PROBATION ASSOCIATION WINS ULP CLAIM OVER COUNTY'S FAILURE TO MEET AND CONFER ON OFF-DUTY EMPLOYMENT AT STATE FAIR
By Will M. Yamada

In a case unprecedented for the Sacramento County Probation Association, the Public Employment Relations Board issued a complaint against the Sacramento County Probation Department for committing an unfair labor practice involving probation officers working at the California Exposition and State Fair. The Association obtained a favorable remedy for the affected officers in settlement negotiations before the Board.

Deputy probation officers have been employed off-duty at the California Exposition and State Fair since the 1980s, as have many other Sacramento area law enforcement personnel. The dispute with the County arose when, just two days before the State Fair was to begin this year, a county attorney issued an opinion at the Probation Department’s request that the statute allowing peace officers to work at the Fair as “marshals and police” did not apply to deputy probation officers.

Department Forces Officers to Cancel Work

Relying in error on the opinion by County Counsel, Probation Department administrators put out the word the officers scheduled to work off-duty at the Fair would do so at their own risk. The Department had previously approved the officers' requests for time off to work off-duty at the Fair. The officers had made commitments to the State Fair Chief of Police, Robert Craft, to provide gang interdiction services throughout the 20-day run of the Fair. After the Department changed its policy, however, all but one of the officers canceled the pre-approved commitment rather than risk disciplinary consequences.

The Department's action disrupted the officers' schedules, interfered with their opportunity to earn additional income, and caused serious scheduling and operational problems for Chief Craft. The Sacramento Bee newspaper and other media criticized the County and Department for compromising Fair security just 24 hours before the Fair was to begin.

Department Failed to "Meet and Confer"

Before this abrupt change in policy, the County and the Probation Department failed to notify the Association the officers would be prohibited from working the fair. The Meyers-Milias-Brown Act (MMBA), a state statute, requires public employers to "meet and confer" with employee associations over changes in the terms and conditions of employment. The Department also violated a Government Code section providing that off-duty employment cannot be denied without an opportunity for the officer to appeal.

When Association President Bill Harper and his Vice-President, Patti McGowan, learned from the officers that the Department was prohibiting off-duty work at the Fair, they demanded an immediate meeting with the Chief Probation Officer and his staff. At the meeting, Department representatives acknowledged failing to meet and confer, but refused to withdraw the prohibition against working at the Fair. Instead, President Harper was presented with a waiver the probation officers would be required to sign if they insisted on working at the State Fair. The waiver required the officers to indemnify the Department and County of Sacramento for any liability arising out of their work at the State Fair.

Once the Association objected through its chief counsel, partner Christopher Miller, to the Department’s tactics, the County withdrew the waiver and denied any intent to prevent probation officers from working at the Fair. Chief Craft prepared to welcome the officers back to work the remaining days of the Fair. The Department did not communicate to the officers, however, that they were now approved to work the Fair, and only one officer returned to the fairgrounds.

SCPA Obtains PERB Complaint

On the Association’s behalf, I filed a complaint with the Public Employment Relations Board (PERB) over the failure to meet and confer. The complaint sought money damages for the officers who had been told not to work at the Fair as well as an order the County meet and confer in future situations.

After day-long settlement negotiations involving PERB staff, the Association and the County reached an agreement favorable to the affected officers. The Association withdrew the complaint.

SCPA to Seek State Fair Legislation

Food & Agriculture Code section 3332(j) allows the Board of the California Exposition and State Fair to employ POST-certified peace officers, but makes no mention of deputy probation officers. While working at the Fair in years past, those officers had been working as "State Fair probation officers" not specifically regulated by the statute. Under the statute, the Board of the Fair has independent authority to contract for services, including the services of off-duty probation officers to provide gang interdiction, identification and control.

The SCPA now will seek legislation amending the Food & Agriculture Code to clarify the authority of the California Exposition and State Fair Board to use deputy probation officers at the Fair. The amended statute will serve to memorialize a battle hard-fought and aggressively won by the Sacramento County Probation Association on behalf of its members.

Will M. Yamada represented the Sacramento County Probation Association before the Public Employment Relations Board in this case. Mr. Yamada is a former union organizer and was a law clerk at the National Labor Relations Board and the California Teachers Association before joining Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer as a labor attorney.