Can This Marriage be Saved?
The debate rages between Tulare County and SEIU.
The county is filing an Unfair Labor Practices charge against the Service Employees International Union (SEIU) with the Public Employment Relations Board (PERB) for bad faith bargaining. Kathleen Bales-Lange, county counsel for the Tulare County Board of Supervisors (BOS), explained that there is no smoking gun but an accumulation of facts that lead her to ask the BOS to file charges. The charges stem from allegations that SEIU engaged in dilatory tactics, harassing conduct and regressive bargaining that delayed negotiations and cost the employees three pay periods of a salary increase. Below are the six charges filed against SEIU and a summary of each side’s position.
The following synopsis comes from the Statement of Charge that the county will be filing with PERB and some of Bales-Lange’s presentation given at the board meeting. It also quotes the board chairman, Supervisor Phil Cox. Date discrepancies were found while compiling this information, thus, after the county and SEIU review their documents and negotiation notes, their positions may slightly change.
Failure to Prepare for Bargaining Sessions
The County’s position:
At the July 7 negotiations, SEIU employees were unprepared for the meeting and had to stop negotiating in order to caucus. Supervisor Phil Cox said that it appeared to him that there was dissention between the rank-and-file employees and their appointed negotiators. The county is also alleging that SEIU based their contract proposals on an inaccurate number of employees, even though the county had provided SEIU with the correct number. According to Ms. Bales-Lange, SEIU was more than 900 employees off.
According to Ryan Wilson, a nine-year employee of the county and an employee negotiator, when negotiations began on July 7 the employees realized that they were not on the same page. They had to stop the meeting to caucus in order to present a unified counter proposal to the county’s 3% one-year contract offered on June 26.
The county did provide SEIU with the number of employees that the union represented, but there was a disagreement about the accuracy of their number. High turnover in employees has plagued the county for years. Joanne Salazar, an SEIU representative, said that 954 workers left during a two-year period and that the number of employees their union represented was in constant flux. There was also a discrepancy in how many actual positions existed versus funded positions. Some of those vacancies became permanent and SEIU needed a more accurate number to formulate their proposals.
Failure to Make Proposals or Counterproposals
The County’s position:
At the first negotiation meeting on March 19, SEIU requested voluminous information that it claimed was for a proposal on safety. During another negotiation meeting on June 9, SEIU again advised the county that it would make a safety proposal. SEIU never made a proposal on safety.
The SEIU did ask for the information and did not make a safety proposal. SEIU did not make a safety proposal because they felt that the county should be responsible for the employees’ safety, not the union. SEIU had expressed concern during the negotiations about employee safety when going into older buildings or buildings where dangerous chemicals are used. They suggested that the workers need more training on what to do if exposed to dangerous chemicals or asbestos and that the county needs to have in place formal safety procedures, especially for the county’s custodial staff.
Burdensome Information Requests
The County’s position:
At the first negotiation session on March 19, SEIU made a request for 55 items that took staff hours to collect and comprised of 700 pages of which SEIU never used at the bargaining table. Part of this material was to make a proposal on safety that never materialized. During a subsequent negotiation meeting, SEIU made a second information request that took 40 hours of staff time and consisted of 885 pages of information. Some of the information duplicated what SEIU requested during the first meeting. At the July 1 negotiation meeting, SEIU requested information that the county had already provided during four previous meetings.
When Ms. Salazar received the volumes of paperwork delivered by the county, she thought it was a litigator’s trick. Her opinion was that the county was burying the important data she needed to make the employees’ contract proposals under a mountain of paperwork so it would be difficult for her to find the numbers she needed. On several occasions, the Valley Voice asked Ms. Salazar for data but she had either not received the information she requested in a timely manner or she was in the middle of wading through it herself to get to the data she needed.
According to Mr. Wilson, the county has never liked information requests, “but that they need to adapt because that’s how negotiations go in other counties.” He added that he felt the county was making it more complicated than it needed to be. “They already know what information we are going to ask for. Just make an SEIU folder and keep it updated. What does a 1% wage increase look like? We can’t make proposals if we don’t have the budgets and salaries,” he said. “If they insist on one-year contracts, they should expect it.”
False and Misleading Statements
The County’s position:
On June 17, during public comment at the Tulare County Board of Supervisor’s meeting, employee negotiators, and SEIU staff accused the county of “not putting anything on the table” while bargaining. This statement was inaccurate, as the county had proposed earlier in June a global resolution that included a base salary increase. Bales-Lange also noted that in the petitions given to the BOS at the June 24 evening meeting that the document falsely claimed that the county had not offered a salary increase. Bales-Lange said that a sidebar communication between the county lawyer and SEIU offered a 4% two -year contract salary increase before the June 17 meeting.
During a personal interview with Supervisor Cox, he did not claim that the county had offered a raise, but pointed out that from the beginning that the county put something on the table. Early in the negotiations the county offered to pay for the Animal Control and kennel workers’ uniforms. The county also offered to pay for any increase in premiums on health plans with a $1,000 deductable. “That’s not nothing,” he said.
According to the Visalia Times-Delta, Supervisor Cox said, “’they tried to make us look like a bunch of ogres’ with statements to union members and to the public that the county wasn’t budging or offering any concessions in the negotiations ‘which is the farthest thing from the truth.’”
The county did offer a 4% raise over two years if SEIU dropped all PERB charges, but that offer came two days after the June 24 BOS meeting, when the petitions were already delivered. According to SEIU Employee negotiators Lena Case and Mr. Wilson, there was no official offer on the table including a raise until the June 26 negotiation session, the ninth or tenth meeting out of 12. The county’s lawyer had suggested at the June 20 meeting that they would consider a raise if SEIU dropped all PERB charges, but that is where the conversation ended.
At the end of May, a sidebar offer was made by the county lawyer to an SEIU representative with a generous raise for the workers. But the county never followed through on their offer, and SEIU did not pursue it because they didn’t want to drop their PERB cases that could pay out millions of dollars to the workers if the county is found guilty.
Mr. Wilson added that the county did put on the table to pay for uniforms and the increase in premiums. But he said that paying for an increase in premiums has been standard procedure the nine years that he has worked for the county and that it would be disingenuous to suggest it was part of the negotiations.
Bypassing County Negotiators/Direct Dealing with Board of Supervisors
The County’s position:
On May 14, Kermit Wullschleger emailed Supervisor Cox requesting to meet with board members regarding the ongoing bargaining. On June 17, SEIU made comments accusing the county of “not putting anything on the table” in bargaining. By making these comments directly to board members, SEIU again was attempting to bypass the county’s designated negotiator and bargain directly with the board. According to the Visalia Times-Delta, “Cox said that he was contacted at least six times by members of SEIU’s negotiating team and then ‘they would come to the meetings and bad mouth us and say you won’t talk to us.”’
Also on June 17, SEIU staff member Courtney Hawkins said during public comment that he wanted to speak to the board members “as men” about the negotiations. Both of the county’s negotiators are female, while the board members are male. By making this gender-derogatory comment, Hawkins was attempting to bypass the county’s female negotiators and bargain directly with the male board members.
Mr. Wullschleger did email Supervisor Cox and request an informal meeting with the supervisors. The goal was for the employees to provide personal testimony about their jobs in private with the supervisors with the understanding that negotiations were not to be discussed. He also wanted to introduce to the board local 521 concept of “Community First.”
During the negotiations that Mr. Wullschleger participated in in 2005, there were specific ground rules prohibiting talking to the media or BOS. No such ground rules were established in 2014. When the supervisors refused to meet privately with the employees, the employees made a group decision to give their personal stories and testimonies during public comments at the board meetings.
According to Ms. Salazar, the county’s lawyer told her that going in front of the BOS during public comment is a protected activity by law and everyone’s first amendment right.
In an emailed statement from Ms. Salazar, she said, “On August 20, 2014, the Public Employees Relations Board published a decision (Sweetwater Union High School District v. Sweetwater Education Association PERB IR-58; Case No. LA-CO-1612E) re-affirming a union’s right to distribute information to its membership, engage in picket lines, and to bring public attention to items being bargained. This is at the heart of a union’s fundamental right to organize. This is not a new concept, but rather a time-honored paradigm called democracy. SEIU is a union. To us, this means we working people standing together in our communities.”
In the matter concerning Mr. Hawkins, he is an SEIU organizer but is not on the negotiating team nor has he attended any of the negotiations sessions. The county’s claim that Mr. Hawkins’ intent was to bypass the county’s female negotiators is conjecture. Mr. Hawkins simply wanted to make a statement during public comment to the BOS and expressed his desire to the board “as men” because they are all men.
The County’s position:
At the June 26 negotiations, SEIU made regressive proposals that would have cost the county more money than proposals SEIU had made previously. A definition of regressive bargaining supplied by the county states, “Regressive bargaining, or bad faith bargaining, is any conduct that moves the parties away from agreement rather than towards agreement.” Examples are: reneging on previously reached tentative agreements, withdrawal of proposals, refusal to respond to proposals on the table, or submitting proposals which can be construed as less than a position that was offered previously.
During Bales-Lange presentation at the August 26th BOS meeting she said that SEIU made two regressive proposals. The two regressive proposals she referenced are confidential until the Unfair Labor Practices complaint is filed with PERB. According to John Hess, county analyst, “The regressive proposals will be attached to and/or outlined in the PERB documents when submitted. We believe that the complaint will be filed in mid-September. “
Bales-Lange also stated that, because of SEIU’s regressive bargaining, workers salary increases were delayed for three pay periods costing $484,000 or $172 a worker. The “Statement of Charge” claims that SEIU engaged in bad faith bargaining with the intent to delay the negotiation process and thus delayed their workers receiving their raise.
June 26 was an eight-hour negotiation session where both sides made several proposals. It was the first instance where the county negotiators put anything formally on the table involving money in the workers’ pocket. Raises, bonuses and PERB charges were all bargaining chips used by both sides. SEIU feels that each proposal they made during the negotiations was a reasonable counter to what county put on the table. By the end of the day, SEIU told the county to make an offer that did not involve the PERB charges. So the county made their final offer of a 3% raise for a one-year contract. At that time, SEIU decided not to take county’s offer to the workers because they wanted to keep fighting to get the same raise as was given management.
SEIU says that they cannot be blamed for the fact that the county waited nine or ten negotiating sessions before offering the workers a raise. If the county was concerned about the workers lost wages, they could have made all agreements retroactive. Just because a retroactive salary increase was not on the table doesn’t mean the county could not have done it anyway.
My recommendation? The two sides need to go to marriage counseling and save the county a possible $80,000 in taxpayer money in case they lose and have to pay SEIU’s legal fees also.