Judge: County Acted in ‘Bad Faith’ During Attorney Labor Talks

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An administrative law judge representing the state Public Employment Relations Board ruled this week that Orange County supervisors acted in “bad faith” last year when they imposed wage and benefit concessions on more than 500 attorneys employed by the county.

The April 28 ruling by Judge Eric J. Cu, which covers attorneys working for the District Attorney, County Counsel and Public Defender offices, calls on the county to return wage and benefit concessions made to the unit (plus 7 percent interest) and also “compensate association unit members for any financial losses directly resulting from the county’s March 5, 2013 unlawful imposition.”

“The county participated in the negotiations preceding imposition in bad faith,” Cu stated in the decision.

Specifically, the ruling takes county officials to task for an abrupt change in negotiating tactics that coincided with the 2012 ousters of CEO Tom Mauk and Human Resources Director Carl Crown and the rise of supervisors Chairman Shawn Nelson.

Union representatives said the decision could affect county coffers by as much as $5 million and they are conferring to see what individual damages have been suffered by members. It also further complicates the county’s ongoing negotiations with 1,800 sheriff’s deputies, which are currently at impasse.

County leaders have not said whether they will appeal Cu’s ruling.

Nelson blasted the ruling and said it does not change the county’s financial position, which has been made worse by revenue shortfalls in the coming years that will total in the hundreds of millions due to the county losing a property tax dispute with the state last year. Nelson went on to say layoffs could be a consequence if the county is forced to comply with the judge’s decision.

The ruling features a blow-by-blow narrative on contract talks and notes that negotiations were progressing until about September 2011, when they were put on hold by the county.

Then in March 2012, high-priced private negotiator Bruce Barsook was hired to lead the county’s negotiating team just as Mauk was being ushered out and Crown’s approach to negotiations was criticized in the wake of a scathing performance audit of the Human Resources department.

Barsook and an increasingly powerful Nelson pushed officials to adopt what they publicly referred to as a “total compensation” approach to negotiations. That meant that county officials would tie pension and wage concessions together with an eye toward the total package.

According to the ruling, “the April 2012 proposal modified the County’s position in multiple ways. For example, whereas the county previously proposed phasing in changes to employees’ pension contributions over two years, the County’s new proposal was to implement all the changes to employee contributions all at once.”

There were also changes to premium pay, cost of living adjustments and health contributions, documents show.

Deputy district attorneys said they were also “shocked,” because county officials proposed a change to layoff procedures that attorneys said would leave prosecutors open to political retaliation from their boss depending upon their approach to difficult cases.

“Association bargaining team members said that they were “vehemently opposed” to changing the layoff process, because the DA is an elected politician and members were deeply concerned about being laid-off for political reasons.”

The attorneys unit also disagreed with the budget numbers being disclosed by county supervisors, arguing that there was more room in the budget than was being disclosed.

While Barsook told the attorneys negotiating team that revised budget numbers could not be produced, Chief Financial Officer Frank Kim disputed that assertion under oath. This, Cu’s decision said, showed Barsook had negotiated in bad faith.

Larry Yellin, a deputy district attorney who is president of the Orange County Attorneys Association, said Cu’s decision underscores what his members knew back in March 2013, when they sued the county over the imposition of terms.

“The year and a half that we went through with the county was a charade,” Yellin said. “It was not a negotiation. It was the Board of Supervisors and their emissary, Bruce Barsook, trying to set us up to be in a position to have take away.”

Scott Van Camp, a public defender who is the association treasurer, said the attorneys were offended in their contract talks because the new majority on the Board of Supervisors “weren’t negotiating, they just wanted to impose.”

Yellin took issue with all supervisors, saying despite hiring an expensive negotiator, they lack character and intelligence in their collective approach.

“We told them we would sue them and we would win,” Yellin said. “And today we have,” Yellin added, echoing what he told supervisors during a public comment period more than a year ago.

“This is a complete and total repudiation of the county’s negotiating strategy and of the law firm the county hired to do negotiations,” said Van Camp.

“If this is the Super Bowl of negotiations, as Supervisor [John] Moorlach has called them, if that’s the case, then we’re the Seahawks, they are the Broncos,” Van Camp added, referring to the lopsided win earlier this year.

Yet Nelson said the attorneys are largely kidding themselves, calling the decision from the Public Employment Relations Board or PERB a hollow victory.

Nelson said the abrupt change in negotiations emanated from the annual loss of $73 million in general fund revenue, which became a stark reality in April 2013, when state officials successfully sued the county over disputed property taxes.

“You’ve got a state taking your money, and you have a PERB guy saying you have to pretend that didn’t happen,” Nelson said. “These guys are gloating because they can’t see the forest through the trees.”

Nelson said county negotiators “had no choice” but to impose terms, adding that every other union group has been forced to assume the full employee share of pension payments.

Whether the county appeals the PERB decision or not, Nelson said, it doesn’t change much.

“When we get back at the table, we won’t have any more money,” he said.

He also lamented the precedent set by the decision. “If the county cannot recognize the loss of revenue in employee negotiations, the county can’t function. It’s not a victory for anybody.”

Yellin said Nelson is wrong.

It is a victory, he said. It’s a victory for collective bargaining and the rights of workers to sit down with their bosses to fairly negotiate wages and benefits.

“We hope this will lead to the county sitting down and having a fair and real negotiation,” Yellin said. “It was about insisting about a truly fair negotiation.”

Nelson said if Yellin and his members want fairness, they should be talking to Sacramento.

“The budget for the district attorney, the public defender and county counsel is what it is. … It’s not going to change based on what an administrative law judge said,” Nelson said. “There’s no where to take it from.”

What is clear, he added, is that “when this ends, every single employee is going to pay their full [pension] share.”

That has become a major sticking point in the negotiation with the sheriff’s deputies, which everyone agrees is most pivotal of all the negotiations.

An official impasse was declared in those negotiations late last month.

However, this week county supervisors met in closed session to discuss revising their offer without reporting out any action.

County negotiators also met privately with sheriff union officials, but no formal offer was forwarded.

In a statement sent to deputy sheriffs, union President Tom Dominguez declared the attorney’s decision is having an impact on their discussions.

“The decision revealed actions by the Board of Supervisors which were nothing short of appalling,” wrote Dominguez. “This is hardly surprising given our experience at the bargaining table over the last 22 months. We are meeting with legal counsel to see what, if any, impact the attorneys’ association ruling will have on our current negotiations.”

Meanwhile, county Supervisor John Moorlach is publicly arguing that a recent flap between Supervisor Todd Spitzer, himself and Nelson should prompt an entirely new approach to negotiations. Moorlach wants a more open approach, suggesting a transparency ordinance dealing with labor negotiations.

“If a Supervisor is discussing deal points and going around the independent negotiator, the other Supervisors and the public should be noticed of this activity,” wrote Moorlach Friday morning in his “Moorlach Update” newsletter. “Any and all lobbying activity, including e-mails, letters, and conversations, must be disclosed. This would make the employee union bargaining process truly transparent.”

Labor leaders, like Orange County Employees Association General Manager Nick Berardino, have said that kind of approach should apply to all county contracts being negotiated, such as large computer and developer deals.

Please contact Norberto Santana Jr. directly at nsantana@voiceofoc.org and follow him on Twitter: twitter.com/norbertosanana.

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