PERB: OPERATION, JURISDICTION, AUTHORITY; STATUTORY AUTHORITY OF BOARD – Authority of Board In General; Validity and Application of Regulations (See also 102.01)

Single Topic for Decision 2318M

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Where, as here, the local rule that purports to establish the timing for the filing of a decertification petition is directly contrary to the MMBA, PERB has no choice but to replace the illegal rule with its own regulation on that subject. When the provision of the employer’s employment relations policy (ERP) that conflicts with MMBA section 3507 is excised, leaving the ERP with no regulation establishing a certification bar as required by MMBA section 3507 and no rule dictating when decertification petitions can be filed, PERB may substitute its Regulation 61200, Bar to Conducting Election, which contains both the contract bar and certification bar doctrine, as well as a filing “window period” if there is an MOU in effect with a term of three years or less. PERB’s “gap-filling” authority does not extend to revising or amending local rules, even if the local entity requests PERB to do so. Permitting amendment by PERB order would allow the employer to avoid its obligation under MMBA section 3507(a), an outcome contrary to law. The plain meaning of MMBA section 3509(a) vests PERB with the authority to “adopt rules to apply in areas where a public agency has no rule,” which does not include “filling the gap” with MMBA section 3507(b) instead of PERB’s regulations. To interpret a provision of a county employment relations policy to mean its opposite literal meaning goes beyond interpretation and into the realm of legislation by amending the policy, especially when a PERB Regulation exists which “fills the gap.”