Revenge of the nurses: The back story of PERB’s radicalization

Sept. 19, 2012

By Chris Reed

In 1999, California Democrats celebrated Gray Davis’ election as governor the previous fall by sending him a slew of legislation they knew that his Republican predecessor, Pete Wilson, would never have approved. Most notoriously, they won Davis’ signature on SB 400, the giveaway of a retroactive 50 percent increase in the pension formula for state employees, triggering copycat “pension spiking” measures at the local government level that are now yielding chaos up and down the Golden State.

In 2011, California Democrats acted in similar fashion after Gov. Jerry Brown replaced Republican Gov. Arnold Schwarzenegger. But their most audacious power play of the year was barely noticed for many months. It involved the state Public Employment Relations Board, a quasi-judicial government agency that acts — or is supposed to act — as a de facto referee in disputes between governing bodies and unions over collective bargaining.

Now PERB has emerged as the leader of a union coalition that wants to throttle direct democracy, to ignore plainly written state laws on teacher performance and to argue that PERB — not the state court system — should interpret state laws when it comes to anything that involves public employees.

How did we get to this extreme state of affairs? Conspiracy devotees will be disappointed. The radicalization of PERB appears to be more a byproduct of the intense feud between the Schwarzenegger administration and the California Nurses Association than a calculated scheme to use an obscure state agency to advance the union agenda so broadly.

Nurses vs. UC, round one

After Schwarzenegger took over as governor in 2003, there is no evidence that PERB suddenly became a hotbed of anti-union fervor. He retained as PERB’s general counsel, and its most powerful official, a Gray Davis appointee named Robert Thompson. But when Thompson and PERB stood up to the California Nurses Association in 2005 and disputed the union’s claim that the Schwarzenegger administration had shown bad faith in contract negotiations,
Thompson and PERB set in motion a chain of events that transformed PERB.

In 2005, administration officials and the University of California balked at CNA demands that UC provide 9,000 union nurses at its five UC medical centers and 10 student health clinics with better benefits than other UC employees. Howard Pripas, then UC’s executive director of labor relations, said nurses also wanted raises of between 10 percent and 19 percent for 2006 after receiving a 13.5 percent average increase in 2005. UC rejected the demands, noting that UC nurses had “low vacancy and turnover rates, a higher than market number of paid holidays and exceptional retirement benefits as compared to key competitors.”

This display of prudent management enraged Rose Ann DeMoro, then as now the executive director of the CNA. She pursued an extreme tactic: organizing a one-day walkout of nurses at all UC health facilities that would put at direct risk the health of thousands of very sick patients.

But after PERB agreed with UC officials that the walkout may be illegal, was contrary to the public interest and short-circuited the collective bargaining process, a Sacramento Superior Court judge issued a temporary restraining order blocking the planned July 21, 2005 job action.

DeMoro said nurses were “outraged that [UC] would go to court to block their democratic right to strike.”

Nurses vs. UC, round two

In 2010, it was back to hardball time. Once again, to gain leverage in a contract fight, the CNA planned a one-day strike by its now-12,000 union nurses at UC medical centers and clinics. Once again, UC stood up to DeMoro, issuing a statement saying that “patient safety should not be leveraged by CNA leadership as a negotiation tactic.” Once again, PERB and state courts sided with UC and blocked the walkout on the grounds that it was an unlawful pressure tactic. PERB also held that the UC system could sue CNA for damages for threatening an unlawful strike.

But when union-allied Jerry Brown took over for Schwarzenegger in January 2011, the nurses’ union said, “Never again.”

On May 2, 2011, the governor appointed M. Suzanne Murphy as PERB’s general counsel. Murphy had served as the CNA’s general counsel in 2006 and 2007 after years working for a law firm and employee advocacy groups affiliated with labor interests. Brown also that day named Anita I. Martinez, a longtime PERB staffer who came to the agency after working for the Agricultural Labor Relations Board in Sacramento and the National Labor Relations Board in San Francisco, as chair of PERB’s governing board.

Attorney A. Eugene Huguenin was also named to PERB’s governing board. Huguenin had a 27-year history with the state’s most powerful union, serving as a consultant to the California Teachers Association from 1973 to 1979 and as CTA staff counsel from 1979 to 2000.

Soon after, when there were two vacancies on the five-member PERB governing board, Huguenin and Martinez formed a governing faction that worked with Murphy in changing PERB from being union-neutral to de facto union partner.

Meanwhile, Brown signed into law in October 2011 a bill that banned PERB from imposing penalties on public employee unions that pursued illegal strikes, immunizing unions from financial consequences for extreme tactics.

From union referee to union enforcer

In Feb. 2012, PERB’s radical change in course first became apparent when the agency for the first time in California history sought to pre-emptively keep a pending ballot measure — a June 2012 San Diego pension reform initiative — from going before voters. Murphy’s argument held that, because elected officials in San Diego were involved in drafting the measure, it amounted to an attempt to circumvent and thus violate union collective bargaining rights — even though the San Diego City Council declined to support the measure and it had been organized by private groups.

This argument, if upheld, arguably would set a precedent under which elected officials could never join in ballot petition campaigns to try to force changes in government policies, because such changes would have affected employees, and thus needed to be collectively bargained.

The unusual argument was eventually rejected, and San Diego voters approved the reform measure in June in a landslide. PERB nonetheless continues its all-out attempt to block the reform from taking effect.

In June 2012, the extent of PERB’s new radicalism was further confirmed when the legal arguments it had made as an intervening party in the case of Jane Doe, et al., vs. John Deasy, et al., finally came into focus. In the case, a group of parents of students in the Los Angeles Unified School District sued Superintendent John Deasy and others over the district’s failure to follow the Stull Act, a 1971 state law that among its many provisions required that teacher evaluations be based at least in part on student performance.

As I noted here last month, PERB argued that collective bargaining rights granted to teachers in 1975 by Brown during his first term as governor trumped the pre-existing state law, and that L.A. Unified had no authority to honor the 1971 state law without first having the issue be subject to collective bargaining.

Parents, butt out of PERB business

But PERB’s unusual arguments did not end there. PERB also asserted that it should have jurisdiction over the issue of Los Angeles’ schools’ compliance with the Stull Act, not the courts, because of its role as arbiter of collective bargaining.

In June, however, Los Angeles Superior Court Judge James C. Chalfant ruled that L.A. Unified had no choice but to honor state law for the simple reason that a collectively bargained agreement that violated state law was not a valid agreement.

But Chalfant also took subtle aim at PERB’s pretzel logic on the jurisdiction question. He noted that PERB had “acknowledged that petitioners” — the parents who sued L.A. Unified — “have no standing to appear at a PERB proceeding.”

In other words, PERB contended that parents who believed state laws involving teachers were being ignored couldn’t go to the courts to complain, because PERB had jurisdiction; but the parents couldn’t go to PERB either, because they weren’t among those eligible to bring a complaint.

So what could aggrieved parents do to force compliance with state law? Practically speaking, nothing but whine and hope someone listened and changed their mind.

Emasculating union obstacles

The parallels with the San Diego ballot measure argument are obvious. If elected officials can’t win policy changes because of union influence over governing bodies, can they use their influence and fundraising acumen to help ballot initiative campaigns to force such changes? Not if PERB gets its way.

So what could aggrieved lawmakers do to force change? Practically speaking, nothing but whine and hope someone listened and changed their mind.

This is the California that the radicals in charge of the state Public Employment Relations Board intend to create.

Thankfully, so far at least, their crusade is not going well.

“Up until the San Diego case, PERB had never lost an injunction case in court,” San Diego City Attorney Jan Goldsmith told me in an email. “Courts defer to quasi-judicial agencies and tend to grant their requests. In this case, PERB lost two injunction motions — one before and one after the election. They then lost their motion for reconsideration. That really is unheard of coming out of a supposed quasi-judicial agency.”

Goldsmith doesn’t believe Murphy, Huguenin or Martinez are likely to change their course. His hope is that Brown fills the two PERB governing board vacancies with responsible people not wedded to the daft idea that collective bargaining rights amount to the dominant principle in the California Constitution.

But would Brown do so, knowing it would cross Murphy’s and Huguenin’s former employers, the powerful unions he counts on in his push for higher taxes?

Maybe the Jerry Brown of myth would do it — the iconoclast with unconventional views and values. But not the Jerry Brown of 2012, who acts as the tax collector for the public employee state.

The courts are protecting us — so far

Yet as long as Superior Court judges keep properly interpreting clearly written state laws and long-established judicial precedents, perhaps Brown’s complicity with the union takeover of PERB won’t matter much.

No man is above the law. So long as state courts continue to hold that collective bargaining is not above state law, ultimately we could be safe from PERB’s perverse crusade.

In one final twist, as it turned out, the California Nurses Association didn’t need new leadership at PERB to allow lethal strikes at UC medical facilities to get its way in contract negotiations. In May 2011, the same month as the PERB shake-up, Brown’s administration and the University of California agreed to give union nurses at UC medical centers and student clinics a minimum 11 percent raise over 26 months. The deal also limited future increases in what nurses pay for their own health coverage and dropped various concessions that UC had initially sought.

CNA boss DeMoro’s triumph was finally realized, thanks to a man she declared in 2009 to be “the most sophisticated politician in the state.”

“Sophisticated” isn’t the word most taxpayers would use to describe Jerry Brown’s CNA giveaway and his stacking of PERB. Instead, a long list of harsh adjectives comes to mind — the mildest of which is heinous.

Reed is an editorial writer for the U-T San Diego newspaper. He can be reached at: [email protected]

24 comments

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  1. Hondo
    Hondo 19 September, 2012, 09:23

    The last time I saw Cuckoo’s nest I began to empathize more and more with nurse Ratched. I found that Nicholson to be a drunken drug addict and Nurse Ratched looked a little sexy to me towards the end.
    Am I getting weird in my old age or what.
    But back to earth.
    No nurses or cops or firemen should be able to strike. It is extortion plain and simple. They are simply saying ” Give us your money or we let you die”.
    Hondo….

    Reply this comment
  2. Queeg
    Queeg 19 September, 2012, 09:39

    Ok. Give em poor wages and they starve to death……this is survival…once the Globalists rip nurses…..you will have a third world pandemic unfold before your greedy paws”

    Reply this comment
  3. Tax Target
    Tax Target 19 September, 2012, 10:07

    Queeg – poor wages and starve to death???… oh give me a break. The only greedy paws here are the unions. I’ve worked in some of the state organizations referenced above. I know what the benefits and compensation packages are. Apparently, you are not informed. I suggest you get your facts straight before spewing the party line.

    Reply this comment
  4. Douglas
    Douglas 19 September, 2012, 10:41

    ” retroactive 50 percent increase in the pension formula for state employees”

    is bogus and demogogic.

    There is a (very) small subset of workers who went from 2% @ 50 to 3% @50. (Safety workers)

    In order to realize the fifty percent, a safety worker would need to retire AT age 50.

    Under the old formula, a 25 year employee retiring at 50 would receive 50% of final salary.

    under the new formula, the same employee would receive 75%. 50% increase

    under the old formula, a 30 year employee would receive 60%.

    under the new formula, a 30 year employee would receive 90%.

    A GENUINE FIFTY PERCENT INCREASE !!!

    The snag is, fewer than 1% of safety employees retire at fifty. The average age of retirement is fifty seven, as most safety employees begin their careers in their mid to late twenties.

    Under the old formula, a worker retiring at 57 with 33 years service would receive 90% of final salary.

    Under the new formula, a worker retiring at 57 with 33 years service would receive 90% of final salary.

    A GENUINE ZERO PERCENT INCREASE !!!

    As a miscellaneous employee, I retired at 63 with 37 years service. The “retroactive giveaway” increased my pension by less than four percent, an amount which was more than offset by the lack of any COLAs since 2007.

    Reply this comment
  5. Rex the Wonder Dog!
    Rex the Wonder Dog! 19 September, 2012, 11:15

    ” retroactive 50 percent increase in the pension formula for state employees”
    is bogus and demogogic.

    You’re bogus…. Look up SB 400.

    There is a (very) small subset of workers who went from 2% @ 50 to 3% @50. (Safety workers)
    Wrong again, there are 19 public safety classifications that receive [email protected], including milk inspectors, lifeguards and probation officers.

    In order to realize the fifty percent, a safety worker would need to retire AT age 50.
    Wow, you are pretty bright-I gues that is why they called it [email protected], who would have guessed 😉

    Under the old formula, a 25 year employee retiring at 50 would receive 50% of final salary.
    under the new formula, the same employee would receive 75%. 50% increase
    under the old formula, a 30 year employee would receive 60%.
    under the new formula, a 30 year employee would receive 90%.
    A GENUINE FIFTY PERCENT INCREASE !!!

    Again, you powers of perception amaze us all 😉

    The snag is, fewer than 1% of safety employees retire at fifty. The average age of retirement is fifty seven, as most safety employees begin their careers in their mid to late twenties.
    ANY GED cop or firehwiner CAn retire at age 50, it is entirely up to them, and they can get the full 90% at age 50 because they can be hire don at age 20.5

    Under the old formula, a worker retiring at 57 with 33 years service would receive 90% of final salary.
    Under the new formula, a worker retiring at 57 with 33 years service would receive 90% of final salary.

    Wrong … a 57 year old would NOT work until age 57 if they had 33 years in, they would work to age 54 and retire at age 54 with 30 years in and 90%. …
    A GENUINE ZERO PERCENT INCREASE !!!

    As a miscellaneous employee, I retired at 63 with 37 years service. The “retroactive giveaway” increased my pension by less than four percent, an amount which was more than offset by the lack of any COLAs since 2007.
    Gov employees wqere receiving COLA’s of between 3%-9% per eyar all trhough the 2000’s, stop spinning.

    Editor’s note: I cut out some epithets in the post because we are keeping this site civil. But the rest of the content seemed worthy to post.

    Reply this comment
  6. Queeg
    Queeg 19 September, 2012, 11:18

    Tax…have the Koolaid for lunch……Globalists got to you…..what will your personal future be with the Huns at your gates…..you’ll beg foregiveness, but it will be too too late!!!!

    People want a good standard of living…you want them swilling gruel.

    Reply this comment
  7. Douglas
    Douglas 19 September, 2012, 12:51

    Please, Rex.

    A very small subset means very few actually retire at 50. Whether there are 19 or 90 classifications.

    Yes, they CAN retire at 50 if they “hire don” at age 20.5, but very few hire on at twenty and a half. Average age at the CHP academy is mid to late twenties.

    In 2007, my contract specified a COLA equal to the CPI. Before that, some years there was NO increase, and when there was an increase, it was always less than CPI.

    After 2007, there were NO increases until 2012, by which time I was gone.

    There were some sizable increases for CHP and some engineers, because DPA determined they were far behind equivalent local government and private sector scales and there were recruitment and retention problems.

    At any rate, “50 percent increase” is highly misleading. At best, it should be “as much as” a fifty percent increase.

    Reply this comment
  8. Queeg
    Queeg 19 September, 2012, 13:51

    Arguing with him is useless. Shun him.

    Reply this comment
  9. Douglas
    Douglas 19 September, 2012, 14:34

    Originally my argument was with Chris. How many times have I seen ” a fifty percent increase in pensions” or “state workers can retire at 50 with full pensions” or “retire with over $100,000 a year for life” without the caveat that these are ALL an extreme minority.

    Irresponsible statements like these are the reason the dog thinks the way he does. It’s Pavlovian, perhaps.

    Reply this comment
  10. Queeg
    Queeg 19 September, 2012, 14:45

    Use judgement……shun him

    Reply this comment
  11. Rex the Wonder Dog!
    Rex the Wonder Dog! 19 September, 2012, 15:24

    Editor’s note: I cut out some epithets in the post because we are keeping this site civil. But the rest of the content seemed worthy to post.
    John, please! I was civil!!! You don’t want to see me uncivil 😉

    Reply this comment
  12. Rex the Wonder Dog!
    Rex the Wonder Dog! 19 September, 2012, 15:29

    Originally my argument was with Chris. How many times have I seen ” a fifty percent increase in pensions” or “state workers can retire at 50 with full pensions” or “retire with over $100,000 a year for life” without the caveat that these are ALL an extreme minority.
    All public safety, incluidng those dangerous milk inspector and life guard jobs, CAN reitre at age 50, with 90% of highest years pay if they have in 30 years, which is very possible (and the MAJORITY of those pensions are $100K – $300K+).

    Once again, I know math is not the strong point of a GED edcuated troughie, but sb 400, aka [email protected], raised pensions by 50%.

    Reply this comment
  13. Rex the Wonder Dog!
    Rex the Wonder Dog! 19 September, 2012, 15:31

    Yes, they CAN retire at 50 if they “hire don” at age 20.5, but very few hire on at twenty and a half. Average age at the CHP academy is mid to late twenties.

    So what. So what is if the “average” age at hire is twenties, they CAN STILL RETIRE at age 50 even if they hired on at age 45, what part of that do you not understand?????????

    Reply this comment
  14. Rex the Wonder Dog!
    Rex the Wonder Dog! 19 September, 2012, 15:36

    here were some sizable increases for CHP and some engineers, because DPA determined they were far behind equivalent local government and private sector scales and there were recruitment and retention problems.

    There has NEVER been a recuitment or retention problem with CHP or any other GED gov job that comps $200K per year, ever. That is true going back 50 years. CHP did not get their comp raised to $200k b/c the “private” sector paid less, there is NO JOB in the private sector that pays a $200K in comp and for a GED job, there never has been, ever. The closest to a $200K GED gov job like CHP was a UAW job 25 years ago-those are long gone buddy, and that is one company out of 150K companies in the USA.
    You can put your SEIU slogans back i the bag now.

    Reply this comment
  15. Queeg
    Queeg 19 September, 2012, 15:44

    Looks like the Beezeee death spiral has finally commenced!

    Reply this comment
  16. Douglas
    Douglas 19 September, 2012, 15:52

    Shun him.

    Reply this comment
  17. Queeg
    Queeg 19 September, 2012, 15:55

    Douglas keeps you balanced!

    Reply this comment
  18. Rex the Wonder Dog!
    Rex the Wonder Dog! 19 September, 2012, 18:19

    LOL..I knew dougie would folds like a cheap laundry.
    BAM!!!!!!!!!!!!!!! I declare vicotry (again). 😉

    Reply this comment
  19. Douglas
    Douglas 19 September, 2012, 18:22

    Vicotry is yours!

    Douglas keeps you balanced!

    Reply this comment
  20. Queeg
    Queeg 19 September, 2012, 18:33

    Shun him

    Reply this comment
  21. Rex the Wonder Dog!
    Rex the Wonder Dog! 19 September, 2012, 23:28

    The truth shall set you FREE 🙂

    Reply this comment
  22. Rex the Wonder Dog!
    Rex the Wonder Dog! 20 September, 2012, 09:53

    Hey, where did you clowns go???? Im just getting started!~

    Reply this comment
  23. Jan Goldsmith
    Jan Goldsmith 20 September, 2012, 12:23

    This is an outstanding article about a story that needs to be told. When an activist lawyer gets ahold of administrative power at a quasi-judicial agency our constitutional rights are at risk. Murphy will not back down from her crusade. She is a true believer. Our state legislators need to focus on this dangerous lawyer.

    Reply this comment
  24. Tough Love
    Tough Love 21 September, 2012, 10:42

    Quoting …”Meanwhile, Brown signed into law in October 2011 a bill that banned PERB from imposing penalties on public employee unions that pursued illegal strikes, immunizing unions from financial consequences for extreme tactics.”

    If true, Gov. Brown is quite the slug.

    Reply this comment

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