An administrative law judge who ruled that Fresno County negotiated in bad faith when supervisors cut prosecutors' salaries in 2011 has ordered the county to provide back pay worth millions of dollars.
While the decision in favor of the prosecutors is costly -- the Fresno County Prosecutors' Association estimates it could cost the county $2 million or more -- the yet-to-be decided Service Employees International Union's complaint against Fresno County could be far more expensive. If Chief Administrative Law Judge Shawn P. Cloughesy determines SEIU's pay cuts were improperly imposed, a union official estimates the county could owe union members $100 million.
Supervisors voted in December 2011 to impose salary cuts on several employee bargaining units by 9% or more, whether or not they agreed to the reductions.
The county can appeal the judge's decision to the Public Employment Relations Board. It can also be appealed to a state appeal court, but only if the PERB is ruled to have misused its authority.
Galen Rutiaga, president of the prosecutors' association, which represents about 100 county lawyers, urged the county not to continue the legal battle. "Valuable taxpayer dollars were spent on an expensive legal battle and public safety has been compromised because highly experienced prosecutors have left the office," Rutiaga said. "The FCPA is hopeful the Board of Supervisors will fix the problem now rather than continue to waste public safety dollars on an appeal they will not win."
The county can negotiate with prosecutors before deciding to appeal, he said.
When the board imposed the pay cuts, the prosecutors' union was still negotiating with the county. They were not at impasse and their contract was not set to expire for two more months.
The majority of lawyers lost 9% of their pay and about 20 union members lost pay differentials, cutting their overall pay by about 11.5%, Rutiaga said.
The ruling reinstitutes all pay, including differentials.
In the ruling, Cloughesy said the prosecutors' association had a record of working cooperatively in negotiations, but the county "prematurely declared impasse."
Because of the county's action, the judge ruled that the two sides didn't have "a meaningful opportunity to exchange and consider one another's proposal and conclude that further meetings would be futile."
When those negotiations were prevented by the supervisors' approval of the cuts, it was "sufficiently egregious to frustrate negotiations and constitutes surface and bad-faith bargaining."
Cloughesy said prosecutors must be made whole for all wages lost from the December 2011 decision, plus 7% interest.
County officials did not comment on the ruling. Supervisors Debbie Poochigian, and Judy Case McNairy, who voted for the cuts, did not comment. Supervisor Phil Larson, who also approved the cuts, said he is awaiting instruction from county lawyers, but didn't comment further.
Board Chairman Andreas Borgeas, who was not a county supervisor when the cuts were imposed, said the decision's implementation is delayed 60 days "to encourage us to find common ground."
If the county decides to appeal, Borgeas said he is concerned about the full Public Employment Relations Board's record of siding with labor.
Supervisor Henry R. Perea, who also opposed the cuts, said the board has been told about the ruling and is assessing whether to settle or appeal.
"I am not surprised," said Perea. "It was pretty clear to me that we were vulnerable and creating future liability for the county ... the go-forward question is, do we try to minimize our financial risk or do we continue fighting?"
He is worried that county services could be hurt because of the ruling.
Even more worrisome, Perea said, is the possibility of the county losing a PERB ruling to the Service Employees International Union.
It may become harder to negotiate with SEIU's 4,500 employees as they learn more about the prosecutors' ruling, he said.
"Every day we wait that window closes," Perea said. "A decision like this emboldens employees to think that maybe it's worth waiting."
SEIU filed its PERB complaint about the same time as the prosecutors. SEIU Local 521 regional director, Tom Abshere, estimates that a similar result favoring his union could cost the county $100 million.
He said the union is negotiating with the county to get its pay cuts restored, and union members want the issues resolved without going through the legal process.
"We want to bring back the 9% in a reasonable manner that the county can clearly afford," he said, referring to the county's improving financial picture.
When the supervisors voted in 2011, Abshere said the union was voting on the county's final offer and the two sides were not at impasse.
"We made it clear we had further movement to make," he said.
At the time, county officials defended its wage reductions, saying the 2011 cuts took into consideration cuts that employees endured in previous years.
The union's vote on the offer was underway when the county imposed pay cuts.
County officials said the union appeared to be dragging its feet.
Beth Bandy, now director of personnel services and a county negotiator on the prosecutors and SEIU contracts, said at the time that "we did not believe they needed that much time and, in essence, they've rejected our proposal."
She declined comment for this story.
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