By David E. Mastagni and Taylor Davies-Mahaffey
A recent Public Employees Relations Board (PERB) decision made clear an employer’s obligation to bargain over proposed changes to overtime sign-up and payment policies. In Service Employees International Union Local 521 (Union) v. County of Fresno (County), the administrative law judge (ALJ) decided in favor of the Union. The ALJ found that the County committed an unfair labor practice (ULP) in violation of Meyers-Milias-Brown Act (MMBA) provisions when it unilaterally changed both the overtime sign-up procedure for supervising juvenile correctional officers (SJCOs) and how it paid SJCOs when they worked more than eight hours in a period of continuous work that began before and ended after midnight, and by refusing to arbitrate grievances concerning both issues. However, the ALJ concluded that the Union failed to show that the County violated the MMBA regarding its request for information.
Fresno County’s Probation Department runs the Juvenile Justice Campus, a 24-hour residential facility for juvenile offenders. The sworn staff includes juvenile corrections officers (JCOs), senior juvenile corrections officers (senior JCOs), supervising juvenile corrections officers (SJCOs) and deputy probation officers (DPOs). SJCOs manage JCOs, schedule shifts, act as watch commanders at the Juvenile Justice Campus and are represented by the Union.
From 2014 to 2018, a standing practice regarding priority for overtime opportunities was memorialized in a 2014 email from the then-assistant director of the Juvenile Justice Campus. When the need for overtime in JCO and senior JCO shifts was known in advance, JCOs and senior JCOs had a window to volunteer for the shifts before SJCOs could reserve the remaining spots. Emails announcing overtime opportunities were typically sent out 21 days before the overtime shift, resulting in SJCOs having about 18 days to decide whether they wanted to take the overtime shift and make personal arrangements for that purpose.
In May 2018, a memo was distributed by the chief probation officer to the various corrections officers at the Juvenile Justice Campus, modifying the overtime sign-up practices, resulting in SJCOs losing the ability to sign up for overtime until the day of. In effect, SJCOs no longer had advance notice to make personal arrangements to accommodate the overtime shift, and the amount of overtime worked by SJCOs decreased. The chief probation officer failed to provide notice to the Union before distributing the memo based on the advice he received from a human resources employee working for Fresno County. This employee interpreted the MOU’s language to provide the unilateral ability to make such a change based on the management rights clause present in the MOU and the County’s interpretation of the word “day” in the MOU to mean a period of time beginning at 12:01 a.m. and ending at midnight.
Additionally, as it pertains to overtime, the MOU states, “Overtime is authorized work performed by employees in excess of eight hours a day or over 40 hours in a work week.” The longstanding practice adhered to by the parties was to pay SJCOs overtime for all time in excess of eight hours in a continuous period of work, even if part of the work occurred before midnight and part occurred after midnight.
However, on June 8, 2018, an SJCO worked a double shift, beginning at 4 p.m. on June 8 and ending at 8 a.m. on June 9, for a total of 16 hours. The SJCO claimed the second eight hours as overtime, per the terms of the MOU. When the SJCO was paid for that period, the County paid the second eight hours as regular time. When the Union questioned this practice, the County reiterated the SJCO was not entitled to overtime due to the SJCO working eight hours on June 8 and another eight hours on June 9, which the County deemed to be two separate shifts on two separate days, rather than one continuous shift where the time in excess of eight hours would be categorized as overtime.
In light of these two issues, the Union filed separate grievances on behalf of the SJCOs. Regarding the overtime sign-up grievance, following the step three grievance proceedings, the Union asserted that the parties agreed to stay the grievance. At the same time, the involved personnel attempted to remedy the situation among themselves. Following the passage of 10 working days, the County moved to close the file, claiming the Union failed to advance the grievance to step four in a timely manner.
As it pertains to the consecutive hours/overtime grievance, following step four of the grievance process, the Union requested to move the grievance to arbitration. The County, however, claimed the Union failed to contact state mediation for a list of arbitrators in a timely manner. Thus, its request exceeded the stated deadline, resulting in the County’s refusal to arbitrate the matter.
In support of the consecutive hours/overtime grievance, the Union sent the County an information request seeking records, policies and documents regarding payroll and overtime encompassing the previous five years, to be produced within 30 days. The County acknowledged the request and indicated the day before they were required to produce the documents that the volume and specificity of the information sought would require the County to collaborate with other departments and review extensive amounts of data, which required additional time. After approximately two months, the County produced a flash drive with the responsive information to the Union. The Union did not indicate if they were dissatisfied with the County’s production. However, at some point during the hearing, the Union requested additional information specific to the SJCO’s overtime payroll records. On the third day of the hearing, the County produced the requested records, which were subsequently introduced as exhibits. At that time, the Union indicated that their request was fully satisfied.
Ultimately, there were three issues evaluated in the case at hand.
- Did the County violate the MMBA when it changed (a) the overtime sign-up procedure and/or (b) when it changed how it paid SJCOs for work performed after midnight in a continuous period of work greater than eight hours?
- Did the County violate the MMBA by refusing to arbitrate the Union’s grievances on procedural grounds?
- Did the County violate the MMBA by failing or refusing to respond to the Union’s request for information?
The County argued that the Union’s complaint was barred by the statute of limitations and additionally asserted two waiver arguments, specifically claiming that the contents of the MOU prevailed over the alleged practice and that the changes implemented by the County were permitted under the management rights clause provided in the MOU.
With respect to the statute of limitations argument, a charging party must generally file an unfair practice charge for violations of the MMBA within six months from when the charging party knew or should have known of the violation. The County contended that the Union’s charge was untimely due to the filing occurring beyond the six-month threshold and that they failed to advance the two grievances to step five, thus barring their claims for untimeliness. The ALJ found that the Union’s claims were equitably tolled due to the parties engaging in the interactive grievance process at the time, which was a contractually obligated attempt to remedy the situation before pursuing litigation. Further, the ALJ held that as it pertains to the overtime sign-up procedure grievance, the Union credibly proved that the parties agreed to suspend the timeline following step three to attempt to resolve the issue. Therefore, the County’s claim that they failed to advance the grievance to step four promptly failed and that the statute of limitations for that charge was also equitably tolled.
The County’s waiver arguments were similarly unpersuasive. The ALJ held that the County’s belief that the MOU’s language trumped the alleged practice was improper, given that the MOU did not specifically define the word “day.” The County unreasonably relied on its salary resolution language, which defines a “day” as a period of time beginning at 12:01 a.m. and ending at midnight. More specifically, the ALJ provided that the MOU’s language did not clearly and unmistakably waive the County’s duty to give the Union notice and an opportunity to bargain before changing what counted as a “day” for purposes of calculating overtime.
Shifting to the County’s refusal to arbitrate the grievances, the decision provides that the Union failed to show that the County’s refusal to process the grievances was a change from prior policy or practice. Yet, it was determined that the County had a duty to present its procedural arguments about the grievance to an arbitrator, and its refusal to do so violated section 3505.8 of the MMBA, which governs the enforceability of an MOU’s arbitration agreement. It provides in pertinent part, “An assertion that the arbitration claim is untimely or otherwise barred because the party seeking arbitration has failed to satisfy the procedural prerequisites to arbitration shall not be a basis for refusing to submit the dispute to arbitration. All procedural defenses shall be presented to the arbitrator for resolution.”
However, the ALJ found against the Union in its request for information claim. The holding provides that when a union requests relevant information, the employer must supply it timely and explain its reasons for not doing so. A failure to provide the necessary and relevant information absent a valid defense constitutes a per se violation of the duty to negotiate in good faith. Here, it was found that the County engaged with the Union and communicated the burdensome nature of the information request and that it was doing its due diligence to obtain the requested information. Moreover, the County provided information responsive to the Union’s request.
If that information was deemed to be unsatisfactory to the Union, the Union had an obligation to express its dissatisfaction, which it failed to do. The County was also responsive to the Union’s request for additional, more specific information regarding the SJCO’s overtime payroll records on the third day of the hearing, thus, satisfying its requirement to produce relevant information and its duty to negotiate in good faith.
Ultimately, the ALJ’s proposed order required the County to rescind the 2018 memo and return to the overtime sign-up practices consistent with the 2014 email authored by the then-assistant director of the Juvenile Justice Campus that provided SJCOs with advance notice of overtime opportunities.
The County was also ordered to make the SJCOs whole by paying them for any overtime opportunities they lost as a result of the unlawful change and to resume paying overtime premiums to SJCOs for work after eight hours in a continuous period of work, even if that period of work crosses midnight, to include double shifts. Lastly, the County was required to pay the SJCOs backpay equal to the overtime premium for work after eight hours in a continuous period of work, including double shifts, with interest included at 7% per annum.
The Union also sought attorney’s fees, which PERB awards only if the charge is both without arguable merit and pursued in bad faith. It was determined that while the County’s primary positions lacked arguable merit, they were reasonably relied upon and not put forth in bad faith. Therefore, the Union’s request for attorney’s fees was denied.
There are a number of practical implications from this decision. The failure to specifically define what constitutes a “day” is something that various employers may more stringently address in future collective bargaining, given the MOU’s vagueness around that word in this particular matter and the County’s reliance on that word to its own detriment.
Moreover, when an employer attempts to change a standing practice to assign or sign up for overtime, the need to bargain over such proposed changes seems like an explicit requirement based on this holding. Finally, suppose an employee’s workday is going to pass midnight and exceed whatever the defined hours of a day are for that particular agency. In that case, employers should be particularly aware of such a scenario and ensure overtime is appropriately paid for the time worked in excess of the defined workday, consistent with its MOU, or they too can be held liable and required to pay a significant monetary penalty.