PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES – Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession
Single Topic for Decision 2388M
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101.02000 – Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession
We construe MMBA section 3509(e) to reserve to the courts questions arising in actions involving interest arbitration, as governed by Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure, when the action involves an employee organization that represents firefighters, as defined in Section 3251, MMBA section 3509(e) denies PERB jurisdiction over “actions” to enforce an existing interest arbitration procedure, including questions regarding the extent or scope of the parties’ arbitration obligations. The adoption of rules and regulations concerning either interest arbitration or mediation or both, falls squarely within the public agency’s duty, established by MMBA section 3507, to consult in good faith. Absent a factual predicate implicating MMBA section 3509(e), viz., an “action” pursuant to Code of Civil Procedure 1280 et seq., PERB retains exclusive initial jurisdiction to construe and enforce a public agency’s duty under MMBA section 3507 to consult in good faith, even where, as here, the local rule proposed for adoption or modification by the public agency concerns interest arbitration and even where, as here, the recognized employee organization seeking to enforce its MMBA consultation rights represents firefighters. In MMBA section 3509(b), the Legislature has conferred on PERB exclusive initial jurisdiction over allegations that a public agency, including without limitation a charter city, has failed or refused to consult in good faith pursuant to section 3507, prior to taking direct action on the matter or to acting indirectly by submitting a ballot measure to its voters. In 1975, the Legislature enacted the Educational Employment Relations Act (EERA), thereby creating and vesting EERB (PERB’s precursor) with broad jurisdiction and remedial authority. EERA section 3541.3 provides, in pertinent part: The board shall have all of the following powers and duties: (i) To investigate unfair practice charges or alleged violations of this chapter, and take any action and make any determinations in respect of these charges or alleged violations as the board deems necessary to effectuate the policies of this chapter . . . (j) To bring an action in a court of competent jurisdiction to enforce any of its orders, decisions, or rulings. . . (n) To take any other action as the board deems necessary to discharge its powers and duties and otherwise to effectuate the purposes of this chapter. EERA section 3541.5 provides, in pertinent part: Procedures for investigating, hearing, and deciding these cases shall be devised and promulgated by the Board and shall include all of the following: The Board shall have the power to issue a decision and order directing an offending party to cease and desist from the unfair practice and to take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as will effectuate the policies of this chapter. Regarding PERB’s authority and competence to adjudicate in the first instance an issue implicating the extent of its own jurisdiction vis-à-vis that of a charter city, the appellate court observed: “We agree with the trial court that the issues presented in this case–especially the extent to which local regulation of employment matters as prescribed by the [City and County of San Francisco] charter might be superseded by matters of statewide concern as set out in the EERA–is a matter properly decided, in the first instance, by PERB.” (Local 21, International Federation of Professional and Technical Engineers, AFL-CIO v. Thornton C. Bunch, Jr. (1995) 40 Cal.App.4th 670, 676.) Five years after the court’s decision in Local 21, International Federation of Professional and Technical Engineers, AFL-CIO v. Thornton C. Bunch, Jr. (1995) 40 Cal.App.4th 670, the Legislature vested in PERB jurisdiction and remedial authority over the MMBA. As the Legislature wrote in MMBA section 3509: “The powers and duties of the board described in Section 3541.3 shall also apply, as appropriate, to this chapter and shall include the authority as set forth in subdivisions (b) and (c). . . . The initial determination as to whether the charge of unfair practice is justified and, if so, the appropriate remedy necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of the board.” The Legislature thus accorded PERB authority to determine in the first instance whether local regulation of employment matters in a charter city is superseded by the MMBA’s policies of statewide concern and to prescribe the appropriate remedy. The extent to which local regulation of employment matters as prescribed by the charter might be superseded by matters of statewide concern as set out in the MMBA is a matter properly decided in the first instance, by PERB. Exercising this authority, we decide that our precedents compel the result we reach, viz., that in addition to cease and desist orders, affirmative relief is also appropriate, including an order directed to the City itself to rescind the City’s action of July 18, 2011, referring to voters of a measure to repeal Article V of the Charter, coupled with an order directed to the City itself to consult in good faith upon request. A preeminent element of the Legislature’s MMBA policy design for employer employee relations in public agencies is a public agency’s discretion, as provided in MMBA section 3507, to adopt its own rules and regulations for the administration of employer employee relations. In section 3507 the Legislature accorded to employees, through their organizations, a voice in designing their agency’s rules and regulations, mandating that prior to adopting its rules and regulations a public agency “consult in good faith” with employee organization representatives. The Legislature did not prescribe with particularity the consultation process mandated by MMBA section 3507. However, several courts of appeal have provided guidance, concluding that consultation under section 3507 is “indistinguishable” from meeting and conferring under section 3505. Relying on these decisions, we conclude that the consultation process mandated by section 3507 is very much like the meet and confer process described in section 3505. A public agency’s consultation obligations under MMBA section 3507 arise sufficiently in advance of the agency’s adoption of rules and regulations for the administration of employer employee relations, to permit completion of consultation discussions prior to such adoption. Pursuant to MMBA section 3507, a public agency must: (1) provide reasonable written notice to each employee organization affected by the rule or regulation proposed for adoption or modification by the agency; and (2) afford each such organization a reasonable opportunity to meet and discuss the rule or regulation prior to the agency’s adoption. MMBA section 3507 imposes on a public agency and on recognized employee organizations, several mutual obligations in the conduct of consultation, which are to: (1) meet and confer regarding consultation subjects promptly upon the request by either party; (2) continue meeting and conferring for a reasonable period of time in order to exchange freely information, opinions and proposals; and (3) endeavor to reach an agreement.