Tele: (916) 326-4222
Fax: (916) 326-4215
January 13, 2009
Via Hand Delivery
Department of Personnel Administration
Labor Relations Division
1515 S Street , North Building, Suite 400
Sacramento, CA 95811-7258
Re: Attempted Unilateral Implementation of Two Day Furlough
Dear Ms. Chapman:
I am in receipt of your letter dated January 9, 2009, enclosing a memo from Department of Personnel Administration Director David Gilb relating to the Governor’s proposal to furlough some state workers two days each month and reduce their pay by 10%. Your letter goes on to offer to meet with SEIU Local 1000 “regarding the impact of furlough on the members of your organization.” This is SEIU Local 1000's response to your “offer.”
As you are no doubt aware, the Union has filed two legal actions over the Governor’s attempt to bypass the bargaining process (and indeed even the Dills Act itself) in order to unilaterally implement, under the guise of an Executive Order, a 10% pay reduction and two day furlough. The first action, an unfair practice charge filed with the Public Employment Relations Board alleges that the furlough mandate violates the State employer’s obligation to bargain in good faith with the Union. The second action is pending in Sacramento Superior Court and asserts that the furlough implementation may require the State to violate the Fair Labor Standards Act, improperly invokes the provisions of Government Code section 3516.5, and violates the California Constitution and state statutes which delegate exclusive authority to change salary and work hours for represented state employees to the Legislature. The hearing on this second set of claims is currently scheduled for January 29, 2009. For these reasons and those described below, your offer to negotiate over the impact of the furlough rather than over the decision itself is certainly premature and may be contrary to law.
Recent events also confirm that the Governor and DPA fundamentally misunderstand some of the basic precepts which underpin the Dills Act. On January 6, 2009, during a negotiating session, you were asked whether the two day furlough would be imposed on Bargaining Unit 05, the sworn officers of the California Highway Patrol. Your response was unequivocal. You stated that the furlough would not apply to Bargaining Unit 05 because Bargaining Unit 05 was operating under the terms of an MOU which had not expired. Apparently, you have correctly concluded that the Governor and DPA cannot simply amend the pay and hours of work provisions of an existing MOU without bargaining with the Union covered by that MOU. What you have apparently overlooked is that there is currently an MOU in effect between the State of California and SEIU Local 1000 covering all nine of its bargaining units. Although that MOU contained an expiration date of June 30, 2008, by operation Government Code section 3517.8, all terms and conditions of the MOU remain in full force and effect until a successor MOU is negotiated or until impasse procedures are exhausted and the employer implements its last, best and final offer. Given this fact, SEIU Local 1000 is in no different position than the exclusive representative for Bargaining Unit 05.
Your misreading of California’s public sector collective bargaining law is not the only obvious flaw in the plan you included with your letter. The California Labor Code contains several restrictions on the manner in which workers must be paid for work performed. Your announced intention to require employees employed by the Department of Mental Health and the California Department of Corrections and Rehabilitation to work a full four workweeks, be credited for two days of unpaid leave and receive only 90% of their agreed wage runs afoul of several provisions of the California Labor Code.
Recent events suggest additional problems with the Governor’s plan. Over the last twenty-four hours, the Treasurer and the Secretary of State have announced that they will not implement the Governor’s furlough plan. It is likely that additional constitutional officers will take the same position in coming days. For this reason, many of the employees represented by SEIU Local 1000 will not see their pay reduced or their hours curtailed as envisioned by the Governor. Apparently employees in identical classifications, performing the same functions and represented by the same union will be treated radically differently based solely upon the unhappy circumstance of being assigned to perform their work for the Department of General Services rather than the Attorney General’s Office. One employee will see her pay reduced by 10% on fewer than thirty days’ notice and have her working hours reduced by 16 hours per month while the other will enjoy pay and working hours which are totally unaffected by the Governor’s violations of state law. This raises the specter of potential disparate treatment claims by an entire class of state employees.
Notwithstanding the myriad legal and practical problems posed by the Governor’s furlough plan, SEIU Local 1000 is prepared to negotiate with DPA over the furlough plan at our next bargaining session scheduled for January 15, 2009. At that time, we look forward to negotiating over both the decision to furlough state workers and the effects this draconian proposal may have on hard working Californians who provide the services the citizens of our state expect and deserve.
Chief of Staff
SEIU Local 1000
cc: Yvonne Walker, President, SEIU Local 1000
Cora Okumura, Vice President-Secretary Treasurer, SEIU Local 1000
Jim Hard, Vice President for Organizing and Representation, SEIU Local 1000
Kathleen Collins, Vice President for Bargaining, SEIU Local 1000
BUNC Chairs, SEIU Local 1000
Paul E. Harris, III, Chief Counsel, SEIU Local 1000
David Gilb, Director, Department of Personnel Administration