PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION – In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts
Single Topic for Decision 2423M
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102.01000 – In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts
PERB has exclusive jurisdiction over activities arguably protected or prohibited by EERA and MMBA. The Public Defender’s denial of employees’ request for union representation, its attempts to restrict the Association’s ability to designate representatives for its bargaining unit members, and its threats of discipline against employees who requested union representation at investigatory meetings, all fall within the “arguably prohibited” prong of the San Jose test. Employees’ requests for union representation at investigatory interviews and the Association’s designation of representatives for such interviews are rights arguably protected by the MMBA. Moreover, PERB has initial exclusive jurisdiction to determine whether alleged conduct such as refusing to provide information relevant to the Association’s representation duties and unilaterally changing policies within the scope of bargaining violates the duty to bargain in good faith. While the Board does not presume to rule on the scope of the Rules of Professional Conduct, the Business and Professions Code or other regulations concerning the practice of law, neither will the fact that attorneys have obligations under those rules defeat PERB’s jurisdiction to resolve alleged violations of the statutes which PERB administers, including the MMBA. PERB’s assertion of jurisdiction does not interfere with the ability of the Supreme Court of California or the State Bar of California to regulate the practice of law under the State Bar Act (Bus. & Prof. Code, § 6000 et seq.), the Rules of Professional Conduct or the California Rules of Court, because resolution of this dispute does not regulate the practice of law. Under the constitutional doctrine of separation of powers, the courts have inherent and primary regulatory power over the practice of law. PERB has no power to regulate the practice of law.