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].