California's Forced Time Off Plan

OK, sounds good right?  As a money-saving measure, the CA state government is closing some offices a day or two a month and making the employees go unpaid for those days.  They’re calling it Furlough Friday or something catchy like that.  Remember now, it will be important later; CA’s state employees are unionized.

I searched high and low, though admittedly my Google skills aren’t the best, to find any record of the Swartznegger Administration having reached agreement with the unions to have those employees go unpaid for those days.  If somebody knows of one, please post a citation here and set me straight.  CA has a bazillion unions and a bazillion separate agreements, but the ones I could readily find all have a guaranteed workweek.  So, if there isn’t an explicit agreement with the union(s) to not work and get paid on those days, the CA government is violating its labor agreement(s) by furloughing those employees and not paying them.

Here’s what’s going to happen: some unions will demand bargaining about it and/or file unfair labor practice complaints alleging an unbargained unilateral change in the mandatory bargaining subjects of wages and hours.  It is a per se unfair labor practice, but the labor board may take the traditional NLRB line of deferring to the contractual grievance and arbitration process.  Other unions will go directly to the grievance route and proceed to arbitration.

When the matter proceeds to arbitration, all the union has to do is demonstrate that the agreement sets out a guaranteed work week and that its members were ready, willing, and able to work but the employer would not allow them to work.  The State of California will claim that it has no money to pay them.  The arbitrator will say the State should have thought about that possibility before it guaranteed the employees work or pay and rule for the union. 

So, today, it looks like the Governor is doing something decisive to both take on the unions and save money and it looks good on TV – there’s a laudatory story on Fox this AM, which is what brought this to mind.  A few months from now when nobody is looking, an arbitrator will rule in the union(s)’s favor and order back pay and maybe even penalties and interest to all the employees.  It will all be wrapped up in a settlement or judgement bill and funded by the Legislature when nobody is looking.

The Legislature could refuse to fund it and there’s really not much that the unions could do about that legally.  However, since the CA Legislature is a wholly owned subsidiary of the public employee unions, they won’t do that and will instead use it as an opportunity to do press releases about how stupid the Republican Governor was for letting this happen.