Fire Protection District Violated MMBA When It Denied Represented Employees Longevity Differential

Category: Briefing Room
Date: Apr 19, 2019 11:26 AM

The Public Employment Relations Board (“PERB”) found that a County Fire Protection District violated the Meyer-Milias Brown Act (“MMBA”) when it granted unrepresented employees a longevity differential but denied the benefit to employees represented by the union.

In 2006, the Contra Costa County Board of Supervisors passed a resolution that provided about 600 classifications of County employees a longevity differential consisting of a 2.5% increase in pay for 15 years of service. The resolution described the eligible County employees as “Management, Exempt and Unrepresented Employees.”

The United Chief Officers Association (“Association”) represented the Fire Management Unit of the Contra Costa County Fire Protection District (“District”), one of the County’s special districts. In subsequent labor negotiations between the Association and the District, the Association demanded the same longevity differential previously granted to unrepresented management employees. The District rejected the Association’s proposal and admitted on several occasions that it did so to ensure that unrepresented employees are paid more than represented employees.

In 2008, the County Board of Supervisors adopted a resolution that extended the 2.5% longevity differential for 15 years of service to more than 1,000 unrepresented supervisory and managerial employees of the District. This effectively extended the differential to all unrepresented management employees of the District, except those in the represented Fire Management Unit. The Association filed a grievance, but the matter was not resolved. Subsequently, the Association filed an unfair practice charge alleging that the District interfered with the union and employee rights, and discriminated against them by treating them differently based on protected activity.

PERB discussed the difference between interference and discrimination charges. PERB noted that for interference, the focus is on the actual or reasonably likely harm of an employer’s conduct to the protected rights of employees or employee organizations. Thus, to establish interference, the employee or employee organization does not need to prove the employer’s motive, intent, or purpose. PERB noted that an interference violation will be found when the resulting harm to protected rights outweighs the business justification or other defense asserted by the employer.

In contrast, the employer’s unlawful motive, intent, or purpose is necessary to establish a case for discrimination. A charge of discrimination will be sustained if the employee shows that the employer would not have taken the complained-of conduct but for an unlawful motivation, purpose, or intent. 

PERB found that the District interfered with the Association and employee’s protected rights in violation of the MMBA. PERB noted that the District expressly distinguished between represented and unrepresented employees as the basis for granting employment benefits. Thus, the District’s conduct discouraged employees from participating in organized activities, which is a quintessential protected right under the MMBA. PERB rejected the District’s affirmative defenses outright and concluded that the resulting harm outweighed the District’s explanations.  

PERB also found that the District discriminated against employees by treating Association-represented employees differently from unrepresented employees. The District only offered the differential to unrepresented employees in order to maintain “separation” in employment benefits between represented and unrepresented employees. Thus, PERB concluded that the District’s conduct provided direct evidence of motive and inherently discriminatory conduct sufficient to support a discrimination allegation.

PERB ordered the District to pay each eligible current and former member of the District’s Fire Management Unit the 2.5% longevity differential for 15 years of service.

Contra Costa County Fire Protection District, PERB Decision No. 2632-M (2019).

NOTE:

This case illustrates that it is significantly easier for a union to establish interference rather than discrimination because the union does not need to prove the employer’s motive.  The employer’s stated desire to pay represented and unrepresented groups differently because of their represented status, however, was sufficient evidence of a discriminatory motive in this case. LCW attorneys can advise agencies on how to avoid or defend claims brought by unions for both interference and discrimination.

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