Public Sector Case Notes

• Jurisdiction: California,United States
• Author: By J. Scott Tiedemann and Shardé C. Thomas
• Publication year: 2017
• Citation: Vol. 31 No. 3

Public Sector Case Notes

By J. Scott Tiedemann and Shardé C. Thomas

Scott Tiedemann is the Managing Partner of Liebert Cassidy Whitmore, California's largest public sector labor, employment and education law firm. He is the author of the CPER Pocket Guide to the Firefighters Procedural Bill of Rights, as well as a chapter on that topic in California Public Sector Employment Law. Shardé Thomas provides representation and legal counsel to employers pertaining to the Affordable Care Act, education, and employment law matters.

MMBA Authorizes Agency Shop Arrangement That Is Applicable Only to New Employees

Orange County Water Dist. v. Public Employment Relations Bd., 8 Cal. App. 5th 52 (2017)

An agency shop arrangement requires employees who opt out of union membership to pay a service fee to the union, in lieu of membership dues, as a condition of continued employment. The fee is meant to account for the fact that these employees incidentally benefit from union activities such as collective bargaining. Government Code § 3502.5 of the Meyers-Milias-Brown Act (MMBA) permits the establishment of an agency shop arrangement following negotiations or, if negotiations fail, through approval by a simple voting majority of unit employees.

In this case, the California Court of Appeal held that a MMBA agency shop arrangement may be set up to apply only to new employees and exclude existing employees.

In May 2011, the Orange County Water District Employees Association proposed a modified agency shop during negotiations with the Orange County Water District. The Association proposed that the agency shop arrangement would apply only to new District employees hired on or after a future date. Current employees would be exempt. The District rejected the proposal, asserting § 3502.5 does not authorize such an agency shop arrangement.

In November 2012, the Association served the District and the State Mediation and Conciliation Service (SMCS) with a petition requesting an election for the modified agency shop. The District informed SMCS that it would not consent to an election for the modified agency shop because an agency shop arrangement must apply to all employees in the unit, not just new employees.

The Association filed an unfair practice charge with the Public Employment Relations Board (PERB), and the issue was submitted to an administrative law judge (ALJ). The ALJ concluded the District violated § 3502.5 because it refused to participate in a properly petitioned-for agency shop election. PERB affirmed.

At the court of appeal, the District again argued that § 3502.5 does not permit an agency shop that applies to anything less than all of the members of the bargaining unit. The court disagreed, holding the District improperly withheld consent for the proposed agency shop election.

The court explained that § 3502.5 unambiguously defines an agency shop arrangement not in terms of a bargaining unit, but as a condition for continued employment imposed on individual employees. The court said that nothing in the statute implies that an agency shop must apply uniformly to all members in a bargaining unit, and had the Legislature wanted to define an agency shop to exclude the type proposed by the Association, it could have.

Pitchess Discovery Is Not Limited to Personnel Records of Officers Who Either Witnessed or Committed Misconduct

Riske v. Superior Court (City of Los Angeles), 6 Cal. App. 5th 647 (2016)

Robert Riske worked as a City of Los Angeles police officer from 1990 until he retired in 2014. In 2008, Riske reported misconduct by his fellow officers and testified against them at an administrative hearing. Some of Riske's colleagues thereafter viewed him as a "snitch," refused to work with him, and ignored him in the field.

Subsequently, Riske applied for promotion from police officer to detective fourteen times. Each time, the Police...