Metropolitan News-Enterprise


Tuesday, March 18, 2003


Page 1


Appeals Court Rejects Bid by Deputy Public Defenders  In Riverside to Replace SEIU in Pay Parity Battle


By a MetNews Staff Writer


Deputy public defenders in Riverside County were not entitled to get their own bargaining unit without first decertifying their old unit, the Fourth District Court of Appeal ruled yesterday.

Reversing a writ of mandate issued by the Riverside Superior Court, the Court of Appeal said the Service Employees International Union remained the exclusive employee organization for the county’s public defense lawyers.

The deputy public defenders did not simply form their own unit, the court said, but instead sought a change of representation as part of their previous unit.

“The Deputy Public Defender Unit consists solely of employees who had been part of the Professional Unit and who had been represented by the exclusive representative of that unit,” Justice Art W. McKinster of Div. Two said. “Under that circumstance, the two products of the division succeed to the former, combined unit, and the representative of the former unit continues to represent those two products.”

The case stems from the effort by the county’s deputy public defenders to get pay parity with prosecutors. Parity has long been a touchy issue in most California counties, which employ both prosecutors and defense lawyers.

Getting boards of supervisors to raise pay for prosecutors is generally far easier politically than raising pay for defense lawyers. Prosecutors have as their chief advocate an elected district attorney, who carries at least as much political clout as the supervisors. Public defenders generally are hired by the board and report to them and must use considerably more finesse when pressing for better pay for their deputies.

In many counties the defense lawyers have successfully lobbied for parity with deputy district attorneys with comparable experience.

In Riverside County, the nonmanagerial deputy public defenders were represented by a unit of the SEIU known as the Professional Unit, distinct from the deputy district attorneys’ Prosecution Unit.

The SEIU negotiated a memorandum of understanding for 1997-2000 and sued the county to establish pay and benefits parity for deputy public defenders with deputy district attorneys. The county agreed to a settlement that required pay parity for the duration of the MOU.

When the SEIU negotiated a new MOU with the county for the following term, parity was left out.

Dissatisfied with the SEIU because of the parity issue, the deputy public defenders organized the Public Defenders Organization for employee relations purposes in July 2000. The group asked to be removed from the Professional Unit and applied to become a registered employee organization. Sixty-four deputy public defenders signed declarations that they were resigning from the SEIU.

Their purpose, they said, was to not be bound by the pending MOU.

The county agreed to create a new representation unit, but it did not become effective until September 2000, and the SEIU was to remain the employee organization representing the unit.

The three-year MOU between the SEIU and the county was signed and approved by the Board of Supervisors in August 2000 without any election being held for the Deputy Public Defender Unit.

The Public Defenders Organization petitioned the Riverside Superior Court for a writ of mandate to recognize it as the representative for the Deputy Public Defender Unit and hold an election to determine whether it would be the unit’s exclusive representative. The court found the county’s refusal to recognize the PDO as a majority employee organization and its failure to call an election violated the terms of the county’s Employee Relations Resolution.

But McKinster said the trial court erred because there was no decertification as spelled out in Sec. 11 of the resolution.

The PDO claimed Sec. 11 did not apply because the Deputy Public Defender Unit was a new group without an incumbent representative to decertify.

McKinster said the group was wrong, even if that meant being stuck with the new MOU for three years.

“A change in the composition of a unit does not necessarily imply a change in representation of that unit,” McKinster said. “One can easily imagine circumstances under which a group of employees or their representative organization might want to combine, divide, or otherwise modify bargaining units without changing the identity of the representative of those units. Thus, maintaining the same representative for the products of the division of the original unit is not inconsistent with the desire to divide that unit.”

Although the deputy public defenders wanted to implement both kinds of changes, he said, “our construction of the resolution must be consistent for all types of modifications, not simply ones in which the petitioning parties have an additional goal beyond division of the unit. Unless specified otherwise by the ERR, the division of one unit into two effects only those changes necessary to accomplish that division. Because the continuation of the same representation is not contrary to or necessarily implied by the division, a division does not effect a change of representation.”

The case is Public Defenders’ Organization v. County of Riverside, E031041.    


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