OFFICE OF THE DISTRICT ATTORNEY CLARK COUNTY, NEVADA CIVIL DIVISION STEVEN B. WOLFSON CHRISTOPHER LALLI District Attomey Assistant District Attorney ROBERT DASKAS Assistant District Atorney MARY ANNE MILLER Couny Counsel MEMORANDUM TO: — Donald G. Bumette, County Manager FROM: Mary-Anne Miller, County DATE: June 8, 2015 SUBJECT; Senate Bill 241 of the 2015 Nevada Legislature : You have inquired as to the proper application of Senate Bill 241 (2015 Nevada Legislature, effective June 1, agreements with 2015), to the SELU’s and IUEC’s bargaining units, whose collective bargaining the County have expired, Section 1.3 of SB 241 prohibits, upon the expiration ofa collective bargaining agreement, a local government employer from paying an employee any compensation or agreement. ‘monetary benefit greater than the amount in elfect at the expiration of the Preliminarily, it should be noted that the SEIU’s expired contract contains a savings clause, recognizing the potential for changes in Nevada’s collective bargaining laws: “If there is any change in federal law or the NRS that would invalidate or supplement any provision reel 10 of this Agreement, excluding changes in NRS Chapter 288, the parties will .egotiate any change in the Agreement relative to the affected provisions only. In the event NRS Chapter 288 is amended, the County and Union, through a committee ‘of not more than five (5) representatives each, will meet within thirty (30) days of such. passage (o informally discuss the ramifications, if any, on the current negotiated agreement,” (emphasis added). Based on the above language, there is no duty to negotiate with SEIU on this issue because the change in law oc curs in NRS Chapter 288, and the duty to meet informally applies only to current agreements. PAMILLERMIAR & DIVERSITY! memo dotsbDonald G. Burnette, County Manager June 8, 2015 Page 2 Re: SB 241 ‘The collective bargaining agreements also have a term provision for the event of contract expiration, The SEIU’s most recent contract, for example, provides thet the agreement “shall be in effect until the iast day of June, 2013 and shall continue from year to year thereafter unless the County and the Union agree to change, amend, modify or terminate this Agreement pursuant to the provisions of NRS Chapter 288.” A renewal on a year-to-year basis under this provision only operates in the event that both parties to the agreement do not wish to modify it or negotiate a new agreement. In 2013, however, the SEIU timely indicated its intent to negotiate a new agreement. To that end, the parties negotiated an interim two percent cost of living, and the document supporting the change and presented to the Board of County Commissioners is entitled an “Interim Agreement,” - not merely a change to a current agreement, Other items for a full contract remain outstanding, as the parties are scheduled to go into NRS 288 factfinding soon, also evidencing an intent that the 2012-2013 agreement not automatically renew. Nothing in the parties’ process agreement, dated May 4, 2015, mentions an automatic renewal of the previous agreement, but rather directs the factfinder to put unchanged and T.A’d provisions in the new agreement. It may be the case that the clause at issue is invalid, even if activated, to justify compensation increases. The cost of any automatic compensation increases in the event of the expiration of the CBA was not included in the mandatory notice and approval process required under NRS 288.153 conducted on February 7, 2012, and cannot therefore be construed as approved by the Board of County Commissioners Clauses such as these that attempt to continue the status quo during contract negotiations after the expiration of a collective bargaining agreement are often referred to as “evergreen clauses,” and purport to bind management to the terms of an expired agreement until a new agreement is reached. This theory originated in the federal courts, and is, based on public policy reasons, Maintaining the status quo is considered a necessary balance of power between an employer and the bargaining unit. Status quo does not necessarily mean increases, however. In the absence of appropriate authority, evergreen clauses or statutes that attempt to impose unbargained for and unapproved increases have been held to be invalid. In the case of City of Tulsa v. Public Employees Relations Board, 845 P.2d 872 (Okla, 1990), the Court held that a constitutional provision required governing body approval of any increases and superseded any statutory or public policy requirement to continue merit increases provided for in an expired contract, A similar result occurred in Appeal of Milton School District, 625 A.24 1056 (NHL. 1993), where the court concluded that an automatic renewal clause was effective to ; enforce lunch duty provisions but not cost items in a contract like step increases. The Millon court noted that some courts have reached a different result based on a different definition of “status quo” (static versus dynamic), but that the static approach best maintained the balance of powers during negotiations. Ttdoes not appear that Nevada Supreme Court has weighed in on the issue of evergreen clauses, : but SB 241 clearly reflects a legislative policy to limit the application of such clauses to the static status quo, To the extent that SB 241 can be said to, by implication, validate evergreen clauses, it stops short of approving any increases in compensation that would take effect after the termination date of a collective bargaining agreement.Donald G. Burnette, County Manager June 8, 2015 Page 3 Re: SB 241 Because the parties made clear their intent not to have the expiring contract rollover, and following the public policy and legislative intent inherent in SB 241, changes in the rate of employee compensation need not be implemented after the effective date of SB 241. Asan example, merit step increases and the rate of longevity may be frozen at the rate in existence al the expiration date of the contract, or at least the effective date of SB 241, or as soon thereafter as the change reasonably may be implemented. Increases in leave accrual rates provided for in the agreement may be handled in the same fashion, Employees eligible for a change in compensation because the job duties have changed (e.g, promotion, acting pay) should be compensated for those changed duties. Similarly, employces ‘who have successfully completed a probationary period may be awarded the change in pay that corresponds to change to a permanent position. Call back and standby pay is also static in the contract and should continue to be paid per its terms. Care should exercised in implementing elective requests for premium pay such as bilingual pay, shift differential, additional certifications, ete., because their application within a job classification may constitute “compensation or monetary benefits in any amount greater than the amount in effect as of the expiration of the collective bargaining agreement” in violation of Section 1.3 of SB 241, MAM:ab_