that of CSLEA President Alan Barcelona, AC-DOJ President John Miller and the State’s bargaining notes. Further damaging the testimony of Hunter was a declaration from Jeff Randle, the person whom Hunter claimed to have communicated the rejection. In the declaration submitted into evidence by CSLEA, Randle confirmed that he had left the Governor’s office months prior to the time Hunter claimed the alleged telephone conversation occurred.

The judge also found that the CSLEA Board of Directors at the time, including the directors representing the SPPOAC and CFGWA affiliates, rejected the offer from the Wilson administration because it was predicated on the acceptance of pay for performance, which was viewed as a dramatic departure from the traditional merit salary adjustment practice.

POC’s next attack was on CSLEA’s alleged failure to pass the 2003 tentative agreement through the Legislature prior to the recall of Gov. Gray Davis. The judge found significant that CSLEA had been able to reach a tentative agreement with DPA, which required salary increases to be made based on a formula which maintained the average of five of the Unit 7 peace officer classifications’ total compensation within $777 of CAHP. He found credible the testimony of President Barcelona that then Senate Pro Tem John Burton made it clear the contract would not survive a floor vote because the recall campaign against Davis had gained momentum.

The judge rejected the contention that CSLEA usurped money from Fish and Game wardens and allocated it to other members of the bargaining unit including Unit 7 peace officers. Warden Jerry Karnow, one of POC’s creators, testified that he and his fellow wardens were banking on 43 percent pay increases, even if such increase meant no pay raises for other Unit 7 peace officers.

Final Analysis

Page 44

“Based upon the foregoing and the entire record in this case it is ordered that the severance petition filed by the Peace Officer of California is DISMISSED.” — Administrative Law Judge Shawn P. Cloughesy