A bus driver discharged by a public transit agency has no absolute due process right to an arbitration challenging that discharge, the California Court of Appeal ruled.  The bus driver, fired for his alleged misconduct in an altercation with a security guard, was subject to a Memorandum of Understanding ("MOU") that permitted him to file a grievance and process it through two preliminary steps short of arbitration.  The MOU called for the union to determine in accordance with its bylaws which cases would be arbitrated.  The union declined to arbitrate his case, and the transit agency refused to conduct an arbitration because it would violate the MOU to do so without the union's participation. 

The Court found that the bus driver's constitutional right to due process -- of notice and an opportunity to be heard in the event of a discharge -- were met by the MOU, as long as the union fulfilled its duty of fair representation in determining whether to arbitrate his case.  While the court recognized that the union could not lawfully waive the driver's due process rights, it held that the MOU's procedure satisfied those rights, even though it did not guarantee the right to arbitrate.

Jones v. Omnitrans, 2004 DJDAR 15262 (4th DCA December 23, 2004)

A public hospital employee in Texas who violated his employer's "no-adornment" policy by wearing a "Union Yes" button during an organizing campaign was protected from discipline by the First Amendment, a federal Court of Appeals ruled in a 2-1 decision.  The employee, working as a carpenter for the hospital, became a volunteer organizer.  He and other employees decided to wear "Union Yes" lapel buttons in knowing violation of the hospital's policy.  The employee refused his superior's request that he remove the button, telling him "I'm not going to take it off.  If you want it off, then you take it off."  The hospital suspended the carpenter for three days for his refusal, and as a consequence of that disciplinary blemish on his record, he also received a smaller annual raise than he otherwise would have. 

The Court of Appeals upheld a ruling favoring the employee, noting that the "Union Yes" button conveyed a matter of public concern as is required to invoke First Amendment protection for public employees, but at the same time, the employee did not have substantial contact with the public to justify the hospital's imposition of the "no-adornment" requirement on him.  The Court upheld individual relief for the employee, attorneys' fees, and an injunction prohibiting the hospital from barring employees in similar positions as the plaintiff from wearing the "Union Yes" button.  It found the hospital's argument that the employee was punished solely for insubordination to be "contrived and disingenuous sophistry at best, and mendacious at worst." The dissenting appellate judge accepted the concept that the button communicated a message of public interest, but concluded that the hospital's policy to minimize disruption in the workplace outweighed the employee's interest.

CWA v. Ector County Hospital District, 2004 WL 2730105 (5th Cir. December 1, 2004).

Non-teaching substitute employees of the Orange County Community College District who work seventy-five percent of the school year or more are entitled to classified status under the Education Code, and therefore full-time employees' benefits.  The California Court of Appeal rejected the district's hyper-technical reading of the Education Code that would have denied substitute employees that status, while ruling that the language, punctuation and legislative history of the statute all supported its conclusion in support of California's policy that substitute employees working 75 percent or more of the year should be afforded the same treatment as full‑timers.  Otherwise, a district could circumvent its duty to provide health and other benefits provided to permanent employees with respect to employees who nonetheless are expected to commit to the service of the district.

CSEA v. Governing Board of the South Orange County Community College District, 2004 DJDAR 14700 (4th DCA December 10, 2004)

Where a six-year County employee classified as a "temporary" worker had repeatedly worked in excess of 1,000 hours annually, worked for over six years in her position, passed civil service exams for a permanent position several times, received positive performance reviews, but had been passed over by management for a permanent slot, she had attained "de facto" permanent status and thus could not be fired without due process.  The Ninth Circuit Court of Appeals held that the County violated the civil rights of the nominal "temporary" employee by summarily terminating her, because she had effectively done all she could do to be considered "qualified" for her position, and all that was legally required in California was that it be "permissible" to satisfy probation requirements and hire her on a permanent basis.  The court was careful to note that the issue of "qualification" was all that was in dispute before it.   Since the County had terminated the employee without any notice or hearing, the Court declared that her due process rights had been violated.

Where a public agency and a union bargain for a dispute resolution process in their Memorandum of Understanding ("MOU") that includes decision making by a neutral that is described as "final and binding," yet provides for appeal of the neutral’s decision through a writ of mandamus in court, that process is not considered "arbitration" under the California Code of Civil Procedure ("CCP"), and therefore cannot be compelled through invocation of the procedures of that law.

The agency and union in the case had agreed to essentially inconsistent provisions wherein a neutral would reach a "final and binding" decision in a dispute, but also authorized an "appeal" of that decision by mandamus in state court.  When the union demanded arbitration of a dispute over employee layoffs, the agency declined on various grounds, including timeliness of the grievance.  The union petitioned the superior court for an order compelling arbitration, and lost both in that court and on appeal to the Court of Appeal.  The appellate court declared that one of the defining elements of "arbitration" that may be compelled through use of the CCP is that it be "final and binding," and concluded that even though the MOU said it was, since the parties had also agreed that the neutral’s decision could be appealed to court, in reality the parties’ procedure did not qualify.  The Court of Appeal not only rejected the union’s petition to compel arbitration, but awarded the agency its attorneys' fees.

AFSCME v. Metropolitan Water District of Southern California, 2005 DJDAR 1280 (2nd DCA January 31, 2005)