2007-18

Fire Department’s Refusal To Assign Disabled Captain To His Desired Job Assignment Was Not An “Adverse Employment Action.”

 In Malais v. Los Angeles City Fire Dep’t, the California Court of Appeal affirmed the grant of summary judgment in favor of the Los Angeles Fire Department on claims for disability discrimination under the Fair Employment and Housing Act (“FEHA”) and adverse employment action in violation of public policy. The court held that the Department did not subject plaintiff Gregory Malais to an adverse employment action as a matter of law.

 Malais, a Captain II with the Department, lost his leg in a work-related accident in 2002. Initially, Malais returned to work in a light-duty capacity in April 2003. Six months later, he returned to his full-time Captain II status and was assigned to a “special duty” assignment.

 There are two position classes to which a Captain II may be assigned: “special duty” and “platoon duty.” Special duty involves a 40 hour workweek in a business office environment and some firefighting simulation. Platoon duty is performed at fire stations on a 24-hour day, with alternating days off. Both classes receive equal pay and provide equal promotional opportunities and opportunities for significant overtime pay.

 Malais consistently maintained that he was qualified for both assignments and wanted to be assigned exclusively to platoon duty, because he preferred firefighting, the platoon work schedule and the atmosphere of working as part of a team of firefighters. Malais also claimed that he earned more overtime when assigned to platoon duty.

 The Department refused to assign Malais to platoon duty because it believed there was an unacceptable risk to Malais, other firefighters, and the public from his working platoon duty with a prosthetic leg. Following his return to work, Malais was also promoted to the top of the Captain II range.

 Relying on Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028 (2005), the Court of Appeal concluded that the trial court properly found that Malais did not suffer an adverse employment action by being limited to special duty assignments. Although so limited, Malais continued to receive promotions after his injury. Moreover, Malais had equal opportunities for promotion to higher positions. Although Malais claimed that he earned less overtime in his special duty assignment, it was undisputed that special duty assignments included substantial overtime opportunities which Malais did not maximize because he did not enjoy the work as much as that involved in platoon duty. Moreover, there was no evidence that Malais suffered from a hostile work environment. Indeed, the only reason Malais was dissatisfied with special as opposed to platoon duty was that he preferred the work, schedule, and camaraderie of platoon duty to that of special duty, not that he suffered any adverse employment consequences from being limited to special duty. The court rejected the proposition that “assignment to a less-preferred position alone constitutes an adverse employment action.” (Italics in original.)

 Because Malais’ failure to establish an adverse employment action compelled summary judgment in favor of the Department, the court did not reach other issues raised by the parties. In particular, neither the Court of Appeal nor the trial court decided whether Malais was “otherwise qualified” to command a fire station due to his injury. Nor did the appellate court discuss Malais’ workers compensation action, in which the Workers Compensation Appeals Board (“WCAB”) “affirmed findings was not disabled, was fully capable of performing all Captain II duties, and was entitled to compensation not exceeding $10,250 for disability discrimination pursuant to Labor Code section 132, subdivision (a).” However, the court did reject Malais’ argument that the WCAB opinion has collateral estoppel effect, and quoted the Supreme Court’s statement in City of Moorpark v. Superior Court, 18 Cal. 4th 1143 (1998), that “the issues in a FEHA action are not identical to the issues in a claim of discrimination under [Labor Code] section 132a.”

YWCA Violated Federal Labor Law By Refusing To Sign Collective Bargaining Agreement And Withdrawing Recognition To Union, Despite Evidence That Union Had Lost Majority Support.

 In Young Women’s Christian Ass’n of Western Massachusetts, the National Labor Relations Board (“Board”) upheld the decision of an Administrative Law Judge (“ALJ”) that the YWCA violated the National Labor Relations Act (“NLRA” or “Act”) by refusing to execute an agreed-upon collective-bargaining agreement and withdrawing recognition from the union when it received evidence that the union had lost the support of the majority of bargaining-unit employees after the parties had reached a final agreement.

 The Board certified United Auto Workers Local 2322 in October 2003 after it won an election to represent YWCA service providers. After YWCA and the union bargained in excess of a year, YWCA verbally presented its final offer on April 5, 2005. The offer was ratified by the employees and accepted by the union. YWCA agreed to reduce the bargaining agreement to writing.

 A little more than a month later, before YWCA had completed the writing, it received cards signed by 53% of the unit, asserting that they no longer desired union representation. The cards bore dates ranging from before the final offer to after the union’s acceptance. No decertification petition was filed. YWCA informed the union that in light of the cards, it would not execute the bargaining agreement and would no longer recognize the union. The union brought an unfair labor practice charge.

 The ALJ found that YWCA violated Sections 8(a)(1) and (5) of the Act (prohibiting bargaining in bad faith) by refusing to execute the agreement and by withdrawing recognition. The ALJ found that the union was still the majority representative at the time it accepted YWCA’s final offer, thereby forming a binding agreement which created a conclusive presumption of the union’s majority support. YWCA could not rely on the union’s subsequent loss of support to justify recognition withdrawal.

 Before the Board, YWCA argued that it lawfully withdrew recognition from the union and refused to execute the contract because the union lost its majority status before the verbal agreement was reduced to writing and executed. YWCA contended that since a verbal agreement on terms and conditions of employment does not bar processing an employee decertification petition, such an agreement should not bar an employer from withdrawing recognition from a union if it loses majority support before an agreement’s execution.

 Relying on Auciello Iron Works v. NLRB, 517 U.S. 781 (1996), the Board majority rejected YWCA’s contention as “clearly contrary” to Board policy and precedent. In Auciello, the United States Supreme Court approved the Board’s policy that a union is entitled to a presumption of majority support during the term of a bargaining contract, up to three years. During that time, the employer may not withdraw recognition.

 The Board majority affirmed the ALJ’s findings that the union still had majority support at the time it accepted YWCA’s offer based on the ratification vote and that the acceptance formed a binding contract, barring any challenge to the union’s majority support.

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